Euroopa Liidu Kohus
19.06.2018
Facts:
Mr. Sadikou Gnandi, a Togolese national, applied for international protection in Belgium in 2011. His application was denied by the Commissioner General for Refugees and Stateless Persons (CGRA) in May 2014. On 3In June 2014, the Immigration Office issued a return decision ordering him to leave Belgian territory. Gnandi appealed both the asylum rejection and the return order: the asylum rejection appeal was dismissed in October 2014, and the return order appeal in May 2015. He then brought a further appeal before the Belgian Council of State, which annulled the asylum appeal judgment and referred the case back. In March 2016, the Council of State referred to the CJEU for a preliminary ruling on whether issuing a return decision before appeals on the asylum refusal are concluded is compatible with EU law.
Questions referred to the CJEU by the national courts:
Does the Return Directive, along with the Asylum Procedures Directive and considering the Charter’s principles on non-refoulement and effective remedy, prohibit issuing a return decision immediately after reflecting an asylum application, before the applicant has exhausted all legal remedies?
Court’s ruling:
The CJEU focused on balancing effective immigration control with protecting individual rights. The Court acknowledged that a return decision could be issued at the same time as the rejection of an asylum application, even before any appeal is resolved. However, such a decision must not be enforced until the applicant has had the opportunity to exhaust effective legal remedies against the asylum refusal, and those remedies must have automatic suspensive effect.
The Court explained that while a person may be considered irregular once their asylum claim is first rejected, this does not mean they can be immediately removed. The person must be allowed to remain in the country while their asylum appeal is pending and all legal effects of the return decision must be put on hold during that time. Furthermore, the individual must still be granted the rights normally available to asylum seekers, such as housing and basic support. The applicant must have access to an effective remedy, including the right to suspend removal automatically if there'’s a risk of harm.
The CJEU also stressed the importance of clear communication: the person must be properly informed of their right to appeal and the fact that the return decision will not take effect until the appeal is concluded. They also must be allowed to raise any new developments that could change the situation, especially those that might make a return unlawful.
The Court argued that it is possible to combine a return decision with an asylum rejection as long as the person’s right to an effective remedy, the principle of non-refoulement, and their basic reception rights are fully respected throughout the process.