Background:

A national court in the Netherlands has referred preliminary questions to the Court of Justice of the European Union (CJEU) concerning how the Netherlands has implemented certain articles related to the detention of third-country nationals. These articles include Article 15 of the Return Directive (2008/115/EU), Article 8 of the Reception Conditions Directive (2013/33/EU), and Article 28 of the Dublin Regulation (EU 604/2013). In response, the Netherlands issued this ad hoc query to understand how these provisions are applied in other EU member states.

Respondents:

23 EMN Member Countries (including BE) provided a public answer to this ad hoc query.

Findings:

A preliminary analysis of the responses reveals the following key points:

• In nearly all responding countries, the three grounds for detention - based on Article 8 of the Reception Conditions Directive, Article 15 of the Return Directive, and Article 28 of the Dublin Regulation - are implemented as distinct and separate grounds in national legislation.

• Most countries require a new detention decision to be issued if the legal basis for the detention changes. For instance, if the detention initially occurs under the asylum procedure and later shifts to a return procedure, a new detention decision must be made, accompanied by appropriate justification.

• In most responding countries, detention under one legal basis (e.g. asylum procedure) cannot continue under a different legal basis (e.g., return procedure) without issuing a new detention decision that provides the relevant justification.

Please consult the compilation of answers to the ad hoc query for more details.