A June decision by the Court of Justice of the European Union in case C‑181/16 Gnandi is now available in English. I am not sure whether it is of huge relevance to UK-based practitioners, as it concerns the Returns Directive, which does not apply in this country. Nevertheless it may be of interest to some readers.
The court was asked whether the Directive forbids the authorities from ordering asylum seekers to leave the country immediately after a decision is taken to reject their asylum application. It noted that Article 7 of the Directive creates an exception for migrants who would otherwise be in the EU illegally while their asylum claim is being decided at first instance. Once a negative decision is taken, that exemption ends and the person defaults to a state of illegal stay. But people must also be allowed at least one appeal under a system which suspends the effect of any return decision.
So a return decision can be adopted, “in principle”, so long as “all the effects” of the decision are suspended during the appeal. The formal answer to the Belgian court was:
Directive 2008/115, read in conjunction with Directive 2005/85 and in the light of the principle of non-refoulement and the right to an effective remedy, enshrined in Article 18, Article 19(2) and Article 47 of the Charter, must be interpreted as not precluding the adoption of a return decision, under Article 6(1) of Directive 2008/115, in respect of a third-country national who has applied for international protection, immediately after the rejection of that application by the determining authority or together in the same administrative act, and thus before the conclusion of any appeal proceedings brought against that rejection, provided, inter alia, that the Member State concerned ensures that all the legal effects of the return decision are suspended pending the outcome of the appeal, that that applicant is entitled, during that period, to benefit from the rights arising under Directive 2003/9, and that he is entitled to rely on any change in circumstances that occurred after the adoption of the return decision which may have a significant bearing on the assessment of his situation under Directive 2008/115, and in particular under Article 5 thereof, those being matters for the referring court to determine.
This is more pithily expressed in the accompanying press release: “Member States are entitled to adopt a return decision as soon as an application for international protection is rejected, provided that the return procedure is suspended pending the outcome of an appeal against that rejection”.