This post has been written by Madalina Moraru, Research Fellow at JUSTIN Centre, Faculty of Law, Masaryk University, Brno, Czech Republic and Centre for Judicial Cooperation at European University Institute, Italy.
Can a third country national be at the same time an asylum seeker and a returnee? That is, can Member States lawfully consider an asylum seeker, whose application for international protection has been rejected by the competent administrative authority but whose appeal procedure is pending, as an ‘irregular’ third country national (TCN)? Can such an asylum seeker be immediately served with an order to leave the EU due to their apparently ‘irregular stay’, before the resolution of his or her appeal in the asylum procedure?
At a time when the EU Return Directive (2008/115/EC) is under revision, sparking legitimate concerns over the respect of international mandatory human rights, a clear response to these questions is needed. On June 7, 2019, the Justice and Home Affairs Council agreed a partial general approach on the recast Return Directive, proposed by the European Commission in September 2018. Should the Recast Directive be approved in its current wording, Members States would be required to issue a return decision at the same time, or “together with or without undue delay after the adoption of a decision ending or refusing a legal stay of a TCN”.
Questions over the legitimacy of such a procedure have grown in relevance since 2015, with the increase of such domestic practices pursued by Member States in response to the increasing influx of people in search for international protection. Several Member States consider a first instance rejected asylum applicant as an ‘irregularly staying TCN’ and issue him an order to leave the EU together with the first instance negative asylum decision (see 2017 EMN Report on effective return, p.22). These domestic practices sparked confusion as a TCN could be at the same time both a ‘returnee’ and ‘asylum seeker’, even if the asylum procedure was not finalised, either because the appeal period had not expired or because the appeal against the negative asylum decision was pending before a court. As a result, asylum seekers risked being returned to their country of origin, even if the risk of persecution was not completely dispelled.
Such administrative practices started to be challenged before domestic courts on grounds of violating legally binding fundamental rights set out by the EU Charter, such as: right to asylum (Art. 18); the principle of non-refoulement (Article 19(2)); and effective judicial remedies (Art. 47) of these TCNs (see FRA Opinion 1/2019 on the recast of the Return Directive, p.30).
The current relevant EU law is not crystal clear on the boundary between return and asylum proceedings, mostly due to a provision in the Return Directive (2008/115) which allows Member States to adopt “a decision on the ending of a legal stay together with a return decision and/or a decision on a removal and/or entry ban in a single administrative or judicial decision” (Art. 6(6)). The definition of who is an ‘irregularly’ staying TCN is regulated at EU level by the Return Directive. According to Art. 3(2), a TCN is ‘staying illegally’ in a Member State, if (s)he does not fulfil, or no longer fulfils the conditions of entry, stay or residence in that Member State. This definition does not explicitly refer to asylum seekers. However, recital 9 of the Return Directive provides that a TCN who has applied for asylum in a Member State should not be regarded as staying irregularly on the territory of that Member State “until a negative decision on the application, or a decision ending his or her right of stay as asylum seeker has entered into force”. Whether a negative first instance asylum decision falls under either provision is an open question. Nevertheless, even if a negative first instance asylum decision is interpreted as falling under one of these circumstances, Art. 6(6) of the Return Directive still allows the Member States to issue a return decision at the same time with a decision ending a regular stay, blurring the line between the asylum and return legal regimes. The fact that the Return Directive does require the Member States to respect the principle of non-refoulement when implementing it (Art. 5) has not stopped the Member States from issuing return decisions to asylum seekers whose risk of persecution was not completely dispelled by domestic courts.
Additional rules of relevance for the boundary between asylum and return regimes can be found in the Recast Asylum Procedure Directive (2013/32/EU). The right of asylum seekers to remain on the territory of the EU is codified in Article 46(5), which gives asylum seekers the right to remain in the EU “until the time limit within which to exercise their right to an effective remedy has expired and, when such a right has been exercised within the time limit, pending the outcome of the remedy”. This provision extended asylum seekers’ right to remain within the EU compared to what was previously provided by Directive 2005/85, namely, a right to remain only until the application for asylum had been rejected at first instance. Consequently, when read together, Art. 46(5) of Recast Asylum Procedure Directive and Art. 3(2) of the Return Directive seem to indicate that an asylum seeker who enjoys the right to remain within the EU cannot be considered as an irregularly staying TCN during the appeal stage in the asylum procedure; and thus he cannot be subject to a return procedure during this period. Given these provisions, should the Return Directive be considered applicable to a first instance rejected asylum seeker? How should “a decision on the ending of a legal stay” (from Art. 6(6) of the Return Directive) be interpreted?
