Case C‑546/19

BZ

v

Westerwaldkreis

(Request for a preliminary ruling from the Bundesverwaltungsgericht)

 Judgment of the Court (Fourth Chamber), 3 June 2021

(Reference for a preliminary ruling – Area of freedom, security and justice – Immigration policy – Return of illegally staying third-country nationals – Directive 2008/115/EC – Article 2(1) – Scope – Third-country national – Criminal conviction in the Member State – Article 3(6) – Entry ban – Grounds of public policy and public security – Withdrawal of the return decision – Lawfulness of the entry ban)

1.        Questions referred for a preliminary ruling – Admissibility – Limits – Clearly irrelevant questions and hypothetical questions put in a context not permitting a useful answer

(Art. 267 TFEU)

(see paragraph 38)

2.        Border controls, asylum and immigration – Immigration policy – Return of illegally staying third-country nationals – Directive 2008/115 – Scope – Entry ban on grounds of public security and public policy – Member State which has not exercised the option not to apply that directive in respect of third-country nationals who are subject to return as a criminal law sanction or as a consequence of a criminal law sanction – Included

(European Parliament and Council Directive 2008/115, Arts 2(1) and 3(2))

(see paragraphs 44-48, operative part 1)

3.        Border controls, asylum and immigration – Immigration policy – Return of illegally staying third-country nationals – Entry ban – Time from which that entry ban starts to run – Date of actual departure of the person concerned from the relevant Member State

(European Parliament and Council Directive 2008/115, Art. 3(3))

(see paragraph 52)

4.        Border controls, asylum and immigration – Immigration policy – Return of illegally staying third-country nationals – Return decision adopted against such a national accompanied by an entry ban issued on account of a criminal conviction or the threat to public policy or national security – National who has not actually left the territory of the Member States – Maintenance in force of the entry ban after the return decision has been withdrawn – Not permissible

(European Parliament and Council Directive 2008/115, Arts 1, 3(3) and (6) and 11(1))

(see paragraphs 54, 56-61, operative part 2)

Résumé

BZ, a third-country national, has resided in Germany since 1990. Although he has been under an obligation to leave the territory, he has continued to reside in that Member State by virtue of a ‘temporary suspension of removal’, which has been regularly extended on the basis of national law.

In 2013, BZ was given a custodial sentence for supporting terrorism and, in 2014, the enforcement of the remainder of his prison sentence was suspended.

As a result of that criminal conviction, the Westerwaldkreis (District of Westerwald, Germany), by decision of 24 February 2014, ordered the expulsion of BZ and imposed a ban on entry into and residence in Germany for a period of six years, reduced subsequently to four years, beginning on the date on which BZ actually left German territory, and ending no later than 21 July 2023. At the same time, the District of Westerwald issued a removal warning against BZ, which, however, it withdrew in the context of administrative opposition proceedings.

The action brought against the measures issued in respect of him having been dismissed, BZ brought an appeal against the rejection decision before the Oberverwaltungsgericht Rheinland-Pfalz (Higher Administrative Court, Rhineland-Palatinate, Germany).

In 2017, BZ’s application for asylum was rejected by the competent German authority as manifestly unfounded. That authority also found that BZ could not be returned to Syria, since the conditions which precluded removal were satisfied so far as that country was concerned.

Since the appeal for the annulment of the expulsion order and for the determination of the duration of the entry and residence ban was dismissed by judgment of 5 April 2018, BZ brought an appeal on a point of law against that judgment before the Bundesverwaltungsgericht (Federal Administrative Court, Germany). That court dismissed BZ’s appeal on a point of law in so far as it related to the expulsion order issued in respect of him, which thus became final. Moreover, that court pursued the appeal proceedings on a point of law in so far as they concerned the decision to reduce the duration of the entry and residence ban accompanying that order to four years, beginning on the date of any departure of BZ from German territory and ending no later than 21 July 2023.

The referring court wonders whether the Return Directive (1) applies to an entry ban such as that at issue, imposed on a third-country national for purposes ‘not related to migration’. Its doubts arise from the fact that, according to the Commission’s ‘Return Handbook’, (2) the rules on return-related entry bans (3) under the Return Directive ‘leave unaffected entry bans issued for other purposes not related to migration’. It states, however, that Germany has not exercised the option conferred on Member States by Article 2(2)(b) of the Return Directive not to apply that directive to third-country nationals who are subject to return as a criminal law sanction or as a consequence of a criminal law sanction, according to national law.

