CJEU - CD v Ministerstvo vnitra České republiky, Odbor azylové a migrační politiky, Case C-257/22, 09/11/2023
| Country of Domestic Proceedings: | Czech Republic |
| Country of applicant: | Algeria |
| Court name: | Court of Justice of the European Union (Tenth Chamber) |
| Date of decision: | 09-11-2023 |
| Citation: | CJEU, CD v Ministerstvo vnitra České republiky, Odbor azylové a migrační politiky, Case C-257/22, 9 November 2023 |
| ECLI: | ECLI:EU:C:2023:852 |
Keywords:
| Keywords |
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Non-refoulement
Description
A core principle of international Refugee Law that prohibits States from returning refugees in any manner whatsoever to countries or territories in which their lives or freedom may be threatened. Note: The principle of non-refoulement is a part of customary international law and is therefore binding on all States, whether or not they are parties to the Geneva Convention. |
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Right to remain pending a decision (Suspensive effect)
Description
According to Asylum Procedures Directive, Article 7 "Applicants shall be allowed to remain in the Member State, for the sole purpose of the procedure, until the determining authority has made a decision in accordance with the procedures at first instance set out in Chapter III. This right to remain shall not constitute an entitlement to a residence permit. Member States can make an exception only where, in accordance with Articles 32 and 34, a subsequent application will not be further examined or where they will surrender or extradite, as appropriate, a person either to another Member State pursuant to obligations in accordance with a European arrest warrant or otherwise, or to a third country, or to international criminal courts or tribunals." Art 39 APD requires applicants for asylum to have the right to an effective remedy before a court or tribunal, against a number of listed decisions. Member States must, where appropriate, provide for rules in accordance with their international obligations dealing with the question of whether the remedy shall have the effect of allowing applicants to remain in the Member State concerned pending its outcome. |
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Safe country of origin
Description
"A country where, on the basis of the legal situation, the application of the law within a democratic system and the general political circumstances, it can be shown that there is generally and consistently no persecution as defined in Article 9 of Directive 2004/83/EC, no torture or inhuman or degrading treatment or punishment and no threat by reason of indiscriminate violence in situations of international or internal armed conflict. In making this assessment, account is taken, inter alia, of the extent to which protection is provided against persecution or mistreatment by: (a) the relevant laws and regulations of the country and the manner in which they are applied; (b) observance of the rights and freedoms laid down in the European Convention on Human Rights (ECHR) and/or the International Covenant for Civil and Political Rights and/or the Convention against Torture, in particular the rights from which derogation cannot be made under Article 15(2) of the said European Convention; (c) respect of the non-refoulement principle according to the Geneva Convention; (d) provision for a system of effective remedies against violations of these rights and freedoms.” |
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Return
Description
"In the context of the Return Directive (2008/115/EC), the process of going back - whether in voluntary compliance with an obligation to return, or enforced - to: - one's country of origin; or - a country of transit in accordance with EU or bilateral readmission agreements or other arrangements; or - another third country, to which the third-country national concerned voluntarily decides to return and in which he/she will be accepted. There are subcategories of return which can describe the way the return is implemented, e.g. voluntary, forced, assisted and spontaneous return; as well as sub-categories which describe who is participating in the return, e.g. repatriation (for refugees)." |
Headnote:
CD v Ministerstvo vnitra České republiky, Odbor azylové a migrační politiky establishes that the right to remain under the Asylum Procedures Directive (2013/32) completely immunises an applicant from being classified as an illegally staying third-country national under the Return Directive (2008/115). Consequently, a return decision cannot be issued at any point between the submission of an asylum application and the first-instance rejection of that application, even if the return decision concerns a period of illegal stay that occurred before the asylum application was made.
Facts:
CD, an Algerian national applied for international protection in the Czech Republic on 30 September 2021. On 12 October 2021, before any first-instance decision on his asylum application was made, the immigration police issued a return decision ordering his administrative removal and imposing a one-year entry ban. The police relied on the fact that Algeria was designated a safe country of origin, which relieved them of the need for a concrete individual assessment of the risk of non-refoulement. CD challenged this return decision, arguing that his asylum application should have shielded him from removal proceedings and that his individual circumstances, including death threats from a victim’s family, required a personalised assessment of the danger he would face in Algeria.
Decision & reasoning:
The referring court asked whether the principle of non-refoulement precludes a return decision where an asylum seeker claims individual threats, and whether a Member State may use the “safe country of origin” concept from Directive 2013/32 combined with a narrow definition of non-refoulement limited to ill-treatment. The Czech Government defended the return decision, arguing that Algeria’s designation as a safe country of origin justified the simplified procedure. The European Commission, however, questioned admissibility, suggesting the return procedure should never have been initiated while the asylum application was pending.
The Court of Justice confirmed the request was admissible. It began by noting that the order to leave constituted a “return decision” under Article 3(4) of the Return Directive 2008/115. The key issue was whether such a decision could lawfully be adopted after the submission of an asylum application and before the first-instance decision on that application.
The Court examined the definition of “illegal stay” in Article 3(2) of Directive 2008/115, which refers to a third-country national who does not fulfil conditions for entry, stay or residence. It then recalled Article 9(1) Directive 2013/32, which provides that asylum applicants “shall be allowed to remain” in the Member State until the first-instance decision. Reading this together with recital 9 of Directive 2008/115, the Court held that this right to remain has a specific legal consequence: it prevents an applicant for international protection from being regarded as staying illegally during that period.
The Court reasoned that since the Return Directive applies only to illegally staying third-country nationals, the directive’s provisions, including the power to issue a return decision under Article 6(1), are not applicable during that protected window. The Court made this finding absolute, explicitly rejecting any exception based on the fact that the return decision might refer to illegal stay occurring before the asylum application was submitted. Recital 12 of Directive 2008/115 states that third-country nationals who are illegally staying but cannot yet be removed should receive written confirmation of their situation and basic subsistence conditions according to national law. The Court rejected this recital as a possible justification, because that recital presupposes a stay classified as illegal, which is not the case here. Having concluded that a return decision cannot be adopted during this period, the Court held it was unnecessary to answer the original question about the safe country of origin concept or the scope of non-refoulement.
Outcome:
The Court (Tenth Chamber) rules:
Article 2(1) and Article 3(2) of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, read in the light of recital 9 of that directive and in conjunction with Article 9(1) of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection, must be interpreted as meaning that they preclude the adoption of a return decision, under Article 6(1) of Directive 2008/115, in respect of a third-country national after the submission by that person of an application for international protection, but before the adoption of a first-instance decision on that application, irrespective of the period of residence to which that return decision refers.
Observations/comments:
This summary was written by Luna Declerck during her participation in the Migration Law Clinic of Gent University.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| CJEU - European Commission v Hungary, Case C-821/19, 16/11/2021 |
| CJEU - Sadikou Gnandi v État belge, Case C-181/16, 19/06/2018 |
| CJEU - BE v Nemzeti Adatvédelmi és Információszabadság Hatóság, Case C-132/21, 12/01/2023 |
| CJEU - Minister Finansów v Aviva Towarzystwo Ubezpieczeń na Życie S.A. w Warszawie, Case C-605/15, 21/09/2017 |
Other sources:
Rules of Procedure of the Court of Justice of the European Union – Article 62(1).