Given this open question on the relationship between asylum and return procedures, the Belgian Council of State was unsure about the compatibility with the Return Directive and the EU Charter of Fundamental Rights (‘EU Charter’) of the Belgian practice prescribing a one-step administrative procedure, whereby the rejection of the asylum application by the administrative authorities includes also an order to leave the country.
Belgium’s national practice of combining a return order and first-instance denial of asylum within one single act is challenged
The case referred by the Belgian Council of State to the CJEU concerned a Togolese national, Mr Gnandi, who applied for international protection in Belgium. His application was rejected by the Commissioner General for Refugees and Stateless Persons (‘the CGRA’), and ten days later the Belgian Immigration Office ordered Mr Gnandi to leave the Belgian territory.
Mr Gnandi appealed the rejection of his asylum claim before the Council for Alien Law Litigation (‘the CALL’) and asked the Council to annul and suspend the order requiring him to leave the territory. The CALL dismissed both appeals, and Mr Gnandi challenged these two judgments before the Council of State.
There were many Gnandi-like cases in Belgium, and one of them gave rise to a complaint before the European Court of Human Rights (ECtHR) (V.M. and Others v. Belgium). In that case, the ECtHR held that forcing an asylum seeker to return to the country from which he has fled without having the merits of his case examined by a court constitutes an infringement of the safeguards guaranteed by Articles 3 and 13 ECHR concerning the availability and accessibility of legal remedies.
In the Gnandi case, the Council of State set aside CALL’s judgment on the asylum claim and referred the case back to CALL for a new decision. In addition, the Council of State decided to stay the return proceedings and to refer the question of the applicability of the Return Directive to a first instance rejected asylum seeker to the CJEU for a preliminary ruling.
The CJEU reconsiders its previous approach to the relationship between the Return Directive and the Asylum Procedures Directive
The case was first allocated to the Fourth Chamber of the CJEU, and later moved to the Grand Chamber since it raised the possibility of the Court to reconsider a previous judgment – Arslan.
Contrary to the opinions offered by the Advocate General, the CJEU found that an applicant for international protection falls within the scope of the Return Directive as soon as their application for international protection has been rejected in the first instance by the responsible authority, unless the Member State concerned decides to grant them an autonomous residence permit or authorisation on humanitarian or other grounds for the duration of the appeal process (as per Art. 6(4) of the Return Directive).
The fact that a person might be granted temporary authorisation to remain in the territory of a Member State for the purpose of exercising the right to an effective remedy against that rejection decision does not prevent them from being considered ‘irregular’ from the moment that a rejection decision is first adopted.
The CJEU also recalled that the main objective of the Return Directive is the establishment of an effective removal policy that fully respects the fundamental rights and dignity of the persons concerned. The Court argued that that objective finds specific expression in a provision of the Directive that explicitly allows Member States to adopt a decision ending a regular stay together with a return decision, in a single administrative act (Art. 6(6)). The mere fact that the stay of the person concerned is formally deemed irregular at the moment their application for international protection has been rejected at first instance, and that a return decision is adopted either afterwards or simultaneously in a single administrative act, was held to not infringe the principle of non-refoulement or the right to an effective remedy.
Automatic Suspensive Effect Invoked to Counter-Balance a Strengthened Return Policy
At the same time, the CJEU reiterated that the implementation of the Return Directive must respect fundamental rights and legal principles, in particular those enshrined in the EU Charter. In relation to a return decision issued against a first instance rejected asylum seeker, the Court required that “all the effects of the return decision must be suspended during the period prescribed for bringing that appeal, and if such an appeal is brought, until resolution of the appeal.”
The suspension of the return procedure requires that the period for voluntary departure under Art. 7 of the Return Directive will not start to run, and that the person is not placed in pre-removal detention, under Article 15 of the Return Directive, until there is a final decision on appeal, or the appeal period has expired. The person concerned must also retain their status as an applicant for international protection until a final decision is adopted in relation to that application. In other words, the person must fully benefit from the rights under the Reception Conditions Directive (2013/33). The TCN is also entitled to a right to be informed of the safeguards provided by both return and asylum procedures (e.g. the Return Directive and Asylum Procedure and Reception Conditions Directives), and to a remedy enabling automatic suspension of enforcement of the measure authorising his removal (para. 58).
