The judgment concerned the interpretation of Articles 6 and 8 of the Return Directive in the context of a request made in proceedings between a third-country national and the Liège public social welfare centre (Centre public d’action sociale de Liège, Belgium, hereinafter CPAS) concerning a decision adopted by the CPAS to withdraw the applicant’s entitlement to social assistance.

In 2014 the applicant, a national of the DRC, requested international protection in Belgium. On 24 September 2014, the Commissioner General for Refugees and Stateless Persons (CGRA) rejected her application. On 13 October 2014, she was served with an order to leave the territory. The applicant appealed the decision of the CGRA without challenging the order to leave the territory. She subsequently submitted before the Immigration Office an application for leave to remain for the purpose of medical treatment pursuant to Article 9ter of the Law on foreign nationals. On 8 June 2015, the Immigration Office declared the application to be admissible and she was granted social financial assistance by the CPAS. On 22 July 2015, the Council for Alien Law Litigation (CALL) rejected the appeal lodged by the applicant against the decision dismissing her request for international protection and on 20 April 2016, the Immigration Office rejected the application for leave to remain for the purpose of medical treatment. The applicant challenged the latter decision before the CALL (without suspensory effect). The CPAS subsequently withdrew the applicant’s social assistance, which she unsuccessfully challenged before the tribunal du travail de Liège (Labour Court of Liège) and the cour du travail de Liège (Higher Labour Court of Liège). Her appeals were dismissed with the reasoning that the order to leave the territory was still valid since the Immigration Office refused her leave to remain for the purpose of medical treatment at the end of April 2016 and that the applicant was staying illegally in Belgium from 1 May to 2 November 2016, so she was not entitled to social assistance.

The applicant brought an appeal before the Court of Cassation, which decided to stay the proceedings and requested the CJEU a preliminary ruling on whether Articles 6 and 8 of the Return Directive “preclude a rule of national law under which the consequence of granting authorisation conferring a right to stay in the context of the examination of an application for leave to remain for the purpose of medical treatment, considered to be admissible in the light of the criteria set out above, is that the third-country national is entitled to stay, even temporarily and irregularly, during the examination of that application and that the return decision previously adopted in an asylum procedure, with which the grant of such authorisation is incompatible, is impliedly withdrawn?” 

The CJEU noted that in accordance with Article 6(4) of the Return Directive, Member States have a broad discretion to grant illegally-staying third-country nationals a right to stay as an ‘autonomous residence permit’ or ‘other authorisation offering a right to stay’ for compassionate, humanitarian or other reasons. In addition, Member States may provide that the right to stay suspends or (implicitly) withdraws a return decision previously adopted in the case of the person concerned. The court further noted that while the Return Directive aims to establish an effective removal and repatriation policy, under Article 8 of the Return Directive, Member States have the obligation to carry out the removal as soon as possible.

The CJEU cited its previous judgment in N. (C‑601/15 PPU) but held that the interpretation of the Return Directive provided in that case was not applicable in the present case given the factual differences between the two cases. As in this case the applicant lodged a request for leave to remain for compassionate, humanitarian or other reasons (and not multiple applications for international protection, as was the case in N.), the authorities may provide that the grant of that permit or authorisation entails the (implicit) withdrawal of a previously adopted return decision after the dismissal of the application for international protection.