On 6 October 2022, the Court of Justice of the EU (CJEU) gave a judgment on a request by the Supreme Court of Estonia in the case of I.L. (C-241/2). The preliminary ruling concerned the interpretation of Article 15(1) of Directive 2008/115/EC (Return Directive). In particular, the referring court asked whether Article 15(1) of the Return Directive could be interpreted as meaning that Member States may detain a third-country national solely based on a general criterion of the risk that the enforcement of the removal would be compromised, without one of the specific grounds for detention provided for and clearly defined by the legislation.
The CJEU noted that detention is permitted by the Return Directive solely “in order to prepare the return and/or carry out the removal process”. Therefore, the Court clarified that this measure aims to ensure the effectiveness of the return procedure and that it does not pursue any punitive purpose. Additionally, the Court highlighted that any detention must strictly comply with the principle of proportionality and must observe the fundamental rights of the third-country nationals and, in accordance with Article 52(1) of the Charter, any limitation on the exercise of the right to liberty must be provided for by law, must respect the essence of the right and must be subject to the principle of proportionality.
Taking these principles into account, the Court held that a general criterion based on the risk that the effective enforcement of the removal would be compromised does not satisfy the requirements of clarity, predictability and protection against arbitrariness. Due to the lack of precision, such a criterion would not enable the persons concerned to foresee, with the necessary degree of certainty, in what circumstances they might be placed in detention and therefore such a criterion does not offer adequate protection against arbitrariness.
For these reasons, the CJEU concluded that Article 15(1) of Directive 2008/115 does not allow a Member State to detain a third-country national solely on the basis of a general criterion based on the risk that the effective enforcement of the removal would be compromised, without satisfying one of the specific grounds for detention clearly defined by the transposed law.