 Advocate General Mengozzi (AG) delivered two Opinions, one in 2017 and another in 2018, and in both he argued that Member States cannot issue a return decision to an applicant for international protection as long as he is authorised to remain in the EU. According to Art. 46(5) of Directive 2013/32, an asylum seeker is authorised to remain ‘until the time limit within which to exercise their right to an effective remedy has expired and, when such a right has been exercised within the time limit, pending the outcome of the remedy’. He also clarified that Art. 6(6) of the Return Directive does not apply to the facts of the case, since the TCN does not fall within the scope of the Return Directive, and therefore the Member States cannot initiate return proceedings against an asylum seeker. The AG warned that domestic practices such as the Belgian one, even if they suspend the enforcement of the return decision, ultimately create “a situation of uncertainty if not, sometimes, of legal opacity which may jeopardise not only the transparency but also the effectiveness of the return procedures”.
The CJEU judgment in the Gnandi case follows a controversial line of jurisprudence that the Court started to deliver after the miscalled ‘refugee crisis’, whereby return policy is broadly interpreted at the expense of asylum proceedings.
In J.N., the CJEU held that the return procedure is only suspended and not ended by lodging of an asylum application. Member States’ administrative tasks were further eased in Gnandi, by allowing them to start the return procedure immediately after the first instance rejection of an asylum application, even if the appeal in the asylum procedure was not finalised.
This broad interpretation of the return policy clearly departs from the CJEU jurisprudence pre-‘refugee crisis’. For instance, in Arslan, the Court held that ‘an authorisation to remain on the territory for the purposes of effectively exercising a right of appeal against a decision rejecting an application for international protection precludes the application of Directive 2008/115 to the third-country national who submitted that application until resolution of the appeal against that rejection decision’. What is all the more worrying, is that the CJEU’s broad interpretation of the scope of application of return policy in the Gnandi case is not limited to the asylum procedure set out in Directive 2005/85, which was applicable in Gnandi; the same broad interpretation of return policy seems to be extended by the Court also to the current asylum procedure set out in Directive 2013/32 (Case C‑269/18).
As highlighted by Advocate General Mengozzi, the European Parliament (see Report on the EC proposal for the Recast of the Return Directive, p.50) and the EU Fundamental Rights Agency (FRA), the return procedure should not be initiated against asylum seekers who are still waiting for the resolution of their first appeal by courts, as such an interpretation would risk confusing the application of the principle of non-refoulement. As underlined by FRA, the one-step procedure has been criticised for leading to “the reduction of safeguards which are necessary to ensure that Articles 18 and 19 of the EU Charter are not circumvented” (FRA Opinion No. 1/2019 , p.32). It remains to be seen whether the Council of the EU will take into account the European Parliament and FRA opinions, or will endorse the European Commission proposal for speedy return procedures at the cost of legal certainty and absolute fundamental rights, such as the principle of non-refoulement (EC proposal for a recast of the Return Directive).
The Gnandi judgment was delivered while the European Commission was preparing the proposal for the Recast the Return Directive. The CJEU judgment in Gnandi was wrongly used by the European Commission to support its proposal for a speedy, preferably one step, return procedure, following the Belgian legal model. Draft Art. 8(6) requires the Member States “to issue a return decision immediately after the adoption of a decision ending a legal stay of a third-country national, including a decision not granting a third country national refugee status or subsidiary protection status in accordance with [the Qualification Regulation]”. This immediate issue of the return decision, although the asylum procedure has not been finalised before the courts, is furthermore problematic given that Draft Article 16 foresees a number of limitations on procedural safeguards, including non-suspensive effect of the appeal in return proceedings. While this amendment is said to codify the CJEU’s ruling in the case of Gnandi, it did not also codify the increased human rights safeguards devised by the CJEU to counterbalance a broad return policy – namely Member State’s obligation to suspend the enforcement of the return decision “until a final decision is adopted in relation to [the asylum] application” (Gnandi, para. 63). In the Council’s partial general approach adopted in June 2019, this safeguard is partially integrated, requiring Members States to suspend the effects of a return decision when a TCN has lodged an appeal and is authorised to remain in the country under the conditions set by Articles 53 and 54 of the proposed Asylum Procedure Regulation. However, the scope of this provision is limited by the reference to Article 54(2) of the proposed Asylum Procedure Regulation, which lists a number of grounds under which Member States can deny asylum seekers who submitted an appeal the right to remain in the country. This limitation, together with Draft Art. 16 of the proposed Recast Return Directive further curtailing access to legal remedies, raise serious concerns about the risk of infringement of the principle of non-refoulement under the proposed return procedures. It should be recalled that this May, the CJEU upload the principle of non-refoulement enshrined in Article 19(2) EU Charter as prohibiting in absolute terms the removal of an individual, regardless his conduct, to a State where there is a serious risk of a person being subjected to ill-treatments (see C-391/16, 77/17, 78/17).
