Court of Justice of the EU

On November 22, 2022, the Court of Justice of the European Union issued a decision on the impact of an illness on the issuance of a return decision. The decision does not have a significant impact on the system of German law, which distinguishes between the power to issue a deportation order and the possibility to suspend deportation.

The Court of Justice of the European Union ruled in Joined Cases C-245/21 and C-248/21 of 22.09.2022 that a suspension of the transfer procedure under a Dublin procedure due to the Covid 19 pandemic does not result in an interruption of the six-month transfer period. Once this period has expired, the requesting Member State becomes responsible for examining the asylum application.

In its judgment of 9 September 2021 (C-18/29), the Court of Justice of the EU ruled that it is incompatible with EU law to reject a subsequent application as inadmissible solely because the application was not filed within a certain period. This decision has a direct impact on the applicability of the 3-month time limit of section 51(3) VwVfG, which is enshrined in German asylum law and applies via section 71(1) Asylum Act.

The Court of Justice of the European Union ruled in its judgment of 19.11.2020 (C-238/19) that escape from military service in Syria is very likely to be a reason for persecution by the authorities there. In the context of the civil war in Syria, there is a strong presumption that the refusal to perform military service is linked to a ground which may give rise to a right to refugee status. In many cases, that refusal is the expression of political or religious convictions or is based on membership of a particular social group. In its statements on the causality test between the act and cause of persecution, the Court of Justice of the European Union creates scope for granting refugee status in cases of withdrawal from military service.

The Court of Justice of the European Union decided with its judgment from 18 June 2020 in the Ryanair case (C-754/18) that a family member of an EU citizen who is not a national of a Member State but who holds a permanent residence card shall be exempt from the visa requirement for entry into the territory of the Member States. Furthermore, this card is to be considered as proof, in itself, of the holder’s family member status.

The Court of Justice of the European Union decided on 26 March 2019 in its judgment in case C-129/18 (SM v Entry Clearance Officer, UK Visa Section) that a minor in the guardianship of a citizen of the EU under the Algerian kafala system cannot be regarded as a ‘direct descendant’ of that citizen. However, that citizen’s Member State of residence must facilitate, following an assessment, that minor’s entry to and residence in its territory.

The Court of Justice of the European Union (CJEU) recently ruled in the case Yön v. the Landeshauptstadt Stuttgart (City of Stuttgart, case no: C-123/17) that the introduction of a visa requirement for family members of employed Turkish workers who are already residing legally in Germany can be justified on the grounds of implementing effective immigration control and the need to manage migratory flows into Germany. In the court’s view, a visa requirement is justified as long as the process of obtaining one is proportionate to achieving the objective.

The Court of Justice of the European Union decided on 12 July 2018 in the case C-89/17 that a Member State must facilitate the entry and residence of the non-EU partner with whom an EU citizen has a durable relationship. A decision to refuse such a residence authorisation to the non-EU partner must be founded on an extensive examination of the applicant’s personal circumstances and be justified by reasons.

The Court of Justice of the EU decided on 17. April 2018 in joined cases C-316/16 and C-424/16 that it is a prerequisite of eligibility for enhanced protection against expulsion that the person concerned must have a right of permanent residence. The requirement of having ‘resided in the host Member State for the previous ten years’, which is also a prerequisite of eligibility for that enhanced protection, may be satisfied where an overall assessment of the citizen’s situation leads to the conclusion that, notwithstanding his detention, the integrative links between the citizen and the host Member State have not been broken.

The Court of the European Union decided on 20 December 2017 (case number C-442/16) that an EU citizen who, after more than one year, has ceased to work in a self-employed capacity in another Member State because of an absence of work owing to reasons beyond his control retains the status of self-employed person and, consequently, a right to reside in that Member State.

In response to the migration crisis that affected Europe in the summer of 2015, the Council of the European Union adopted a decision in order to help Italy and Greece deal with the massive inflow of migrants. The decision provides for the relocation from those two Member States to other EU Member States, over a period of two years, of 120 000 persons in clear need of international protection. That mechanism is actually a proportionate means of enabling Greece and Italy to deal with the impact of the 2015 migration crisis.

The Court of Justice of the European Union decided in case Tsegezab Mengesteab v Germany (C-670/16) that an asylum seeker may rely in legal proceedings on the fact that the Member State has become responsible for examining his application because of the expiry of the three-month period within which that Member State may request another Member State to take charge of him.