Illegally staying third-country nationals – conditions for detention, form of the administrative measures, and scope of the judicial review.


(Judgment of the Court of Justice of the EU in Case C 146/14 PPU, Mahdi)

Plamena Slavova[1]


The Judgment has been issued by the Court of Justice of the European Union (the CEU) on a reference for a preliminary ruling (with a request for urgent preliminary procedure). The Referring court is Sofia City Administrative Court, Bulgaria. The reference concerns the interpretation of Article 15 of Directive 2008/115 of the European Union (EU) on common standards and procedures in Member States for returning illegally staying third-country nationals.

According to its provisions a Member State may detain an illegally staying third-country national for the purpose of removal from its territory and return to the country of origin. The detention is based on limited prerequisites (specified in Article 15, par.1 from The Directive) and may endure no longer than 6 months. This period may be prolonged with additional 12 months on conditions, exclusively envisaged in Article 15, par.6 from The Directive. A detention should not continue if a reasonable prospect of removal no longer exists. It is also required the detention to be reviewed at reasonable intervals of time. In case of prolonged detention periods this review is to be supervised by a judicial authority.

The main proceedings before the Administrative court concern the case of the Sudanese national Mr. Mahdi, who was arrested on a border post in Bulgaria with no identity documents and was made the subject of coercive administrative measures: deportation and banning a foreign national from entering Bulgaria. While the measures were being arranged, Mr. Mahdi was placed in a detention facility. He declared before a Sudanese embassy representative his reluctance to return to his country and as a result the embassy refused to issue identity documents. At the end of the 6-month period of initial detention the Director of the Directorate for Migration at the Ministry of the Interior brought the case to the Referring court with a request for extension of the initial detention.

The administrative court brought the case to the CEU taking into account the rules of the Law on foreign nationals in the Republic of Bulgaria (LFN) and some rules of the Code of Administrative Procedure (CAP). First of all, it is prescribed in the LFN that each month the administrative authorities should verify ex officio the existence of the detention conditions. Thereto, a list of third-country nationals, who have stayed in the facility more than 6 months, should be submitted in the court at each 6-month period. The administrative court itself at the end of the 6-month period should make a decision for prolonging of the detention, replacing it with other measures or its termination.

Thereof the Referring court was not sure whether the administrative authorities should issue a specific decision when reviewing the detention.

It was made a question concerning the powers of the Referring court when supervising the administrative review and if it may decide on the merits of the case (according to the CAP the court has the authority to act so only in limited hypotheses).

The Referring court inquired if a detention may be extended only because of the lack of identity documents, provided that this fact, according to a definition in the LFN, gives a reason to believe that there is risk of absconding. (Initial detention is allowed both by the Directive and the Bulgarian law if there is a “risk of absconding”.)

The administrative court was also confused whether the refusal of Mr. Mahdi to return to his country of origin may be interpreted as a “lack of cooperation by a third-country national”, which is a precondition for extending the period of detention.

Last, but not least, the Bulgarian court made an inquiry what actions should be taken in case of a release of Mr. Mahdi and whether the country has any obligations for issuing a specific document for his status.

The Court of The EU has formulated five distinct answers to the Referring court’s request:

  • As far as the administrative review is concerned, the administrative authorities should come out with a specific decision from the review, only on expiry of the maximum period allowed for the initial detention, in other words, only in case of prolonged detention periods – each period more than six months. This measure should be in the same form as the initial detention – written form, including the reasons in fact and in law for the decision made. The grounds of this conclusion are as follows: detention and extension of detention are similar in nature, this form is necessary both to enable the third-country national concerned to defend his rights and to ensure full possibility of judicial supervision and review.
  • In order to decide to extend the detention, the judicial jurisdiction should ascertain the existence of both the conditions for initial detention and for its extension. Therefor the supervision must permit the authority to decide on the merits of whether the detention should be extended, replaced with a “less coercive measure” or “whether the person concerned should be released”. The court should be able to take into account the facts and evidence adduced by the administrative authority, “as well as any facts, evidence and observations which may be submitted to the judicial authority in the course of the proceedings”. Some of these rules are in contradiction with the national law (the CAP). For instance, the administrative court examines the legality of an administrative act and is not always authorized to decide on the merits of the case. The factual and legal arguments are to be presented by the administrative authority or the person who is benefitting from the decision. The court provides the case with evidence only on application of the parties or as an exception. Despite these contrarieties in the national law, the rules, given by the Court of the EU, should be put into practice, and namely: full authority of the judicial jurisdiction to decide on the merits of the case and to take into consideration, even inquire, all kinds of facts and evidence.
  • The lack of identity documents cannot be the sole reason for extension of the detention. But it can be taken into consideration when deciding whether there is a risk of absconding, which is a prerequisite for initial detention and a necessary condition for extension along with additional ones. The judicial authority should make an individual assessment of the circumstances in order to decide.
  • The Court of the EU has not given an exact answer to whether or not the facts from the main proceedings may be interpreted as a lack of cooperation but has explained which the conditions for that are. In the period of detention the third-country national should not have cooperated in the implementation of the measures and for this reason only, the same implementation is likely to last longer than expected. To extend the detention on the specific prerequisites, the Member State should first have made all reasonable efforts to fulfill the operation for removal and return.
  • The last answer has a great significance for the status of a released illegally staying third-country national with no identity documents. According to the CEU the Member State is not obliged “to issue an autonomous residence permit, or other authorization conferring a right to stay” however it should “provide the third-country national with written confirmation of his situation.”

The present judgment has provided the procedure of detention of a third-country national with rules, which a national authority could not find in the national law or extract on its own from the law of The EU. It has been given an interpretation of such provisions of The Directive, which define: 1.the form of the final act in the administrative procedure of detention; 2.the scope of judicial supervision over the act; 3.the sense of the preconditions in the procedure, which are to be assessed in each specific case by the judicial authority, depending on the facts; 4.the obligation of the Member State for reasonable efforts in the procedure of removal and return, and the obligation to issue a written confirmation of the third-country national’s status. All these provisions are to be executed, regardless of any conflicting national rule of law.





[1] Master in Law, St. Kliment Ohridski University of Sofia, participant in “The BFTF Institute (diplomats)”, USA and a member of the “Konrad Adenauer” foundation club in Bulgaria.