Opinion of the Advocate General — ECLI:EU:C:2021:958
Date: 2021-11-25
Language of the case: German
Subject matter: Asylum policy;Justice and home affairs;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary C-519/20 – 1 
Case C-519/20 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
15 October 2020 
Referring court: 
Amtsgericht Hannover (Germany) 
Date of the decision to refer: 
12 October 2020 
Person concerned and appellant: 
K 
Applicant and other party to the proceedings: 
Landkreis Gifhorn 
  
Subject matter of the case in the main proceedings 
Order to declare that the decision of the Amtsgericht (Local Court) ordering 
detention pending removal for the period from 25 September 2020 to 2 October 
2020 infringed the rights of the applicant. 
Subject matter and legal basis of the reference 
Interpretation of EU law, in particular Directive 2008/115; Article 267 TFEU 
Questions referred 
1. Must EU law, in particular Article 18(1) and (3) of Directive 2008/115/EC, 
be interpreted as meaning that a national court deciding on detention for the 
purpose of removal must, in each individual case, examine the conditions laid 
down in that provision, in particular whether the exceptional situation persists, 
where the national legislature, on the basis of Article 18(1), has derogated from 
the conditions laid down in Article 16(1) in national law? 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-519/20 
 
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2. Must EU law, in particular Article 16(1) of Directive 2008/115/EC, be 
interpreted as precluding national legislation which on a temporary basis, until 
1 July 2022, allows the placement of detainees awaiting removal in a prison 
facility despite specialised detention facilities being provided in the Member State 
and despite the fact that there is no emergency situation within the meaning of 
Article 18(1) of Directive 2008/115/EC which would make that absolutely 
necessary? 
3. Must Article 16(1) of Directive 2008/115/EC be interpreted as meaning that 
a ‘specialised detention facility’ to detain persons awaiting removal is not deemed 
to exist merely because: 
- the ‘specialised detention facility’ indirectly is subject to supervision by the 
same government body as detention facilities for prisoners, namely the Minister 
for Justice, 
- the ‘specialised detention facility’ is organised as a division of a prison and, 
while it has its own governor, is under the overall management of the prison 
facility as it is one of a number of divisions of that prison? 
4. If Question 3 is answered in the negative: 
Must Article 16(1) of Directive 2008/115/EC be interpreted as meaning that 
accommodation in a ‘specialised detention facility’ for detainees awaiting removal 
exists if a prison facility sets up a specific division as a detention facility, if that 
division operates for detainees awaiting removal a specific area with three 
buildings within the perimeter fence and one of those three buildings temporarily 
solely houses prisoners serving custodial sentences for default of payment of a 
fine or short custodial sentences, where the prison facility takes care to ensure 
detainees awaiting removal are separated from prisoners and where, in particular, 
every house has its own facilities (its own clothing store, medical facilities, gym) 
and, while the yard/outside space is visible from all houses, each house has its 
own area for use by the detainees which is fenced off with a wire-mesh fence that 
prevents direct access between houses? 
Provisions of EU law cited 
Directive 2008/115/EC of the European Parliament and of the Council of 
16 December 2008 on common standards and procedures in Members States for 
returning illegally staying third country nationals, Article 16(1) (‘Conditions of 
detention’) and Article 18(1) and (3) (‘Emergency situations’) 
Provisions and explanatory notes of national law cited 
Law on residence, economic activity and integration of foreign nationals on 
Federal territory (‘the Residence Law’), Paragraph 62a(1) (in the version 
LANDKREIS GIFHORN 
 
