CJEU: AG Opinion in Case C-181/16 Gnandi, 15 June 2017

Date: 
Thursday, June 15, 2017

On 15 June 2017, Advocate General Mengozzi gave his opinion in case C-181/16 Gnandi, regarding the preclusion of a return decision under the Returns Directive before the legal remedies against a rejection of the asylum decision have been exhausted and the asylum procedure have been concluded.
 
First, AG Mengozzi observed that Mr. Gnandi, who had a pending appeal against a negative asylum decision, was given the right to stay in Belgium until a decision had been reached and could not be considered, thus, to have been in a situation of “irregular” stay. Therefore, the applicant fell outside the scope of the Returns Directive, which only applies to “third-country nationals staying illegally on the territory of a Member State”. Second, the Advocate General argued that, between the date of the negative asylum decision and the day he appealed against that decision, the applicant could not be considered to be “irregular” either. He argues that the effectiveness of a domestic remedy and the principle of non-refoulement would be disregarded if the applicant is returned during the time available for lodging an appeal and, once this has been lodged, until a final decision on the matter have been reached.
 
Additionally, the Advocate General touches upon two matters that are not directly raised by the preliminary questions. He argues that the notification of the return decision to Mr. Gnandi does not seem to be in conformity with the procedural guarantees required by the Asylum Procedures Directive (Directive 2013/32/EU) as the information provided on the suspensive nature of an appeal was incomplete and contradictory. He also relied upon the ECtHR Chamber decision in V.M. and others v. Belgium to raise concerns about the consequences for the applicant’s social and economic rights once, as a consequence of the return order, his name was removed from the population services list, which seems to imply he would no longer have access to health and social care.
 
Based on an unofficial translation by the ELENA Weekly Legal Update.



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Keywords: 
Effective remedy (right to)
Non-refoulement
Return