According to the CJEU legal summary:

"Articles 5 and 13 of Directive 2008/115 on common standards and procedures in Member States for returning illegally staying third-country nationals, taken in conjunction with Articles 19(2) and 47 of the Charter of Fundamental Rights of the European Union and Article 14(1)(b) of that directive, are to be interpreted as precluding national legislation which:

- does not endow with suspensive effect an appeal against a decision ordering a third country national suffering from a serious illness to leave the territory of a Member State, where the enforcement of that decision may expose that third country national to a serious risk of grave and irreversible deterioration in his state of health, and

- does not make provision, in so far as possible, for the basic needs of such a third country national to be met, in order to ensure that that person may in fact avail himself of emergency health care and essential treatment of illness during the period in which that Member State is required to postpone removal of the third country national following the lodging of the appeal.

With regard, in the first place, to the characteristics of the remedy that must be made available to challenge such a return decision, it is apparent from Article 13(1) of Directive 2008/115, taken in conjunction with Article 12(1) of that directive, that a third country national must be afforded an effective remedy to appeal against or seek review of a decision ordering his return. However, that directive does not require that the remedy provided for in Article 13(1) should necessarily have suspensive effect.

The characteristics of such a remedy must, none the less, be determined in a manner that is consistent with Article 47 of the Charter of Fundamental Rights of the European Union, which constitutes a reaffirmation of the principle of effective judicial protection and provides that everyone whose rights and freedoms guaranteed by EU law are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in that article

In the very exceptional cases in which the removal of a third country national suffering a serious illness to a country where appropriate treatment is not available would infringe the principle of non-refoulement, Member States cannot therefore, as provided for in Article 5 of Directive 2008/115, taken in conjunction with Article 19(2) of the Charter of Fundamental Rights of the European Union, proceed with such removal. Those very exceptional cases are characterised by the seriousness and irreparable nature of the harm that may be caused by the removal of a third country national to a country in which there is a serious risk that he will be subjected to inhuman or degrading treatment. In order for the appeal to be effective in respect of a return decision whose enforcement may expose the third country national concerned to a serious risk of grave and irreversible deterioration in his state of health, that third country national must be able to avail himself, in such circumstances, of a remedy with suspensive effect, in order to ensure that the return decision is not enforced before a competent authority has had the opportunity to examine an objection alleging infringement of Article 5 of Directive 2008/115, taken in conjunction with Article 19(2) of the Charter of Fundamental Rights of the European Union .

With regard, in the second place, to the safeguards to be provided by a Member State pursuant to Article 14 of Directive 2008/115 to a third-country national suffering from a serious illness until a ruling has been given on his appeal against a return decision whose enforcement may expose that person to a serious risk of grave and irreversible deterioration in his state of health, Article 9(1)(b) of the directive provides that Member States are to postpone removal for as long as a suspensive effect is granted in accordance with Article 13(2) of the directive. It is apparent from the general scheme of the directive that Article 9(1)(b) must cover all situations in which a Member State is required to suspend enforcement of a return decision following the lodging of an appeal against the decision.

Accordingly, in such a situation, the Member State concerned is required, pursuant to Article 14(1)(b) of Directive 2008/115, to make provision, in so far as possible, for the basic needs of a third country national suffering from a serious illness where such a person lacks the means to make such provision for himself. The requirement to provide emergency health care and essential treatment of illness under Article 14(1)(b) of the directive may be rendered meaningless if there were not also a concomitant requirement to make provision for the basic needs of the third country national concerned. However, it is for the Member States to determine the form in which such provision for the basic needs of the third country national concerned is to be made."