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applicable between 29 July 2017 and 20 August 2019); the relevant part of the 
provisions for these purposes reads as follows: ‘As a rule, detention pending 
removal shall take place in specialised detention facilities. …’ 
Second law to improve the implementation of the obligation to leave Germany of 
15 August 2019, Article 1, subparagraph 22, Article 6 and Article 8. 
Explanatory notes to the draft law relating to Article 1, subparagraph22 of the 
Second law to improve the implementation of the obligation to leave Germany 
Brief summary of the facts and procedure 
1 The Immigration Office of the Landkreis Gifhorn (District of Gifhorn) (‘the 
applicant’) is pursuing the removal of a Pakistani national to Pakistan. The person 
concerned is required to leave Germany. He stated that he will not voluntarily 
comply with his obligation to leave Germany, subsequently went into hiding and 
ceased all contact. On 11 August 2020, he was stopped and arrested on a coach 
travelling from Berlin to Brussels. On the same day, the competent Amtsgericht 
(Local Court) ordered detention pending removal (preventive detention) until and 
including 25 September 2020. Following an appeal, on 2 September 2020 the 
Amtsgericht (Local Court) did not grant relief. The competent Landgericht 
(Regional Court) rejected the appeal on 8 September 2020. 
2 On 11 August 2020, the person concerned was taken to Hanover prison facility, 
Langenhagen division. 
3 The applicant initiated the issuing of passport replacement papers, which, 
according to the regional authorities, takes approximately six weeks. On 
12 August 2020, a flight was booked for the person concerned. The passport 
replacement document for the person concerned, received in Langenhagen in mid-
September 2020, is valid until 31 December 2020 and contains a reference to the 
date of the flight, the flight number and the destination. 
4 On 23 September 2020, the person concerned was taken to Frankfurt airport. 
However, the airline did not transport him to his destination because he expressed 
his intention not to fly. In those circumstances, it would only be possible for the 
person concerned to fly if accompanied by security. In order to organise the 
transportation in that manner, the applicant requested that detention pending 
removal be extended until 12 November 2020. 
5 It justified that request by arguing that to obtain another set of passport 
replacement papers would again take about six weeks. An unaccompanied return 
was unlikely to be successful. The applicant therefore intended to return the 
appellant on a charter flight organised by the Bavarian authorities, accompanied 
by security, on 10 November 2020. 
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6 In its application, the authority stated that the person concerned was to continue to 
be housed at Hanover prison facility, Langenhagen division. 
7 The referring court describes Hanover prison facility, Langenhagen division, as 
follows. The Langenhagen division is responsible, as the central facility for Lower 
Saxony, for providing accommodation for detainees awaiting removal. It is run by 
a civil servant employed by the prison service. Hanover prison facility as a whole, 
which is part of one of the main prisons of Lower Saxony and has approximately 
600 prison places, is run by a governor who, in that capacity, is also operationally 
responsible for the Langenhagen division. As is the case for the other prison 
facilities in Lower Saxony, Hanover prison facility and therefore also the 
Langenhagen division are under the supervision of the Ministry of Justice, which 
is headed by the Minister of Justice. 
8 The site is situated on the outskirts of the town of Langenhagen. The site is a 
former barracks. It is fenced off with a high wire-mesh fence. On the site of the 
division, there are three two-storey buildings of approximately equal size. The 
windows are barred. Next to one of the buildings there is another small building 
and a security gate for vehicles which is used as the entrance for visitors and staff 
as well as the entry and exit for vehicles. In the middle of the three buildings there 
is yard, similar to a park, with trees, which is, however, sealed off and is not in 
use. In front of each house there is a fenced-off area to which detainees awaiting 
removal have access for two hours a day. There are currently spaces for up to 48 
detainees awaiting removal (42 male and 6 female detainees). One of the 
buildings (house 1) houses male detainees awaiting removal. Depending on 
occupancy levels, the other building (house 2) is used to house female and 
additional male detainees awaiting removal. The detainees are allowed one visitor 
per day, a number of hours’ access to outside space, internet access and a mobile 
phone. Each room houses only one detainee; upon request detainees can be 
housed together. Between 25 September 2020 and 2 October 2020, house 3 was 
used for prisoners serving custodial sentences for default of payment of a fine or 
short custodial sentences of up to three months. The prison facility ensured that 
the prisoners were kept separate by housing them in separate houses between 
which there was no direct access. 
Brief summary of the basis for the reference 
9 In the court’s view, the interpretation of EU law is relevant to whether the 
detention order was unlawful for the period between 25 September 2020 and 
2 October 2020. 
10 According to the referring court, detention pending removal should not have been 
ordered if it was envisaged that such detention would infringe Paragraph 62a(1) of 
the Residence Law, which must be interpreted in the light of the first sentence of 
Article 16(1) of Directive 2008/115. 
LANDKREIS GIFHORN 
 
