delivered on 25 November 2021 (1)

Case C‑519/20

party to the proceedings:

Landkreis Gifhorn

(Request for a preliminary ruling from the Amtsgericht Hannover (Local Court, Hannover, Germany))

(Reference for a preliminary ruling – Area of freedom, security and justice – Directive 2008/115/EC – Common standards and procedures for returning illegally staying third-country nationals – Detention for the purpose of removal – Article 16(1) – Concept of ‘specialised detention facility’ – Article 18(1) – Concept of ‘emergency situation’ – National legislation under which detention may, because of an emergency situation, take place in prison accommodation – Scope of the assessment to be carried out by the judicial authority responsible for the detention)

1.In the present case, the Court is called upon to clarify a number of rules relating to the detention of third-country nationals awaiting removal, laid down in Directive 2008/115/EC, (2) further to its earlier judgments of 17 July 2014, Bero and Bouzalmate (3) and Pham, (4) and of 2 July 2020, Stadt Frankfurt am Main. (5)

2.This case concerns the particular situation in which the Federal Republic of Germany is relying on an ‘emergency situation’ within the meaning of Article 18(1) of that directive in order to derogate from the rule that such nationals are to be detained, for the purpose of their removal, in specialised detention facilities. It was on the basis of such legislation that K, a Pakistani national, was placed in detention in the Langenhagen division of the Hannover prison facility in Germany in September 2020.

3.The Amtsgericht Hannover (Local Court, Hannover, Germany) is at present called upon to determine whether that measure was lawful, in light of the provisions of Articles 16 and 18 of Directive 2008/115, and it is to that end that it has referred a number of questions to the Court for a preliminary ruling.

4.First of all, the referring court asks the Court to clarify the conditions under which a Member State may rely on the existence of an ‘emergency situation’, within the meaning of Article 18(1) of the directive, in order to place third-country nationals awaiting removal in prison detention. Next, the referring court asks the Court to determine what powers the judicial authority responsible for the detention has in this context. Lastly, the referring court seeks to establish whether the Langenhagen division in which K was placed may be classed as a ‘specialised detention facility’ within the meaning of Article 16(1) of the directive. That particular issue will permit the Court to define the criteria on the basis of which a specialised detention facility should be distinguished from a prison, in particular, with regard to the management of the facility, the detention regime and the physical conditions of detention.

5.In this Opinion, I shall, first, set out the reasons for which I consider that national legislation which, for a period of three years, permits the detention of third-country nationals pending removal in prison accommodation, does not fulfil the conditions of urgency laid down by the EU legislature in Article 18(1) of Directive 2008/115.

6.Secondly, I shall explain that the adoption of exceptional measures on the basis of Article 18 does not relieve the judicial authority responsible for the detention of the task of checking, in each individual case, whether the circumstances on the basis of which the emergency situation was recognised are still present.

7.Thirdly, I shall set out the reasons for which I consider that, in light of the information given by both the referring court and the German Government, the Langenhagen division of the Hannover prison facility could not, it seems, be classed at the time of K’s detention as a ‘specialised detention facility’ for the purposes of the first sentence of Article 16(1) of Directive 2008/115.

II. Legal framework

8.Recitals 13, 16, 17 and 24 of Directive 2008/115 state:

(13)‘(13) The use of coercive measures should be expressly subject to the principles of proportionality and effectiveness with regard to the means used and objectives pursued. … Member States should be able to rely on various possibilities to monitor forced return.

(16)The use of detention for the purpose of removal should be limited and subject to the principle of proportionality with regard to the means used and objectives pursued. Detention is justified only to prepare the return or carry out the removal process and if the application of less coercive measures would not be sufficient.

(17)Third-country nationals in detention should be treated in a humane and dignified manner with respect for their fundamental rights and in compliance with international and national law. Without prejudice to the initial apprehension by law-enforcement authorities, regulated by national legislation, detention should, as a rule, take place in specialised detention facilities.

(24)This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union.’

9.Article 1 of Directive 2008/115 provides:

‘This Directive sets out common standards and procedures to be applied in Member States for returning illegally staying third-country nationals, in accordance with fundamental rights as general principles of [European Union] law as well as international law, including refugee protection and human rights obligations.’

