Decision of 9 May 2019 -
BVerwG 1 C 14.19ECLI:DE:BVerwG:2019:090519B1C14.19.0
Please note that the official language of proceedings brought before the Federal Administrative Court of Germany, including its rulings, is German. This translation is based on an edited version of the original ruling. It is provided for the reader’s convenience and information only. Please note that only the German version is authoritative. Page numbers in citations have been retained from the original and may not match the pagination in the English version of the cited text.
When citing this ruling it is recommended to indicate the court, the date of the ruling, the case number and the paragraph: BVerwG, decision of 9 May 2019 - 1 C 14.19 - para. 16.
Decision to suspend proceedings and request for a preliminary ruling on legal questions concerning the scope of Directive 2008/115/EC
The subject matter of the appeal proceedings on points of law is an entry ban issued to the claimant "for purposes not related to migration".
The claimant, who was born in Syria in January 1986, is an ethnic Palestinian with undetermined nationality. Together with his parents, he entered the Federal Republic of Germany using false personal data in September 1990. His application for recognition as a person entitled to asylum was unsuccessful. Since then, he has been obliged to leave, but stays in Germany based on a - temporary suspension of deportation (Duldung) pursuant to section 60a of the Residence Act (AufenthG, Aufenthaltsgesetz) - which has been repeatedly renewed.
By final and binding judgment of 17 April 2013, Koblenz Higher Regional Court (Oberlandesgericht) sentenced him to an aggregate term of imprisonment of three years and four months for recruiting members or supporters for a foreign terrorist organisation in 39 cases and for depicting violence in two cases, in one case combined with approving of offences. According to the factual findings of the Higher Regional Court, the claimant distributed video and text messages of Islamic terrorist organisations on the internet in the period from September 2007 to December 2009. He founded and operated the "Al-Ansar Media Battalion" that developed into an important medium for the dissemination of Islamic propaganda in German-speaking countries and placed statements of leaders or representatives of terrorist organisations on various websites, among other things. In March 2014, the enforcement of the remainder of the aggregate term of imprisonment was suspended on probation with the time he has undergone remand detention being credited; the probationary period was set at four years.
By means of an regulatory order dated 24 February 2014, the defendant expelled the claimant from the federal territory based on section 53 (1) no. 1 AufenthG, old version, or, subsidiarily, section 54 first sentence no. 1 AufenthG, old version. It determined that the expulsion also included the ban on re-entry to the Federal Republic of Germany and set the effect of the expulsion to a period of six years starting on the day the foreign national leaves the country. The defendant repealed the deportation warning issued at the same time during the hearing before the objection committee. The objection (Widerspruch) and legal action have remained unsuccessful.
The Federal Office for Migration and Refugees (Bundesamt für Migration und Flüchtlinge, hereinafter Federal Office) refused another application for asylum of the claimant based on section 3 (2) first sentence no. 2, second sentence of the Asylum Act (AsylG, Asylgesetz) or section 4 (2) first sentence no. 3, second sentence AsylG, respectively, as manifestly unfounded notice dated 21 July 2017, that has become legally binding. At the same time, the Federal Office determined that the requirements for a deportation ban under section 60 (5) AufenthG in conjunction with article 3 of the European Convention on Human Rights (ECHR) are met with regard to the Syrian Arab Republic.
In March 2018, the defendant shortened the period of the ban on entry and residence which was originally six years to a period of four years starting from a potential departure and limited it regardless of any potential departure until 21 July 2023 at the latest.
In the challenged judgment of 5 April 2018, the Higher Administrative Court (Oberverwaltungsgericht) dismissed the claimant's appeal on points of fact and law aimed at the annulment of the expulsion and the time limit imposed for the ban on entry and residence.
The Federal Administrative Court (BVerwG, Bundesverwaltungsgericht) dismissed the claimant's appeal on points of law insofar as it is directed against his expulsion. According to the Court, basis for authorisation of the expulsion is section 53 (1) AufenthG. In the final analysis, the Higher Administrative Court correctly assumed that due to the fact that a particularly serious public interest in expelling the foreign national (Ausweisungsinteresse, hereinafter interest in expulsion) exists, the claimant staying would endanger public security within the meaning of sections 53 (1), 54 (1) no. 1 AufenthG. The assumption of a corresponding threat may also be based on general preventive considerations alone, as long as the interest in expulsion is still current, according to the Court. The claimant may not successfully invoke a particularly serious or serious interest in remaining in the federal territory (Bleibeinteresse, hereinafter interest in remaining) in the sense of section 55 (1) and (2) AufenthG. When weighing interests under section 53 (1) and (2) AufenthG, one also has to take into account other interests in remaining that are not explicitly mentioned. There are no objections within the scope of the appeal on points of law when looking at the Higher Administrative Court's assessment that the public interest in expelling the foreign national based on general preventive grounds, the weight of which interest had to be classified at the upper end of what is possible, clearly outweighs the interest in remaining that is mainly based on the long residence of the claimant in the federal territory, which is however only based on the temporary suspension of deportation (see BVerwG, judgment of 9 May 2019 - 1 C 21.18 -).
Insofar as the appeal proceedings on points of law relate to the decision to shorten the ban on entry and residence accompanying the expulsion to a period of four years starting from a potential departure and to limit it until 21 July 2023 at the latest regardless of a potential departure, the Federal Administrative Court severed these proceedings by means of a decision dated 9 May 2019 in accordance with section 93 second sentence of the Code of Administrative Court Procedure (VwGO, Verwaltungsgerichtsordnung) and continued these under the present case number 1 C 14.19.
