The relevant European (European Court of Human Rights, Court of Justice of the European Union) case-law can be accessed by clicking on each provision
Article 2: Scope
- This Directive applies to third-country nationals staying illegally on the territory of a Member State.
- Member States may decide not to apply this Directive to third-country nationals who: (a) are subject to a refusal of entry in accordance with Article 13 of the Schengen Borders Code, or who are apprehended or intercepted by the competent authorities in connection with the irregular crossing by land, sea or air of the external border of a Member State and who have not subsequently obtained an authorisation or a right to stay in that Member State; (b) are subject to return as a criminal law sanction or as a consequence of a criminal law sanction, according to national law, or who are the subject of extradition procedures.
- This Directive shall not apply to persons enjoying the Community right of free movement as defined in Article 2(5) of the Schengen Borders Code.
- C-297/12, Filev and Osmani, 19 September 2013, §§ 50-53 (Member States are entitled to restrict the scope of the persons covered, also at a later stage)
- C-534/11, Arslan, 30 May 2013, §§ 43-49 (Except when there is an application for international protection)
- C-329/11, Achughbabian, 6 December 2011, § 41 (The mere irregular entry or stay cannot justify the use of this derogation)
Article 3: Definition
For the purpose of this Directive the following definitions shall apply:
- ‘third-country national’ means any person who is not a citizen of the Union within the meaning of Article 17(1) of the Treaty and who is not a person enjoying the Community right of free movement, as defined in Article 2(5) of the Schengen Borders Code;
- ‘illegal stay’ means the presence on the territory of a Member State, of a third-country national who does not fulfil, or no longer fulfils the conditions of entry as set out in Article 5 of the Schengen Borders Code or other conditions for entry, stay or residence in that Member State;
- ‘return’ means the process of a third-country national going back — whether in voluntary compliance with an obligation to return, or enforced — to: — his or her country of origin, or — a country of transit in accordance with Community or bilateral readmission agreements or other arrangements, or — another third country, to which the third-country national concerned voluntarily decides to return and in which he or she will be accepted;
- ‘return decision’ means an administrative or judicial decision or act, stating or declaring the stay of a third-country national to be illegal and imposing or stating an obligation to return;
- ‘removal’ means the enforcement of the obligation to return, namely the physical transportation out of the Member State;
- ‘entry ban’ means an administrative or judicial decision or act prohibiting entry into and stay on the territory of the Member States for a specified period, accompanying a return decision;
- ‘risk of absconding’ means the existence of reasons in an individual case which are based on objective criteria defined by law to believe that a third-country national who is the subject of return procedures may abscond;
- ‘voluntary departure’ means compliance with the obligation to return within the time-limit fixed for that purpose in the return decision; 9. ‘vulnerable persons’ means minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence.
- C-562/12, Abdida, 18 December 2014, § 39 (An administrative act stating or declaring the stay of a TCN to be illegal and stating an obligation to return is a ‘return decision’)
- C-430/11, Sagor, 6 December 2012, § 39 (The definition ‘return decision’ does not preclude decisions imposing the obligation to return from being taken in the form of a criminal judgment and in the context of criminal proceedings)
Article 4: More favourable conditions
- This Directive shall be without prejudice to more favourable provisions of: (a) bilateral or multilateral agreements between the Community or the Community and its Member States and one or more third countries; (b) bilateral or multilateral agreements between one or more Member States and one or more third countries.
- This Directive shall be without prejudice to any provision which may be more favourable for the third-country national, laid down in the Community acquis relating to immigration and asylum.
- This Directive shall be without prejudice to the right of the Member States to adopt or maintain provisions that are more favourable to persons to whom it applies provided that such provisions are compatible with this Directive.
- With regard to third-country nationals excluded from the scope of this Directive in accordance with Article 2(2)(a), Member States shall: (a) ensure that their treatment and level of protection are no less favourable than as set out in Article 8(4) and (5) (limitations on use of coercive measures), Article 9(2)(a) (postponement of removal), Article 14(1) (b) and (d) (emergency health care and taking into account needs of vulnerable persons), and Articles 16 and 17 (detention conditions) and (b) respect the principle of non-refoulement.
- C-38/14, Zaizoune, 23 April 2015, § 36-41 (The power to adopt more favourable conditions must be compatible with the Directive, not jeopardise the achievement of its objectives or deprive it of its effectiveness)
- C-61/11 PPU, El Dridi, 28 April 2011, § 33 (Member States are not free to apply stricter standards in areas governed by the Directive)
Article 5: Non-refoulement, best interests of the child, family life and state of health
When implementing this Directive, Member States shall take due account of:
- the best interests of the child;
- family life;
- the state of health of the third-country national concerned, and respect the principle of non-refoulement.