10.Article 16 of Directive 2008/115, entitled ‘Conditions of detention’, provides, in paragraph 1 thereof:

‘Detention shall take place as a rule in specialised detention facilities. Where a Member State cannot provide accommodation in a specialised detention facility and is obliged to resort to prison accommodation, the third-country nationals in detention shall be kept separated from ordinary prisoners.’

11.Article 17(2) of the directive reads as follows:

‘Families detained pending removal shall be provided with separate accommodation guaranteeing adequate privacy.’

12.Article 18 of the directive, entitled ‘Emergency situations’, provides:

‘1. In situations where an exceptionally large number of third-country nationals to be returned places an unforeseen heavy burden on the capacity of the detention facilities of a Member State or on its administrative or judicial staff, such a Member State may, as long as the exceptional situation persists, decide … to take urgent measures in respect of the conditions of detention derogating from those set out in Articles 16(1) and 17(2).

3. Nothing in this Article shall be interpreted as allowing Member States to derogate from their general obligation to take all appropriate measures, whether general or particular, to ensure fulfilment of their obligations under this Directive.’

13.In its proposal for the recasting of Directive 2008/115, (6) the Commission has not suggested any amendment to the rules laid down in Articles 16 and 18 of the directive.

14.In accordance with Paragraphs 83 and 84 of the Grundgesetz für die Bundesrepublik Deutschland (Basic Law of the Federal Republic of Germany), the Bundesländer (German Federal States) are responsible for carrying out detentions ordered for the purpose of the removal of illegally staying third-country nationals.

15.Paragraph 62a(1) of the Gesetz über den Aufenthalt, die Erwerbstätigkeit und die Integration von Ausländern im Bundesgebiet (Law on the residence, economic activity and integration of foreign nationals in the federal territory) (7) of 30 July 2004, in the version in force from 29 July 2017 to 20 August 2019, designed to transpose Article 16(1) of Directive 2008/115 into German law, was worded as follows:

‘Detention for the purpose of removal shall take place in principle in specialised detention facilities. If there is no specialised detention facility in the federal territory or if the foreign national poses a serious threat to the life and limb of others or to significant internal security interests, detention may take place in other prison accommodation; in those circumstances, the persons detained for the purpose of removal shall be accommodated separately from ordinary prisoners.’

16.That provision was amended following the entry into force of the Zweiten Gesetz zur besseren Durchsetzung der Ausreisepflicht (Second law to improve the implementation of the obligation to leave the territory) (8) of 15 August 2019.

17.Paragraph 1, point 22 of that law provides:

‘Paragraph 62a(1) [of the AufenthG] is replaced by the following:

“(1) Individuals detained for the purpose of removal shall be kept separate from ordinary prisoners. Where several members of a family are detained, they shall be accommodated separately from other individuals detained for the purpose of removal. They shall be guaranteed adequate privacy.”’

18.With reference to that Paragraph 1, point 22, the explanatory memorandum to the draft law stated the following: (9)

