Judgment of the Court (Grand Chamber) of 19 June 2018 (request for a preliminary ruling from the Conseil d’État — Belgium) — Sadikou Gnandi v État belge

(Case C-181/16) ¹

(Reference for a preliminary ruling — Area of freedom, security and justice — Return of illegally staying third-country nationals — Directive 2008/115/EC — Article 3(2) — Concept of ‘illegal stay’ — Article 6 — Adoption of a return decision before resolution of an appeal against the decision of the determining authority rejecting the application for international protection — Charter of Fundamental Rights of the European Union — Article 18, Article 19(2) and Article 47 — Principle of non-refoulement — Right to an effective remedy — Authorisation to remain in a Member State)

Language of the case: French

Referring court

Conseil d’État

Parties to the main proceedings

Appellant: Sadikou Gnandi

Respondent: État belge

Operative part of the judgment

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, read in conjunction with Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status, and in the light of the principle of non-refoulement and the right to an effective remedy, enshrined in Article 18, Article 19(2) and Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding the adoption of a return decision, under Article 6(1) of Directive 2008/115, in respect of a third-country national who has applied for international protection, immediately after the rejection of that application by the determining authority or together in the same administrative act, and thus before the conclusion of any appeal proceedings brought against that rejection, provided, inter alia, that the Member State concerned ensures that all the legal effects of the return decision are suspended pending the outcome of the appeal, that the applicant is entitled, during that period, to benefit from the rights arising under Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers, and that he is entitled to rely on any change in circumstances that occurred after the adoption of the return decision which may have a significant bearing on the assessment of his situation under Directive 2008/115, and in particular under Article 5 thereof, those being matters for the referring court to determine.

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¹ OJ C 191, 30.5.2016.