- C-562/13, Abdida, 18 December 2014, § 49 (When the TCN suffers from a serious illness, his removal to a country in which appropriate treatment is not available may constitute, in certain cases, an infringement of Article 5 RD)
- C-249/13, Boudjlida, 11 December 2014, §§ 48-49 (When Member States implement the Directive, they must, first, take due account of a) b) c) and, second, respect the principle of non-refoulement)
- N. v. THE UNITED KINGDOM, Appl. 26565/05, 27 May 2008, §§ 42-44 (Expulsion of seriously-ill persons)
- SAADI v. ITALY, Appl. 37201/06, 28 February 2008, §127 (Principle of non-refoulement and absolute nature of prohibition of return to torture within the meaning of Article 3 ECHR)
- ANAYO v. GERMANY, Appl. 20578/07, 21 December 2010, § 65 (Children’s best interest is of paramount importance)
- BOULTIF v. SWITZERLAND, Appl. 54273/00, 02 August 2001, §§ 46-48 (Deportation of a person from a country where he or she enjoys family life may amount to a violation of Article 8 ECHR)
Article 6: Return decision
- Member States shall issue a return decision to any third country national staying illegally on their territory, without prejudice to the exceptions referred to in paragraphs 2 to 5.
- Third-country nationals staying illegally on the territory of a Member State and holding a valid residence permit or other authorisation offering a right to stay issued by another Member State shall be required to go to the territory of that other Member State immediately. In the event of non-compliance by the third-country national concerned with this requirement, or where the third-country national’s immediate departure is required for reasons of public policy or national security, paragraph 1 shall apply.
- Member States may refrain from issuing a return decision to a third-country national staying illegally on their territory if the third-country national concerned is taken back by another Member State under bilateral agreements or arrangements existing on the date of entry into force of this Directive. In such a case the Member State which has taken back the third-country national concerned shall apply paragraph 1.
- Member States may at any moment decide to grant an autonomous residence permit or other authorisation offering a right to stay for compassionate, humanitarian or other reasons to a third-country national staying illegally on their territory. In that event no return decision shall be issued. Where a return decision has already been issued, it shall be withdrawn or suspended for the duration of validity of the residence permit or other authorisation offering a right to stay.
- If a third-country national staying illegally on the territory of a Member State is the subject of a pending procedure for renewing his or her residence permit or other authorisation offering a right to stay, that Member State shall consider refraining from issuing a return decision, until the pending procedure is finished, without prejudice to paragraph 6.
- This Directive shall not prevent Member States from adopting a decision on the ending of a legal stay together with a return decision and/or a decision on a removal and/or entry ban in a single administrative or judicial decision or act as provided for in their national legislation, without prejudice to the procedural safeguards available under Chapter III and under other relevant provisions of Community and national law.
- C-38/14, Zaizoune, 23 April 2015, §§ 31-32 (Once it has been established that the stay is illegal, the national authorities must, in principle, adopt a return decision)
- C-249/13, Boudjlida, 11 December 2014, §§ 46-47 (The right to be heard also applies before the adoption of a return decision)
- C-166/13, Mukarubega, 5 November 2014, §§ 58-59, §82 (TCN who have been duly heard on the illegality of their stay need not necessarily be heard again before the adoption of a return decision)
- C-146/14 PPU, Mahdi, 5 June 2014, §§ 87-98 (Member States are not obliged to regularise (grant a permit to) returnees, even in situations where there is no more reasonable prospect of removal)
- JEUNESSE v. THE NETHERLANDS, Appl. 12738/10, 03 October 2014, §§ 103-107, § 121 (When family life is at stake, and despite the margin of appreciation afforded to States in immigration matters, a fair balance has to be struck between the personal interests of the applicant and the public order interests)
- KIYUTIN v. RUSSIA, Appl. 2700/10, 10 March 2011, § 73 (An indiscriminate refusal of a residence permit, without an individualised judicial evaluation and solely based on a health condition, is not compatible with Article 14 ECHR)
- ÜNER v. THE NETHERLANDS, Appl. 46410/99, 18 October 2006, §§ 57- 58 (Even if Article 8 ECHR does not contain an absolute right for any category of alien not to be expelled, there are circumstances where the expulsion will give rise to a violation of that provision)
- LIU v. RUSSIA, Appl. 42086/05, 06 December 2007, § 50 (Article 8 ECHR, however, cannot be construed as guaranteeing, as such, the right to a particular type of residence permit)
Article 7: Voluntary departure
- A return decision shall provide for an appropriate period for voluntary departure of between seven and thirty days, without prejudice to the exceptions referred to in paragraphs 2 and 4. Member States may provide in their national legislation that such a period shall be granted only following an application by the third-country national concerned. In such a case, Member States shall inform the third-country nationals concerned of the possibility of submitting such an application. The time period provided for in the first subparagraph shall not exclude the possibility for the third-country nationals concerned to leave earlier.