‘The amendment to Paragraph 62a(1), means that, temporarily, in accordance with Article 18(1) of Directive 2008/115, individuals detained for the purpose of removal will not have to be kept in specialised detention facilities. Detention for the purpose of removal may, temporarily, take place in all detention facilities and, up to a maximum of 500 places, in prisons. It is still necessary to keep individuals detained for the purpose of removal separate from ordinary prisoners. The current rule regarding the accommodation to be provided for several members of the same family, set out in the third and fourth sentences of Paragraph 62a(1), as well as the requirements of Article 16 and 17 of Directive 2008/115, remain applicable. In addition, the question of whether prison accommodation is acceptable and lawful must still be considered in each particular case, for example, for individuals belonging to a vulnerable group. It is planned that the judicial authorities of the [Federal States] will make up to 500 places available for individuals detained for the purpose of removal, so that, taking into account the planned increase in the number of places in detention for the purpose of removal in the detention facilities of the [Federal States], approximately 1000 places in all will be available for detention for the purpose of removal. … Article 18(1) of Directive 2008/115 provides for the derogation, in emergency situations, from the separation requirement under Article 16(1) and from the requirement that families are to be provided with separate accommodation under Article 17(2). At present, the separation requirement is transposed into German law by the first and second sentences of Paragraph 62a(1); the requirement regarding family accommodation is set out in the third and fourth sentences of Paragraph 62a(1). The condition that must be met in order to make use of the derogation under Article 18(1) is that an exceptionally large number of third-country nationals to be returned places an excessive burden on the capacities of detention facilities or on the administrative or judicial staff. That condition is met in the Federal Republic of Germany’s case. Existing capacity in Germany (as at 27 March 2019) stands at approximately 487 places in detention for the purpose of removal across the federal territory. Given the imbalance between the number of individuals under an enforceable obligation to leave the territory and the number of places in detention for the purpose of removal, an excessive burden is clearly being placed on those existing capacities. That excess over capacity is in fact creating a significant bottleneck which is impeding the implementation of enforceable obligations to leave the territory. Existing places in detention for the purpose of removal are already being best utilised at federal level, through coordination among [the Federal States]. The Gemeinsame Zentrum zur Unterstützung der Rückkehr (Joint Return Support Centre, Germany (ZUR)), created in 2017, is also endeavouring to improve the management of places in detention for the purpose of removal. The rate of places in detention that are occupied, across the federal territory, through the intermediary of the ZUR, runs at about 10 percent. That means, in practice, that a large number of applications for detention cannot be submitted, even if the requisite conditions are met. Furthermore, it was not foreseeable that demand would so outstrip capacities. The number of newly arriving applicants for [international] protection having steadily decreased in the years up to 2015, the [Federal States] had, over the years, adapted capacities in detention for the purpose of removal to the then lesser demand, by decreasing the number of places. In response to the change in the situation in 2015 and the surge in the number of applicants for [international] protection, the primary obligation of the federal and [State] governments was to create capacity to meet the needs of individuals. That obligation arises, inter alia, from [European Union] law, in particular, Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (OJ 2013 L 180, p. 96) and Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (OJ 2011 L 337, p. 9), as well as the Convention for the Protection of Human Rights and Fundamental Freedoms. (10) In those circumstances, the processing of new arrivals took priority over increasing detention capacity, the aim being to meet the requirements of Directive 2008/115 subsequently (once the asylum application and appeal procedure is completed). The very aim of the derogation rule in Article 18 [of the directive] is to enable the authorities, in such situations, to give priority to the processing of new arrivals, without foreseeably infringing obligations in the future. Directive 2008/115 not only sets out the requirements in terms of conditions of detention, but also requires, under Article 8(1), the Member States to take all necessary measures to enforce return decisions. The precise purpose of Article 18 of Directive 2008/115 is to resolve potential conflicts of objectives in unforeseen, exceptional situations, such as existed in 2015 and over the years that followed. It should therefore now be applied. Once the exceptional situation had ended, the [Federal States] immediately began to increase detention capacities and they have already been able to increase the number of places in detention to 487 for the whole of the federal territory (as at 27 March 2019). Given the time usually needed to complete a construction project or to create detention facilities for the purpose of removal, it has not yet been possible to bring the number of places in detention for the purpose of removal completely into line with current needs. Given the measures taken, it may be expected that the number of places in detention for the purpose of removal will satisfy requirements by 30 June 2022. The exceptional situation will continue until that date and, consequently, it is necessary to repeal Paragraph 62a(1), as it is currently drafted, until that date. The legislation currently applicable will then enter into force once again.’

19.In its proposal for the recasting of Directive 2008/115, (6) the Commission has not suggested any amendment to the rules laid down in Articles 16 and 18 of the directive.

Paragraph 6 of the Second law to improve the implementation of the obligation to leave the territory, entitled ‘Further amendment of the Aufenth[G] with effect from 1 July 2022’, provides:

‘Paragraph 62a(1) of the AufenthG, as published on 25 February 2008 (BGBl. 2008 I, p. 162), last amended by Article 1 of this law, is replaced by the following:

“Detention for the purpose of removal shall take place in principle in specialised detention facilities. If there is no specialised detention facility in the federal territory or if the foreign national poses a serious threat to the life and limb of others or to significant internal security interests, detention may take place in other prison accommodation; in those circumstances, the persons detained for the purpose of removal shall be accommodated separately from ordinary prisoners. Where several members of a family are detained, they shall be accommodated separately from other individuals detained for the purpose of removal. They shall be guaranteed adequate privacy.”’

