CJEU: Additional Opinion of Advocate General Mengozzi in case C-181/16 Gnandi

Date: 
Thursday, February 22, 2018

On 22 February 2018, Advocate General Mengozzi delivered his additional opinion in case C-181/16 Gnandi, which concerns a request for a preliminary ruling by the Belgian Council of State regarding the adoption of a return decision within the meaning of the Returns Directive before the legal remedies against a rejection of an asylum decision have been exhausted and the asylum procedure has been concluded. The Advocate General had already issued an Opinion in this case, but he now provides further clarification following the reassignment of the case to the Grand Chamber and the reopening of the oral procedure.

The Advocate General reiterates his opinion that when an applicant for international protection enjoys the right to remain on the territory of a Member State, regardless of whether or not he is in possession of a residence permit, he cannot be considered as “illegally staying” in that territory and falls, therefore, outside the scope of the Returns Directive. For AG Mengozzi, it is only at the moment a final decision closes the asylum proceedings that a person may fall within the scope of the Returns Directive, provided that he or she is illegally staying in that Member State. He argues that deciding otherwise would undermine the principle of legal certainty, favour the creation of grey areas and fuel the dissemination of different practices among the Member States.

Finally, he maintains his initial proposal that the reply to the questions referred for a preliminary ruling should be that the Returns Directive, the principles of non-refoulement and effective judicial protection preclude the adoption of a return decision pursuant to Article 6(1) of that Directive in respect of a third-country national who has lodged an application for international protection and who, under EU law and/or national law, is authorised to remain in the Member State during the period for bringing the appeal provided for in Article 39(1) of the Asylum Procedures Directive against the rejection of that application and, where that appeal has been lodged within the period, during the examination of the appeal. On the other hand, he concludes that these same provisions do not preclude the adoption of such a return decision in respect of that national after rejection of that appeal unless, under national law, that national is authorised to remain in the Member State concerned pending the final outcome of the asylum procedure.



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Keywords: 
Effective access to procedures
Effective remedy (right to)
Return
Right to remain pending a decision (Suspensive effect)