CJEU Clarifies Detention Guidelines for Migrants

Courts must consider less severe alternatives to detention for migrants, the EU Court of Justice has said in its ruling on the case of a Sudanese national whose detention continued despite less severe alternatives.

Bashir Mohamed Ali Mahdi was arrested in Bregovo, Bulgaria, as he tried to enter Serbia in August 2013. He was arrested after being unable to produce a valid identity document (he identified himself as a Sudanese national) and was taken to a detention center in Busmantsi to await expulsion.

Two days after his arrest, Mr. Mahdi signed a statement agreeing to voluntarily return to Sudan. The Bulgarian authorities asked the Sudanese government for help in organizing Mr. Mahdi’s identity documents, which Bulgaria needed to finalize his deportation, but were subsequently told that Sudan would not issue travel documents for Mr. Mahdi, who had changed his mind and withdrawn his voluntary return agreement.

A prolonged detention, despite alternatives

Mr. Mahdi remained in the Busmantsi detention center. A Bulgarian woman issued a sworn affidavit on his behalf, asserting that Mr. Mahdi would be provided with accommodation and his own means of support while in Bulgaria. This was rejected, as were other options, including release with monthly reporting to the local Ministry of the Interior, on the grounds that Mr. Mahdi had not originally entered the country legally, had no residence permit and had been refused refugee status, and that his attempt to cross into Serbia was also a criminal act.

As the statute for his initial detainment was set to expire after six months, Bulgarian authorities commenced a court case in February 2014, seeking an extension to his detainment because of the risk of him absconding and a lack of cooperation on his part. The Bulgarian court decided to issue a request for a preliminary ruling to the Court of Justice of the European Union, as it considered some provisions of relevant EU law unclear.

CJEU clarifies courts’ duties in detention cases

The CJEU stated that a court dealing with an application to extend the initial period of detention must be able to consider and rule on all relevant matters in a case, and that it must be able to issue a ruling that is upheld and replaces the previous decision taken by the authorities. The court must also have the competence to order less severe penalties and choose from detention options ranging from extension to release.

The CJEU also ruled that a lack of identity documents does not in itself justify an extension of one’s detention period. (Thus Mr. Mahdi’s lack of identity and residence documents was not justification enough for extending his detention.) Moreover, it ruled that should an extension of a person's detention be warranted, the duration of that extension must not exceed 12 months.

“Lack of cooperation”

The Court of Justice also clarified the “lack of cooperation by third-country national” complaint that had been lodged by Bulgaria. The Court ruled that Mr. Mahdi could have demonstrated a “lack of cooperation” within the meaning of the directive only if his behavior had directly hampered the government’s efforts and caused delays in his proceeding. Any determination on his behavior and cooperation is to be made by a national court.

The CJEU did acknowledge that member states were not required to issue residence permits to third-country nationals simply because they didn’t have one. But in keeping with the reasoning that this cannot then serve as a reason for continued detention, the Court stipulated that should release be warranted in a case, the minimum a member state must do is provide the third-country national with a written confirmation of his or her status.