- Member States shall, where necessary, extend the period for voluntary departure by an appropriate period, taking into account the specific circumstances of the individual case, such as the length of stay, the existence of children attending school and the existence of other family and social links.
- Certain obligations aimed at avoiding the risk of absconding, such as regular reporting to the authorities, deposit of an adequate financial guarantee, submission of documents or the obligation to stay at a certain place may be imposed for the duration of the period for voluntary departure
- If there is a risk of absconding, or if an application for a legal stay has been dismissed as manifestly unfounded or fraudulent, or if the person concerned poses a risk to public policy, public security or national security, Member States may refrain from granting a period for voluntary departure, or may grant a period shorter than seven days.
- C-544/13, Zh. And O, 11 June 2015 (interpretation of a risk to public policy)
- C-249/13, Boudjilida, 11 December 2014, § 51 (Right to be heard)
- C-430/11, Sagor, 6 December 2012, §§ 40-42
- C-61/11, El-dridi, 28 April 2011, § 37 (A risk of absconding must exist for the application of § 3 and 4)
National security and public order
- JANOWIEC AND OTHERS v. RUSSIA, Appl. 55508/07 29520/09, 21 October 2013, § 213 (States have a wide margin of discretion when invoking legitimate aims but it must be ascertained and have a reasonable basis in fact)
- KAUSHAL AND OTHERS v. BULGARIA, Appl. 1537/08, 02 September 2010, §§ 27-30 (The sole allegation that the applicant was active in extremist groups and involved in human trafficking is not enough, facts and safeguards against arbitrariness must be provided)
- NOLAN AND K. v. RUSSIA, Appl. 2512/04, 12 February 2009, §§ 70-73 (Adversarial proceedings and material evidences are required)
- C.G. AND OTHERS v. BULGARIA, Appl. 1365/07, 24 April 2008, §§ 37-50 (“Drug-trafficking” and criminal behaviour from the applicant, however serious it might be, do not constitute in itself a threat to national security)
- AL-NASHIF v. BULGARIA, Appl. 50963/99, 20 June 2002, §§ 120-124 (applicant’s ability to challenge the executive’s assertion that national security is at stake)
- VERENIGING WEEKBLAD BLUF! v. THE NETHERLANDS, Appl. 16616/90, 09 February 1995, §§ 33-36 (A State may protect itself against activities of individuals and groups attempting to undermine the basic values of a democratic society)
- CAMPBELL AND FELL v. THE UNITED KINGDOM, Appl. 7819/77 7878/77…, 28 June 1984, §§ 87-88 (Unlike Article 6 ECHR, ‘’national security’’ refers to safety risk and not to the security interest of a State as a whole)
- KLASS AND OTHERS v. GERMANY, Appl. 5029/71, 06 September 1978, § 46-48 (Fighting terrorism and espionage activities is likely to be covered by the concept of national security)
- ENGEL AND OTHERS v. THE NETHERLANDS, Appl. 5100/71 5101/71…, 08 June 1976, §97-98 (Public order may also cover specific social groups. “Prevention of disorder” is not necessarily combined with “prevention of crime”).
- X. contre LA REPUBLIQUE FEDERALE D’ALLEMAGNE, Appl. 4256/69, 14 December 1970 (Public order also includes situations resulting from fighting crimes, notably detention and custody measures within the context of infringement proceedings)
Article 8: Removal
- Member States shall take all necessary measures to enforce the return decision if no period for voluntary departure has been granted in accordance with Article 7(4) or if the obligation to return has not been complied with within the period for voluntary departure granted in accordance with Article 7.
- If a Member State has granted a period for voluntary departure in accordance with Article 7, the return decision may be enforced only after the period has expired, unless a risk as referred to in Article 7(4) arises during that period.
