The case concerned a request for a preliminary ruling for the interpretation of Article 6(2) of the Return Directive. In fact, A.L., a third-country national staying illegally in Sweden, contested the return decision adopted by the Swedish Migration Agency and the entry ban. Upon appeal, the administrative court of Gottenburg referred the following questions before the CJEU:

‘(1)      What is the meaning of Article 6(2) of the Returns Directive? Does it mean that a third-country national must be requested to return immediately from the Member State in which he or she is staying illegally to the Member State in which he or she has a valid residence permit, unless the third-country national’s immediate departure is required for reasons of public policy or national security?

(2)      Does the Returns Directive or other EU law provide guidance on what the consequence is of a national authority not issuing the necessary request pursuant to Article 6(2) of the Returns Directive? Does a failure to issue the necessary request mean that the removal decision and the decision banning return are invalid?

(3)      If Article 6(2) of the Returns Directive entails such a request and consequence, is it sufficiently clear and precise to have direct effect?

(4)      Is national legislation, such as the Swedish rule in Paragraph 6 a of Chapter 8 of the Law [(2005:716)] on foreign nationals, which creates additional exemptions from a possible obligation to issue a [request], compatible with EU law?’

The CJEU ruled that:

1.    Article 6(2) of the Return Directive must be interpreted as meaning that the competent authorities of a Member State are required to permit a third-country national staying illegally on the territory of that Member State who holds a valid residence permit or other authorisation offering a right to stay issued by another Member State to go to that other Member State before they adopt, if the circumstances so require, a return decision in respect of such a national, even though those authorities consider it likely that that national will not comply with a request to go to that other Member State.

2.      Article 6(2) of the Return Directive must be interpreted as meaning that in so far as it requires Member States to permit third-country nationals staying illegally on their territory to go to the Member State which issued them with a valid residence permit or other authorisation offering a right to stay before those Member States adopt, if the circumstances so require, a return decision in respect of such nationals, that provision has direct effect and may accordingly be relied on by individuals before the national courts.

3.      Article 6(2) of Directive 2008/115 must be interpreted as meaning that where, contrary to that provision, a Member State does not permit a third-country national staying illegally on its territory to go immediately to the Member State which issued him or her with a valid residence permit or other authorisation offering a right to stay before it adopts a return decision in respect of that national, 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 that provision.