III. The dispute in the main proceedings and the questions referred for a preliminary ruling

The applicant, K, is a Pakistani national who, on 11 August 2020, was placed in detention for the purpose of removal in the Langenhagen division of Hannover prison. By order of 25 September 2020, his detention was prolonged until 12 November 2020. The applicant brought an action against that order, on the ground that the measure ordering his detention, in so far as concerned the period from 25 September to 2 October 2020, was contrary to the obligation to place third-country nationals awaiting removal in ‘specialised detention facilities’, within the meaning of Paragraph 62a(1) of the AufenthG, in the version in force between 29 July 2017 and 20 August 2019.

It is in the context of that action for a review of lawfulness that the referring court has raised questions about the legality of the amendments made to Paragraph 62a(1) of the AufenthG with effect from 15 August 2019, in light of the conditions laid down in Article 18 of Directive 2008/115.

Being in doubt as to the interpretation of that provision, the Amtsgericht Hannover (Local Court, Hannover) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘(1) Is EU law, in particular Article 18(1) and (3) of Directive [2008/115], to be interpreted as meaning that a national judicial authority ordering detention for the purpose of removal must, in each individual case, verify 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), of that Directive in national law?

(2) Is EU law, in particular Article 16(1) of Directive [2008/115], to be interpreted as precluding national legislation which on a temporary basis, until 1 July 2022, permits the placing 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] which would make that absolutely necessary?

(3) Is Article 16(1) of Directive [2008/115] to be interpreted as meaning that a “specialised detention facility” for the detention of persons awaiting removal is not deemed to exist solely because:

– the “specialised detention facility” is indirectly subject to supervision by the same member of the government as detention facilities for ordinary prisoners, namely the Justizministerin [(Minister for Justice, Germany)],

– 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:

Is Article 16(1) of Directive [2008/115] to be interpreted as meaning that accommodation in a “specialised detention facility” for detainees awaiting removal exists if a prison sets up a specific division as a detention facility, if that division operates for detainees awaiting removal a specific compound with three buildings within the perimeter and one of those three buildings temporarily houses only prisoners serving custodial sentences for default of payment of a fine or short custodial sentences, where the prison takes care to ensure that detainees awaiting removal are separated from prisoners, and where, in particular, each building has its own facilities (its own clothing store, medical facilities, gym) and, while the yard/outside space is visible from all the buildings, each building has its own area for use by the detainees which is fenced off with a wire-mesh fence that prevents direct access between the buildings?’

The applicant, the German and Netherlands Governments and the Commission have lodged written submissions. The German Government and the Commission also replied to the questions for written answer put to them by the Court and made oral submissions at the hearing which took place on 16 September 2021.

I shall respond to the questions referred in a different order from the order in which they were put by the referring court.

I shall begin by considering the second question, which concerns the circumstances in which a Member State may rely on the existence of an emergency situation, within the meaning of Article 18(1) of Directive 2008/115, in order to prescribe the detention of third-country nationals awaiting removal in prison accommodation. Indeed, that seems to me to be the central issue in the present reference for a preliminary ruling. Although the Court has already given a ruling on the emergency measures that were adopted by the Council of the European Union in response to the migration crisis of 2015, (11) it has not yet had an opportunity to provide guidance regarding the scope of Article 18(1) of Directive 2008/115 or, in particular, on the option which the Member States have of detaining third-country nationals awaiting removal in prison accommodation for reasons relating to the existence of a national emergency.

I shall then consider the first question referred, which concerns the role of the judicial authority responsible for the detention, in order to establish the extent to which that authority is required, in each individual case, to verify the existence or persistence of an emergency situation within the meaning of Article 18(1) of the directive.

Lastly, in response to the third and fourth questions referred, I shall clarify the criteria which should be used to distinguish between the situation in which the third-country national is placed in a specialised detention facility from the situation in which he or she is placed in prison accommodation separate from ordinary prisons, with particular regard to the management of the facility, the detention regime and the physical conditions of detention.

By its second question for a preliminary ruling, the referring court is essentially asking the Court whether Article 16(1) of Directive 2008/115 precludes national legislation under which, for a period of three years, third-country nationals awaiting removal may be detained in prison accommodation, even though no emergency situation within the meaning of Article 18(1) of that directive exists.

