20 October 2022 (*1)

(Reference for a preliminary ruling – Area of freedom, security and justice – Immigration policy – Directive 2008/115/EC – Return of illegally staying third-country nationals – Asylum application – Rejection – Order to leave the territory – Article 6(4) – Application for leave to remain for the purpose of medical treatment – Admissible application – Issuance of temporary leave to remain while the application is being examined – Dismissal of application – Social assistance – Refusal – Condition relating to the legality of the stay – No return decision – Effect of temporary leave to remain on the order to leave the territory)

In Case C‑825/21,

REQUEST for a preliminary ruling under Article 267 TFEU from the Cour de cassation (Court of Cassation, Belgium), made by decision of 13 December 2021, received at the Court on 23 December 2021, in the proceedings

Centre public d’action sociale de Liège,

THE COURT (Fifth Chamber),

composed of E. Regan (Rapporteur), President of the Chamber, D. Gratsias, M. Ilešič, I. Jarukaitis and Z. Csehi, Judges,

Advocate General: J. Richard de la Tour,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

–UP, by D. Andrien, avocat,

–the Belgian Government, by M. Jacobs, C. Pochet and M. Van Regemorter, acting as Agents, and by C. Piront, avocate,

–the European Commission, by A. Azéma and A. Katsimerou, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Legal context

European Union law

‘Clear, transparent and fair rules need to be fixed to provide for an effective return policy as a necessary element of a well managed migration policy.’

‘For the purpose of this Directive the following definitions shall apply:

…

4.“return decision” means 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;

…’

‘1. Member States shall issue a return decision to any third-country national staying illegally on their territory, without prejudice to the exceptions referred to in paragraphs 2 to 5.

…

…’

‘Member States shall take all necessary measures to enforce the return decision if no period for voluntary departure has been granted in accordance with Article 7(4) or if the obligation to return has not been complied with within the period for voluntary departure granted in accordance with Article 7.’

Belgian law

Social assistance legislation

‘By derogation from the other provisions of this Law, the functions of the public social welfare centre shall be limited to:

1.the grant of urgent medical assistance, in respect of a foreign national staying illegally in the Kingdom;

…

2.A foreign national who has declared himself or herself a refugee and has asked to be recognised as such will be deemed to be staying in the Kingdom illegally where his or her application for asylum has been rejected and an order to leave the territory has been served on him or her.

…’

Legislation on foreign nationals

‘A foreign national residing in Belgium … who suffers from an illness occasioning a real risk to his or her life or physical integrity or a real risk of inhuman or degrading treatment where there is no appropriate treatment in his or her country of origin or in the country in which he or she resides may apply … for leave to remain in the Kingdom.’

‘Except in the cases referred to in Article 9ter(3) of the Law, the representative of the Minister shall instruct the commune to enter the person concerned on the register of foreign nationals and to provide him or her with a model A residence registration certificate. …’

‘Temporary leave to remain and the certificate of entry on the register of foreign nationals which are issued on the basis of Article 9ter of the Law shall be valid for at least one year.’

The dispute in the main proceedings and the question referred for a preliminary ruling

29

It follows, according to the referring court, that the examination of the appeal in the case in the main proceedings calls for an interpretation of Articles 6 and 8 of Directive 2008/115.

30

In those circumstances, the Cour de cassation (Court of Cassation) decided to stay the proceedings and refer the following question to the Court of Justice for a preliminary ruling:

‘Do Articles 6 and 8 of Directive [2008/115] preclude a rule of national law under which the consequence of granting authorisation conferring a right to stay in the context of the examination of an application for leave to remain for the purpose of medical treatment, considered to be admissible in the light of the criteria set out above, is that the third-country national is entitled to stay, even temporarily and irregularly, during the examination of that application and that the return decision previously adopted in an asylum procedure, with which the grant of such authorisation is incompatible, is impliedly withdrawn?’

The question referred

Admissibility

31

The Belgian Government maintains that there is no need to reply to the question referred for a preliminary ruling, since it is irrelevant to the outcome of the dispute in the main proceedings. The rule of national law referred to by the referring court in that question does not exist in Belgian law. The Belgian Government argues that that court proceeds, in that regard, from an incorrect premiss for two reasons.

32

First, a residence registration certificate issued in accordance with Article 7 of the Royal Decree of 17 May 2007 and Article 9ter of the Law on foreign nationals to a person whose application for leave to remain for the purpose of medical treatment has been declared admissible does not constitute an authorisation conferring a right to stay, but only grants that person a right to remain temporarily in the territory.

