CJEU - C-673/19 M and Others (Transfert vers un État membre), 24 February 2021

The Court started its assessment by referring to the aim of the Return Directive to establish effective and rights-compliant return procedures [27-29] and the definition of illegal stay under Article 3 (2), which concerns third-country nationals who are present in a Member State without fulfilling the conditions for that stay, including where they have a valid residence permit in another Member State on account of their refugee status. As far as their stay has not been regularised, the third-country national falls under the RD and the procedures of that Directive should apply. [30-31]

According to Article 6 (2), third-country national with a right of residence in another Member State should be allowed to return to that Member State rather than be issued a return decision from the beginning, unless security reasons apply. This derogation does not mean that illegally staying third-country nationals can be exempted from the scope of the Directive when they refuse to return to the Member State of residence; they will simply be the subject of a return decision in accordance with Article 6 (2) to any of the countries listed in Article 3 (3). [32-37] However, the applicants in the present case could not be returned to any of the countries found in Article 3 (3) RD due to, inter alia, non-refoulement considerations. The Netherlands was therefore legally unable to fulfil the obligation to issue a return decision under Article 6 (2) and there where no procedures in the RD for such a situation. [38-42]

The Court continued stating that the RD does not intend to harmonise in its entirety the national legislation of the Member States on the stay of third-country nationals but is concerned only with the issuing of return decisions and the implementation of those decisions. Therefore, it is also not intended to determine the consequences of an illegal stay in a situation where no return decision can be issued, including where this is partly the result of non-refoulement considerations. [42-44] Consequently, when a Member State decides to carry out a forced transfer of a third-country national to the Member State that granted them right of residence, that decision is a matter of national competence on migration and is not governed by the RD. Moreover, the RD does not prevent the Member State from placing that third-country national in detention, since such a decision cannot be issued in the circumstances of this case and, in any case, fundamental rights are observed. [45-47]