Request for a preliminary ruling from the Raad voor Vreemdelingenbetwistingen (Belgium) lodged on 24 October 2023 – W v Belgian State
(Case C-636/23, Al Hoceima 1 )
Language of the case: Dutch
Referring court
Raad voor Vreemdelingenbetwistingen
Parties to the main proceedings
Applicant: W
Defendant: Belgian State
Questions referred
Must Article 7(4), Article 8(1) and (2) and Article 11(1) of Directive 2008/115, 1 read either in isolation or together, in the light of Article 13 of Directive 2008/115 and Article 47 of the Charter of Fundamental Rights of the European Union, be interpreted as precluding the refusal to grant a period for voluntary departure from being regarded as a mere means of enforcement which does not alter the legal position of the foreign national concerned, given that the grant or otherwise of a period for voluntary departure does not alter the primary finding of an illegal stay in the territory?
If the answer to the first question is in the affirmative, must the words ‘together with’ in Article 3(6) and the words ‘accompanying’ in Article 11(1) of Directive 2008/115 be interpreted as meaning that they do not preclude the competent authority from being able or having to issue, even after a considerable period of time, an entry ban based on a return decision that has not granted a period for voluntary departure?
If the answer to that question is in the negative, does that wording mean that a return decision which has not granted a period for voluntary departure must be accompanied simultaneously by an entry ban or within a reasonably short period of time?
If the answer to that question is in the affirmative, does the right to an effective remedy guaranteed by Article 13 of Directive 2008/115 and Article 47 of the Charter of Fundamental Rights of the European Union mean that it is possible, in the context of an appeal against a return decision, to challenge the legality of a decision not to grant a period for voluntary departure, whereas otherwise the legality of the legal basis of the entry ban could no longer be effectively challenged?
If the answer to the first question is in the affirmative, must the terms ‘an appropriate period’ in the first subparagraph of Article 7(1) and ‘an obligation to return’ in Article 3(4) of Directive 2008/115 be interpreted as meaning that a provision laying down a period of time, or in any event the refusal to grant a period of time, within the framework of the obligation to depart is an essential element of a return decision, in the sense that, if that period is found to be unlawful, the return decision lapses in its entirety and a new return decision must be issued?
If the Court considers that the refusal to grant a period of time is not an essential element of a return decision, and if the Member State concerned has not made use of the option, under Article 7[(1)] of Directive 2008/115, to grant a period of time only upon application by the [third-country] national concerned, what is the practical scope and enforceability of a return decision, within the meaning of Article 3(4) of Directive 2008/115, from which the element relating to the period would disappear?
____________
1 The name of the present case is a fictitious name, which does not correspond to the actual name of any party to the proceedings.
1 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).