Opinion of the Advocate General — ECLI:EU:C:2023:155
Date: 2023-03-02
Language of the case: French
Subject matter: Asylum policy;Justice and home affairs;Area of freedom, security and justice;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling - inadmissible
Origin: Belgium

Summary C-712/21 – 1 
Case C-712/21 
Summary of the request for a preliminary ruling made under Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
25 November 2021 
Referring court:  
Conseil d’État (Belgium) 
Date of the decision to refer:  
4 November 2021 
Applicant:  
XXX 
Defendant:  
État belge, represented by the Secrétaire d’État à l’Asile et la 
Migration 
  
CONSEIL D’ÉTAT (COUNCIL OF STATE), ADMINISTRATIVE 
LITIGATION DIVISION 
JUDGMENT 
I. Subject matter of the main proceedings 
1 XXX (‘the applicant’) has brought an appeal on a point of law before the Conseil 
d’État (Council of State, Belgium) against a judgment delivered on 22 October 
2019 by the Conseil du contentieux des étrangers (Council for asylum and 
immigration proceedings, Belgium) (‘the CCE’), dismissing his appeal against an 
order to leave Belgium issued on 6 October 2016 by the Belgian State in the 
person of the secrétaire d’État à l’Asile et la Migration (State Secretary for 
Asylum and Migration) (‘the defendant’). 
EN 
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II. Brief presentation of the facts and the procedure in the main proceedings 
2 On 30 September 2016, the Commissaire général aux réfugiés et aux apatrides 
(Commissioner General for Refugees and Stateless Persons, Belgium) (‘the 
CGRA’) refused to grant the applicant refugee status and subsidiary protection. 
On 6 October 2016, the defendant issued an order to leave Belgium against the 
applicant (‘the return decision’) based on that refusal decision. 
3 On 28 October 2016, the applicant appealed to the CCE against the CGRA’s 
decision. On 7 November 2016, he appealed to the CCE against the return 
decision. 
4 By judgment of 19 January 2017, the CCE dismissed the appeal brought against 
the CGRA’s decision (‘the judgment of 19 January 2017’). 
5 By judgment of 22 October 2019, the CCE dismissed the appeal brought against 
the return decision on grounds of inadmissibility. That judgment is the judgment 
contested in the main proceedings.  
III. Judgment contested in the main proceedings 
6 In the judgment contested in the main proceedings, the CCE took note of the 
guidance provided by the Court in its judgment of 19 June 2018, Gnandi 
(C-181/16, EU:C:2018:465) (‘Gnandi’), but found that the facts on which the 
applicant relied, with the exception of the birth of his eldest son on 20 April 2016, 
occurred after the judgment of 19 January 2017. 
7 The applicant had indeed adduced facts relating to his private life. In respect of 
the applicant’s eldest son, according to the CCE it was not possible to determine 
from the case file whether the father-child relationship was established before the 
judgment of 19 January 2017. 
8 The CCE found that those facts, which occurred after adoption of the return 
decision, were indeed changes in circumstances which could have a significant 
bearing on the assessment of the applicant’s situation under Article 74/13 of the 
loi du 15 décembre 1980 sur l’accès au territoire, le séjour, l’établissement et 
l’éloignement des étrangers (Law of 15 December 1980 on entry to the national 
territory, settlement, residence and removal of foreign nationals) (‘the Law of 
15 December 1980’), which provides: ‘when taking a decision on removal the 
Minister or his representative shall take due account of the best interests of the 
child, family life and the state of health of the third-country national concerned.’ 
9 Nevertheless, because those facts occurred after the judgment of 19 January 2017, 
the CCE took the view that they could not be taken into account for the purposes 
of determining whether the rights that the applicant enjoyed while the legal 
proceedings against the CGRA’s decision were being heard, relating to reception 
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conditions or the requirements of Article 74/13 of the Law of 15 December 1980, 
had been respected by the defendant. 
10 According to the CCE, the applicant failed to show the ongoing interest required 
under the law and the appeal is therefore inadmissible. 
IV. Arguments of the parties 
1. The applicant’s arguments 
11 The applicant advances a single ground alleging infringement of Articles 3, 8 and 
13 of the Convention for the Protection of Human Rights and Fundamental 
Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’), Articles 4, 7 and 
47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), 
Article 5, Article 6(6) and Article 13 of Directive 2008/115/EC of the European 
Parliament and of the Council of 16 December 2008 on common standards and 
procedures in Member States for returning illegally staying third-country nationals 
(OJ 2008 L 348, p. 98) and Articles 39/2, 39/56, 39/65 and 74/13 of the Law of 
15 December 1980. 
12 He cites paragraphs 51 and 52 of Gnandi. He also cites paragraphs 60, 61, 64 and 
65 of that judgment, which state: 
‘60 Nevertheless, it should be pointed out, in the second place, that Member 
States are required to ensure that all return decisions are consistent with the 
procedural safeguards set out in Chapter III of Directive 2008/115 and with other 
relevant provisions of EU and national law. Article 6(6) of that directive explicitly 
lays down that requirement in the case where a return decision is adopted at the 
same time as the decision at first instance, from the determining authority, 
rejecting the application for international protection. That requirement must also 
apply in a situation, such as that at issue in the main proceedings, in which the 
return decision was adopted immediately after the decision rejecting the 
application for international protection, in a separate administrative act and by a 
different authority. 
