Order;Summary — ECLI:EU:C:2023:365
Date: 2023-04-26
Language of the case: Swedish
Court formation: Eighth Chamber
Subject matter: Asylum policy;Justice and home affairs;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Sweden

Translation C-629/22 – 1 
Case C-629/22 
Request for a preliminary ruling 
Date lodged:  
7 October 2022 
Referring court:  
Förvaltningsrätten i Göteborg, migrationsdomstolen (Sweden) 
Date of the decision to refer:  
27 September 2022 
Applicant:  
A.L. 
Defendant:  
Migrationsverket 
  
[omissis] 
Introduction 
1 On 1 March 2017, a legal provision came into force in Sweden which covers a 
specific procedure for removing or expelling a foreign national who is not an EEA 
national or a family member of an EEA national and who has the right to reside in 
another EU Member State. The provision was introduced after follow-up action 
had been taken in the context of the Returns Directive, during which the European 
Commission called into question Sweden’s implementation of Article 6(2) of the 
directive. 
2 The [Förvaltningsrätten] i Göteborg, migrationsdomstolen (Administrative Court 
for Immigration Matters, Gothenburg; also referred to herein as the Migration 
Court) wishes to clarify, by means of a preliminary ruling, the interpretation of 
Article 6(2) of the Returns Directive and the compatibility of the Swedish 
legislation with that article. 
EN 
REQUEST FOR A PRELIMINARY RULING OF 27. 9. 2022 – CASE C-629/22 
 
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Facts of the case 
3 The applicant, an Albanian national, was encountered on 23 March 2022 during a 
traffic check in Sweden, dressed in work clothes. He does not have a Swedish 
residence and work permit but was able to produce a Croatian residence permit 
issued in July 2021 and valid until 25 June 2022. When questioned by the police, 
he stated that he worked for a Croatian employment agency which had hired him 
out to a Swedish company and that he had entered Sweden in September 2021. 
4 On 23 March 2022, the police authority decided to remove the applicant and 
prohibit him from returning to Sweden for a period of three years. As grounds for 
its decision, the police authority stated principally that the applicant was working 
in Sweden without a permit and was not covered by any work permit exemption. 
5 The police authority did not request that the applicant return voluntarily to 
Croatia. As reasons for doing so, the police authority stated that the applicant 
would likely not comply with that request. 
6 The applicant lodged an appeal against the decision of the police authority before 
the Migrationsverket (Migration Agency). The Migration Agency dismissed the 
appeal. 
7 The applicant has now lodged an appeal against the decision of the Migration 
Agency with the Administrative Court for Immigration Matters, Gothenburg, and 
requests that the removal decision and the ban on him returning to Sweden be 
annulled. Under national law, a decision of the Migration Court cannot be 
appealed in cases concerning removals examined at first instance by the police 
authority where the removal decision was not taken in connection with a decision 
to revoke or annul a Schengen visa. Nationally the Migration Court is therefore 
the highest instance court.  
8 Pursuant to a departure notice from the police, the applicant went to Zagreb on 
1 April 2022. 
Applicable provisions of national law 
9 The Swedish provisions on foreign nationals’ entry into and residence in Sweden 
and their departure and removal from Sweden are contained in the 
Utlänningslagen (Law on foreign nationals) (2005:716). 
10 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 (‘the Returns Directive’) was 
implemented in Swedish law by legislative amendments which entered into force 
on 1 May 2012. Since the European Commission called into question Sweden’s 
implementation of Article 6(2) of the Returns Directive, follow-up action was 
taken on the implementation of that article. In order to implement Article 6(2) 
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clearly, the legislature decided to introduce a specific procedure for removing or 
expelling a foreign national who is not an EEA national or family member of an 
EEA national and who has the right to reside in another EU Member State. The 
provision was incorporated into Paragraph 6 a of Chapter 8 of the Law on foreign 
nationals. The provision is worded as set out in the paragraph below. 
11 ‘When a question arises concerning the removal or expulsion pursuant to 
Paragraphs 2, 3 or 6 of a foreign national who holds a valid residence permit or 
any other form of permit entitling him or her to reside in another EU Member 
State, the determining authority shall request the foreign national to return to the 
other EU Member State voluntarily within a reasonable time. The determining 
authority may make a decision on removal or expulsion only if the foreign 
national has not complied with such a request. 
The first subparagraph shall not apply if: 
1. the Migration Agency rejects or refuses an application for a residence permit 
which, under the provision of this Law or any other rule, may be accepted after his 
or her entry into Sweden;  
2. the foreign national is refused entry into Sweden, 
3. the foreign national is stopped in connection with the unlawful crossing of 
an external border; 
4. the foreign national poses a risk to public policy and national security, or 
5. it is likely that the foreign national would not comply with the request. 
Under Paragraph 7 of Chapter 8 of the Regeringsformen (Swedish Basic Law), the 
Government or authority designated by the Government may lay down detailed 
rules on requests under the first subparagraph.’ 
