Case summaries

Member States can issue a return decision together with, or right after, a negative decision on an asylum application at first instance, as long as they ensure that all judicial effects of the return decision are suspended during the time allowed to appeal and pending that appeal.

During that period, and despite being subjected to a return decision, an asylum applicant must enjoy all the rights under the Reception Conditions Directive. The applicant can rely upon any changes in circumstances affecting his claim that came up after the return decision, before the appeals authority.

Requests for family reunification must be examined even if the third-country national, who is a family member of an EU citizen who has never exercised his right of freedom of movement, is subject to an entry ban. Whether there is a relationship of dependency between the third-country national and the EU citizen and whether public policy grounds justify the entry ban must be assessed on a case-by-case basis.

The CJEU ruled that the period of application of an entry ban under the Return Directive begins to run from the date on which the person concerned has actually left the territory of the Member States.

A third-country national whose entry was tolerated by the authorities of one Member State faced with the arrival of an unusually large number of third-country nationals seeking transit through that Member State in order to lodge an application for international protection in another Member State, without fulfilling the entry conditions generally imposed in the first Member State, must be regarded as having ‘irregularly crossed’ the border of the first Member State within the meaning of that provision. Article 13(1) of the Dublin Regulation III therefore applies and Croatia is deemed to be responsible for the protection claims. 

The Slovenian legislature has not fulfilled its obligations under the provisions of Article 2(n) of the Dublin Regulation. The possibility of an analogous application of Article 68 of the Aliens Act-2 has a very weak basis in terms of the objective criteria required. It can only be sufficient in a particular case if in light of the specific circumstances of the case there is no doubt about the existence of the risk of absconding.

The Supreme Court has requested two preliminary rulings to the Court of Justice of the European Union. The time of onset and the determination of the duration of the suspect’s ‘undesirable declaration’, which is considered equal to an entry ban, are under discussion since this statement had already been issued before the Return Directive was operational.

Article 8(3)(e) of the recast Reception Conditions Directive fulfils the requirements of proportionality by virtue of the strictly circumscribed framework regulating its use. In light of Article 52(3) of the Charter, Article 8(3)(e) therefore complies with Article 5(1)(f) of the ECHR.

This case related to two third country nationals who were ordered to leave the Netherlands, without being granted a period for voluntary departure, on the basis that they constituted a risk to public policy.

The CJEU gave guidance on the meaning of Article 7(4) of the Returns Directive, stating that the concept of a ‘risk to public policy’ should be interpreted strictly with an individualised assessment of the personal conduct of the person. Suspicion or conviction for a criminal offence was a relevant consideration. However, it was unnecessary to conduct a new assessment solely relating to the period for voluntary departure where the person had already been found to constitute a risk to public policy. 

The CJEU ruling concerned the scope of protection available under EU law to third country nationals suffering from serious illness whose removal would amount to inhuman or degrading treatment. The CJEU surmisedthat the removal of a person suffering a serious illness to a country where appropriate treatment was not available could in exceptional circumstances be contrary to the EU Charter of Fundamental Rights, and in such circumstances their removal had to be suspended pursuant to Directive 2008/115/EC on common standards and procedures in Member States for returning illegally staying third-country nationals. The Directive 2008/115/EC required the provision of emergency health care and essential treatment of illness to be made available to such persons during the period in which the Member State is required to postpone their removal.