Article 18 - Right to asylum
Article 19 - Protection in the event of removal, expulsion or extradition
Key facts of the case:
Request for a preliminary ruling from the Raad van State (Netherlands).
Reference for a preliminary ruling – Asylum and immigration – Directive 2008/115/EC – Articles 3, 4, 6 and 15 – Refugee staying illegally in the territory of a Member State – Detention for the purpose of transfer to another Member State – Refugee status in that other Member State – Principle of non-refoulement – No return decision – Applicability of Directive 2008/115.
Outcome of the case:
On those grounds, the Court (Fifth Chamber) hereby rules:
Articles 3, 4, 6 and 15 of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals must be interpreted as not precluding a Member State from placing in administrative detention a third-country national residing illegally on its territory, in order to carry out the forced transfer of that national to another Member State in which that national has refugee status, where that national has refused to comply with the order to go to that other Member State and it is not possible to issue a return decision to him or her.
40) It is common ground, first, that the third-country nationals at issue in the main proceedings enjoy refugee status in a Member State other than the Netherlands. They cannot therefore be returned to their country of origin, as otherwise they would be in breach of the principle of non-refoulement, which is guaranteed in Article 18 and Article 19(2) of the Charter of Fundamental Rights of the European Union and which, as stated in Article 5 of Directive 2008/115, must be respected by the Member States in the implementation of that directive and, therefore, in particular when considering whether to issue a return decision (see, to that effect, judgment of 19 June 2018, Gnandi, C‑181/16, EU:C:2018:465, paragraph 53).