On the 26th of April 2023, the Court of Justice of the European Union (CJEU) delivered its judgment A.L. v Migrationsverket, C629/22. The case concerned a third-country national (TCN), A.L., who stayed irregularly in Sweden but had a temporary Croatian residence permit. The Swedish authorities adopted a decision ordering A.L. to leave Sweden which was accompanied by an entry ban. The authorities did not request A.L. to voluntarily return to Croatia as it was allegedly likely that he would not comply with such a request. A.L. left for Croatia but brought an appeal against the decision. In the course of the proceedings, the domestic court submitted preliminary questions.
The CJEU ruled that Article 6 (2) of the Return Directive requires Member States (MS) to permit a TCN irregularly staying on their territory but who has a right to stay in another MS, to go to that other MS before adopting a return decision, even if they consider it likely that that the TCN will not comply with a request to go to that other MS. The Court then stated that Article 6 (2) has direct effect and may accordingly be relied on by individuals before the national courts. When a MS does not permit the TCN to go to this other MS before adopting a return decision, the competent national authorities, including national courts, hearing an appeal against that return decision and the accompanying entry ban, are required to take all necessary measures to remedy a national authority’s failure to fulfil obligations arising from Article 6 hence this may result in the invalidity of the return decision and the entry-ban.