On 20 October 2022, the Court of Justice of the European Union (CJEU) delivered its judgment of UP (case C-825/21), concerning a Congolese asylum seeker whose international protection claim and request for a residence permit on medical grounds were both rejected by the Belgian authorities. Subsequent to the applicant’s rejection of her asylum claim and before her application for leave to remain for the purposes of medical treatment, she was issued an order to leave the territory. The Higher Labour Court in Liege determined that the order to leave the territory was momentarily suspended at the time when her request for residence was admissible but was continued once the applicant’s residence registration certificates stopped being granted. However, the applicant argued that she was entitled to stay irregularly in the territory after her application for the residence permit and that therefore the order to leave the territory should be implicitly withdrawn. It follows that the referring Court made a request for a preliminary ruling to the CJEU on the interpretation of Articles 6 and 8 of Directive 2008/115 (Return Directive).

The Court noted that it is apparent from the wording of Article 6(4) of Directive 2008/115 that Member States may at any stage grant a right of residence to third-country nationals staying illegally on their territory for not only the grounds expressly referred to but for any reason of a different nature which they consider appropriate, and that Member States have wide discretion in this regard. It furthermore derived from the wording of this Directive that the granting of a right of residence may entail the implicit withdrawal of a previously adopted return decision.

The CJEU continued that although in its previous judgments such as N (Case C-601/15 PPU), the Court has determined that the effectiveness of the aforementioned Directive requires removals to be carried out as soon as possible, this interpretation cannot be transposed to the present case and it reiterated that the final sentence of the Directive allows Member States to provide that the grant of a permit entails the annulment of a return decision.

The Court therefore answered that Article 6(4) of Directive 2008/115 must be interpreted as not precluding legislation of a Member State under which, where a right of residence is granted to a third-country national staying illegally in its territory pending the outcome of the processing of an application for a residence, by reason of the admissibility of that application, this entails the implicit withdrawal of a return decision.

Based on an unofficial translation from within the EWLU team.