# C_2014253EN.01001401.xml

| 4.8.2014 | EN | Official Journal of the European Union | C 253/14 |
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4.8.2014

EN

Official Journal of the European Union

C 253/14

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Judgment of the Court (Third Chamber) of 5 June 2014 (request for a preliminary ruling from the Administrativen sad Sofia-grad — Bulgaria) — Bashir Mohamed Ali Mahdi

(Case C-146/14 PPU) (1)

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((Visas, asylum, immigration and other policies related to free movement of persons - Directive 2008/115/EC - Return of illegally staying third-country nationals - Article 15 - Detention - Extension of detention - Obligations of the administrative or judicial authority - Review by a judicial authority - Third-country national without identity documents - Obstacles to implementation of a removal decision - Refusal of the embassy of the third country concerned to issue an identity document enabling the third-country national to be returned - Risk of absconding - Reasonable prospect of removal - Lack of cooperation - Whether the Member State concerned is under an obligation to issue a temporary document relating to the status of the person concerned))

2014/C 253/18

Language of the case: Bulgarian

Referring court

Referring court

Administrativen sad Sofia-grad

Party to the main proceedings

Party to the main proceedings

Bashir Mohamed Ali Mahdi

Re:

Re:

Request for a preliminary ruling — Administrativen sad Sofia-grad –Interpretation of Article 15(1)(a) and (b), (3), (4) and (6) 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 (OJ 2008 L 348, p. 98) and of Articles 6 and 47 of the Charter of Fundamental Rights of the European Union — Removal of an illegally staying third-country national — Detention — Extension of detention — Whether permissible to exceed the maximum length of detention on the ground that a person has no identity documents — Obstacles to implementation of a removal decision — Reasonable prospect of removal — Refusal of the Embassy of the country of origin of the person concerned to issue the document necessary for the return journey — Whether the Member State concerned is under an obligation to issue a temporary document relating to the status of the person concerned

Operative part of the judgment

Operative part of the judgment

| 1. | Article 15(3) and (6) 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 the light of Articles 6 and 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that any decision adopted by a competent authority, on expiry of the maximum period allowed for the initial detention of a third-country national, on the further course to take concerning the detention must be in the form of a written measure that includes the reasons in fact and in law for that decision; |
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1.

Article 15(3) and (6) 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 the light of Articles 6 and 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that any decision adopted by a competent authority, on expiry of the maximum period allowed for the initial detention of a third-country national, on the further course to take concerning the detention must be in the form of a written measure that includes the reasons in fact and in law for that decision;

| 2. | Article 15(3) and (6) of Directive 2008/115 must be interpreted as meaning that the ‘supervision’ that has to be undertaken by a judicial authority dealing with an application for extension of the detention of a third-country national must permit that authority to decide, on a case-by-case basis, on the merits of whether the detention of the third-country national concerned should be extended, whether detention may be replaced with a less coercive measure or whether the person concerned should be released, that authority thus having power to take into account the facts stated and evidence adduced by the administrative authority which has brought the matter before it, as well as any facts, evidence and observations which may be submitted to the judicial authority in the course of the proceedings; |
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2.

Article 15(3) and (6) of Directive 2008/115 must be interpreted as meaning that the ‘supervision’ that has to be undertaken by a judicial authority dealing with an application for extension of the detention of a third-country national must permit that authority to decide, on a case-by-case basis, on the merits of whether the detention of the third-country national concerned should be extended, whether detention may be replaced with a less coercive measure or whether the person concerned should be released, that authority thus having power to take into account the facts stated and evidence adduced by the administrative authority which has brought the matter before it, as well as any facts, evidence and observations which may be submitted to the judicial authority in the course of the proceedings;

| 3. | Article 15(1) and (6) of Directive 2008/115 must be interpreted as precluding national legislation such as that at issue in the main proceedings, pursuant to which an initial six-month period of detention may be extended solely because the third-country national concerned has no identity documents. It is for the referring court alone to undertake an individual assessment of the facts and circumstances of the case in question in order to determine whether a less coercive measure may be applied effectively to that third-country national or whether there is a risk of him absconding; |
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3.

Article 15(1) and (6) of Directive 2008/115 must be interpreted as precluding national legislation such as that at issue in the main proceedings, pursuant to which an initial six-month period of detention may be extended solely because the third-country national concerned has no identity documents. It is for the referring court alone to undertake an individual assessment of the facts and circumstances of the case in question in order to determine whether a less coercive measure may be applied effectively to that third-country national or whether there is a risk of him absconding;

| 4. | Article 15(6)(a) of Directive 2008/115 must be interpreted as meaning that a third-country national who, in circumstances such as those in issue in the main proceedings, has not obtained an identity document which would have made it possible for him to be removed from the Member State concerned may be regarded as having demonstrated a ‘lack of cooperation’ within the meaning of that provision only if an examination of his conduct during the period of detention shows that he has not cooperated in the implementation of the removal operation and that it is likely that that operation lasts longer than anticipated because of that conduct, a matter which falls to be determined by the referring court; |
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4.

Article 15(6)(a) of Directive 2008/115 must be interpreted as meaning that a third-country national who, in circumstances such as those in issue in the main proceedings, has not obtained an identity document which would have made it possible for him to be removed from the Member State concerned may be regarded as having demonstrated a ‘lack of cooperation’ within the meaning of that provision only if an examination of his conduct during the period of detention shows that he has not cooperated in the implementation of the removal operation and that it is likely that that operation lasts longer than anticipated because of that conduct, a matter which falls to be determined by the referring court;

| 5. | Directive 2008/115 must be interpreted as meaning that a Member State cannot be obliged to issue an autonomous residence permit, or other authorisation conferring a right to stay, to a third-country national who has no identity documents and has not obtained such documentation from his country of origin, after a national court has released the person concerned on the ground that there is no longer a reasonable prospect of removal within the meaning of Article 15(4) of that directive. However, that Member State must, in such a case, provide the third-country national with written confirmation of his situation. |
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5.

Directive 2008/115 must be interpreted as meaning that a Member State cannot be obliged to issue an autonomous residence permit, or other authorisation conferring a right to stay, to a third-country national who has no identity documents and has not obtained such documentation from his country of origin, after a national court has released the person concerned on the ground that there is no longer a reasonable prospect of removal within the meaning of Article 15(4) of that directive. However, that Member State must, in such a case, provide the third-country national with written confirmation of his situation.

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(1)  OJ C 159, 26.5.2014.

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