12 The following is evident from the travaux préparatoires for that provision (prop. 
2016/17:61 p. 21, see also Ds 2016:3 p. 24) as regards the exception laid down in 
point 5 of the second subparagraph thereof (‘it is likely that the foreign national 
would not comply with the request’). It may also be inferred from Article 6(2) [of 
the Returns Directive] that a foreign national who is not willing to return 
immediately to the other State should not be requested to return there but instead 
immediately be notified of a decision to remove or expel him or her. As proposed 
in the memorandum, an exception to that effect should therefore be introduced. 
When examining the conditions for applying the exception, the determining 
authority – the police authority or the Migration Agency – should, for example, be 
able to take account of what the foreign national has said him or herself or how he 
or she has complied with previous decisions. […] The exemption at issue is […] 
not intended to be limited to circumstances where there is a risk of absconding. It 
should also be possible to take account of circumstances which otherwise make it 
likely that the foreign national will not comply with a request to return voluntarily 
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to the other EU Member State. An assessment should be made of all the 
circumstances of the individual case. However, it is not appropriate or possible to 
specify in detail in law the circumstances which should be taken into account in 
such an assessment. 
13 A.L. refers to Paragraph 29 of Lag om utstationering av arbetstagare (Law on the 
posting of workers) (1999:678). The first subparagraph of that paragraph reads as 
follows: 
An employer shall notify the Arbetsmiljöverket (Swedish Work Environment 
Authority) of a posting at the latest when a posted worker begins work in Sweden. 
Questions referred to the Court of Justice of the European Union 
In the light of the foregoing, the Administrative Court for Immigration Matters, 
Gothenburg, seeks clarification on the following questions. 
1. What is the meaning of Article 6(2) of the Returns Directive? Does it 
mean that a third-country national must be requested to return 
immediately from the Member State in which he or she is staying 
illegally to the Member State in which he or she has a valid residence 
permit, unless the third-country national’s immediate departure is 
required for reasons of public policy or national security? 
The national court needs an answer to this question in order to 
determine whether Paragraph 6 a of Chapter 8 of the Law on foreign 
nationals is compatible with Article 6(2) of the Returns Directive. 
2. Does the Returns Directive or other EU law provide guidance on what 
the consequence is of a national authority not issuing the necessary 
request pursuant to Article 6(2) of the Returns Directive? Does a 
failure to issue the necessary request mean that the removal decision 
and the decision banning return are invalid? 
The national court must examine whether the police authority’s 
removal decision and decision banning return must be annulled on the 
ground that the police authority did not issue the applicant a request to 
return to Croatia voluntarily. Therefore, the national court needs 
guidance in order to ascertain whether Article 6(2) of the Return 
Directive seeks to create protection for the individual in the form of a 
right or whether the provision merely seeks to influence the national 
authority’s procedure.  
3. If Article 6(2) of the Returns Directive entails such a request and 
consequence, is it sufficiently clear and precise to have direct effect? 
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The national court needs an answer to this question in order to be able 
to establish whether it must apply Article 6(2) of the Returns Directive. 
4. Is national legislation, such as the Swedish rule in Paragraph 6 a of 
Chapter 8 of the Law on foreign nationals, which creates additional 
exemptions from a possible obligation to issue a [request], compatible 
with EU law? 
The national court needs an answer to this question in order to 
determine whether Paragraph 6 a of Chapter 8 of the Law on foreign 
nationals should be repealed. 
A.L.’s assessment 
A.L. claims that he had the right to reside and work in Sweden and submits, inter 
alia, as follows. Under Paragraph 29 of the Law on the posting of workers, it is the 
foreign national’s employer who is obliged to notify the Swedish Work 
Environment Authority. He was thus not subject to any notification obligation. 
There were therefore no grounds for a removal or a ban on return. In any event, 
the police should have requested that he leave Sweden. However, the police 
decided to remove him the first time they encountered him in Sweden. 
Migration Agency’s assessment 
With regard to point 5 of the second subparagraph of Paragraph 6 a of Chapter 8 
of the Law on foreign nationals, the Migration Agency claims that the police 
authority was not obliged to request that A.L. leave Sweden and go to Croatia. It 
is considered unlikely that he would have complied with such a request. In 
assessing whether it is likely that he would not comply with the request, account 
must be taken inter alia of whether there is a risk that a foreign national will 
abscond (see Paragraph 15 of Chapter 1 of the Law on foreign nationals). Since 
the applicant performed work in Sweden and failed to contact the Swedish 
authorities to ensure that the requirements are met, he may be considered to have 
evaded the Swedish authorities in the manner foreseen in point 1 of Paragraph 15 
of Chapter 1 of the Law on foreign nationals. Even if A.L.’s employer had 
complied with the notification obligation, A.L. did not have the right to work in 
Sweden in the period from October 2021 to October 2022 since he failed to prove 
that he is actually resident in Croatia. 
The Migration Agency also states, inter alia, as follows: 
The Law on foreign nationals is clear and precise and means that a request should 
not be made and a decision to remove should be taken instead where it is 
considered likely that the request will not be complied with. No other 
interpretation of the wording of the law is possible. The conditions for removal 
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laid down by the Law on foreign nationals were fulfilled when the police authority 
took its decision. 