61 In that context, it is for the Member States to ensure the full effectiveness of 
an appeal against a decision rejecting an application for international protection, in 
accordance with the principle of equality of arms, which means, inter alia, that all 
the effects of the return decision must be suspended during the period prescribed 
for bringing that appeal and, if such an appeal is brought, until resolution of the 
appeal. 
… 
64 Moreover, given that, notwithstanding the adoption of a return decision 
either after adoption of a first instance decision from the determining authority 
rejecting the application for international protection or together in a single 
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administrative act, an applicant for international protection must be allowed to 
remain pending the outcome of an appeal against that rejection, Member States 
are required to allow the person concerned to rely on any change in circumstances 
that occurred after the adoption of the return decision and that may have a 
significant bearing on the assessment of his situation under Directive 2008/115, 
and in particular under Article 5 thereof. 
65 Lastly, as is apparent from recital 6 of Directive 2008/115, Member States 
must ensure that return procedures are fair and transparent (see, to this effect, 
judgments of 5 June 2014, Mahdi, C-146/14 PPU, EU:C:2014:1320, 
paragraph 40, and of 5 November 2014, Mukarubega, C-166/13, 
EU:C:2014:2336, paragraph 61). Accordingly, where a return decision is adopted 
after a first instance decision from the determining authority rejecting an 
application for international protection or together in a single administrative act, 
Member States are required to ensure that the person concerned is informed in a 
transparent way of their compliance with the safeguards discussed in 
paragraphs 61 to 64 above.’ 
13 According to the applicant, the CCE took the view in the decision contested in the 
main proceedings that for him to be able to rely on any changes in circumstances 
subsequent to the return decision, they had to have arisen before the judgment 
disposing of his application for international protection. However, according to 
paragraph 64 of Gnandi no restriction of that nature is permitted on the 
circumstances to be taken into consideration. In that judgment the Court refers to 
circumstances arising after adoption of the return decision up to the time of 
resolution of the appeal against that decision, without limitation. Furthermore, the 
reasoning followed by the Court in that judgment in respect of the effectiveness of 
the remedy has no bearing on the foreign national’s status as an applicant for 
international protection. The judgment of 5 June 2014, Mahdi (C-146/14 PPU, 
EU:C:2014:1320), cited in Gnandi, concerned a foreign national who had not 
applied for international protection and was exclusively the subject of a return 
measure. 
14 The applicant also asserts that he has no influence over the time taken to examine 
his appeal against the return decision and that the rights guaranteed to him must 
not be diminished as a result of that period, with the effect that, as a matter of 
principle, he cannot be deprived of his right, pending resolution of the appeal 
against the return decision, to rely on changes occurring after resolution of the 
appeal against rejection of his application for international protection. 
15 According to the applicant, the decision contested in the main proceedings has the 
effect that changes in circumstances can only be taken into account where they 
occur while the foreign national is allowed to remain in the territory, whereas 
neither Article 5 of Directive 2008/115 nor Article 74/13 of the Law of 
15 December 1980, which transposes that article into national law, establish any 
such limitation. To require the Member States, when implementing that directive, 
to take properly into account only circumstances arising while a foreign national is 
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legally resident is incompatible with the very purpose of Directive 2008/115, since 
the directive also applies to foreign nationals who have never been legally resident 
or allowed to remain. 
16 The applicant adds that, in the contested decision, the CCE did not state that an 
applicant for international protection loses any interest in bringing proceedings 
once that status comes to an end, but limits that interest to changes in 
circumstances arising up to that time. 
2. The defendant’s arguments 
17 According to the defendant, the CCE correctly found that the changes in 
circumstances relied upon by the applicant could not be taken into consideration 
because they occurred after the judgment of 19 January 2017 which finally 
disposed of his asylum procedure and, in contrast to the applicant’s assertions, the 
‘rights at issue’ concerned the protection of his family life and are not protected 
by Article 3 ECHR or Article 4 of the Charter. 
18 It takes the view that Gnandi provided a solution where an applicant for 
international protection was refused refugee status and, at the same time or soon 
after, was the subject of a return decision, since in that situation the person 
concerned must enjoy certain safeguards to ensure that an appeal brought against 
that decision rejecting the application is fully effective. Those safeguards concern 
only the period running from the lodging of an appeal against the decision at first 
instance rejecting the application for international protection until ‘the outcome of 
the appeal against that rejection’, rather than until the outcome of an appeal 
against the return measure, as the applicant argues. The Court laid down those 
safeguards, which derogate from the general provisions, because to enforce a 
return decision before a ruling on the appeal brought against the decision refusing 
international protection could expose the applicant to the death penalty, torture or 
other inhuman or degrading treatment or punishment. The States must apply 
Article 5 of the directive at the time the return decision is issued, rather than at the 
time of its enforcement, and Article 14 of the directive, on ‘safeguards pending 
return’, does not require that any changes in the circumstances of the foreign 
national be taken into account. 
