The case originated in Belgium. Legislation designed to remove unauthorised non-EU nationals, as well as EU nationals it deemed to be a risk to the public, allows them to be held in immigration detention for as long as eight months.
The two questions for the court in Luxembourg to decide were:
- Is it lawful for enforcement legislation to apply equally to EU and non-EU nationals to prevent absconding?
- Is it lawful to apply an 8-month maximum detention period to EU nationals?
The court heard that the Citizens’ Rights Directive does not contain specific rules on the enforcement of decisions to deport EU nationals. It was not therefore lawful for a member state to create its own rules as long as they were compliant with EU law – in particular, the right to freedom of movement.
The existence of the Belgian legislation was accepted, but the court went on to say that allowing detention for up to eight months irrespective of nationality was disproportionate.
The EU Court of Justice found that: there is no justification for treating European Union nationals and non-European Union nationals in the same way. The maximum detention period for European Union citizens and their families goes beyond that which is necessary to achieve the objective.
Though this case does not directly affect UK immigration lawyers, it is worth noting that it is now unlawful for an EU national to be detained in Belgium for 8 months but a British citizen could be.
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