It is evident from the travaux préparatoires for Paragraph 6 a of Chapter 8 of the 
Law on foreign national nationals, which was introduced in order to implement 
Article 6(2) of the Returns Directive, that the legislature stated that it may be 
inferred from Article 6(2) that a foreign national who is not willing to return to the 
other State immediately should not be requested to go there but should instead be 
notified immediately of a removal or expulsion decision (see Ds 2016:3 p. 24 and 
prop. 2016/17:61 p. 22). Nor do these statements leave any scope for an 
interpretation other than that the Swedish legislature’s intention was for it to be 
possible to take removal decisions in the situation in question and that this was 
deemed to be compatible with the directive. 
If Paragraph 6 a of Chapter 8 of the Law on foreign nationals is not deemed to be 
compatible with Article 6(2) of the Returns Directive, the question arises as to 
what significance that has in this case. In the light of the statements made in the 
Swedish travaux préparatoires, Article 6(2) could hardly be regarded as 
sufficiently clear to be given direct effect. An interpretation in conformity with the 
directive is not possible since the Swedish provision does not allow scope for such 
an interpretation. 
The judgment of the Court of Justice of the European Union of 24 February 2021 
in Case C-673/19 concerns a completely different situation from that at issue in 
this case. 
Migration Court’s assessment 
By way of a preliminary point, the Migration Court notes that it assumes that, at 
the time of the police authority’s decision, A.L. belonged to the category of 
persons covered by Article 6(2) of the Returns Directive, that is to say a third-
country national staying illegally in Sweden but who [holds] a valid residence 
permit in another EU country. The Migration Court also assumes that it was not 
possible to dispense with making a [request] – to leave Sweden and return to 
Croatia – for reasons of public policy or national security. 
Question 1 (Compatibility of Paragraph 6 a of Chapter 8 of the Law on foreign 
nationals with Article 6(2) of the Returns Directive) 
Article 6(2) of the Returns Directive does not expressly state that a request is to be 
made. However, the Migration Court considers that the Court of Justice of the 
European Union has provided relevant guidance as to how Article 6(2) of the 
Returns Directive is to be interpreted and that that guidance is applicable in the 
present case. According to the case-law of the Court of Justice of the European 
Union, it follows from Article 6(2) that a third-country national staying illegally in 
the territory of a Member State whilst holding a residence permit for another 
Member State should be allowed to return to the Member State which issued the 
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permit, rather than be issued a return decision from the outset, unless public policy 
or national security so requires (see judgments of the Court of Justice of the 
European Union of 16 January 2018 in Case C-240/17, inter alia paragraph 46, 
and of 24 February 2021 in Case C-673/19, inter alia paragraph 35). On the basis 
of the interpretation of the Court of Justice of the European Union of Article 6(2) 
of the Returns Directive, the Migration Court considers that it is doubtful whether 
Paragraph 6 a of Chapter 8 of the Law on foreign nationals is compatible with 
Article 6(2) of the Returns Directive. 
Question 2 (Whether Article 6(2) of the Returns Directive is intended merely to 
create an objective) 
The Migration Court considers that Article 6(2) does not provide any direct 
guidance on the consequences of not issuing the necessary request in relation to 
the validity of a removal decision and a decision banning return. On the other 
hand, the Migration Court considers that the purpose of the rule, that is to say that 
the third-country nationals in question should, as a rule, receive a request and a 
shorter time limit, risks being jeopardised if an action contrary to the article has no 
bearing on the validity of a removal decision and a decision banning return. The 
Migration Court also considers that the scheme of the Returns Directive, in 
particular as regards the correlation between Articles 6(1) and 6(2) thereof, 
supports the same conclusion, that is to say that the EU legislature intended to 
create protection for the individual which does not depend on how the responsible 
authority chooses to act. 
The Migration Court also considers that a ban on return is conditional on a valid 
removal decision, that is to say that the fact that a removal decision is invalid also 
means that the ban on return is invalid. 
Question 3 (Does Article 6(2) of the Returns Directive have direct effect?) 
The Migration Court is uncertain whether Article 6(2) of the Returns Directive has 
direct effect. One difficulty of interpretation faced by the Migration Court is that 
the degree of precision of that article varies depending on which language version 
is examined. 
Question 4 (Is the Swedish rule compatible with EU law?) 
As is evident from the Migration Court’s position on Question 1, the national 
court considers that Sweden’s implementation of Article 6(2) of the Returns 
Directive is incompatible with EU law. The Migration Court therefore considers 
that the exceptions to the requirement to make a request are governed exhaustively 
by the directive. In the event that Article 6(2) of the Returns Directive does not 
have direct effect, it is nevertheless important for the Migration Court to obtain 
guidance from the Court of Justice of the European Union on the compatibility of 
the national provision with EU law, as it may be necessary to interpret national 
law on the basis of an interpretation in conformity with the directive. 
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[omissis]