Time limits for detention of asylum-seekers for the purpose of a 'Dublin transfer': judgment in Mohammad Khir Amayry case
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"On 13 September 2017, the CJEU ruled in case Case C-60/15 Khir Amayry, which concerned the calculation of time limits for detention for the purpose of a Dublin transfer under Article 28 of the Dublin III Regulation (DRIII). The CJEU reached the same conclusions as Advocate General Bot in his Opinion.
First, the Court ruled that Article 28 DRIII, read in the light of Article 6 of the EU Charter of Fundamental Rights (CFREU), does not preclude a national legislation allowing for a detention to be maintained for no longer than two months where that detention begins after the requested Member State has accepted the take charge request, as long as the detention does not go beyond the time which is necessary to carry out the transfer. Second, that a national legislation such as that in Sweden, which allows for a detention to be maintained for 3 or 12 months until the transfer is carried out, is at odds with the DRIII and the guarantees under Article 6 CFREU. Third, that the days an applicant had already spent in detention need not be deducted from the six-week period allowed for detention from the time the review of a decision ceases to have suspensive effect. Fourth, the Court ruled that this six-week period also applies when the suspension of the execution of the transfer decision was not specifically requested by the person concerned." [emphasis added]
Via: ECRE's ELENA Weekly Legal Update, 15 September 2017 (link)
Case C-60/16: see the judgment (13 September 2017, pdf) and the opinion (1 March 2017, pdf)
Ruling in the judgment:
1. Article 28 of Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person, read in conjunction with Article 6 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that:
it does not preclude national legislation, such as that at issue in the main proceedings, which provides that, where the detention of an applicant for international protection begins after the requested Member State has accepted the take charge request, that detention may be maintained for no longer than two months, provided, first, that the duration of the detention does not go beyond the period of time which is necessary for the purposes of that transfer procedure, assessed by taking account of the specific requirements of that procedure in each specific case and, second, that, where applicable, that duration is not to be longer than six weeks from the date when the appeal or review ceases to have suspensive effect; and
it does preclude national legislation, such as that at issue in the main proceedings, which allows, in such a situation, the detention to be maintained for 3 or 12 months during which the transfer could be reasonably carried out.
2. Article 28(3) of the Dublin III Regulation must be interpreted as meaning that the number of days during which the person concerned was already detained after a Member State has accepted the take charge or take back request need not be deducted from the six week period established by that provision, from the moment when the appeal or review no longer has suspensive effect.
3. Article 28(3) of the Dublin III Regulation must be interpreted as meaning that the six week period beginning from the moment when the appeal or review no longer has suspensive effective, established by that provision, also applies when the suspension of the execution of the transfer decision was not specifically requested by the person concerned.
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