CJEU - C-546/19, BZ v Westerwaldkreis, 3 June 2021

Facts:

The applicant, whose nationality is indeterminate, was born in Syria and resides in Germany since 1990. Despite being obliged to leave German territory ever since, the applicant has continued to reside in Germany on the grounds of a temporarily suspension of his deportation according to domestic law. In 2013, the applicant got sentenced to imprisonment for three years for supporting terrorism for which he got a probation in 2014 for the remaining sentence. Due to his sentencing, the German authorities issued an expulsion order against the applicant in 2014, including an entry and residence ban on German territory beginning on the date of his departure and lasting until latest 2023. In the same time, the German authorities issued a deportation order for the applicant.

After the applicant appealed against those measures, the German authorities withdrew the removal warning and dismissed the remainder of the claims. The applicant thus appealed against the dismissal of the remainder of his claims. The German Federal Office of Migration and Refugees also rejected an asylum claim from the applicant considering his application manifestly unfounded. However, it was considered that the applicant cannot be deported to Syria because the conditions precluded removal laid down in domestic law.

In 2018, the applicant’s appeal for annulment of his deportation as well as his temporarily entry and residence ban on German territory got dismissed by the German Court of appeal. It was reasoned that the expulsion order issued against the applicant led to the termination of his residence title according to domestic law. Additionally, the entry and residence ban would prohibit the issue of a new residence title before the expiry of the applicant’s limited deportation order. Moreover, it was reasoned, according to domestic law, that the deportation order would not constitute a return decision, nor would it necessarily lead to an actual deportation; if the circumstances in the receiving state preclude a deportation, domestic law is not obliged to lift the entry and residence ban. The Court of Appeal emphasised that it did not apply Article 2(2)(b) of the Return Directive according to which the Directive is not applicable on a third-country national who would be obliged to return under domestic law due to criminal conviction.

The High Court of Germany is uncertain whether an entry ban for a third-country national on ‘non-migratory’ grounds, especially in the context of a deportation, falls under the scope of the Return Directive 2008/115. The Court’s doubt especially lies on Section 11 paragraph 5 of the Return Handbook according to which provisions under the Return Directive should remain untouched in a case of an entry ban under ‘non-migratory’ grounds. The High Court of Germany thus submitted a preliminary question before the CJEU.

Decision & reasoning:

The Court holds that the Return Directive is applicable on an illegal staying third-country national against whom a deportation has been issued due to national security reasons. Regarding the scope of the Return Directive 2008/115 laid down in Article 2(1) on an entry and residence ban, the Court notes that the Directive also applies on illegal staying third-country nationals on a territory of a Member State. The ‘illegal presence’ as defined in Article 3 no. 2 of the Return Directive means that all third-country nationals with no valid residence title in that Member State, are illegally present and thus fall under the scope of the Directive, irrespective of the situation or the measures that lead to the illegal presence.

This interpretation is also underlined by Article 2(1)(b) of the Directive, according to which Member States may exclude third-country nationals from the scope of this Directive due to criminal conviction. Furthermore, this interpretation of the scope of the Directive cannot be changed by the non-binding Return Handbook.

Article 11(1) of the Return Directive stipulates that return decisions are accompanied with entry bans if no period of voluntary departure has been granted or if the obligation to return has not been complied with. In other cases return decisions may be accompanied by an entry ban. Based on this provision, the Court interprets that the entry ban invokes his effect from the moment in which the person concerned actually leaves the territory of the Member State. Although an entry ban under the scope of the Return Directive cannot be preserved after the return decision has been lifted. Moreover, Article 6(1) of this Directive obliges Member States to issue a return decision to any third-country national staying illegally on their territory, without prejudice to the exceptions referred to in paragraphs 2 to 5. Therefore, the Court argues that Member States must examine whether they have to issue a new residence title to an illegally staying third-country national on their territory according to the provisions in this Directive. If this is not the case, the concerned Member State must order a return decision according to Article 11(1) which can be accompanied by an entry ban according to Article 3 no. 6 of this Directive. Article 9(1)(a) of this Directive does not justify that Member States suspend enforcement of a decision instead of ordering a return decision. In this regard, it can also not be justified that the deportation order of the applicant uphold an entry and residence ban even though there is no return decision for the applicant.

Outcome:

Article 2 (1) 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 must be interpreted as meaning that the directive applies on an entry and residence ban imposed by a Member State that has not made use of the option under Article 2(2)(b) of that directive on a third-country national who is in its territory and who has been subject of expulsion ordered for reasons of public safety and on grounds of a previous criminal conviction.

Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 must be interpreted as meaning that it opposes the maintenance of the entry and residence ban imposed by a Member State on a third-country national who is on its territory and who is subject of an expulsion order which has become final for reasons of public safety and order on grounds of previous criminal convictions when the return decision issued by that Member State against that third-country national has been revoked, even if the return decision has become final.