Case summaries

The non-suspensive effect of a decision not to further examine a subsequent application under Article 32 of the 2005 Asylum Procedures Directive is not in violation of Articles 19(2) and 47 of the Charter since the decision’s enforcement will not lead to the applicant being removed and is therefore unlikely to expose the applicant to a risk of inhumane treatment.

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 right to be represented by a lawyer in the context of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 will only apply when an appeal to a return decision has been lodged and free legal assistance will be subject to national domestic legislation. 

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 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 concerns the interpretation 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 (OJ 2008 L 348, p. 98) and of Article 4(3) TEU.

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.

1. The expulsion of a recognised refugee may only take place subject to the requirements of Article 21 (3) in conjunction with (2) and Article 24 (1) of the Qualification Directive.

2. Compelling grounds for public security or order according to Article 24 (1) of the Qualification Directive do not presuppose any outstanding acts of extraordinary danger in support of international terrorism; neither does specific involvement of a sympathiser suffice unless it is characterised by a large degree of continuity and as such shapes and influences the environment of the terrorist organisation. 

Contrary to the wording of the corresponding Austrian legislation, an entry ban of at least 18 months which must be issued in every case together with a ban on readmission is not compatible with the Returns Directive without a prior examination on a case-by-case basis. 

The case concerned whether the Returns Directive precludesnational legislation providing for the imposition of a sentence of imprisonment on a third-country national on the sole ground of their illegal entry or residence in national territory.