A member state may not order the return of an asylum seeker when his or her asylum application is first rejected and until the appeal at first instance is concluded. However, such a return may be ordered once the appeal at first instance has been rejected, unless the national legislation authorises him or her to remain on the territory pending a definitive outcome of the entire asylum procedure.
Advocate General Paolo Mengozzi advised the judges of the Court of Justice of the EU to return a judgment to this effect, in conclusions returned on Thursday 15 June in a case (C-181/16) in which the Court was questioned about these points by the Belgian Council of State. A case was brought before the Council of State regarding a Togolese asylum seeker whose order to leave the territory had been upheld by the Belgian authorities despite the fact that he had brought an appeal, within the statutory deadline, against the rejection of his asylum application and the subsequent cancellation of this rejection by the Council of State.
In these circumstances, the Belgian court asked the Court of Justice whether a return decision may be made by the administrative authorities as soon as the asylum application has been rejected and before the legal appeals against this decision have been exhausted and, therefore, before the definitive closure of the asylum procedure.
In his conclusions, the Advocate General considers that the right of appeal against a decision to withhold asylum and the principle of non-refoulement, which are recognised in the directive on granting and withdrawing refugee status (2005/85/EC), would be breached if, within the time limit to appeal against the rejection of an asylum application – and, once the appeal has been made, until it has been concluded – the asylum seeker was exposed to the execution of an expulsion measure.
During this period, the person in question is therefore entitled to remain on the territory of the member state in which he or she made his or her application and may not be considered to be residing illegally or be the subject of a return decision.
However, as European asylum standards do not stipulate the existence of a twofold or even threefold degree of jurisdiction (appeal/cassation), this protection will no longer apply once the appeal has been rejected at first instance and the person in question may therefore be handed an expulsion measure, unless the provisions of national law authorised him or her to remain on the territory pending a definitive conclusion of the asylum procedure. (Original version in French by Francesco Gariazzo)