- Member States may adopt a separate administrative or judicial decision or act ordering the removal.
- Where Member States use — as a last resort — coercive measures to carry out the removal of a third-country national who resists removal, such measures shall be proportionate and shall not exceed reasonable force. They shall be implemented as provided for in national legislation in accordance with fundamental rights and with due respect for the dignity and physical integrity of the third-country national concerned. 5. In carrying out removals by air, Member States shall take into account the Common Guidelines on security provisions for joint removals by air annexed to Decision 2004/573/EC. 6. Member States shall provide for an effective forced-return monitoring system.
- C-290/14, Skerdjan Celaj, 1 October 2015, §§ 30-32 (prison sentence in case of unlawful entry in breach of an entry ban)
- C-61/11, El-dridi, 28 April 2011, § 41 (Gradation of the enforcement measures)
- C-329/11, Achughbabian, 6 December 2011, §§ 36-37 (Nature of the coercive measures)
- S. AND MARPER v. THE UNITED KINGDOM, Appl. 30562/04 30566/04, 04 December 2008, §§ 99-126 (Confidentiality and restrictions imposed on the processing of personal data and the prohibition of sharing information)
- ILHAN v. TURKEY, Appl. 22277/93, 27 June 2000, §§ 73-74, §§ 84-88, §§ 91-93 (Use of force with regard to Article 2 and 3 ECHR implies a necessity and proportionality test).
- SHUMKOVA v. RUSSIA, Appl. 9296/06, 14 February 2012, § 109 (Independent and impartial official investigations are required)
Article 9 : Postponement of removal
- Member States shall postpone removal: (a) when it would violate the principle of non-refoulement, or (b) for as long as a suspensory effect is granted in accordance with Article 13(2).
- Member States may postpone removal for an appropriate period taking into account the specific circumstances of the individual case. Member States shall in particular take into account: (a) the third-country national’s physical state or mental capacity; (b) technical reasons, such as lack of transport capacity, or failure of the removal due to lack of identification.
- If a removal is postponed as provided for in paragraphs 1 and 2, the obligations set out in Article 7(3) may be imposed on the third-country national concerned.
Article 10: Return and removal of unaccompanied minors
- Before deciding to issue a return decision in respect of an unaccompanied minor, assistance by appropriate bodies other than the authorities enforcing return shall be granted with due consideration being given to the best interests of the child.
- Before removing an unaccompanied minor from the territory of a Member State, the authorities of that Member State shall be satisfied that he or she will be returned to a member of his or her family, a nominated guardian or adequate reception facilities in the State of return.
- TARAKHEL v. SWITZERLAND, Appl. 29217/12, 04 November 2014, §§ 94-99 (Child’s extreme vulnerability is the decisive factor when adopting removal decision)
- MUBILANZILA MAYEKA AND KANIKI MITUNGA v. BELGIUM, Appl. 13178/03, 12 October 2006, §66-72, § 90 (Belgium failed to provide adequate preparation, supervision and safeguards for the deportation of a minor, violation of Article 3 and 8 ECHR)
- NSONA v. THE NETHERLANDS, Appl. 23366/94, 28 November 1996, § 87, §§ 92-99, §§ 100-103 (Although Netherlands’ attitude was open to criticism, the Court did not conclude to the violation of Article 3 ECHR)
Article 11: Entry ban accompanying return decision
- Return decisions shall be accompanied by an entry ban: (a) if no period for voluntary departure has been granted, or (b) if the obligation to return has not been complied with. In other cases return decisions may be accompanied by an entry ban.
- The length of the entry ban shall be determined with due regard to all relevant circumstances of the individual case and shall not in principle exceed five years. It may however exceed five years if the third-country national represents a serious threat to public policy, public security or national security.
- Member States shall consider withdrawing or suspending an entry ban where a third-country national who is the subject of an entry ban issued in accordance with paragraph 1, second subparagraph, can demonstrate that he or she has left the territory of a Member State in full compliance with a return decision.
Victims of trafficking in human beings who have been granted a residence permit pursuant to Council Directive 2004/81/EC of 29 April 2004 on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities (1) shall not be subject of an entry ban without prejudice to paragraph 1, first subparagraph, point (b), and provided that the third-country national concerned does not represent a threat to public policy, public security or national security. Member States may refrain from issuing, withdraw or suspend an entry ban in individual cases for humanitarian reasons. Member States may withdraw or suspend an entry ban in individual cases or certain categories of cases for other reasons.
