The request for a preliminary ruling was done in the context of proceedings between CD, an Algerian national, and the Ministry of the Interior of the Czech Republic for a return decision adopted by the Directorate of the immigration police service of the Czech Republic. It concerned the interpretation of Article 4(2) and (3) and Article 5 of the Returns Directive read in conjunction with Article 2, Article 4 and Article 19(2) of the EU Charter.

During a hearing in return proceedings, the applicant claimed that Algeria was not a safe country as he feared the death threats received from a family of a victim of a conflict in which he was a witness and that he did not benefit from protection of the state authorities. The Ministry of the Interior considered that there were no grounds preventing the removal of the applicant, that Algeria was on the list of safe countries of origin. On appeal before the Regional Court in Brno, the applicant claimed that there was no individualised assessment and the decision was made only based on general considerations regarding Algeria’s inclusion in the list of safe countries.

The Regional Court in Brno stayed the proceedings and referred a question to the CJEU for a preliminary ruling. The court asked whether Article 4(2) and (3) and Article 5 of the Returns Directive, read in conjunction with Article 2, Article 4 and Article 19(2) of the EU Charter, “must be interpreted as meaning that the principle of non-refoulement precludes the adoption of a return decision as regards a third country national staying illegally on the territory of a Member State where that national submits before the authorities of that Member State that he or she will be exposed in his or her country of origin to threats to his or her life from individuals and whether it is permissible for that Member State to have recourse to the concept of a ‘safe country of origin’, within the meaning of Articles 36 and 37 of Directive 2013/32, for the purposes of assessing the risk of a breach of that principle in such circumstances.”

Following requests for information from the CJEU, the Ministry of the Interior informed the court that, on 25 November 2021, it had rejected the application for international protection submitted by the applicant and the applicant submitted that he should not have been the subject of a removal procedure.

The court first noted that in accordance with Article 9(1) of the recast Asylum Procedures Directive, an applicant is to be allowed to remain in the Member State until the adoption of a rejection decision at first instance and the right to remain prevents the applicant from being regarded as ‘staying illegally’ and a return decision in respect of that person cannot be adopted during that period (Gnandi, C‑181/16, 19 June 2018). The court noted that in accordance with its previous jurisprudence, a return decision may be adopted after the decision rejecting the application for international protection or in the same administrative act rejecting the application.

The court held that Article 9(1) of the recast Asylum Procedures Directive, read in the light of recital 9 of the Returns Directive, must be interpreted as meaning that the right to remain from submission of the application until adoption of a first-instance decision prevents the person’s stay from being regarded as ‘illegal’, and it is irrelevant that the return decision relates to the period during which that applicant was staying illegally prior to the submission of the application for international protection.

Thus, the court reiterated that a return decision, under Article 6(1) of the Returns Directive, may not be adopted after the submission of an application for international protection and before the adoption of a first-instance decision, irrespective of the period of residence to which that return decision refers.