Marie-Laure Basilien-Gainche

Professor in Law

University Jean Moulin Lyon III
Member of the Institut Universitaire de France

On June 5, 2014, the European Court of Justice (CJEU) issued a decision in the Mahdi case, providing further interpretation of the Return Directive. This directive, formally known as Directive 2008/115/EC, establishes common standards for EU Member States regarding the return of illegally staying third-country nationals. The CJEU’s judgment builds upon its prior rulings concerning this directive.

Previous cases before the CJEU focused on specific provisions of the Return Directive. However, the Mahdi case involved numerous detailed questions from the Bulgarian Administrative Court (Sofia-grad) regarding Article 15, specifically paragraphs 3 and 6, in relation to Articles 6 and 47 of the Charter of Fundamental Rights of the European Union. This Bulgarian court’s approach might serve as a model for French courts seeking preliminary rulings on the Return Directive, as their past requests have been somewhat unclear.

The Mahdi case revolves around a Sudanese national arrested in Bulgaria for lacking valid identification. After receiving a return decision and entry ban, Bashir Mohamed Ali Mahdi initially agreed to voluntary departure but later declined. When Sudanese authorities failed to provide the necessary travel documents, the detention center director proposed releasing Mr. Mahdi with alternative measures, as allowed under the Return Directive. However, higher administrative authorities opposed this, leading to Mr. Mahdi remaining in detention beyond the initial six-month limit. The Bulgarian court then sought guidance from the CJEU on interpreting Article 15, which addresses detention periods.

The CJEU focused on four key areas. First, it clarified that decisions to extend detention periods must meet the same formal and substantive requirements as initial detention decisions, including written justification.

Second, the ruling emphasized the need for robust judicial oversight regarding detention extension decisions. The judicial authority must consider all relevant circumstances, even those not explicitly presented by administrative authorities. Additionally, the court can substitute detention with less coercive measures.

Third, the judgment addressed the reasons for detaining and extending the detention of a third-country national. The court stated that lacking a valid ID doesn’t inherently justify extending detention or automatically indicate a flight risk. However, national courts retain discretion in considering this factor, which may raise concerns regarding compatibility with international and European asylum laws.

Lastly, the CJEU addressed whether Member States must grant residency to individuals facing removal obstacles. While the Return Directive focuses on removal procedures rather than residency rights, the CJEU’s position allows for the possibility of denying legal residency to such individuals, leaving them in a precarious legal situation. This stance seemingly contradicts the European Commission’s view that EU law allows for either removing irregular migrants or granting them residency. This approach may impact the Return Directive’s effectiveness, potentially leaving many individuals in legal limbo—unable to be removed yet without secure residency. The CJEU’s seemingly contradictory position on judicial oversight, where courts are granted extensive control yet significant leeway in deciding initial and extended detention, further complicates the matter.

Barnard & Peers: chapter 26