- Where a Member State is considering issuing a residence permit or other authorisation offering a right to stay to a third country national who is the subject of an entry ban issued by another Member State, it shall first consult the Member State having issued the entry ban and shall take account of its interests in accordance with Article 25 of the Convention implementing the Schengen Agreement (2).
- Paragraphs 1 to 4 shall apply without prejudice to the right to international protection, as defined in Article 2(a) of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (3), in the Member States.
- C-290/14, Skerdjan Celaj, 1 October 2015, §§ 30-32 (prison sentence in case of unlawful entry in breach of an entry ban)
- C-297/12, Filev and Osmani, 19 September 2013, §27, §34, §§ 39-41, § 44 (Member States must limit the duration of any entry ban, independently of an application made for that purpose)
National security (See also Article 7 RD)
- NADA v. SWITZERLAND, Appl. 10593/08, 12 September 2012, § 149, §§ 163-167, §174, §§ 198-199 (Despite the legitimate aim invoked by Switzerland, the interference to Article 8 ECHR was neither proportionate nor necessary in a democratic society).
- DALEA c. FRANCE, Appl. 964/07, 02 February 2010, inadmissibility (States’ margin of appreciation regarding ‘’security and public safety’’ justifications is wider for entry refusals than deportation cases)
Article 12: Procedural safeguards
- Return decisions and, if issued, entry-ban decisions and decisions on removal shall be issued in writing and give reasons in fact and in law as well as information about available legal remedies.
The information on reasons in fact may be limited where national law allows for the right to information to be restricted, in particular in order to safeguard national security, defence, public security and for the prevention, investigation, detection and prosecution of criminal offences.
- Member States shall provide, upon request, a written or oral translation of the main elements of decisions related to return, as referred to in paragraph 1, including information on the available legal remedies in a language the third-country.
- T-393/12, GC, Kenzo Tsujimoto, 22 January 2015, § 19 (Decision-making authorities are not obliged to adopt a position on all the arguments relied on by the parties concerned)
- C-562/13, Abdida, 18 December 2014, § 43 (Article 12(1) RD has to be taken in conjunction with Article 13(1) RD)
- C-249/13, Boudjlida, 11 December 2014, § 58 (Procedural safeguards aimed at ensuring the protection of the rights of the defense)
- C-166/13, Mukarubega, 5 November 2014, § 44, §48 (Linked to the right to be heard)
- C-146/14 PPU, Mahdi, 5 June 2014, §§ 44-45 (Obligation to communicate reasons also applies to decisions extending pre-removal detention)
- C-383/13 PPU, G. and R., 10 September 2013, § 32 (The respect for the rights of the defence is a general principle of EU law)
- C-439/11 P, Ziegler v. Commission, 11 July 2013, § 115 (The statement of the reasons on which a measure is based must clearly and unequivocally disclose the reasoning followed by the institution)
- C-300/11, ZZ, 4 June 2013, § 53, §§ 65-69 (For the judicial review guaranteed by Article 47 CFR to be effective, the person concerned must be able to ascertain the reasons upon which the decision taken in relation to him is based)
- C-417/11 P, Council v. Bamba, 15 November 2012, § 51 (Compliance with the obligation to state reasons is all the more important where the person concerned does not have the opportunity to be heard before the adoption of an initial decision)
- C-521/09 P, Elf Aquitaine SA, 29 September 2011, §§ 146-151 (The statement of reasons must, in principle, be notified to the person at the same time as the decision adversely affecting him)
- C-367/95 P, Commission v. Sytraval et Brink’s France, 2 April 1998, § 63 (The requirements to be satisfied by the statement of reasons depend on the circumstances of each case)
- NOWAK v. UKRAINE, No. 60846/10, 31 March 2011, §§ 63-64 (The applicant must be told of the legal and factual grounds for his arrest or detention in simple, non-technical language that he can understand)
- RAZA v. BULGARIA, Appl. 31465/08, 11 February 2010, §§ 51-53 (Even where national security is at stake, some form of adversarial proceedings is required before an independent authority competent to effectively scrutinize the reasons invoked and to prevent arbitrary measures)
- C.G. and OTHERS v. BULGARIA, Appl. 1365/07, 24 April 2008, §§ 40-65, §§ 70-74 (Even where an allegation of a threat to national security has been made, expulsion has to be “in accordance with the law” within the meaning of Article 8 § 2 ECHR)
- ROWE AND DAVIS v. THE UNITED KINGDOM, Appl. 28901/95, 16 February 2000, § 61 (Any difficulties caused to the defence by a limitation on its rights must be counterbalanced by the procedures followed by the judicial authorities in order to ensure that the accused receives a fair trial)
- FOX, CAMPBELL AND HARTLEY v. THE UNITED KINGDOM, Appl. 12244/86 12245/86 12383/86, 30 August 1990, § 40 (Under Article 5(2) ECHR, the information must be conveyed “promptly”, according to special features of each case)
- AHMED c. ROUMANIE, Appl. 34621/03, 13 Juillet 2010, §§ 53-56 (Under Article 1, Protocol 7, any expulsion order must contain a reference to the offence allegedly committed by the applicant)
Article 13: Remedies
- The third-country national concerned shall be afforded an effective remedy to appeal against or seek review of decisions related to return, as referred to in Article 12(1), before a competent judicial or administrative authority or a competent body composed of members who are impartial and who enjoy safeguards of independence.