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11 According to the referring court, accommodating the person concerned in the 
Langenhagen division between 25 September 2020 and 2 October 2020 infringed 
Paragraph 62a(1) of the Residence Law since the detention pending removal did 
not occur in a ‘specialised detention facility’. In the period between 25 September 
2020 and 2 October 2020, the Langenhagen division of the prison facility no 
longer constituted a ‘specialised detention facility’ given that prisoners were also 
housed on the site (in house 3) alongside detainees awaiting removal (the 
appellant in house 1). In order for there to be a ‘specialised detention facility’, it 
must be separated from the prison facilities in terms of space and organisation. 
There was no such separation in place at the time in question. The three houses are 
in immediate proximity to one another and can only be accessed via a common 
entrance area or the vehicle security gate mentioned above. While it is true that 
the Langenhagen detention division has its own governor, the fact remains that the 
same prison staff was deployed both for prisoners and for detainees awaiting 
removal. Even though the specific skills of prison officers in relation to the 
supervision, care and accommodation of (long-term) detainees may constitute a 
compelling reason for integrating a facility for detainees awaiting removal into the 
judicial administration, the court is of the opinion that measures for the sufficient 
geographical and organisational separation between prisoners and detainees 
awaiting removal are nevertheless necessary. 
12 If it were to interpret EU law, the referring court would rule on the basis of 
Article 62a(1) of the Residence Law in the version in force between 29 July 2017 
and 20 August 2019. That provision was, however, amended by Article 1 no. 22 
of the Second law to improve the implementation of the obligation to leave 
Germany of 15 August 2019 ‘the Amending Law’) with the effect that the 
placement described above would be permissible. However, according to the 
referring court, the amendment introduced by that law does not comply with 
Article 16(1) of Directive 2008/115, from which the national legislature was not 
permitted to derogate.  
13 While it is true that, when the Amending Law was adopted, the national 
legislature referred to there being an emergency situation within the meaning of 
Article 18(1) of Directive 2008/115. Irrespective of whether such an emergency 
situation existed at the time of the adoption of the Amending Law, the emergency 
situation would have to continue until the present day. Even if it seems plausible 
that prison facilities are overstretched due to the Covid-19 pandemic and the 
corresponding increased need for space and distancing within the detention 
facilities, that cannot be attributed to an unusually large number of third-country 
nationals. Nor do the explanatory notes to the draft Amending Law contain a 
convincing description of an emergency situation. 
14 Given that, by passing the Amending Law, the legislature intends to derogate from 
Article 16(1) of Directive 2008/115 by relying on an emergency situation within 
the meaning of Article 18(1) of that Directive, the first question that arises is 
whether the court concerned with the detention order needs to establish the 
existence of an emergency situation in all proceedings relating to an order for 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-519/20 
 
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detention pending removal or whether it must accept the decision taken by the 
legislature without examining the position itself in relation to the particular case. 
15 In the event that the court ordering detention has to satisfy itself that there is an 
emergency situation, the referring court considers that the requirements for such 
an emergency situation have not been met, which would then give rise to the 
second question whether, under Article 16(1) of Directive 2008/115, the 
Amending Law must be disapplied. 
16 If that question is also answered in the affirmative, the term ‘specialised detention 
facility’ must be interpreted. Question 3 seeks to ascertain whether the detention 
facility for persons awaiting removal cannot be a ‘specialised detention facility’ 
because it has been integrated into the judicial administration. If that question is 
answered in the negative, question 4 seeks to ascertain the specific requirements 
for a ‘specialised detention facility’ and, in particular, whether the use of one 
house for prisoners within the perimeter fence of a facility precludes it being 
categorised as a ‘specialised detention facility’ for detainees awaiting removal.