If the Return Directive is applicable in such circumstances, the referring court is uncertain as to the compatibility with EU law of the maintenance of an entry ban (4) issued by a Member State against a third-country national who is on its territory and is the subject of an expulsion order, which has become final, where the return decision issued in respect of that national by the Member State has been withdrawn. It states in that regard that, under German law, an expulsion order does not constitute a ‘return decision’ (5) within the meaning of the Return Directive, unlike a removal warning.

Accordingly, the referring court decided to ask the Court for clarification on the scope of the Return Directive and on the link made therein between an entry ban and a return decision.

Findings of the Court

In the first place, the Court holds that a ban on entry and stay issued by a Member State which has not exercised the option conferred on it by Article 2(2)(b) of that directive against a third-country national who is on its territory and is the subject of an expulsion order on grounds of public security and public policy, on the basis of a previous criminal conviction, falls within the scope of the Return Directive.

The Court points out, in that regard, that, under Article 2(1) thereof, the Return Directive applies to third-country nationals staying illegally on the territory of a Member State. In the light of the definition of ‘illegal stay’ in the Return Directive, any third-country national who is present on the territory of a Member State without fulfilling the conditions for entry, stay or residence there is, by virtue of that fact alone, staying there illegally and, therefore, falls within the scope of that directive.

It follows that the scope of that directive is defined by reference solely to the situation of the illegal stay in which a third-country national finds him- or herself, irrespective of the reasons for that situation or the measures that may be adopted in respect of that national. The scope of the Return Directive cannot be altered by a Commission recommendation, which has no binding effect.

In the second place, the Court holds that the Return Directive precludes the maintenance in force of a ban on entry and stay issued by a Member State against a third-country national who is on its territory and is the subject of an expulsion order, which has become final, adopted on grounds of public security and public policy on the basis of a previous criminal conviction, where the return decision issued in respect of that national by that Member State has been withdrawn, even if that expulsion order has become final.

In reaching that conclusion, the Court observes that it follows from the Return Directive (6) that an entry ban is intended to supplement a return decision by prohibiting the person concerned, for a specified period of time following his or her ‘return’, as defined by the directive, and thus after his or her departure from the territory of the Member States, from again entering and then staying in that territory. Consequently, an entry ban produces its effects only from the point in time at which the person concerned actually leaves the territory of the Member States.

In the present case, the entry ban imposed on BZ is no longer accompanied by any return decision. In so far as an entry ban falling within the scope of the Return Directive can produce its legal effects only following the enforcement of the return decision, it cannot be maintained in force after that decision has been withdrawn.

It follows that, where a Member State is faced with a third-country national who is on its territory without a valid residence permit, it must determine whether that national is to be issued with a new residence permit. If that is not the case, it must issue in respect of that national a return decision which, in accordance with Article 11(1) of the Return Directive, may or must be accompanied by an entry ban within the meaning of Article 3(6) of that directive.

The Court considers that it is contrary to the Return Directive to tolerate the existence of an intermediate status of third-country nationals who are on the territory of a Member State without any right of stay or any residence permit and, depending on the circumstances, may be subject to an entry ban, without any valid return decision subsisting in relation to them. The fact that an expulsion order, such as that concerning BZ, has become final does not justify maintaining in force an entry ban when no return decision subsists in relation to BZ.

Those considerations also apply to third-country nationals staying illegally on the territory of a Member State who, like BZ, cannot be removed because the principle of non-refoulement precludes it. According to the directive, that circumstance does not justify the failure to issue a return decision in respect of a third-country national in such a situation, but only the postponement of his or her removal, pursuant to that decision.

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; ‘the Return Directive’).

2      Commission Recommendation (EU) 2017/2338 of 16 November 2017 establishing a common ‘Return Handbook’ to be used by Member States’ competent authorities when carrying out return-related tasks (OJ 2017 L 339, p. 83).

3      This encompasses entry bans related to breach of the migration rules in the Member States.

4      Defined in Article 3(6) of the Return Directive as an administrative or judicial decision or act prohibiting entry into and stay on the territory of the Member States for a specified period, accompanying a return decision.

5      Defined, in Article 3(4) of the Return Directive as an administrative or judicial decision or act, stating or declaring the stay of a third-country national to be illegal and imposing or stating an obligation to return.

6      Specifically, Article 3(4) and (6) and Article 11(1) thereof.