- The authority or body mentioned in paragraph 1 shall have the power to review decisions related to return, as referred to in Article 12(1), including the possibility of temporarily suspending their enforcement, unless a temporary suspension is already applicable under national legislation.
- The third-country national concerned shall have the possibility to obtain legal advice, representation and, where necessary, linguistic assistance.
- Member States shall ensure that the necessary legal assistance and/or representation is granted on request free of charge in accordance with relevant national legislation or rules regarding legal aid, and may provide that such free legal assistance and/or representation is subject to conditions as set out in Article 15(3) to (6) of Directive 2005/85/EC.
- C-562/13, Abdida, 18 December 2014, §§ 43-53 (Article 13 RD has to be interpreted in a manner that is consistent with Article 47 CFR)
- M.A. v. CYPRUS, Appl. 41872/10, 23 July 2013, § 118-120 (The fact that an applicant is no longer exposed to the threat of deportation does not necessarily render his complaint non-arguable or deprive him of his victim status for the purposes of Article 13 ECHR)
- DE SOUZA RIBEIRO v. FRANCE, Appl. 22689/07, 13 December 2012, §§79-80 (Even if the effectiveness of a remedy does not depend on the certainty of a favourable outcome for the applicant in order to be effective, the remedy must be available in practice as well as in law. This is the case in particular when its exercise is not unjustifiably hindered by the acts or omissions of the authorities of the respondent State)
- DORAN v. IRELAND, Appl. 50389/99, 31 July 2003, § 57 (The adequate nature of the remedy can be undermined by its excessive duration)
- ČONKA v. BELGIUM, Appl. 51564/99, 05 February 2002, § 79 (Member States are afforded a certain margin of appreciation regarding the manner in which they comply with their obligations under Article 13 ECHR)
- KUDLA v. POLAND, Appl. 30210/96, 26 October 2000, § 157 (The remedy must be effective in practice and in law)
- HIRSI JAMAA and Others v. ITALY [GC], Appl. 27765/09, 23 February 2012, § 200, §§ 206-207 (Where there are substantial grounds for believing that the applicant, if expelled, would face a risk of torture or ill-treatment, amounting to a violation of Article 3 of the Convention and Article 4 of Protocol No. 4, the remedy must have a suspensive effect)
- GEBREMEDHIN [GABERAMADHIEN] v. FRANCE, Appl. 25389/05, 26 April 2007, §§ 53-67 (When Articles 2 and 3 ECHR are at stake, the person concerned must have access to a remedy with automatic suspensive effect)
- SOUZA RIBEIRO v. FRANCE, Appl. 22689/07, 13 December 2012, §§ 78-83 (As regards Article 8 ECHR, an automatic suspensive effect is not required)
- M. and OTHERS v. BULGARIA, Appl. 41416/08, 26 July 2011, §§ 122-132 (Yet Article 8 ECHR requires sufficient procedural safeguards and thoroughness by an appropriate domestic forum offering adequate guarantees of independence and impartiality)
The extent of the judicial review
- SEGAME SA c. FRANCE, Appl. 4837/06, 07 June 2012, § 55 (The judicial authority must have the ability to examine all questions of fact and law and the power to quash decisions rendered by first instance authorities)
- M.S.S. v. BELGIUM and GREECE ([GC], Appl. 30696/09, 21 January 2011, §§ 288-293 (The effect of Article 13 is to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief)
- CHEVROL v. FRANCE, Appl. 49636/99, 13 February 2003, §77 (The competent authority must have jurisdiction to examine all questions of fact and law relevant to the dispute)
- SUSO MUSA v. MALTA, Appl. 42337/12, 27 July 2013, § 61 (The lack of free legal aid in the context of detention proceedings may raise an issue as to the accessibility of such a remedy)
- M.S.S. v. BELGIUM AND GREECE, Appl. 30696/09, 21 January 2011, § 301, § 319 (Ineffective legal aid scheme in asylum procedures)
- P., C. AND S. v. THE UNITED KINGDOM, Appl. 56547/00, 16 July 2002, §§ 89-91 (The person concerned, if not represented by a lawyer, must be able to participate effectively in proceedings, i.e., by being able to put forward the matters in support of his or her claims)
- AIREY v. IRELAND, Appl. 6289/73, 09 October 1979, §§ 26-28 (Article 6 (1) ECHR may sometimes compel the State to provide for the assistance of a lawyer when it is indispensable for an effective access to court)
Article 14: Safeguards pending return
