Sadikou Gnandi v État belge.
Date: 2018-06-19
31


In that regard, it is clear from both the wording and the scheme of Article 267 TFEU that a national court or tribunal is not empowered to bring a matter before the Court by way of a reference for a preliminary ruling unless a case is pending before it, in which it is called upon to give a decision that is capable of taking account of the Court’s ruling. Consequently, the Court is required to verify, of its own motion, the continued existence of the dispute in the main proceedings (see, to that effect, judgment of 13 September 2016, Rendón Marín, C‑165/14, EU:C:2016:675, paragraph 24 and the case-law cited).
34


In that regard, it is not for the Court, in the context of a request for a preliminary ruling, to rule on the interpretation of provisions of domestic law (judgment of 17 December 2015, Tall, C‑239/14, EU:C:2015:824, paragraph 35 and the case-law cited). Thus, having regard to the information provided by the referring court, it must be held that the dispute in the main proceedings is still pending before the referring court and that a reply from the Court to the question referred remains useful for resolving that dispute. An answer should therefore be given in response to the request for a preliminary ruling.
39


In that regard, it follows from the definition of the concept of ‘illegal stay’, set out in Article 3(2) of Directive 2008/115, that any third-country national who is present on the territory of a Member State without fulfilling the conditions for entry, stay or residence is, by virtue of that fact alone, staying there illegally (judgment of 7 June 2016, Affum, C‑47/15, EU:C:2016:408, paragraph 48).
48


Fourthly, it should be noted that the main objective of Directive 2008/115, as apparent from recitals 2 and 4 thereof, is the establishment of an effective removal and repatriation policy that fully respects the fundamental rights and dignity of the persons concerned (see, to that effect, judgments of 7 July 2014, Pham, C‑474/13, EU:C:2014:2096, paragraph 20, and of 15 February 2016, N., C‑601/15 PPU, EU:C:2016:84, paragraph 75 and the case-law cited).
49


That objective finds specific expression in Article 6(6) of Directive 2008/115, which explicitly allows Member States to adopt a decision on the ending of a legal stay together with a return decision, in a single administrative act. The possibility of aggregating those two decisions in a single administrative act enables Member States to ensure the parallel treatment, or even the joint handling, of the administrative proceedings leading to such decisions and of the appeal proceedings brought against them. As observed by the Czech, German and Netherlands Governments, that possibility of joint handling also helps overcome practical difficulties relating to the notification of return decisions.
51


Fifthly, as regards the obligation to comply with the requirements arising from the right to an effective remedy and the principle of non-refoulement, highlighted by the referring court in its question, it should be pointed out that any interpretation of Directive 2008/115 or of Directive 2005/85, must, as is apparent from recital 24 of the former and recital 8 of the latter, be consistent with the fundamental rights and principles recognised, in particular, by the Charter (see, to that effect, judgment of 17 December 2015, Tall, C‑239/14, EU:C:2015:824, paragraph 50).
52


As regards, more specifically, the remedies against decisions related to return, as set out in Article 13 of Directive 2008/115, and the remedies against decisions rejecting an application for international protection, as set out in Article 39 of Directive 2005/85, the characteristics of such remedies must be determined in a manner that is consistent with Article 47 of the Charter, which provides that everyone whose rights and freedoms guaranteed by EU law are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in that article (see, to that effect, judgments of 18 December 2014, Abdida, C‑562/13, EU:C:2014:2453, paragraph 45, and of 17 December 2015, Tall, C‑239/14, EU:C:2015:824, paragraph 51).
53


It should also be noted that the principle of non-refoulement is guaranteed as a fundamental right in Article 18 and Article 19(2) of the Charter (judgment of 24 June 2015, H.T., C‑373/13, EU:C:2015:413, paragraph 65) and is reiterated, inter alia, in recital 2 of Directive 2005/85 and in recital 8 and Article 5 of Directive 2008/115. Moreover, Article 18 of the Charter, like Article 78(1) TFEU, guarantees due respect for the rules of the Geneva Convention (see, to that effect, judgment of 21 December 2011, N.S. and Others, C‑411/10 and C‑493/10, EU:C:2011:865, paragraph 75).
54


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).
55


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).
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.
57


Nevertheless, neither Article 39 of Directive 2005/85, nor Article 13 of Directive 2008/115, nor Article 47 of the Charter, read in the light of the safeguards laid down in Article 18 and Article 19(2) of the Charter, require there to be two levels of judicial decision. The only requirement is that there must be a remedy before a judicial body (see, to that effect, judgment of 28 July 2011, Samba Diouf, C‑69/10, EU:C:2011:524, paragraph 69).
58


It follows that, in respect of a return decision and a possible removal decision, the protection inherent in the right to an effective remedy and in the principle of non-refoulement must be guaranteed by affording the applicant for international protection the right to an effective remedy enabling automatic suspensory effect, before at least one judicial body. Subject to strict compliance with that requirement, the sole fact that the stay of the person concerned is categorised as being illegal, within the meaning of Directive 2008/115, as soon as his application for international protection is rejected at first instance by the determining authority and that a return decision may, therefore, be adopted after that rejection decision or aggregated together in a single administrative act, does not infringe the principle of non-refoulement or the right to an effective remedy.
59


Having regard to all of those considerations, it must be concluded that, unless he has been granted a right to stay or a residence permit as referred to in Article 6(4) of Directive 2008/115, a third-country national is staying illegally, within the meaning of Directive 2008/115, as soon as his application for international protection is rejected at first instance by the determining authority, irrespective of the existence of an authorisation to remain pending the outcome of an appeal against that rejection. 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.
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.
62


In that regard, it is not sufficient for the Member State concerned to refrain from enforcing the return decision. On the contrary, it is necessary that all the legal effects of that decision be suspended and, in particular, that the period granted for voluntary departure in accordance with Article 7 of Directive 2008/115 should not start to run as long as the person concerned is allowed to remain. In addition, during that period, that person may not be held in detention with a view to removal pursuant to Article 15 of that directive.
63


Furthermore, pending the outcome of an appeal against the rejection of his application for international protection at first instance by the determining authority, the person concerned must, in principle, be entitled to benefit from the rights arising under Directive 2003/9. Article 3(1) of that directive makes its application conditional only on the existence of an authorisation to remain on the territory as an applicant and, therefore, does not exclude the directive’s application in the case where the person concerned has such an authorisation and is staying illegally, within the meaning of Directive 2008/115. In that regard, it is apparent from Article 2(c) of Directive 2003/9 that the person concerned is to retain his status as an applicant for international protection, within the meaning of that directive, until a final decision is adopted in relation to his application (see, to that effect, judgment of 27 September 2012, Cimade and GISTI, C‑179/11, EU:C:2012:594, paragraph 53).
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.