33

Secondly, under Belgian law, the right to remain in the territory does not entail the implicit withdrawal of the return decision previously taken in respect of the person concerned. The Belgian Government argues that the Conseil d’État (Council of State, Belgium), by judgment of 23 May 2017, rejected such an interpretation by referring to the judgment of 15 February 2016, N. (C‑601/15 PPU, EU:C:2016:84). In addition and above all, that judgment was referred to by the Belgian legislature when, by the Law of 24 February 2017, which entered into force on 29 April 2017 and is applicable to all ongoing procedures, it inserted Article 1/3 into the Law on foreign nationals. That provision now states clearly that a return decision is not affected by the submission by a foreign national of an application to stay or of an application for international protection and that, if the person concerned may temporarily remain in the territory pending a decision on that application, the enforceability of the return decision is only suspended.

34

In that regard, it should be borne in mind that, according to the settled case-law of the Court, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions referred concern the interpretation or the validity of a rule of EU law, the Court is in principle bound to give a ruling. It follows that questions referred by national courts enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it appears that the interpretation sought bears no relation to the actual facts of the main action or its object, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 24 February 2022, Viva Telecom Bulgaria, C‑257/20, EU:C:2022:125, paragraph 41 and the case-law cited).

35

In particular, it should be stated in that regard that the Court must take into account, under the division of jurisdiction between the Courts of the European Union and the national courts, the factual and legal context, as set out in the order for reference, of the questions referred for a preliminary ruling. Consequently, a reference for a preliminary ruling must be examined in the light of the interpretation of national law provided by the referring court and not that relied on by the government of a Member State (see, to that effect, inter alia, judgments of 21 June 2016, New Valmar, C‑15/15, EU:C:2016:464, paragraph 25, and of 15 April 2021, État belge (Circumstances subsequent to a transfer decision), C‑194/19, EU:C:2021:270, paragraph 26).

36

In the present case, as is apparent from the express terms of the request for a preliminary ruling, and in particular from the very wording of the question referred to the Court, the referring court considers that, in order to resolve the dispute in the main proceedings, it is necessary to examine, first, whether the provisions of Directive 2008/115 preclude a rule of national law which provides that, where a right to stay is granted to a third-country national who has made an application for leave to remain for one of the reasons covered by Article 6(4) of that directive, on account of the admissibility of that application, the grant of that right entails the implicit withdrawal of the return decision previously adopted in respect of that national after the rejection of his or her application for international protection.

37

Since, by such a question, that court presupposes that Belgian law contains such a rule, the Court cannot accept, for the purposes of the present preliminary ruling proceedings, the interpretation of that right put forward by the Belgian Government, according to which the authorisation granted to a third-country national in such a situation, first, does not confer on him or her a right to stay and, secondly, entails only the suspension of the effects of the return decision previously adopted in respect of that national.

38

It is therefore for the referring court alone to interpret the national law applicable to the dispute in the main proceedings by determining, in particular, whether Article 1/3 of the Law on foreign nationals, as inserted by the Law of 24 February 2017, which entered into force in the course of a procedure on 29 April 2017, is applicable to that dispute.

39

It follows that the present reference for a preliminary ruling is admissible.

Substance

40

By its question, the referring court asks, in essence, whether Article 6(4) of Directive 2008/115 must be interpreted as precluding legislation of a Member State under which, where a right to stay is granted to a third-country national staying illegally on its territory pending the outcome of the processing of an application for leave to remain for one of the reasons covered by that provision, on account of the admissibility of that application, the grant of that right entails the implicit withdrawal of a return decision previously adopted in respect of that national after the rejection of his or her application for international protection.

41

In that regard, it should be borne in mind that, in accordance with the settled case-law of the Court, in interpreting a provision of EU law, it is necessary to consider its wording, the context in which it occurs and the objectives pursued by the rules of which it is part (see, to that effect, inter alia, judgment of 20 June 2022, London Steam-Ship Owners’ Mutual Insurance Association, C‑700/20, EU:C:2022:488, paragraph 55).

42

It should be noted that, according to the first sentence of Article 6(4) of Directive 2008/115, Member States may ‘at any moment’ grant to a third-country national staying illegally on their territory an ‘autonomous residence permit’ or ‘other authorisation offering a right to stay’ for ‘compassionate, humanitarian or other reasons’.

43

It is thus apparent from the very wording of that provision, in particular from the reference to ‘other’ reasons, that it allows Member States to issue to such nationals, at any stage, a right to stay not only for the reasons expressly referred to, namely compassionate or humanitarian reasons, but also for any reason of a different nature which they deem appropriate.

44

It follows that the Member States have a very broad discretion to grant, in compliance with EU law, a right to stay to third-country nationals staying illegally on their territory.