- Member States shall, with the exception of the situation covered in Articles 16 and 17, ensure that the following principles are taken into account as far as possible in relation to third-country nationals during the period for voluntary departure granted in accordance with Article 7 and during periods for which removal has been postponed in accordance with Article 9:
- family unity with family members present in their territory is maintained;
- emergency health care and essential treatment of illness are provided;
- minors are granted access to the basic education system subject to the length of their stay;
- Special needs of vulnerable persons are taken into account.
- Member States shall provide the persons referred to in paragraph 1 with a written confirmation in accordance with national legislation that the period for voluntary departure has been extended in accordance with Article 7(2) or that the return decision will temporarily not be enforced.
- C-562/13, Abdida, 18 December 2014, §§ 59-61 (Requirement to provide emergency health care and essential treatment of illness)
- M.S.S. v. BELGIUM AND GREECE, Appl. 30696/09, 21 January 2011, §§ 250-251 (States must provide accommodation and decent material conditions to members of a particularly underprivileged and vulnerable population group in need of special protection)
- BUDINA v. RUSSIA, Appl. 45603/05, 18 June 2009 (State responsibility could arise for “treatment” in the meaning of Article 3 ECHR where an applicant is wholly dependent on State support and found himself faced in a situation of serious deprivation or want incompatible with human dignity)
- PANCENKO v. LATVIA, Appl. 40772/98, 28 October 1999 (The ECHR does not guarantee, as such, socio-economic rights, including the right to charge-free dwelling, the right to work, the right to free medical assistance, or the right to claim financial assistance from a State to maintain a certain level of living)
- ECSR, Defence for Children International v. the Netherlands, Complaint No. 47/2008, merits, §§31-32, § 64, 20 October 2009 (States Parties are required, under Article 31§2 of the Charter, to provide adequate shelter to children unlawfully present in theirr territory for as long as they are in their jurisdiction)
- ECSR, International Federation of Human Rights Leagues v. France, Complaint No. 14/2003, merits § 32, 8 September 2004 (A legislation or practice which denies entitlement to medical assistance to foreign nationals, within the territory of a State Party, even if they are there illegally, is contrary to the Charter)
Article 15: Detention
- Unless other sufficient but less coercive measures can be applied effectively in a specific case, Member States may only keep in detention a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular when: (a) there is a risk of absconding or (b) the third-country national concerned avoids or hampers the preparation of return or the removal process. Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence.
- Detention shall be ordered by administrative or judicial authorities. Detention shall be ordered in writing with reasons being given in fact and in law. When detention has been ordered by administrative authorities, Member States shall: (a) either provide for a speedy judicial review of the lawfulness of detention to be decided on as speedily as possible from the beginning of detention; (b) or grant the third-country national concerned the right to take proceedings by means of which the lawfulness of detention shall be subject to a speedy judicial review to be decided on as speedily as possible after the launch of the relevant proceedings. In such a case Member States shall immediately inform the third-country national concerned about the possibility of taking such proceedings. The third-country national concerned shall be released immediately if the detention is not lawful.
- In every case, detention shall be reviewed at reasonable intervals of time either on application by the third-country national concerned or ex officio. In the case of prolonged detention periods, reviews shall be subject to the supervision of a judicial authority.
- When it appears that a reasonable prospect of removal no longer exists for legal or other considerations or the conditions laid down in paragraph 1 no longer exist, detention ceases to be justified and the person concerned shall be released immediately.
