Case C‑36/20 PPU

Ministerio Fiscal (Authority likely to receive an application for international protection)

(Request for a preliminary ruling from the Juzgado de Instrucción no 3 de San Bartolomé de Tirajana)

Judgment of the Court (Fourth Chamber), 25 June 2020

(Reference for a preliminary ruling – Urgent preliminary ruling procedure – Asylum and immigration policy – Common procedures for granting and withdrawing international protection – Directive 2013/32/EU – Article 6 – Access to the procedure – Application for international protection made to an authority competent under national law to register such applications – Application made to other authorities that are likely to receive such applications but are not, under national law, competent to register them – Definition of ‘other authorities’ – Article 26 – Detention – Standards for the reception of applicants for international protection – Directive 2013/33/EU – Article 8 – Detention of the applicant – Grounds for detention – Decision to hold an applicant in detention on account of a lack of capacity at humanitarian reception centres)

1. Border controls, asylum and immigration – Asylum policy – Procedures for granting and withdrawing international protection – Directive 2013/32 – Procedure for examining an application for international protection – Other authorities likely to receive applications for international protection but not competent to register such applications – Definition – Examining magistrates called upon to adjudicate on the detention of a third-country national without a legal right of residence – Included

   (European Parliament and Council Directive 2013/32, recitals 8, 20, 25 and 26 and Art. 6(1) and (2))

   (see paragraphs 55-65, 67, 68, operative part 1)

2. Border controls, asylum and immigration – Asylum policy – Procedures for granting and withdrawing international protection – Directive 2013/32 – Procedure for examining an application for international protection – Other authorities likely to receive applications for international protection but not competent to register such applications – Obligations – Informing third-country nationals without a legal right of residence of the procedures for lodging such an application – Sending the file to the competent authority for the purposes of registering that application

   (European Parliament and Council Directives 2013/32, recitals 18, 27 and 28 and Arts 6(1) and (2) and 8(1), and 2013/33, Art. 17)

   (see paragraphs 70-83, operative part 2)

3. Border controls, asylum and immigration – Asylum policy – Procedures for granting and withdrawing international protection – Directive 2013/32 – Point at which the status as an applicant for international protection is acquired – Point at which an application for international protection is made – No administrative formalities

   (European Parliament and Council Directives 2013/32, recital 27 and Arts 2(b) and (c), Art. 3(1) and Art. 6(1) to (4), and 2013/33, Art. 2(a) and (b) and Art. 3(1))

   (see paragraphs 86-93)

4. Border controls, asylum and immigration – Immigration policy – Return of illegally staying third-country nationals – Directive 2008/115 – Scope ratione personae – Applicant for international protection within the meaning of Directive 2013/32 – Not included

   (European Parliament and Council Directives 2008/115, recital 9 and Art. 2(1), 2013/32, Art. 6(1) and Art. 26(1), and 2013/33, Art. 8(1))

   (see paragraphs 95, 97, 98)

5. Border controls, asylum and immigration – Asylum policy – Procedures for granting and withdrawing international protection – Directive 2013/32 – Standards for the reception of applicants for international protection – Directive 2013/33 – Detention – Grounds – Not possible to find, for an applicant for international protection, accommodation in a humanitarian reception centre – Ground other than those set out in Article 8(3) of Directive 2013/33 – Not permissible

   (Charter of Fundamental Rights of the European Union, Art. 6; European Parliament and Council Directives 2013/32, Art. 6(1) and Art. 26, and 2013/33, recitals 15 and 20, Art. 8, Art. 9, and Art. 18(9)(b))

   (see paragraphs 99-107, 112, operative part 3)

Résumé

Judicial authorities adjudicating on the detention of a third-country national without a legal right of residence can receive an application for international protection and must inform the person concerned of the specific procedures for lodging such an application. A person who has expressed an intention to apply for international protection before authorities which are competent to receive that application cannot be held in detention on the ground that there is not sufficient accommodation available in humanitarian reception centres

In its judgment in Ministerio Fiscal (Authority likely to receive an application for international protection) (C‑36/20 PPU), delivered on 25 June 2020 under the urgent preliminary ruling procedure (PPU), the Court held that examining magistrates called upon to adjudicate on the detention of a third-country national without a legal right of residence fall within the concept of ‘other authorities’, within the meaning of the second subparagraph of Article 6(1) of Directive 2013/32 ( 1 ) (‘the Asylum Procedures Directive’), which are likely to receive applications for international protection, even though they are not competent, under national law, to register such applications. On that basis, examining magistrates are required to inform the applicant as to the specific procedures for lodging such an application. The Court also ruled that the fact that it is not possible to find accommodation in a humanitarian reception centre cannot justify holding an applicant for international protection in detention.

