Common European Asylum System in a Changing World

5.3.1 Schengen Borders Code

E.P., C-380/18 The CJEU held that Member States should be afforded a wide margin of discretion in interpreting the definition of a threat to public order in the decision to revoke a short-term visa. The case concerns an Albanian national who entered the Netherlands in April 2016 on a short-stay Schengen tourist visa. In May 2016, he was detained and accused of committing a ‘serious’ crime. The Secretary of State ordered him to leave the territory within 28 days. The CJEU first recalled the close linkages between the SBC, the Schengen Agreement, and the Returns Directive 2008/115/EC. It recalled that Article 20 (1) of the Schengen Convention (Regulation 610/2013) details conditions a visa applicant must comply with, including not posing a threat to a Member State. When these conditions are not met, the third-country national is considered to be in the state irregularly and can be returned as provided for under Article 3 (2) of the Return Directive. It ruled that Article 6 (1)(e) of the SBC, in relation to Article 20 of the Schengen Convention, should be interpreted as meaning that in order to declare a third- country national’s stay to be irregular, the national authorities do not have to justify that the individual constitutes a real, current, and sufficiently serious threat to public order. Furthermore, it held that, in principle, a threat to public order can result from the mere existence of a serious suspicion of committing a crime. Nonetheless, authorities are obliged to base their decision on concrete facts and to respect the principle of proportionality. 5.3.2 Return Directive 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 The Returns Directive (RD) has been the subject of fierce criticism. The CJEU has been called to interpret its provisions on numerous occasions (such as Kadzoev, El Dridi, and Achughbabian). In particular, with regard to Article 15 on the detention of irregular migrants prior to their removal, the Court has so far explained how the period of detention should be calculated and when there is a ‘reasonable prospect of removal’ (Kadzoev); it has precluded the incarceration of irregular migrants during the return process on the sole ground that they remain on the territory of a Member State even though an order to leave exists (El Dridi), and it has attempted to strike a balance between the right to be heard and the efficiency of the administrative procedure to extend the period of detention (G & R). Gnandi, C-181/16 In this case the CJEU solved the question whether the principle of non-refoulement and the right to an effective remedy preclude the adoption of a return decision immediately after the rejection of an asylum application, before the legal remedies available are exhausted. The CJEU ruled that the RD does not preclude the adoption of a return decision in such cases, however, the legal effects of the return decision are suspended pending the outcome of the appeal, the applicant is entitled to benefit from the rights of RCD, the applicant is

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