# C_2013225EN.01001302.xml

| 3.8.2013 | EN | Official Journal of the European Union | C 225/13 |
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3.8.2013

EN

Official Journal of the European Union

C 225/13

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Judgment of the Court (Third Chamber) of 30 May 2013 (request for a preliminary ruling from the Nejvyšší správní soud — Czech Republic) — Mehmet Arslan v Policie ČR, Krajské ředitelství policie Ústeckého kraje, odbor cizinecké policie

(Case C-534/11) (1)

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(Area of freedom, security and justice - Directive 2008/115/EC - Common standards and procedures for returning illegally staying third-country nationals - Applicability to asylum seekers - Possibility of keeping a third-country national in detention after an application for asylum has been made)

2013/C 225/21

Language of the case: Czech

Referring court

Referring court

Nejvyšší správní soud

Parties to the main proceedings

Parties to the main proceedings

Applicant: Mehmet Arslan

Applicant:

Defendant: Policie ČR, Krajské ředitelství policie Ústeckého kraje, odbor cizinecké policie

Defendant:

Re:

Re:

Request for a preliminary ruling — Nejvyšší správní soud (Czech Republic) — Interpretation of Art. 2(1) in conjunction with recital 9 in the preamble to Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (OJ 2008 L 348, p. 98) — Scope — Detention of a third-country national staying illegally on the territory of a Member State with a view to his removal where he has made an application for asylum within the meaning of Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (OJ 2005 L 326, p. 13)

Operative part of the judgment

Operative part of the judgment

| 1. | Article 2(1) of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, read in conjunction with recital 9 in the preamble, must be interpreted as meaning that that directive does not apply to a third-country national who has applied for international protection within the meaning of Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status during the period from the making of the application to the adoption of the decision at first instance on that application or, as the case may be, until the outcome of any action brought against that decision is known. |
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1.

Article 2(1) of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, read in conjunction with recital 9 in the preamble, must be interpreted as meaning that that directive does not apply to a third-country national who has applied for international protection within the meaning of Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status during the period from the making of the application to the adoption of the decision at first instance on that application or, as the case may be, until the outcome of any action brought against that decision is known.

| 2. | Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers and Directive 2005/85 do not preclude a third-country national who has applied for international protection within the meaning of Directive 2005/85 after having been detained under Article 15 of Directive 2008/115 from being kept in detention on the basis of a provision of national law, where it appears, after an assessment on a case-by-case basis of all the relevant circumstances, that the application was made solely to delay or jeopardise the enforcement of the return decision and that it is objectively necessary to maintain detention to prevent the person concerned from permanently evading his return. |
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2.

Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers and Directive 2005/85 do not preclude a third-country national who has applied for international protection within the meaning of Directive 2005/85 after having been detained under Article 15 of Directive 2008/115 from being kept in detention on the basis of a provision of national law, where it appears, after an assessment on a case-by-case basis of all the relevant circumstances, that the application was made solely to delay or jeopardise the enforcement of the return decision and that it is objectively necessary to maintain detention to prevent the person concerned from permanently evading his return.

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(1)  OJ C 65, 3.3.2012.

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