Within the current political context on immigration, when human rights achievements are under threat by governments and international organisations, national courts, lawyers and civil society has a more pressing responsibility to secure the balance between effective return and respect of human rights. Succumbing to political preferences for speedy return procedures at the costs of legal certainty and international and constitutionally guaranteed fundamental rights is not the way to forward. National courts have so far been the fervent gatekeepers of fundamental rights in asylum and immigration procedures, even if faced with legitimacy challenges. They have also faithfully reminded the European supranational courts (CJEU and ECtHR) to respect the human rights standards developed under the European Convention on Human Rights and EU Charter of Fundamental Rights. So far, when the CJEU has prioritised effectiveness of EU law at the cost of fundamental rights, domestic courts have stepped in to maintain a balance. For instance, following a string of cases of the CJEU rejecting the interpretation of individual violations of Article 4 of the EU Charter as limitation to transfers of asylum seekers under the Dublin procedure (see Puid and Abdullahi), the UK Supreme Court reacted by reminding that the Art. 3 ECHR standards require that not only systemic failures in the national asylum systems, but also individual risks of being exposed to treatment contrary to Article 3 ECHR and Article 4 EU Charter should be considered as legitimate thresholds for limiting a ‘Dublin’ transfer of asylum seekers (EM(Eritrea)). The CJEU ultimately changed its limited interpretation of Art. 4 EU Charter at the initiative of the Slovenian Supreme Court in C.K.
After the Gnandi judgment, some of the domestic supreme courts decided to follow the CJEU judgment in Arslan rather than the Gnandi judgment since the former judgment ensures better protection of the fundamental right to asylum and prohibition of non-refoulement (e.g. Mena Calderin Dianelys c. Italian Interior Ministry ).
Within the current context of ongoing negotiations to reform the Return Directive, the Gnandi case shows that when interpreting the Return Directive, one should look beyond its text to the asylum acquis, and EU Charter. This later instrument takes precedence over the Directive and over domestic implementing legislation (see ACTIONES Handbook on the application of the EU Charter in asylum and immigration). Dialogue among legal practitioners across the Member States in pursuit of finding the correct meaning of EU legal concepts such as ‘irregularity’, and the standards of human rights is most needed in times where the asylum and return related laws are consistently overcomplicated by legal reforms.
 It should be noted that Directive 2013/32 expanded the right to remain set out by Directive 2005/85 until the expiry of the appeal period or until the court delivers its judgment in the first appeal against the negative asylum decision (see more in G. Cornelisse, The Scope of the Return Directive and Delimitation of Competences in the Area of Irregular Migration in Law and Judicial Dialogue on the Return of Irregular Migrants from the EU).
 According to Article 54(2) of the Proposal for a Regulation of the European Parliament and of the Council establishing a common procedure for international protection in the Union and repealing directive 2013/32/EU, “A court or tribunal shall have the power to rule whether or not the applicant may remain on the territory of the Member State responsible, either upon the applicant’s request or acting ex officio, where the applicant’s right to remain in the Member State is terminated as a consequence of any of the following categories of decisions: (a) a decision which considers an application to be manifestly unfounded or rejects the application as unfounded in relation to refugee or subsidiary protection status in the cases subject to an accelerated examination procedure or border procedure; (b) a decision which rejects an application as inadmissible pursuant to Article 36(1)(a) and (c); (c) a decision which rejects an application as explicitly withdrawn or abandoned in accordance with Article 38 or Article 39, respectively.”
 See, for instance, Art. 16 of the proposed Recast Directive, imposing restrictions on the right to appeal against return decisions and limiting the suspensive effect of the appeal only where there is a risk of non-refoulement. In the Council position, States are required to “provide in their national legislation for the shortest time limit to appeal against a return decision, which cannot exceed 14 days” (Art. 16(3)),
Madalina Moraru is a Research Fellow at the JUSTIN Centre of the Masaryk University, Law Faculty, Brno, Czech Republic, and at the Centre for Judicial Cooperation of the EUI, Florence, Italy. At the JUSTIN Centre, she coordinates EUADMIN-GOV, which analyses the performance of EU administrative governance in times of crisis. At the Centre for Judicial Cooperation, she researches and lectures on the role of courts in the application of the EU Charter and migration policy shaping. She is the co-editor (with Galina Cornelisse and Philippe de Bruycker) of Law and Judicial Dialogue on the Return of Irregular Migrants from the EU (HART, 2019). Her work on migration related issues has been published in leading journals, such as Common Market Law Review, and leading publishing houses, such as Brill and Routledge.
Acknowledgments: I wish to thank Alyna Smith and Marta Gionco from PICUM, and Galina Cornelisse from Vrije Universiteit Amsterdam for their valuable suggestions and comments on an earlier version of this work.