Judging the Charter
The Charter in judicial practise with a special focus on the case of protection of refugees and asylum seekers
In this judgment the Court interpreted provisions of the Returns Directive 2008/115 and Procedures Directive 2005/85 in the light of Articles 18, 19(2) and 45 of the Charter. The Court considered legal effects of the return decision issued in respect of a third-country national pending the outcome of the appeal against decision on rejection an application for international protection.
Mr Gnandi, a Togolese national, submitted to the Belgian authorities an application for international protection, which was rejected. Subsequently, the Belgian authorities ordered Mr Gnandi to leave Belgian territory (return decision).
Mr Gnandi brought an appeal against the decision on asylum refusal and requested the annulment and suspension of execution of the order requiring him to leave the territory.
Both appeals were dismissed by the Council for asylum and immigration proceedings in two separate judgments. Mr Gnandi brought an appeal against those two judgments before the Council of State which set aside the judgment of the Council for asylum and immigration proceedings on asylum refusal and referred the case back to it. In case concerning order to leave the territory Council of State decided to refer case to the CJEU.
Whether Directive 2008/115, read in conjunction with Directive 2005/85 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, must be interpreted as precluding the adoption of a return decision under Article 6(1) of Directive 2008/115 in relation to a third-country national who has applied for international protection, immediately after the rejection of that application by the determining authority and thus before the conclusion of any appeal proceedings brought against that rejection.
The CJEU held that a third-country national is staying illegally, within the meaning of Return 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.
The Court stated however that Directive 2008/115, read in conjunction with Directive 2005/85 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, must be interpreted as not precluding the adoption of a return decision in respect of a third-country national whose application for international protection was rejected by the determining authority, and thus before the conclusion of any appeal proceedings brought against that rejection.
However, the Member States should 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 until resolution of the appeal.
In that regard, it is not sufficient for the Member State concerned to refrain from enforcing the return decision. Pending the outcome of an appeal the person concerned must be entitled to benefit from the rights arising under Reception Directive 2003/9 i.a. – an applicant must be allowed to remain pending the outcome of an appeal against that rejection. The period granted for voluntary departure 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. Furthermore, 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 Returns Directive. Member States also must ensure that return procedures are fair and transparent.