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CJEU: Member States are entitled to adopt a return decision as soon as an application for international protection is rejected, provided that the return procedure is suspended pending the outcome of an appeal against that rejection

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Other Source/Information:
Referral to the CJEU
Original Documents
Relevant Legislative Provisions
Revised Asylum Procedures Directive (Directive 2013/32/EU on common procedures for granting and withdrawing international protection) and/or APD 2005/85/CE; Revised Reception Conditions Directive (Directive 2013/33/EU laying down standards for the reception of applicants for international protection) and/or RCD 2003/9/CE;
European Union, Court of Justice of the European Union [CJEU], Sadikou Gnandi (Togo) v État belge, C-181/16, ECLI:EU:C:2018:465 , 19 June 2018. Link redirects to the English summary in the EUAA Case Law Database.
Permanent link to the case
Case history
Related cases:
According its Press Release, the Court of Justice found that an applicant for international protection falls within the scope of the directive on returning illegally staying non-EU nationals as soon as his application for international protection has been rejected by the responsible authority. In that regard, the Court noted that the authorisation to remain in the territory of the Member State concerned for the purposes of exercising the right to an effective remedy against that rejection decision does not preclude the conclusion that, as soon as that rejection decision is adopted, the stay of the person concerned becomes, in principle, illegal. The Court pointed out that the directive is not based on the notion that the illegality of the stay and, accordingly, the applicability of the directive, presupposes that there is no lawful possibility for the non-EU national to remain in the territory of the Member State concerned. The Court also recalled that the main objective of the directive is the establishment of an effective removal and repatriation policy that fully respects the fundamental rights and dignity of the persons concerned. That objective finds specific expression in a provision of the directive which explicitly allows Member States to adopt a decision on the ending of a legal stay together with a return decision, in a single administrative act. The Court noted, however, that in relation to a return decision and a possible removal decision, the protection inherent in the right to an effective remedy and in the principle of non-refoulement must be guaranteed by according the applicant for international protection the right to an effective remedy with automatic suspensory effect at least before one judicial body. Subject to strict compliance with that requirement, the mere fact that the stay of the person concerned is categorized as being illegal as soon as his application for international protection has been rejected at first instance by the responsible authority and that a return decision may, therefore, be adopted following that rejection decision or together in a single administrative act, does not infringe the principle of non-refoulement or the right to an effective remedy. The Court also noted that Member States are required to provide an effective remedy against the decision rejecting the application for international protection, in accordance with the principle of equality of arms, which means, in particular, that all the effects of the return decision must be suspended during the period prescribed for lodging such an appeal and, if such an appeal is lodged, until resolution of the appeal. In that regard, it is not sufficient for the Member State concerned to refrain from enforcing the return decision. On the contrary, it is necessary, in particular, that the period for voluntary departure does not start running as long as the person concerned is allowed to stay and that, during that period, he is not placed in predeportation detention. In addition, the person concerned is to retain his status as an applicant for international protection until a final decision is adopted in relation to that application. Furthermore, Member States must allow applicants to rely on any change in circumstances occurred after the adoption of the return decision which may have a significant bearing on the assessment of their situation. Lastly, Member States are required to ensure that the applicant is informed in a transparent way of the observance of those guarantees. In the present instance, the Conseil d’État states that, even though the return decision cannot be enforced before resolution of the appeal filed by Mr Gnandi, it still adversely affects him in so far as it forces him to leave Belgian territory. Subject to verification by the referring court, it is thus apparent that the requirement that the return procedure be suspended pending the outcome of such an appeal is not met.
Country of Decision
European Union
Court Name
EU: Court of Justice of the European Union [CJEU]
Case Number
Date of Decision
Country of Origin
Detention/ Alternatives to Detention
Effective remedy
Second Instance determination