19 The defendant notes that the CGRA, and then the CCE, examined whether 
Article 3 ECHR had been complied with and held that, in the event that the 
applicant was returned to his country of origin, he would not be exposed to a real 
risk of ill-treatment in breach of Article 18 of the Charter, in conjunction with 
Article 33 of the Geneva Convention, or of Article 19(2) of the Charter. Since 
19 January 2017, the applicant has no longer enjoyed the status of an applicant for 
international protection and, while loss of that status directly affects his interest in 
the appeal, since it removes his interest in seeking annulment of the return 
decision on the grounds that it infringes Article 3 ECHR, it also removes his 
interest in claiming the benefit of the ‘Gnandi safeguards’. 
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20 According to the defendant, that situation does not infringe the applicant’s rights 
since he is able, first, at any time to apply for a residence permit in reliance on the 
new facts relating to his family life that he adduced for the first time at the hearing 
before the CCE and, secondly, if the return decision is enforced, to rely on his 
family life or any other new circumstance, as a matter of extreme urgency. The 
Cour constitutionnelle (Constitutional Court, Belgium) has held that all the 
remedies existing in Belgian law complied with Article 13 ECHR. 
V. Grounds for the referral 
21 A decision ordering a person to leave Belgium may be the subject of an action for 
annulment before the CCE brought by any person showing injury or an interest 
under Article 39/2 or Article 39/56 respectively of the Law of 15 December 1980. 
The examination by the CCE in those proceedings is an ex tunc examination. 
22 The CCE’s judgment can be appealed on a point of law to the Conseil d’État 
(Council of State). 
23 It can be seen from the contested judgment that the CCE found that the applicant 
no longer had an interest in bringing an action against the order to leave Belgium 
resulting from the decision refusing to grant him international protection, on the 
grounds, first, that the CCE had issued a final rejection of that application and, 
secondly, that the principal complaint was based on the fact that such an order to 
leave Belgium could not be issued while appeal proceedings were pending against 
the CGRA’s decision. 
24 According to the CCE, it can be inferred from Gnandi that the applicant could 
only require that events relating to his family life and his state of health be taken 
into account where they occurred up to disposal of the international protection 
procedure. However, the events adduced by the applicant occurred after the date 
of the judgment dismissing his appeal relating to that procedure. 
25 In Gnandi, the Court held that: 
‘Directive 2008/115/EC of the European Parliament and of the Council of 
16 December 2008 on common standards and procedures in Member States for 
returning illegally staying third-country nationals, read in conjunction with 
Council Directive 2005/85/EC of 1 December 2005 on minimum standards on 
procedures in Member States for granting and withdrawing refugee status, 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 of 
Fundamental Rights of the European Union, 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 
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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 Council Directive 
2003/9/EC of 27 January 2003 laying down minimum standards for the reception 
of asylum seekers, 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.’ 
26 It cannot be determined with certainty from that judgment up to what time the 
applicant may rely on any change in circumstances occurring after the adoption of 
the return decision and that may have a significant bearing on the assessment of 
his situation under Directive 2008/115, and of Article 5 thereof in particular. 
Specifically, the Court does not identify in that judgment the latest time by which 
the change in circumstances must have occurred if it is to be properly relied upon. 
27 In those circumstances, it is not inconceivable that the Court may find that 
Articles 7 and 47 of the Charter and the provisions of Directive 2008/115, in 
particular Article 5, Article 6(6) and Article 14, require a court charged with 
examining the legality of an order to leave a Member State, issued pursuant to 
rejection of an application for international protection, to take into account 
changes in circumstances relating to the foreign national’s family life or state of 
health that occur up to the date on which that court makes its ruling. It is therefore 
appropriate to make a request for a preliminary ruling to the Court of Justice. 
VI. Questions referred 
28 The Conseil d’État (Council of State) refers the following questions for a 
preliminary ruling: 
‘1. Must Articles 7 and 47 of the Charter of Fundamental Rights of the 
European Union and Articles 5, [6(6)] and 13 of Directive 2008/115/EC of the 
European Parliament and of the Council of 16 December 2008 on common 
standards and procedures in Member States for returning illegally staying third-
country nationals, read in the light of the judgment [of 19 June 2018, Gnandi 
(C-181/16, EU:C:2018:465)], be interpreted as meaning that a court hearing an 
appeal against a return decision adopted pursuant to a decision refusing to grant 
international protection, when assessing the legality of the return decision, may 
take account of changes in circumstances that may have a significant bearing on 
the assessment of the situation under Article 5 cited above, only where those 
changes occurred prior to the disposal of the international protection proceedings 
by the Council for asylum and immigration proceedings? 
2. Must the circumstances referred to in Article 5 of Directive 2008/115/EC of 
the European Parliament and of the Council of 16 December 2008 on common 
standards and procedures in Member States for returning illegally staying third-
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country nationals have arisen at a time when the foreign national was legally 
resident or allowed to remain?’