Judgment;Summary — ECLI:EU:C:2022:810
Date: 2022-10-20
Language of the case: French
Court formation: Fifth Chamber
Subject matter: Asylum policy;Justice and home affairs;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary C-825/21 – 1 
Case C-825/21 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
23 December 2021 
Referring court:  
Cour de cassation (Belgium) 
Date of the decision to refer:  
13 December 2021 
Applicant:  
UP 
Defendant:  
Centre public d’action sociale de Liège 
  
1. Subject matter of the main proceedings 
1 On 24 September 2014 the applicant’s request for asylum was refused and on 
13 October 2014 she was served with an order to leave the territory. 
2 On 16 October 2014 the applicant brought an action against that refusal before the 
Conseil du contentieux des étrangers (Council for asylum and immigration 
proceedings). 
3 On 19 January 2015 the applicant submitted an application for leave to remain for 
the purpose of medical treatment. 
4 On 8 June 2015 that application was declared admissible, resulting in the 
applicant being issued with a residence registration certificate (temporary leave to 
remain). The Centre public d’action sociale de Liège (Liège public social welfare 
centre) then granted her social financial assistance.  
5 On 22 July 2015 the Council for asylum and immigration proceedings dismissed 
the action brought against the refusal of 24 September 2014.  
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-825/21 
 
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6 On 20 April 2016 the Office des étrangers (Immigration Office) declared the 
application for leave to remain for the purpose of medical treatment to be 
unfounded. Residence registration certificates (temporary leave to remain) ceased 
to be issued to the applicant. 
7 The applicant brought an action against that decision before the Council for 
asylum and immigration proceedings, an action which does not have suspensory 
effect.  
8 The Liège public social welfare centre withdrew her social assistance with effect 
from 1 May 2016. 
9 By judgment of 7 November 2016, the tribunal du travail de Liège (Labour Court, 
Liège) dismissed the action brought by the applicant against the withdrawal of her 
social assistance. 
10 On 15 March 2017 the cour du travail de Liège (Higher Labour Court, Liège) 
dismissed the applicant’s appeal against that judgment. 
11 The Higher Labour Court, Liège, essentially took the view that the effects of the 
order to leave the territory served prior to the application for leave to remain for 
the purpose of medical treatment had indeed been suspended but that that order 
still stood and resumed its full force when the residence registration certificates 
ceased to be granted. The applicant, who is no longer lawfully resident in 
Belgium, is therefore no longer entitled to the social assistance in issue. 
12 The Cour de cassation (Court of Cassation), hearing an appeal against the 
judgment of the Higher Labour Court, Liège, now makes a reference to the Court 
of Justice. 
2. Legal provisions relied on 
European Union law 
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  
13 Chapter II, entitled ‘Termination of illegal stay’, provides in Article 6: 
‘Return decision 
1. Member States shall issue a return decision to any third-country national 
staying illegally on their territory, without prejudice to the exceptions referred to 
in paragraphs 2 to 5. 
… 
CENTRE PUBLIC D’ACTION SOCIALE DE LIÈGE 
 
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4. Member States may at any moment decide to grant an autonomous residence 
permit or other authorisation offering a right to stay for compassionate, 
humanitarian or other reasons to a third-country national staying illegally on their 
territory. In that event no return decision shall be issued. Where a return decision 
has already been issued, it shall be withdrawn or suspended for the duration of 
validity of the residence permit or other authorisation offering a right to stay. 
…’ 
14 Article 8, entitled ‘Removal’, provides: 
‘1. Member States shall take all necessary measures to enforce the return decision 
if no period for voluntary departure has been granted in accordance with 
Article 7(4) or if the obligation to return has not been complied with within the 
period for voluntary departure granted in accordance with Article 7. 
… 
6. Member States shall provide for an effective forced-return monitoring system.’ 
National law 
Loi du 8 juillet 1976 organique des centres publics d’action sociale (Basic Law of 
8 July 1976 on public social welfare centres) 
15 Article 1 provides: 
‘Everyone has the right to social assistance. The purpose of such assistance is to 
enable each person to lead a life consistent with human dignity. 
Public social welfare centres shall be established which, under the conditions laid 
down by this Law, shall have the task of providing such assistance.’ 
16 Article 57 provides: 
‘1. Without prejudice to Article 57ter, public social welfare centres shall have the 
task of providing individuals and families with the assistance that the community 
is due to provide.  
…  
That assistance may be material, social, medical, medico-social or psychological. 
2. By derogation from the other provisions of this Law, the tasks of public social 
welfare centres shall be limited to:  
1. the grant of urgent medical assistance to foreign nationals staying illegally in 
Belgium; 
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… 
A foreign national who has declared himself or herself a refugee and has 
requested recognition as such shall be deemed to be staying illegally in Belgium 
where his or her request for asylum has been refused and an order to leave the 
territory has been served on him or her. …’ 
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 Belgian 
territory, residence, establishment and removal of foreign nationals) 
17 Article 9ter provides: 
‘1. A foreign national residing in Belgium … who suffers from an illness 
occasioning a real risk to his or her life or physical integrity or a real risk of 
inhuman or degrading treatment where there is no appropriate treatment in his or 
her country of origin or in the country in which he or she resides may apply … for 
leave to remain in Belgium.’ 
Arrêté royal du 17 mai 2007 fixant des modalités d’exécution de la loi du 15 
septembre 2006 modifiant la loi du 15 décembre 1980 sur l’accès au territoire, le 
séjour, l’établissement et l’éloignement des étrangers (Royal Decree of 17 May 
2007 laying down detailed rules for the implementation of the Law of 
15 September 2006 amending the Law of 15 December 1980 on entry to Belgian 
territory, residence, establishment and removal of foreign nationals) 
18 Article 7 provides: 
‘…  
Except in the cases referred to in Article 9ter(3) of the Law, the authorised 
representative of the Minister shall instruct the commune to enter the person 
concerned on the register of foreign nationals and to provide him or her with a 
model A residence registration certificate. …’ 
19 Article 8 provides: 
‘Temporary leave to remain and the certificate of entry on the register of foreign 
nationals which are issued on the basis of Article 9ter of the Law shall be valid for 
at least one year.’ 
3. The essential arguments of the applicant 
20 The applicant submits, in essence, that a residence registration certificate entitles a 
person seeking to remain for the purpose of medical treatment to stay, even 
temporarily and irregularly, and thus entails the implied withdrawal of the order to 
leave the territory previously served on him or her. The contested judgment could 
CENTRE PUBLIC D’ACTION SOCIALE DE LIÈGE 
 