45

Therefore, there is nothing to prevent a Member State from granting a right to stay to such a national who has submitted an application for leave to remain for one of the reasons covered by Article 6(4) of Directive 2008/115 on account of the admissibility of that application, pending the outcome of the processing of that application on its merits.

46

It is apparent from the unambiguous wording of the third and last sentence of Article 6(4) of Directive 2008/115, in particular from the word ‘or’, that although it is true that the Member States, when granting a right to stay for compassionate, humanitarian or other reasons, may provide that that right to stay is to have the effect of suspending, for the duration of validity of the authorisation in question, any return decision previously adopted in respect of the person concerned, they may equally provide that that right to stay is to entail the withdrawal of such a previous return decision.

47

Accordingly, a Member State which grants a right to stay to a third-country national staying illegally on its territory pending the outcome of the processing of an application for leave to remain for one of the reasons covered by Article 6(4) of Directive 2008/115, on account of the admissibility of such an application, may, in accordance with the very wording of that provision, provide that the grant of such a right to stay entails the implicit withdrawal of a return decision previously adopted in respect of that same national.

48

That interpretation of Article 6(4) of Directive 2008/115 cannot be called into question, contrary to the Belgian Government’s submissions, by the context in which that provision occurs and objectives pursued by the rules of which it forms part.

49

It is true that Directive 2008/115 aims, with due regard for the fundamental rights and dignity of the persons concerned, to establish an effective removal and repatriation policy for illegally staying third-country nationals (judgment of 10 March 2022, Landkreis Gifhorn, C‑519/20, EU:C:2022:178, paragraph 39 and the case-law cited).

50

It follows both from the duty of loyalty of the Member States, following from Article 4(3) TEU, and from the requirements of effectiveness laid down, for example, in recital 4 of Directive 2008/115, that the obligation imposed on the Member States by Article 8 of that directive, in the cases referred to in Article 8(1), to carry out the removal, must be fulfilled as soon as possible (see, to that effect, judgment of 6 December 2011, Achughbabian, C‑329/11, EU:C:2011:807, paragraph 45).

51

Thus, the Court has held, in essence, in paragraphs 74 to 76 and 80 of the judgment of 15 February 2016, N. (C‑601/15 PPU, EU:C:2016:84), that the effectiveness of Directive 2008/115 requires that a procedure opened under that directive, in the context of which a return decision has been adopted, should not start afresh, but be resumed at the stage at which it was interrupted, as soon as the application for international protection which interrupted it has been rejected at first instance, the Member States being required not to jeopardise the attainment of the objective which that directive pursues, namely to carry out the removal as soon as possible.

52

Nevertheless, as the applicant in the main proceedings and the Commission have rightly submitted, the interpretation of Directive 2008/115 adopted in the preceding paragraph cannot be applied to the present case.

53

That interpretation was adopted by the Court in the context of a dispute which resulted from the submission, by an illegally staying third-country national, of multiple applications for international protection and which raised the question of the effects that must attach to the submission of a new application of that nature, since EU law does not contain a provision expressly determining the consequences of the granting of an authorisation to remain in the territory for the purpose of the procedure on a previous return decision.

54

By contrast, the question referred arises in the context of a dispute concerning the submission by an illegally staying third-country national, after the rejection of her application for international protection, of an application for leave to remain for compassionate, humanitarian or other reasons within the meaning of Article 6(4) of Directive 2008/115.

55

In such a case, as has been noted in paragraphs 46 and 47 above, the third and last sentence of that provision expressly allows Member States, when deciding to grant an autonomous residence permit or other authorisation offering a right to stay to such a national, to provide that the grant of that permit or authorisation entails the withdrawal of a return decision previously adopted in respect of him or her.

56

Consequently, the answer to the question referred is that Article 6(4) of Directive 2008/115 must be interpreted as not precluding legislation of a Member State under which, where a right to stay is granted to a third-country national staying illegally on its territory pending the outcome of the processing of an application for leave to remain for one of the reasons covered by that provision, on account of the admissibility of that application, the grant of that right entails the implicit withdrawal of a return decision previously adopted in respect of that national after the rejection of his or her application for international protection.

Costs

57

Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Fifth Chamber) hereby rules:

Article 6(4) of 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,

must be interpreted as not precluding legislation of a Member State under which, where a right to stay is granted to a third-country national staying illegally on its territory pending the outcome of the processing of an application for leave to remain for one of the reasons covered by that provision, on account of the admissibility of that application, the grant of that right entails the implicit withdrawal of a return decision previously adopted in respect of that national after the rejection of his or her application for international protection.

[Signatures]

(*1) Language of the case: French.