Case summaries

The Return Directive does not prevent a Member State from placing in administrative detention a third-country national residing illegally on its territory, in order to carry out the forced transfer of that national to another Member State in which that national has refugee status, where that national has refused to comply with the order to go to that other Member State and it is not possible to issue a return decision to him or her.

The Return Directive does not preclude Member States from introducing legislation that imposes a custodial sentence on individuals for whom the return procedure has been exahusted but still remain in the territory, where the criminal act consists in an unlawful stay with notice of an entry ban, issued in particular on account of that third-country national’s criminal record or the threat he represents to public policy or national security.

However, such a provision in national legislation is permitted if the criminal act is not defined as a breach of such an entry ban and the legislation itself is sufficiently accessible, precise and foreseeable in its application in order to avoid all risk of arbitrariness.

The CJEU ruled on  the scope of the right to an effective remedy provided for in Article 39 of the Asylum Procedures Directive and in Article 13 of the Returns Directive.

The CJEU ruled on  the scope of the right to an effective remedy provided for in Article 46 of the (Recast) Asylum Procedures Directive and in Article 13 of the Returns Directive.

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.

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.

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.

The Returns Directive does not preclude domestic legislation which provides for a prison sentence as a criminal law penalty for non-EU citizens who unlawfully re-enter the country in breach of an entry ban.