W, a Moroccan national who was refused international protection in Belgium, and X, an Algerian national who was residing illegally in Belgium without trying to legalise his stay, were each issued return decisions by the Belgian authorities without being granted time for voluntary departure. Both were also subjected to entry bans. Their refusals were justified on the grounds of risks of absconding and in particular for W, threats to public policy and national security. Both applicants challenged the decisions, and the referring courts, including the Council of State in the case of W, and the Council for Alien Law Litigation in the case of X, asked the CJEU to clarify whether the refusal to grant voluntary departure should be considered a mere enforcement measure or whether it alters the individual’s legal position, whether such refusals must be open to judicial review, whether entry bans can be issued long after the return decision, and whether a voluntary departure provision is an essential element of a return decision, and if found to be unlawful, would invalidate the entire decision.
The CJEU held that the refusal of a voluntary departure period cannot be treated as a simple enforcement measure. Under the Return Directive, Member States are obliged to issue a return decision to illegally staying third-country nationals and, as a rule, must allow them a voluntary departure period of between seven and thirty days. Only in specific circumstances, such as risk of absconding, fraudulent or manifestly unfounded applications, or threats too public policy, public security or national security, may Member States refrain from granting such a period.
The CJEU noted that the Return Directive provides for coercive measure to be used to carry out a removal only when a Member State has refrained from granting a period for voluntary departure, or where such period elapses, thus prescribing a gradation of measures to be taken in order to enforce the return decision ranging from measures allowing the person concerned liberty to leave voluntarily, and to more restrictive measures, including detention in a specialised facility, with due respect being given to the principle of proportionality at each stage. Accordingly, the CJEU held that the decision on whether to grant or refuse a voluntary departure period has immediate legal consequences which the competent national authorities are required to implement, noting additionally that without such a period an entry ban must also be imposed. It further highlighted that the granting of a voluntary departure period ensures that the fundamental rights and dignity of a person being removed can be ensured. Thus, it directly affects the legal position of the individual, even if it does not change the underlying fact of illegal stay. Finally, the CJEU noted during a voluntary departure period, the Directive requires Member States to safeguard certain fundamental rights, such as family unity, access to emergency healthcare, access to basic education for minors, and support for vulnerable persons with special needs.
Accordingly, the CJEU concluded that Article 7(4), Article 8(1) and (2), and Article 11(1) of Directive 2008/115 must be interpreted as precluding the decision not to grant a period for voluntary departure from being regarded merely as an enforcement measure which does not alter the legal position of the third-country national concerned.
On the question of whether a decision not to grant a period for voluntary departure may be challenged in legal proceedings, the CJEU recalled that Article 13(1) of the Return Directive guarantees an effective remedy to challenge return decision, entry bans and removal decisions. It also recalled that according to Article 12(1), Member States are obliged to issue return decisions in writing, ensuring that they are motivation and contain information about the legal possibilities to appeal. It also referred to the right to be heard prior to the adoption of a return decision so that the person concerned may express their views of the detailed arrangements for their return, thus allowing them the opportunity to challenge the assessment made by the authorities of their situation by bringing legal proceedings.
Given those circumstances, the CJEU held that an effective remedy must be guaranteed for both the decision on whether to grant a period for voluntary departure, and the duration of that period. It ruled that such decisions must be able to be challenged before a court, tribunal or a similar impartial body, concluding that Article 13 of the Return Directive, read in the light of Article 47 of the EU Charter, must be interpreted as meaning that a decision not to grant a period for voluntary departure must be open to challenge in legal proceedings.
On the question of entry bans, the CJEU considered whether Articles 3(6) and 11(1) of the Return Directive prevent a national authority from imposing an entry ban long after issuing a return decision that does not grant a voluntary departure period. The CJEU recalled that an entry ban supplements a return decision by prohibiting re-entry into the EU once the person has left, and it only takes effect from the time of departure. It held that the terms “accompanying” and “accompanied” in the Directive should therefore be understood as meaning “supplementary,” establishing a material link with the return decision, not a strict temporal one. It noted that the wording of Article 11(1) confirms this, as under Article 11(1)(b), a temporal link is explicitly excluded since it concerns a situation whereby the entry ban can be imposed after the return decision, particularly where the return obligation has not been complied with. Thus, the competent authority is not obliged to impose the entry ban at the same time as the return decision or within a short period thereafter. The CJEU thus concluded that Articles 3(6) and 11(1) must be interpreted as allowing national authorities to impose an entry ban even after a considerable lapse of time, provided it is based on a return decision that denied a voluntary departure period.
Finally, the CJEU considered whether an unlawful voluntary departure provision invalidates the entire return decision. The CJEU held that under Articles 3(4) and 7 of Return Directive, the voluntary departure period forms an integral part of the obligation to return. This is because the obligation to return, as defined in Article 3(3), covers both voluntary and enforced return, and the decision on whether to grant such a period is part of that obligation. The CJEU emphasised that an effective remedy must be available not only against the return decision itself but also against the decision on granting or refusing voluntary departure, including its duration. Consequently, if any unlawfulness is found in relation to that provision, the CJEU held that the return decision must be annulled in its entirety. It noted that this ensures compliance with the Directive’s objectives, namely, an effective and humane return policy that respects fundamental rights and dignity, and the principle of proportionality throughout all stages of the return procedure.
The CJEU further clarified that even if Member States make the voluntary departure period conditional upon an application by the third-country national, any unlawfulness in applying that condition also affects the whole return decision, which must then be annulled. Importantly, such annulment does not undermine the effectiveness of the EU’s return policy: it does not necessarily mean the entire procedure must restart, and authorities may adopt a new return decision correcting the irregularity.
The CJEU concluded that Article 3(4) and Article 7 of the Return Directive must be interpreted as meaning that the voluntary departure period is an integral part of a return decision. Therefore, if that provision is unlawful, the return decision must be annulled in its entirety.