Case summaries

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.

This CJEU ruling concerned the interpretation of Article 6 of Directive 2008/115/EC (‘the Return Directive’) in relation to the right to be heard prior to a return decision being made, to return illegally staying third-country nationals.

It was found that where the national authority had explicitly provided for the obligation to leave national territory in cases of illegal stay in its national legislation and the third-country national had properly been heard in the context of the procedure for examining his/her right to stay; the right to be heard did not require the applicant to be given an additional opportunity to present observations prior to the issue of a return decision. 

The Returns Directive does not permit an entry ban to be time limited only in circumstances where the recipient makes an application for such.

The grounds for extending a deadline for departure can exist either within the country or abroad or grounds which otherwise hinder a departure within the deadline. In addition, problems which typically affect former asylum seekers, namely long absence from the country of origin and circumstances such as disappearance of their social network following an absence of many years, are to be considered as special circumstances which make it necessary to extend the deadline for departure.

Although voluntary departure is an absolute requirement for the extension of the deadline for departure, the intention to submit an application for leave to remain does not in itself represent an obstacle. Rather, a judgment is required in each individual case.

The Charter of Fundamental Rights of the European Union is also applicable to proceedings to issue a return decision and requires a hearing. With regard to an Applicant who is not represented by anyone legally qualified, such an obligation also exists in cases in which an application for an oral hearing was not expressly lodged. This applies in particular when considering questions concerning private and family life in Austria.

This case concerned the legality of a circular in French law which was challenged by two organisations on the basis that it was contrary to EU Law under the Reception Conditions Directive in so far as it excludes asylum seekers from entitlement to allowances if they are in the Dublin procedure in France. The CJEU held that the Reception Conditions Directive applies in such a scenario and therefore asylum seekers in the Dublin procedure should have access to the minimum reception conditions laid down in that Directive. This obligation ceases when the person is actually transferred to another Member State.

An asylum application within the meaning of the Asylum Procedures Directive, Article 2, introductory paragraph and Article 2(b), has been made if a foreigner notifies the authorities that he would like to apply for asylum. The provision of the Foreigners Act under which a foreigner who has been declared undesirable has no right to remain is in breach of Article 7 of the Asylum Procedures Directive.

An exclusion order was issued to the Applicant and therefore a measure within the meaning of the Returns Directive. Without undertaking an oral hearing, the appeals authority confirmed the issue of the exclusion order, but reduced its duration. In accordance with Art 47 Para. 2 of the Charter of Fundamental Rights of the European Union, the appeals authority was however obliged to undertake an oral hearing.