Case C‑181/16

Sadikou Gnandi

v

État belge

(Request for a preliminary ruling from the Conseil d’État (Belgium))

(Reference for a preliminary ruling — Area of freedom, security and justice — Return of illegally staying third-country nationals — Directive 2008/115/EC — Article 3(2) — Concept of ‘illegal stay’ — Article 6 — Adoption of a return decision before resolution of an appeal against the decision of the determining authority rejecting the application for international protection — Charter of Fundamental Rights of the European Union — Article 18, Article 19(2) and Article 47 — Principle of non-refoulement — Right to an effective remedy — Authorisation to remain in a Member State)

Summary — Judgment of the Court (Grand Chamber), 19 June 2018

Border controls, asylum and immigration — Immigration policy — Return of illegally staying third-country nationals — Directive 2008/115 — Return decision relating to a third-country national after his application for international protection has been rejected and before resolution of an appeal against that rejection — Lawfulness — Conditions — Suspension of the return procedure pending the outcome of that appeal — Applicant entitled to benefit from the rights arising under Directive 2003/9 and to rely on any change in circumstances that occurred after the adoption of the return decision

See the text of the decision. (see para. 31)

See the text of the decision. (see para. 34)

In accordance with Article 7(1) of Directive 2005/85, an applicant for international protection is to be allowed to remain in the Member State, for the sole purpose of the procedure, until adoption of a decision at first instance refusing that person’s application. Even though, according to the express wording of that provision, that right to remain does not constitute an entitlement to a residence permit, it is nevertheless apparent, inter alia, from recital 9 of Directive 2008/115, that that right to remain prevents an applicant for international protection from being regarded as ‘staying illegally’, within the meaning of that directive, during the period from submission of the application for international protection until adoption of a first-instance decision on that application. As is quite clear from the wording of Article 7(1) of Directive 2005/85, the right to remain laid down in that provision ends upon the adoption of a first-instance decision, by the determining authority, rejecting the application for international protection. In the absence of a right to stay or a residence permit granted on another legal basis (such as Article 6(4) of Directive 2008/115) which would enable the third-country national whose application has been rejected to fulfil the conditions for entry, stay or residence in the Member State concerned, the consequence of that rejection decision, once adopted, is that the applicant no longer fulfils those conditions and, accordingly, that person’s stay becomes illegal. Thus, a return decision may, in principle, be adopted against such a third-country national after that rejection decision or aggregated together in a single administrative act. It is true that, under Article 39(3)(a) of Directive 2005/85, Member States may provide for rules allowing applicants for international protection to remain on their territory pending the outcome of an appeal against the decision rejecting the application for international protection. It is also true that the Court has held, in paragraphs 47 and 49 of the judgment of 30 May 2013, Arslan (C‑534/11, EU:C:2013:343), that an authorisation to remain for the purposes of exercising a right of appeal against a decision rejecting an application for international protection precludes the application of Directive 2008/115 to the third-country national who submitted that application until the conclusion of the appeal proceedings brought against that rejection decision. However, it cannot be inferred from that judgment that such an authorisation to remain precludes the conclusion that, as soon as the application for international protection is rejected, and without prejudice to the existence of a right to stay or to a residence permit as discussed in paragraph 41 above, the stay of the person concerned becomes illegal, within the meaning of Directive 2008/115. (see paras 40-44, 59)

According to the case-law of the Court, when a State decides to return an applicant for international protection to a country where there are substantial grounds for believing that he will be exposed to a real risk of ill-treatment contrary to Article 18 of the Charter, read in conjunction with Article 33 of the Geneva Convention, or to Article 19(2) of the Charter, the right to an effective remedy provided for in Article 47 of the Charter requires that that applicant have available to him a remedy enabling automatic suspension of enforcement of the measure authorising his removal (see, to that effect, judgments of 18 December 2014, Abdida, C‑562/13, EU:C:2014:2453, paragraph 52, and of 17 December 2015, Tall, C‑239/14, EU:C:2015:824, paragraph 54). It is true that the Court has previously ruled that the lack of suspensory effect of an appeal brought solely against a decision rejecting an application for international protection is, in principle, compatible with the principle of non-refoulement and Article 47 of the Charter, since the enforcement of such a decision cannot, as such, lead to removal of the third-country national concerned (see, to that effect, judgment of 17 December 2015, Tall, C‑239/14, EU:C:2015:824, paragraph 56). By contrast, an appeal brought against a return decision within the meaning of Article 6 of Directive 2008/115 must, in order to ensure, as regards the third-country national concerned, compliance with the requirements arising from the principle of non-refoulement and Article 47 of the Charter, enable automatic suspensory effect, since that decision may expose the person concerned to a real risk of being subjected to treatment contrary to Article 18 of the Charter, read in conjunction with Article 33 of the Geneva Convention, or contrary to Article 19(2) of the Charter (see, to that effect, judgments of 18 December 2014, Abdida, C‑562/13, EU:C:2014:2453, paragraphs 52 and 53, and of 17 December 2015, Tall, C‑239/14, EU:C:2015:824, paragraphs 57 and 58). That applies, a fortiori, to a possible removal decision, within the meaning of Article 8(3) of that directive. (see paras 54-56)