Questions on standards for transit zones: The CJEU Request for preliminary ruling in C-217/25 and C-218/25

https://doi.org/10.63189/OSDY4206

Europe has been facing the grave issue of illegal migration into the EU territory for over a decade. The problem has been examined widely on numerous occasions by the Court of Justice of the European Union (CJEU), European Court of Human Rights (ECtHR) as well as by domestic courts. One of the important aspects of the problem is provision of adequate and humane conditions of placement for the illegal migrants, and in particular asylum seekers and refugees. In this regard, transit zones have been under particular scrutiny.

The conditions of detention in transit zones and its basis was examined both in the jurisprudence of ECtHR^[1] and CJEU^[2]. Within the legal framework of the EU, the instruments in the area of asylum and return in the EU were examined e.g. in case C-808/18^[3].

On 20 March 2025 the Court from Netherlands (District Court the Hague, sitting in Amsterdam) brought requests for a preliminary rulings to the CJEU in cases C-217/25 and C-218/25. Both requests concerned placing the third state nationals at the detention centre at Schiphol airport. The doubts of the Dutch Court brought under art. 267 TFEU concerned the interpretation of the term ‘specialised detention facilities’ within the meaning of Article 10 of Directive 2013/33/EU laying down standards for the reception of applicants for international protection^[4] as well as of the term ‘separate accommodation’ and the term ‘as short a period of time as possible’^[5]. The District Court formulated 19 main questions (12 in case C-217/25 and 7 in 218/25).

Case 2017/25 concerns a female applicant for asylum, under the fictitious name of Wajir, who was detained at the Schiphol complex (Justitieel Complex Schiphol -JCS) on 24 November 2024 in the context of a border asylum procedure. Case C-218/25 concerns a third-country national, under the fictitious name of Wompou, who has been refused entry at the external border at Schiphol airport on 21 February 2025. On that same day, he was detained at JCS, so as to enforce his removal^[6].

JCS is a detention facility located near Schiphol Airport. It houses individuals in immigration detention, including asylum seekers subject to border procedures and persons awaiting deportation. The facility also holds criminal suspects and persons convicted to short-term imprisonment for criminal offenses^[7]. JSC consists of one building, which is used for the purpose of detention of asylum seekers or persons who have been refused entry at the external border and for criminal law detention. Both sections operate in separate parts of the building, can be used interchangeably for both forms of detention. Moreover, some of the facilities are shared, (medical premises, some corridors and stairwells). Families with children, are accommodated elsewhere, in the “closed family facility” at the Gesloten Gezinsvoorziening (GGV)^[8].

According to both EU and international standards, criminal law convicts and third country nationals detained under immigration legislation, should be held separately. The same standard is applied in the JCS. Yet, the criminal law detainees may meet migration detainees in some shared spaces or contact them through a wall that separates both groups, if they are outside at the same time^[9].  The material conditions of holding migrants in JSC are similar to those offered to detainees. In some cases, those offered to inmates could even be better, as they have the access to the library and the sports area, where which third country nationals don’t have such access^[10].

Article 10 of the reception standards Directive states that:

“Detention of applicants shall take place, as a rule, in specialised detention facilities. Where a Member State cannot provide accommodation in a specialised detention facility and is obliged to resort to prison accommodation, the detained applicant shall be kept separately from ordinary prisoners and the detention conditions(…)”^[11].

Therefore, the term ‘specialised detention facility’ implies other type of facility than in regard of ordinary detention following a court’s sentence or pre-trail detention. Article 15 of the Return Directive formulates the conditions of detention of third country nationals in the context of return procedures. Also, the CJEU already stressed that the detention of asylum seekers and irregular migrants falls under different legal regimes^[12]. The Reception Conditions Directive also clarifies the requirements of detention. In particular, it may not be punitive and the states may detain an applicant “if other less coercive alternative measures cannot be applied effectively”^[13].   

