Immigration Detention under the Return Directive: The Cjeu Shadowed Lights

Abstract

In its decisions with regard to pre-removal detention under Directive 2008/115/ec, the position the cjeu has adopted seems vague and elusive, offering leeway for national interpretations of the text. The Court makes recurrent references to the Charter of Fundamental Rights of the eu (cfreu), but fails to give clear and uniform answers, leaving many aspects of pre-removal detention to evaluation by the referring national judges and, hence, to the discretion of Member States. What are the reasons that can be advanced and the conditions that need to be fulfilled in order to guarantee conformity with the ec norm of the national recourse to pre-removal detention? What are the intensity and the consequences of the judicial review of pre-removal detention by national jurisdictions? The Luxembourg Court has dealt with all these questions, casting some shadowed light on immigration detention under Directive 2008/115/ec.