In the light of the purported deportations of the asylum seekers whose asylum applications have been rejected in 2021 we cannot underline enough the importance of the principle of non-refoulment when implementing old return decisions.
It is recognised that it is legitimate for Member States to return illegally staying third-country nationals, provided that fair and efficient asylum systems are in place which fully respect the principle of non-refoulement.
Non-refoulement is a cornerstone of international human rights law, which prohibits states from removing people from their jurisdiction to a place where they would be at risk of serious human rights violations, including persecution, torture, ill-treatment or other fundamental rights violations. Non-refoulement is also enshrined in in Article 78 (1) of the Treaty on the Functioning of the EU, and in the EU’s fundamental rights regime, as reiterated in articles 18 and 19 of the Charter of Fundamental Rights of the European Union. Non-refoulement is also specified in secondary EU law, such as the Return Directive.
Non-refoulement is an absolute principle, which cannot be breached for any reasons. It requires cases to be examined individually by the state. Each deportation decision should be reviewed in light of this principle and the appeal against a return decision which could lead to a violation of this principle should always have a suspensive effect. Non-refoulement also prohibits the return of people back to states which could further deport them to a country where they could be at risk of such violations.
In situations where fored return is implemented after significant period the law confers obligation upon national autjorities to examine every available information regarding existing new circumstances preventing such return. As per CJEU decision in case C‑156/23 of 17 October 2024, Article 13(1) and (2) of Directive 2008/115, read in conjunction with Article 5 of that directive and with Article 19(2) and Article 47 of the Charter of Fundamental Rights, must be interpreted as requiring a national court which is requested to review the legality of an act whereby the competent national authority has rejected an application for a residence permit provided for by national law, and, in so doing, has brought to an end the suspension of the enforcement of a return decision previously adopted in the context of a procedure for international protection, to raise of its own motion any infringement of the principle of non-refoulement resulting from the enforcement of the latter decision, on the basis of the material in the file brought to its attention, as supplemented or clarified following adversarial proceedings.
In the case of late forced return implementation, the tribunal is entitled to examine those new circumstances when deciding on the freedom restriction of the foreigner prior to his return. Full ex nunc examination carries an obligation in such cases to assess new circumstances that emerged since a decision was issued and the circumstances that the determining authority should have considered if these occurred after the decision was issued.
Article 6 of the Return directive underlines (4) that Member States may at any moment decide to grant an autonomous residence permit or other authorisation offering a right to stay for compassionate, humanitarian or other reasons to a third-country national staying illegally on their territory. In that event no return decision shall be issued. Where a return decision has already been issued, it shall be withdrawn or suspended for the duration of validity of the residence permit or other authorisation offering a right to stay.
| Certainly, the social economic ties with the host country change in time, the circumstances envisaged in Article 128 of the Law on the Legal Status of Foreigners may have changed completely and the person in question may have a right to obtain a residence permit on other grounds. Besides, the right to family unity with family members present, emergency health care and essential treatment of illness, priority interest of a child and special needs of vulnerable persons shall be taken into account. The late enforcement of the return decisions shall provide for full and careful consideration of the above circumstances.
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