Abstract: In Gnandi, the Court of Justice of the European Union (hereinafter CJEU) clarified under which conditions a negative asylum decision may be combined with a return decision and which effects the combination of the two has in the light of the right to an effective remedy. In its judgement, the court ruled that Member States are entitled to adopt a return decision as soon as an application for international protection is rejected, provided that the return procedure is suspended pending the outcome of an appeal against that rejection. The Gnandi is an important judgment particularly for Member States, which do not grant full suspensory effect. It highlights the importance of procedural safeguards, especially the right to an effective remedy, and the respect of the non-refoulement principle. The case emphasizes on a better legal protection for rejected asylum seekers and recognition of their right to remain on the territory of the EU during their appeal proceedings, also already underlined by the European Court of Human Rights.
Keywords: asylum procedure – EU Return Directive – return decision – forced return – right to an effective remedy – suspensive effect.
In 2011, Mr Gnandi, a Togolese citizen, submitted an application for international protection in Belgium. The Commissioner General rejected the application for refugees and stateless persons in May 2014. On 3 June 2014, the Immigration Office ordered Mr Gnandi to leave Belgian territory. On 23 June 2014, Mr Gnandi lodged an appeal against the decision rejecting his asylum claim and requested the annulment and suspension of execution of the order of 3 June 2014. Both appeals, considered separately, were dismissed in October 2014 and May 2015 respectively. Mr Gnandi lodged an appeal against the two judgments before the Council of State (Conseil d’État), which decided to set aside the judgment of the Council for asylum and immigration proceedings and referred the case back to it. The main proceedings concern solely the appeal on a point of law brought by Mr Gnandi against the judgment of the Council for asylum and immigration proceedings of May 2015.
In that context, the Belgian Council of State decided to refer the case to the CJEU for a preliminary ruling. The question submitted was, in essence, whether the EU directive on returning illegally staying non-EU nationals, read in conjunction with the EU directive on refugee status, in the light of the principle of non-refoulement and the right to an effective remedy (which are both enshrined in the EU Charter of Fundamental Rights), precludes the adoption of a return decision in respect of an applicant for international protection as soon as his application has been rejected by the authority responsible, at first instance, and before the legal remedies available to him against that rejection have been exhausted.
Directive 2008/115/EC (Return Directive), adopted in 2008, sets up a common standard regarding returns of illegally staying third-country nationals from the Member States to their respective countries. It obliges Member States to issue a return decision, which shall provide for an appropriate period for voluntary departure. If the third-country national does not depart, the return decision must be enforced. The Directive allows Member States to use coercive measures to carry out the removal. Detention is also allowed for a period of up to 18 months in order to ensure an effective removal. The Directive is highly contested due to its many vague provisions, giving rise to numerous requests for preliminary rulings submitted to the Court of Justice in the past years.
Opinion of Advocate General Mengozzi
On 15 June 2017, Advocate General Mengozzi delivered his opinion regarding the Gnandi Case. First, AG Mengozzi observed that Mr Gnandi, who had a pending appeal against a negative asylum decision, was given the right to stay in Belgium until a decision had been reached and could not be considered to have been in a situation of ‘irregular’ stay. Therefore, the applicant fell outside the scope of the Returns Directive, which only applies to ‘third-country nationals staying illegally on the territory of a Member State’. Second, the Advocate General argued that, between the date of the negative asylum decision and the day he appealed against that decision, the applicant could not be considered to be ‘irregular’ either. He argues that the effectiveness of a domestic remedy and the principle of non-refoulement would be impaired if the applicant is returned during the time available for lodging an appeal and, once this has been lodged, until a final decision on the matter have been reached.
Additionally, the Advocate General touches upon two matters that are not directly raised by the preliminary questions. He argues that the notification of the return decision to Mr Gnandi does not seem to be in conformity with the procedural guarantees required by the Asylum Procedures Directive (Directive 2013/32/EU) as the information provided on the suspensive nature of an appeal was incomplete and contradictory. He also relied upon the ECtHR Chamber decision in V.M. and others v. Belgium to raise concerns about the consequences for the applicant’s social and economic rights once, as a consequence of the return order, his name was removed from the population services list, which seems to imply he would no longer have access to health and social care. According to Mr Mengozzi, the principle of effective judicial protection (47 Charter) precludes an asylum seeker from being de facto forced to leave the territory of the Member State where he has appealed against the rejection of his asylum application before the outcome of that profession, it is made impossible for him to meet his essential needs.
Additional Opinion of Advocate General
On 22 February 2018, Advocate General Mengozzi delivered his additional opinion in Gnandi, which concerned the request for a preliminary ruling by the Belgian Council of State. The Advocate General provided further clarification following the reassignment of the case to the Grand Chamber and the reopening of the oral procedure.
The Advocate General reiterated his opinion that when an applicant for international protection enjoys the right to remain on the territory of a Member State, regardless of whether or not he is in possession of a residence permit, he cannot be considered as ‘illegally staying’ in that territory. Therefore, he concludes that an asylum seeker who has been allowed to remain on the territory while awaiting that outcome does not fall within the scope of the Return Directive. Mengozzi considers it irrelevant whether that consent was granted under EU law or solely on the basis of substantive law, since only the lawfulness of the third-country national’s residence is relevant. For AG Mengozzi, it is only at the moment a final decision closes the asylum proceedings that a person may fall within the scope of the Returns Directive, provided that he or she is illegally staying in that Member State. In his view, another reading of Article 6 (6) of the Return Directive undermines the objectives of legal certainty pursued by encouraging the creation of twilight zones and the diffusion of divergent practices in the Member States.
Finally, he upholds his initial opinion that the reply to the questions referred for a preliminary ruling should be that the Returns Directive, the principles of non-refoulement and effective judicial protection preclude the adoption of a return decision pursuant to Article 6(1) of that Directive in respect of a third-country national who has lodged an application for international protection and who, under EU law and/or national law, is authorised to remain in the Member State during the period for bringing the appeal provided for in Article 39(1) of the Asylum Procedures Directive against the rejection of that application and, where that appeal has been lodged within the period, during the examination of the appeal. On the other hand, he concludes that these same provisions do not preclude the adoption of such a return decision in respect of that national after rejection of that appeal unless, under national law, that national is authorised to remain in the Member State concerned pending the final outcome of the asylum procedure.
The judgment 19 June 2018
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 the Return Directive is to develop an effective removal and return decision, with full respect for the fundamental rights and dignity of those concerned.
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, in order to ensure full effectiveness of an appeal against a decision rejecting an application for international protection, in accordance with the principle of equality of arms, the effects of the return decision must be suspended during the period prescribed for bringing the appeal. And, if such an appeal is brought, the return decision must be suspended until resolution of the appeal. 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.
Author: Shabnam Tautan
 Court of Justice of the European Union, Judgment of 19 June 2018, case C-181/16
 See for instance: European Court of Human Rights, judgment of 5 February 2002, no. 51564/99. Conka v. Belgium; judgment of 21 January 2011, no. 30696/09, M.S.S. v. Belgium and Greece.
 Points 96 to 99 of the Opinion.