On 19 June 2018, the Court of Justice of the European Union ruled in case C-181/16 Gnandi, which concerns a request for a preliminary ruling by the Belgian Council of State regarding the adoption of a return decision within the meaning of the Returns Directive before the legal remedies against a rejection of an asylum decision have been exhausted and the asylum procedure has been concluded.

First, the Court ruled that an asylum applicant falls within the scope of the Returns Directive as soon as his application is rejected by the responsible authority, unless the Member State concerned decides to grant him or her an autonomous residence permit or authorisation on humanitarian or other grounds as per Article 6(4) of the Returns Directive. The Court recalled that the main objective of this Directive is the establishment of an effective removal policy. This objective finds expression in Article 6(6) of the Directive, 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.

However, the CJEU reiterated that implementation of the Returns Directive must respect fundamental rights and legal principles, in particular those enshrined in the Charter of Fundamental Rights of the European Union. With regard to a return decision and a possible removal, the right to an effective remedy and the principle of non-refoulement requires Member States to grant an asylum applicant the right to challenge the execution of a return decision at least before one judicial body, and this appeal shall have automatic suspensive effect.

According to the CJEU, it follows that while a Member State can adopt a return decision following a negative decision on an asylum application, that Member State is required to provide an effective remedy in accordance with the principle of equality of arms, which means, in particular, that all the effects of the return decision must be suspended during the period prescribed for lodging such an appeal and, if an appeal is lodged, until a decision is taken by the judicial body. To comply with its obligations, Member States must go beyond simply refraining from enforcing the return decision: it is necessary that the period for voluntary departure does not start running as long as the person concerned is allowed to stay and that the person is not placed in pre-deportation detention. Moreover, Member States must inform the applicant, in a transparent manner, about his or her right to appeal against a negative decision and about the nature of this appeal.

Finally, the person concerned is to retain his status as an applicant for international protection until a final decision is adopted in relation to that application. Thus, that person must benefit from the rights under the Reception Conditions Directive. In addition, Member States must allow applicants to rely on any change in circumstances occurred after the adoption of the return decision which may have a significant bearing on the assessment of their situation.

ELENA Weekly Legal Update, 22 June 2018, available here.

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