The Federal Administrative Court in Leipzig referred a question before the CJEU on whether EU law precludes national legislation which provides that a new return decision is not required when a third-country national lodged an inadmissible subsequent application while the previous threat for deportation was still valid and enforceable, and he has fulfilled the first obligation to leave for his country of origin.

The case concerned Albanian nationals whose first asylum applications were rejected in 2019, and a threat of deportation was ordered against them. They complied with the return obligation in 2020. In October 2021, the applicants re-entered Germany, reapplied for international protection but their subsequent applications were rejected as inadmissible in 2022. The Federal Office considered that, since the initially ordered threat of deportation was valid and enforceable, there was no need to adopt a new one. In appeal proceedings, the Regional Administrative Court found that they could not be deported based on the 2019 order in connection with the 2022 decision. Subsequently, the Higher Administrative Court overturned the lower court decision and dismissed the appeal, holding that the national provision, namely Section 71 (5) sentence 1 in conjunction with section 71(6) sentence 1 of the Asylum Act (old version) was in line with the recast Asylum Procedures Directive (APD) and the Return Directive in so far as none of the EU instruments provided for the return decision to be completed by fulfilling the obligation to return.

Against this background, the Federal Administrative Court in Leipzig, ruling on the onward appeal, decided to stay the proceedings and to refer the following question before the CJEU for a preliminary ruling:

Are Article (9)(1) and (2) sentence 1 and Article 41(1) of the recast APD and Article 3(3-8), Article 5, Article 6(1) and (4), Article 7(1) sentence 1, Article 8(1) to (3) and Article 9(1) of the Return Directive to be interpreted as precluding the national legislation of a Member State which provides that, in a situation in which a third-country national first returns to the country of origin in fulfilment of their return obligation after rejection of their first asylum application, a new return decision is not required for the execution of the removal when their subsequent application did not lead to the conduct of a further asylum procedure?

The integral text of the order is not yet available on the court's website.