# C_2009267EN.01004601.xml

| 7.11.2009 | EN | Official Journal of the European Union | C 267/46 |
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Reference for a preliminary ruling from the Administrativen Sad Sofia-grad, Bulgaria lodged on 7 September 2009 — Saïd Shamilovich Kadzoev v Direktsia ‘Migratsia’ pri Ministerstvo na vatreshnite raboti

(Case C-357/09)

2009/C 267/79

Language of the case: Bulgarian

Referring court

Administrativen Sad Sofia-grad

Parties to the main proceedings

Applicant: Shamilovich Kadzoev

Defendant: Direktsia ‘Migratsia’ pri Ministerstvo na vatreshnite raboti Saïd

Questions referred

| 1. | Must Article 15(5) 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 be interpreted as meaning that
(a)
where the national law of the Member State did not provide for a maximum period of detention or grounds for extending such detention before the transposition of the requirements of that Directive and, on transposition of the Directive, no provision was made for conferring retroactive effect on the new provisions, the requirements of the Directive only apply and cause the period to start to run from their transposition into the national law of the Member State? (b)
within the periods laid down for detention in a specialised facility with a view to removal within the meaning of the Directive, no account is to be taken of the period during which the implementation of a removal decision from the Member State under an express provision was suspended owing to a pending request for asylum by a third-country national, where during that procedure he continued to remain in that specialised detention facility if the national law of the Member State so permits? | (a) | where the national law of the Member State did not provide for a maximum period of detention or grounds for extending such detention before the transposition of the requirements of that Directive and, on transposition of the Directive, no provision was made for conferring retroactive effect on the new provisions, the requirements of the Directive only apply and cause the period to start to run from their transposition into the national law of the Member State? | (b) | within the periods laid down for detention in a specialised facility with a view to removal within the meaning of the Directive, no account is to be taken of the period during which the implementation of a removal decision from the Member State under an express provision was suspended owing to a pending request for asylum by a third-country national, where during that procedure he continued to remain in that specialised detention facility if the national law of the Member State so permits? |
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| (a) | where the national law of the Member State did not provide for a maximum period of detention or grounds for extending such detention before the transposition of the requirements of that Directive and, on transposition of the Directive, no provision was made for conferring retroactive effect on the new provisions, the requirements of the Directive only apply and cause the period to start to run from their transposition into the national law of the Member State? | | | | |
| (b) | within the periods laid down for detention in a specialised facility with a view to removal within the meaning of the Directive, no account is to be taken of the period during which the implementation of a removal decision from the Member State under an express provision was suspended owing to a pending request for asylum by a third-country national, where during that procedure he continued to remain in that specialised detention facility if the national law of the Member State so permits? | | | | |

| 2. | Must Article 15 (5) and (6) of Directive 2008/115/EC [...] be interpreted as meaning that within the periods laid down for detention in a specialised facility with a view to removal within the meaning of that Directive no account is to be taken of the period during which implementation of a removal decision from the Member State was suspended under an express provision on the ground that an appeal against that decision is pending, even though during the period of that procedure the third-country national has continued to stay in that specialised detention facility, where he did not have valid identity documents and there is therefore some doubt as to his identity or where he does not have any means of supporting himself or where he has demonstrated aggressive conduct? |
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| 3. | Must Article 15 (4) of Directive 2008/115/EC [...] be interpreted as meaning that removal is not reasonably possible where:
(a)
at the time when a judicial review of the detention is conducted, the State of which the person is a national has refused to issue him with a travel document for his return and until then there was no agreement with a third country in order to secure the person’s entry there even though the administrative bodies of the Member State are continuing to make endeavours to that end? (b)
at the time when a judicial review of the detention is conducted there was an agreement for readmission between the European Union and the State of which the person is a national, but, owing to the existence of new evidence, namely the person’s birth certificate, the Member State did not refer to the provisions of that agreement, if the person concerned does not wish to return? (c)
the possibilities of extending the detention periods provided for in Article 15(6) of the Directive have been exhausted in the situation where no agreement for readmission has been reached with the third country at the time when a judicial review of his detention is conducted, regard being had to Article 15(6)(b) of the Directive? | (a) | at the time when a judicial review of the detention is conducted, the State of which the person is a national has refused to issue him with a travel document for his return and until then there was no agreement with a third country in order to secure the person’s entry there even though the administrative bodies of the Member State are continuing to make endeavours to that end? | (b) | at the time when a judicial review of the detention is conducted there was an agreement for readmission between the European Union and the State of which the person is a national, but, owing to the existence of new evidence, namely the person’s birth certificate, the Member State did not refer to the provisions of that agreement, if the person concerned does not wish to return? | (c) | the possibilities of extending the detention periods provided for in Article 15(6) of the Directive have been exhausted in the situation where no agreement for readmission has been reached with the third country at the time when a judicial review of his detention is conducted, regard being had to Article 15(6)(b) of the Directive? |
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| (a) | at the time when a judicial review of the detention is conducted, the State of which the person is a national has refused to issue him with a travel document for his return and until then there was no agreement with a third country in order to secure the person’s entry there even though the administrative bodies of the Member State are continuing to make endeavours to that end? | | | | | | |
| (b) | at the time when a judicial review of the detention is conducted there was an agreement for readmission between the European Union and the State of which the person is a national, but, owing to the existence of new evidence, namely the person’s birth certificate, the Member State did not refer to the provisions of that agreement, if the person concerned does not wish to return? | | | | | | |
| (c) | the possibilities of extending the detention periods provided for in Article 15(6) of the Directive have been exhausted in the situation where no agreement for readmission has been reached with the third country at the time when a judicial review of his detention is conducted, regard being had to Article 15(6)(b) of the Directive? | | | | | | |

| 4. | Must Article 15(4) and (6) of Directive 2008/115/EC be interpreted as meaning that if at the time when the detention with a view to removal of the person concerned to a third country is reviewed there is found to be no reasonable ground for removing him and the grounds for extending his detention have been exhausted, in such a case:
(a)
it is none the less not appropriate to order his immediate release if the following conditions are all met: the person concerned does not have valid identity documents, whatever the duration of their validity, with the result that there is a doubt as to his identity, he is aggressive in his conduct, he has no means of supporting himself and there is no third person who has undertaken to provide for his subsistence? (b)
with a view to the decision on release it must be assessed whether, under the provisions of the national law of the Member State, the third-country national has the resources necessary to stay in the Member State as well as an address at which he may reside? | (a) | it is none the less not appropriate to order his immediate release if the following conditions are all met: the person concerned does not have valid identity documents, whatever the duration of their validity, with the result that there is a doubt as to his identity, he is aggressive in his conduct, he has no means of supporting himself and there is no third person who has undertaken to provide for his subsistence? | (b) | with a view to the decision on release it must be assessed whether, under the provisions of the national law of the Member State, the third-country national has the resources necessary to stay in the Member State as well as an address at which he may reside? |
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| (a) | it is none the less not appropriate to order his immediate release if the following conditions are all met: the person concerned does not have valid identity documents, whatever the duration of their validity, with the result that there is a doubt as to his identity, he is aggressive in his conduct, he has no means of supporting himself and there is no third person who has undertaken to provide for his subsistence? | | | | |
| (b) | with a view to the decision on release it must be assessed whether, under the provisions of the national law of the Member State, the third-country national has the resources necessary to stay in the Member State as well as an address at which he may reside? | | | | |

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