Analysis: “Entry bans against third country nationals under the EU Return Directive: the Court of Justice’s decision in Westerwaldekreis” by Stefan Salomon
On Thursday, 3 June 2021, the Court of Justice issued its decision in Westerwaldekreis (C-546/19), a preliminary reference by the German Federal Administrative Court. The case concerns the scope of Member States’ powers when taking a decision on an entry ban under Directive 2008/115 on common standards and procedures in member States for returning illegally staying third country nationals (‘Return Directive’) and the relationship between a return decision and an entry ban. The practical ramifications of this decision go beyond these narrow questions and improve the legal position of irregularly staying third country nationals, who cannot be deported. A brief note on EU Law Live summarising the case is available here.
The facts of the case concern a Syrian-born applicant with unknown nationality, who had been irregularly present in Germany since 1990. After a criminal conviction for supporting terrorism was imposed on the applicant in 2013, the German authorities issued an expulsion order, which included an entry ban, against him.
In the proceedings before the Court of Justice the German Government argued that an expulsion order does not fall within the scope of the Return Directive, if it is based on a criminal conviction. The Return Directive would only be applicable, the German Government maintained, with regard to expulsion orders issued on migration related grounds, that is, to enforce the irregular stay of third country nationals. Article 2(2)(b) of the Return Directive allows Member States to exclude third country nationals from the scope of the Return Directive who are ‘subject to return as a criminal law sanction or as a consequence of a criminal law sanction’. However, Germany does not apply this exception in its national law.
The Court of Justice rejected the German Government’s distinction between criminal law and migration-related grounds. The Court argued that the scope of the Return Directive is determined exclusively with regard to the illegal stay of a third country national. As it has done in its past case law on the Return Directive (Affum, C‑47/15; Gnandi, C‑181/16), the Court relied on a formal interpretation of the Return Directive and argued that the Return Directive applies to illegally staying third country nationals irrespective of the concrete reasons why the stay is illegal. A third country national is illegally present if she or he no longer has a valid residence title or visa.
The second issue in the case concerns a specific characteristic in the German Act on the Residence, Economic Activity and Integration of Foreigners in the Federal Territory (‘Residence Act’), which differentiates between an expulsion order and a deportation order. In the German Residence Act only the latter constitutes a return decision under Article 3 of the Return Directive and thus falls within the scope of the Return Directive, whereas the former does not fall within the scope of the Return Directive. The German authorities initially issued a deportation order against the applicant in 2013, which included an entry ban, but set aside the deportation order one year later as the human rights situation in Syria did not permit the deportation being carried out in the foreseeable future. Subsequently, the German authorities issued an expulsion order against the applicant and linked the entry ban to the expulsion order. Thus, the question that the Court had to answer was whether an entry ban can be maintained, if the return decision had been set aside.
The Court stated, first, that the entry ban under the Return Directive is accessory to the return decision. If the return decision is set aside, an entry ban cannot be maintained (C-546/19, paragraph 54). The Court thereby followed the argument of Advocate General (AG) Pikamäe that the return decision is a necessary requirement for the validity of an entry ban (C-546/19, Opinion of AG Pikamäe, point 76). The Court made clear that an entry ban complements a return decision and legal effects unfold only after a third country national has effectively left the territory of a Member State (C-546/19, paragraph 52).
Second, the Court clearly stated that when a third country national is irregularly present, the Return Directive obliges Member States to either issue a return decision or a valid residence title, and therefore regularise the stay of the third country national. Again, the Court of Justice followed AG Pikamäe’s reasoning and argued that it would be contrary to the objective and the wording of the Return Directive to accord an intermediary migration status to third country nationals, who are present without any legal residence status and are subject to an entry ban, but against whom no valid return decision exists (paragraph 57). The objective of the Return Directive, as AG Pikamäe pointed out, is to reduce any grey zones in the residence status of third country nationals. The Court unambiguously stated that these considerations also apply to third country nationals who are illegally present and whose expulsion cannot be enforced on non-refoulement grounds (C-546/19, paragraph 58).
Two implications derive from the Court’s decision in Westerwaldekreis. Firstly, by clarifying that a twilight migration status in national law is incompatible with the Return Directive, the Court of Justice puts an end to an administrative practice in several Member States, such as Germany and Austria, to merely tolerate the irregular presence of third country nationals without applying the return procedure or regularising their stay. This could be seen as a human rights-friendly interpretation of a restrictive legal instrument, as it means that the minimum safeguards of the Return Directive and guarantees of the EU Charter on Fundamental Rights are applicable to every third country national who is irregularly present, in particular access to emergency health care, basic education for minors (Article 14(1) Return Directive), and, arguably, also a right to receive benefits to satisfy basic needs (See, Kevin Fredy Hinterberger, Stephan Klammer, ‚’Der Rechtsstatus von Geduldeten‘, in Stefan Salomon (ed.) Der Status im europäischen Asylrecht (Nomos 2020), pp. 339-348). This concerns a significant number of third country nationals. In 2020, more than 281,000 third country nationals were irregularly present in Germany. It can be assumed that a significant number of these third country nationals only received an expulsion order (although exact data are missing) and were thus not considered by German authorities to fall under the scope of the Return Directive.
Secondly, the Court’s decision may have restrictive effects in Germany. The German Government might be encouraged to push within Germany for an amendment of the Residence Act and to make use of the exception to exclude third country nationals, convicted in criminal proceedings, from the scope of the Return Directive. In the past, Member States amended their domestic legislation after the Court of Justice extended rights of EU law to irregularly staying third country nationals. For instance, Ireland and Belgium changed their nationality laws after the Court’s decisions in Zambrano and Zhu and Chen, thus making it harder for third country national children to acquire citizenship. A similar restrictive turn may occur in Germany.
Stefan Salomon is Assistant Professor in EU law at the University of Amsterdam.