- Detention shall be maintained for as long a period as the conditions laid down in paragraph 1 are fulfilled and it is necessary to ensure successful removal. Each Member State shall set a limited period of detention, which may not exceed six months. 6. Member States may not extend the period referred to in paragraph 5 except for a limited period not exceeding a further twelve months in accordance with national law in cases where regardless of all their reasonable efforts the removal operation is likely to last longer owing to: (a) a lack of cooperation by the third-country national concerned, or (b) delays in obtaining the necessary documentation from third countries.
Specific case-law on pre-removal detention can be found on CONTENTION website
Article 16: Conditions of detention
- Detention shall take place as a rule in specialised detention facilities. Where a Member State cannot provide accommodation in a specialised detention facility and is obliged to resort to prison accommodation, the third-country nationals in detention shall be kept separated from ordinary prisoners.
- Third-country nationals in detention shall be allowed — on request — to establish in due time contact with legal representatives, family members and competent consular authorities.
- Particular attention shall be paid to the situation of vulnerable persons. Emergency health care and essential treatment of illness shall be provided. 24.12.2008 Official Journal of the European Union L 348/105 EN.
- Relevant and competent national, international and nongovernmental organisations and bodies shall have the possibility to visit detention facilities, as referred to in paragraph 1, to the extent that they are being used for detaining third-country nationals in accordance with this Chapter. Such visits may be subject to authorisation.
- Third-country nationals kept in detention shall be systematically provided with information which explains the rules applied in the facility and sets out their rights and obligations. Such information shall include information on their entitlement under national law to contact the organisations and bodies referred to in paragraph 4.
- C-473/13, Bero and Bouzalmate, 17 July 2014, §§ 24-32 (Detention of irregular TCN must take place, as a rule, in specialised detention facilities and not in ordinary prisons)
- C-473/13, Pham, 17 July 2014, §§ 21-22 (This principle constitutes a substantive condition for the detention to be consistent with the Directive, independently of the TCN’s consent)
- C-61/11 PPU, El Dridi, 28 April 2011, §§ 41-42 (Detention is strictly regulated, pursuant to Articles 15 and 16 of that Directive, in order to ensure observance of the fundamental rights of the TCN concerned)
- SUSO MUSA v. MALTA, Appl. 42337/12, 23 July 2013, §93 (The appropriateness of the place and conditions of detention is directly linked to its lawfulness)
- AHMED v. MALTA, Appl. 55352/12, 23 July 2013, § 86-87, §90 (Under Article 3 ECHR, the State must ensure that a person is detained in conditions which are compatible with respect for human dignity)
- POPOV v. FRANCE, Appl. 39472/07 39474/07, 19 January 2012, §118 (There must be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention)
- ANANYEV AND OTHERS v. RUSSIA, Appl. 42525/07 60800/08, 10 January 2012, §§ 149-159 (Detainees must have access to outdoor exercise, natural light and fresh air, sanitary facilities and hygiene)
- M.S.S. v. BELGIUM AND GREECE, Appl. 30696/09, 21 January 2011, § 223 (The burden on the detention facilities as a result of the detention of high number of TCN’s cannot absolve a Member State of its obligation under Article 3 ECHR)
Article 17: Detention of minors and families
- Unaccompanied minors and families with minors shall only be detained as a measure of last resort and for the shortest appropriate period of time.
- Families detained pending removal shall be provided with separate accommodation guaranteeing adequate privacy.
- Minors in detention shall have the possibility to engage in leisure activities, including play and recreational activities appropriate to their age, and shall have, depending on the length of their stay, access to education.
- Unaccompanied minors shall as far as possible be provided with accommodation in institutions provided with personnel and facilities which take into account the needs of persons of their age.
- The best interests of the child shall be a primary consideration in the context of the detention of minors pending removal.
- POPOV v. FRANCE, Appl. 39472/07 39474/07, 19 January 2012, §§ 93-96 (Insecurity and hostile environment in detention centres have harmful consequences for minors)
- MUSKHADZHIYEVA ET AUTRES c. BELGIQUE, Appl. 41442/07, 19 January 2010 (Children’s particular situation must be examined by the authorities)
- MUBILANZILA MAYEKA AND KANIKI MITUNGA v. BELGIUM, Appl. 13178/03, 12 October 2006, §§ 103-105 (Detention of unaccompanied minors in a closed centre intended for irregular migrants in the same conditions as adults may amount to a violation of Article 5 ECHR)