On 12 December 2019, a vessel carrying 45 men from third countries, including VL, a Malian national, was intercepted by the Spanish Marine Rescue service off the coast of Gran Canaria (Spain), where the third-country nationals were taken. The following day, an administrative authority ordered their removal and made a request for detention before the Juzgado de Instrucción No 3 de San Bartolomé de Tirajana (Court of Preliminary Investigation No 3 of San Bartolomé de Tirajana, Spain). Once that court had informed him of his rights, VL stated his intention to apply for international protection. On account of the lack of available accommodation in a humanitarian reception centre, that court ordered that VL be detained in a detention centre for foreign nationals, where his application for international protection was to be processed. VL then appealed against the detention decision before that court, on the ground that it was incompatible with the Asylum Procedures Directive and Directive 2013/33 ( 2 ) (‘the Reception Conditions Directive’). In those appeal proceedings, the court made a reference to the Court of Justice for a preliminary ruling, inter alia, on whether it fell within the concept of ‘other authorities’, within the meaning of the second subparagraph of Article 6(1) of the Asylum Procedures Directive, and, accordingly, whether it is likely to receive applications for international protection. It also asked the Court to rule on the lawfulness of holding VL in detention.

In the first place, the Court stated that the literal interpretation of the term ‘other authorities which are likely to receive such applications [for international protection]’, within the meaning of that provision, and in particular the choice of the adjective ‘other’, testifies to the fact that the EU legislature intended to adopt a broad definition of those authorities which, without being competent to register applications for international protection, may nevertheless receive such applications. That phrase can, therefore, encompass both administrative and judicial authorities. That finding is supported by a contextual interpretation of that provision. One of the objectives of the Asylum Procedures Directive is to guarantee effective access, namely access that is as straightforward as possible, to the procedure for granting international protection. To prohibit a judicial authority from receiving applications for international protection would be to hinder the achievement of that objective, in particular with regard to very rapid procedures in which the applicant’s hearing before a court or tribunal may be the first opportunity to exercise the right to make such an application. Consequently, the Court held that examining magistrates called upon to adjudicate on the detention of a third-country national without a legal right of residence with a view to his or her refoulement are among the ‘other authorities’ referred to in that provision, which are likely to receive applications for international protection.

In the second place, the Court examined the obligations incumbent on examining magistrates as ‘other authorities’. It found that it follows from the second and third subparagraphs of Article 6(1) of the Asylum Procedures Directive, first, that examining magistrates are required to inform applicants for international protection of the specific procedures for lodging such an application. Accordingly, examining magistrates are acting in accordance with the requirements of that directive where, on their own initiative, they inform third-country nationals of their right to apply for international protection. Second, where a third-country national has expressed his or her intention to make such an application, the examining magistrate must send the file to the competent authority for the purposes of registering that application, in order that that third-country national may benefit from the material reception conditions and healthcare provided for in Article 17 of the Reception Conditions Directive.

In the third place, the Court examined the compatibility of VL’s detention with the Asylum Procedures and Reception Conditions Directives. It noted, first, that it follows from those directives that it is appropriate to adopt a broad definition of the term ‘applicant for international protection’, with the effect that a third-country national acquires that status from the point when he or she makes such an application. The Court also pointed out that the act of ‘making’ an application for international protection does not entail any administrative formalities. Accordingly, the fact that a third-country national has expressed his or her intention to apply for international protection before ‘other authorities’, such as an examining magistrate, is sufficient to confer the status of applicant for international protection on that person.

Consequently, the Court noted that, as from the date on which VL made his application for international protection, the conditions for his detention were governed by Article 26(1) of the Asylum Procedures Directive and Article 8(1) of the Reception Conditions Directive. It follows from a combined reading of those provisions that Member States cannot hold a person in detention on the sole ground that he or she is an applicant for international protection, and that the grounds for and conditions of detention, together with the guarantees given to applicants held in detention, must comply with the Reception Conditions Directive. Inasmuch as the first subparagraph of Article 8(3) of that directive lists exhaustively the various grounds which may justify recourse to detention and the fact that it is not possible to find a place in a humanitarian reception centre for an applicant for international protection does not correspond to any of the six grounds for detention referred to in that provision, VL’s detention was, in the present case, contrary to the requirements of the Reception Conditions Directive.

( 1 ) Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (OJ 2013 L 180, p. 60).

( 2 ) 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).