CJEU: AG concludes that the Court has no jurisdiction to respond to preliminary questions in a removal case where a residence permit was granted

On the 2^nd of March 2023, the Court of Justice of the European Union (CJEU) published the Advocate’s General Opinion in respect of joined cases C-711/21 and C-712/21. The cases concern two third-country nationals whose asylum claims were rejected hence they were ordered to leave Belgium even though they provided information about changes in their state of health, family and/or private life since their initial asylum applications. The Council of State consequently asked the CJEU whether the EU Charter and the Return Directive require courts reviewing a deportation order adopted pursuant to a refusal of international protection to take account of changes in circumstances that may have a significant bearing on the assessment of the situation under Article 5 of this Directive (non-refoulement), only where those changes occurred prior to the international protection proceedings.

The Advocate General Collins (AG) noted Belgium’s submission that the applicants were given a residence permit and so there is no interest to continue with the proceedings. The applicants however stated that their permit was temporary and that the removal orders were not revoked.

The AG noted that the CJEU may not issue advisory opinions on general or hypothetical questions as a request must be necessary for the effective resolution of a dispute. He then observed the Council of State could have lifted the suspension of the proceedings before it, heard the parties on the matter and ruled on the existence, as a matter of Belgian law, of the return decisions made with respect to the applicants. He concluded that on the basis of the information in the Court’s possession, the present preliminary proceedings are prima facie moot and the Court’s answers to the questions referred may not be necessary to enable the referring court to resolve the disputes before it. The Council of State however retains the right to submit new requests for a preliminary ruling once it has verified that the answers thereto are necessary for the effective resolution of a dispute before it.