Before answering that question, I shall, first, recall the principles which the Court established in its judgments in Bero and Bouzalmate, Pham and Stadt Frankfurt am Main concerning the conditions of detention which the EU legislature has set out in Article 16(1) of Directive 2008/115, in the French-language version thereof. (12) Those judgments were delivered in the context of disputes relating to the assessment of the lawfulness of detention pursuant to Paragraph 62a(1) of the AufenthG, in its previous versions.

Secondly, I shall consider the extent to which a Member State may rely on the existence of an emergency situation, within the meaning of Article 18(1) of Directive 2008/115, as justification for carrying out detention in prison accommodation, independently of the particular circumstances of the case at hand.

Thirdly and lastly, I shall consider the extent to which legislative provisions, such as those in Paragraph 62a(1) of the AufenthG, in the version in force from 15 August 2019 onwards, meet the requirements set out in Article 18.

The objective of Directive 2008/115 is to establish, in accordance with Article 79(2) TFEU, an effective removal and repatriation policy based on common standards and common legal safeguards, for persons to be returned in a humane manner and with full respect for their fundamental rights and dignity. (13)

It follows from recitals 13 and 16 of the directive, and from the wording of Article 15(1) thereof, that the Member States must carry out the removal of illegal migrants using the least coercive measures possible. In order to ensure effective return procedures, the directive thus provides for a gradation of measures ranging from the measure which allows the person concerned the most liberty, namely granting a period for his or her voluntary departure, to measures which restrict that liberty the most, namely detention in a specialised facility. It is only where, in the light of an assessment of each specific situation, the enforcement of the return decision in the form of removal risks being compromised by the conduct of the person concerned that the Member States may deprive that person of his or her liberty and detain him or her. (14)

That latter measure is the most serious constraining measure allowed under Directive 2008/115 in a forced removal procedure. (15) It is, in principle, a measure of last resort. (16) It is therefore strictly regulated by the EU legislature, in Chapter IV of the directive, in such a way as to ensure the observance both of the principle of proportionality with regard to the means used and objectives pursued and of the fundamental rights of the migrants concerned. (17)

It is in that context that Article 16(1) of Directive 2008/115 sets out the rules relating to the conditions of detention and the detention regime.

In accordance with the first sentence of Article 16(1), detention for the purpose of the removal of illegally staying third-country nationals is, as a rule, to take place in specialised detention facilities. The second sentence thereof provides that, where a Member State ‘cannot’ meet that requirement and orders detention in prison accommodation, the third-country nationals must be kept apart from ordinary prisoners.

Article 16(1) of Directive 2008/115 is intended to guarantee respect for the human dignity of individuals who have committed no offence and observance of their fundamental rights, by ensuring that detention measures are distinct from the enforcement of custodial sentences and are implemented under conditions and a regime appropriate to the individual’s legal status.

As regards the obligation to provide accommodation in a specialised detention facility, laid down in the first sentence of Article 16(1) of Directive 2008/115, the Court has held that compliance with that obligation is incumbent on the Member States as such, and not on the Member States according to their respective administrative or constitutional structures. (18) The judicial authorities responsible for detention must therefore be able to order detention in specialised detention facilities, if necessary, having recourse to any agreements providing for administrative cooperation that may have been concluded for that purpose. (19)

As regards the derogation provided for in the second sentence of Article 16(1) of Directive 2008/115, that must be interpreted strictly. (20) According to the Court, that derogation ‘authorises the Member States, in exceptional circumstances, and other than in those expressly referred to in Article 18(1) of [that directive], to detain illegally staying third-country nationals in prison accommodation, for the purpose of removal, where, owing to the particular facts of the case, they cannot comply with the objectives pursued by that directive by detaining them in specialised facilities’. (21) The Court has held that that may be the case where the person concerned represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society or the internal or external security of the Member State concerned, (22) it being understood that the requirements of public policy must be interpreted strictly. (23) On the other hand, the Court considers that neither the wishes expressed by the person concerned (24) nor the lack of a specialised detention facility in a Land of the Federal Republic of Germany (25) can, without more, justify detention for the purpose of removal in prison accommodation pursuant to the second sentence of Article 16(1) of Directive 2008/115.

As regards the obligation, laid down in Article 16(1) of Directive 2008/115, to keep third-country nationals detained in prison accommodation apart from ordinary prisoners, the Court has held that it is unconditional, (26)‘is not coupled with any exception and constitutes a guarantee of observance of the rights which have been expressly accorded by the EU legislature’. (27)