The ‘specialised detention facilities’ should therefore be different from a prison accommodation and must have certain specific features in relation to the normal conditions under which custodial sentences are enforced in prison accommodation^[14]. It is clear that illegal migrants are not inmates and the purpose of their detention varies from the classical penitentiary conditions. The irregular migrants’ detention also implies its strictly temporary character.

Different specificity and requirements of migrants’ detention stems from international law of human rights. Under Nelson Mandela Rules, the untried prisoners must be kept separately from convicted prisoners^[15]. CJEU also stressed that a minimum threshold of protection guaranteed by the article 5 of the ECHR should be provided^[16]. In this regard, interpretation of the notion of ‘specialised detention facility’ should be made in view of the jurisprudence of the ECtHR and its understanding of place and conditions of detention of illegal migrants^[17]. In Landkreis judgment the CJEU stressed that conditions in such facilities must avoid, resemblance to detention in a prison environment, suitable for detention for punitive purposes^[18].

  In view of the above considerations, the doubts regarding conditions at the Schiphol complex raised in the request for preliminary ruling in C-217/25 and C-218/25 may seem substantiated. It seems that the notion of the ‘specialised detention facilities’ requires appropriate standard of adaptation to the specificity of housing irregular migrants. The issue of separation them from inmates raises additional serious doubts. The CJEU jurisprudence to this day shows that the standards of the Reception Directive are more demanding that the mere separation of illegal migrants from the inmates, as in Schiphol Complex.

Nevertheless, the CJEU preliminary ruling in the cases C-217/25 and C-218/25 is still yet to come. It touches upon very important issue, especially in the context of standards for housing of irregular migrants in transit zones. This preliminary ruling will certainly set an important standard in this regard.

^[1] ECHR Judgement Ilias and Ahmed v. Hungary, 21 November 2019, app. no 47287/15.

^[2] CJEU Judgment in Joined Cases C‑924/19 PPU and C‑925/19 PPU, FMS and Others v Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság and Országos Idegenrendészeti Főigazgatóság, 14 May 2020.

^[3] CJEU Judgment C-808/18, European Commission v Hungary, 17 December 2020.

^[4] Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection.

^[5] Case C-217/25, Summary of the request for a preliminary ruling pursuant to Article 98(1) of

the Rules of Procedure of the Court of Justice, lodged 20 March 2025. Available at: https://infocuria.curia.europa.eu/tabs/document/C/2025/C-0217-25-00000000RP-01-P-01/DDP/300624-EN-1-pdf; Case C-218/25, Request for a preliminary ruling from the Rechtbank Den Haag, zittingsplaats Amsterdam (Netherlands), lodged 20 March 2025 – BC v Minister van Asiel en Migratie. Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=OJ:C_202502846.

^[6] G. Cornelisse (2025), Expert Opinion: Conditions and Duration of Detention of Asylum Applicants and Irregular Migrants at External Borders: Expert Opinion in Cases C-217/25 and C-218/25 submitted to the Court of justice., p.6.

^[7] Ibid.

^[8] Ibid., p. 7.

^[9] Ibid., p. 8

^[10] Ibid.

^[11] Directive 2013/33/EU, art. 10 para 1.

^[12] Case C-357/09 PPU, Kadzoev, EU:C:2009:741, para 45.

^[13] Directive (EU) 2024/1346 of the European Parliament and of the Council, 14 May 2024 laying down standards for the reception of applicants for international protection, 2024/1346, Art. 10.

^[14] CJEU Judgment, C‑519/20, Landkreis Gifhorn, 10 March 2022, para 36.

^[15] The United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), GA Resolution, 17 December 2015, A/RES/70/175, Rule 112, para 1.

^[16] CJEU Landkreis, para 42.

^[17] ECtHR judgment Kanagaratnam v. Belgium, 13 December 2011, app. no 15297/09, para 84.

^[18] CJEU Landkreis, para 45.