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not therefore rely on that order to leave the territory to rule that the applicant was 
staying illegally during the period at issue from 1 May to 2 November 2016 and 
was not entitled, pursuant to Article 57(2) of the Law of 8 July 1976, to receive 
social assistance other than urgent medical assistance. 
4. Assessment of the Court of Cassation 
21 Article 6(1) of Directive 2008/115 provides that Member States are to issue a 
return decision to any third-country national staying illegally on their territory. 
22 Under Article 6(4) of Directive 2008/115, Member States may at any moment 
decide to grant an autonomous residence permit or other authorisation offering a 
right to stay for compassionate, humanitarian or other reasons to a third-country 
national staying illegally on their territory and, in that event, where a return 
decision has already been issued, it is to be withdrawn or suspended for the 
duration of validity of the residence permit or other authorisation offering a right 
to stay. 
23 Article 8(1) of that directive provides that Member States are to take all necessary 
measures to enforce the return decision. 
24 In the judgment of 19 June 2018, Gnandi (C-181/16, EU:C:2018:465), the Court 
held that the order to leave the territory issued by the Belgian Immigration Office 
to a third-country national after the rejection of his application for international 
protection constituted a return decision within the meaning of Article 3(4) of 
Directive 2008/115/EC. 
25 In the case which gave rise to the judgment of 15 February 2016, N. 
(C-601/15 PPU, EU:C:2016:84), the referring court – the Council of State of the 
Netherlands – had stated that, in accordance with its own case-law, the 
introduction of an asylum application by a person who is subject to a return 
decision automatically causes all return decisions that may previously have been 
adopted in the context of that procedure to lapse. The Court stressed in that regard 
that, in any event, the principle that Directive 2008/115/EC must be effective 
requires that a procedure opened under that directive, in the context of which a 
return decision has been adopted, can be resumed at the stage at which it was 
interrupted, as soon as the application for international protection which 
interrupted it has been rejected at first instance. It stated that, indeed, the Member 
States must not jeopardise the attainment of the objective which that directive 
pursues, namely the establishment of an effective policy of removal and 
repatriation of illegally staying third-country nationals. The Court added that it 
follows both from the duty of sincere cooperation of the Member States, deriving 
from Article 4(3) TEU, and from the requirements for effectiveness referred to, 
for example, in recital 4 of Directive 2008/115/EC, that the obligation imposed on 
the Member States by Article 8 of that directive, in the cases set out in 
Article 8(1), to carry out the removal must be fulfilled as soon as possible. It made 
clear that that obligation would not be met if the removal were delayed because, 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-825/21 
 
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following the rejection at first instance of the application for international 
protection, a procedure such as that described in the preceding paragraph could 
not be resumed at the stage at which it was interrupted but had to start afresh. 
26 In the present case, the Court of Cassation considers that the plea raised calls for 
an interpretation of Articles 6 and 8 of Directive 2008/115/EC.  
27 Before giving a ruling, it therefore decides to refer the following question to the 
Court of Justice. 
5. Question referred for a preliminary ruling 
28 The Court of Cassation stays the proceedings pending a preliminary ruling from 
the Court of Justice on the following question: 
Do Articles 6 and 8 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 preclude a 
rule of national law under which the consequence of granting authorisation 
conferring a right to stay in the context of the examination of an application for 
leave to remain for the purpose of medical treatment, considered to be admissible 
in the light of the criteria set out above, is that the third-country national is entitled 
to stay, even temporarily and irregularly, during the examination of that 
application and that the return decision previously adopted in an asylum 
procedure, with which the grant of such authorisation is incompatible, is impliedly 
withdrawn?