10 The legal dispute is to be suspended. In accordance with article 276 of the Treaty on the Functioning of the European Union (TFEU), a preliminary ruling by the Court of Justice of the European Union (CJEU, hereinafter Court of Justice) is to be obtained on the questions raised in the operative part of the decision. These questions concern the scope 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 (OJ L 348 p. 98).
11 1. Under national law, the legal assessment of the ban on entry and residence is based on the Act on the Residence, Economic Activity and Integration of Foreign Nationals in the Federal Territory (Residence Act) in the version promulgated on 25 February 2008 (Federal Law Gazette (BGBl., Bundesgesetzblatt) I p. 162), last amended by article 1 of the Act of 12 July 2018 that entered into force on 1 August 2018 (BGBl. I p. 1147).
12 The following provisions of national law are hence the decisive legal framework for the legal dispute:
Section 11 AufenthG - Ban on entry and residence
(1) A foreign national who has been expelled, removed or deported shall be permitted neither to re-enter nor to stay in the federal territory, nor may he or she be granted a residence title, even if he or she is entitled thereto under this Act (ban on entry and residence).
(2) The ban on entry and residence shall be subject to a time limit imposed ex officio. The period shall begin to run when the foreign national leaves the country. In the event of expulsion, the period shall be set when the expulsion order is issued. In other cases, the period should be set upon when the deportation warning is issued, at the latest, however, when the foreign national is deported or removed. In addition to imposing a time limit, a condition may also be imposed in order to prevent a threat to public security and order, in particular requiring the foreign national to provide proof that he or she is not subject to punishment or is not using illegal drugs. If the condition is not met before the time limit expires, a longer time limit issued ex officio when the time limit is imposed pursuant to sentence 5 shall apply.
(3) A discretionary decision shall be taken regarding the length of the time limit. It may exceed five years only if the foreign national was expelled on the ground of a criminal conviction or if he or she presents a serious threat to public security and order. This period should not exceed ten years.
Section 50 AufenthG - Requirement to leave the federal territory
(1) A foreign national shall be obliged to leave the federal territory if he or she does not possess or no longer possesses the necessary residence title and a right of residence does not exist or no longer exists under the EEC/Turkey Association Agreement.
(2) The foreign national shall leave the federal territory without delay or, if a period has been allowed for departure, by the end of this period.
Section 51 AufenthG - Termination of lawful residence; continued validity of restrictions
(1) The residence title shall expire in the following cases: (...)
5. upon expulsion of the foreign national, (...)
Section 53 AufenthG - Expulsion
(1) A foreign national whose stay endangers public security and order, the free democratic basic order or other significant interests of the Federal Republic of Germany shall be expelled if, after weighing the interests in the foreign national's departure against the foreign national's individual interests in remaining in the federal territory, which is to be conducted taking account of all the circumstances of the particular case, there is an overriding public interest in the foreign national leaving.
(2) When weighing the interests pursuant to subsection 1 in accordance with the circumstances of the particular case, consideration shall in particular be given to the length of the foreign national's stay, his or her personal, economic and other ties in the federal territory and in the country of origin or in another state prepared to receive him or her, the consequences of expulsion for his or her dependants and domestic partner, as well as whether the foreign national has abided by the law.
(3) A foreign national who has been recognised as entitled to asylum, who enjoys the legal status of a foreign refugee, who possesses a travel document issued by an authority in the Federal Republic of Germany in accordance with the Convention relating to the Status of Refugees of 28 July 1951 (BGBl. 1953 II p. 559), who is entitled to a right of residence in accordance with the EEC/Turkey Association Agreement or who possesses an EU long-term residence permit may be expelled only if the personal conduct of the person concerned currently represents a serious threat to public security and order which affects a fundamental interest of society and the expulsion is essential to protect that interest.
(4) A foreign national who has filed an application for asylum may be expelled only under the condition that the asylum procedure has been concluded by incontestable decision without granting the foreign national recognition as a person entitled to asylum or without recognising his or her entitlement to international protection (section 1 (1) no. 2 of the Asylum Act). The condition shall be waived if
1. there are facts justifying expulsion pursuant to subsection 3 or
2. a deportation warning issued in accordance with the provisions of the Asylum Act has become enforceable.
Section 54 AufenthG - Interest in expulsion
(1) There shall be a particularly serious public interest in expelling the foreign national (Ausweisungsinteresse) within the meaning of section 53 (1) where the foreign national
1. has been incontestably sentenced to a prison term or a term of youth custody of at least two years for one or more intentionally committed offences (...)
Section 55 AufenthG - Interest in remaining
(1) There shall be a particularly serious individual interest in remaining in the federal territory (Bleibeinteresse) within the meaning of section 53 (1) where the foreign national
1. possesses a permanent settlement permit and has lawfully resided in the federal territory for at least five years,
2. possesses a residence permit and was born in the federal territory or entered the federal territory as a minor and has lawfully resided in the federal territory for at least five years,
3. possesses a residence permit, has lawfully resided in the federal territory for at least five years and cohabits with a foreign national as designated in no. 1 and 2 as a spouse or in a registered partnership,
4. cohabits with a German dependant or domestic partner in a family unit or a registered partnership, exercises his or her rights of care and custody for a minor, unmarried German or exercises his or her right of access to that minor,
5. enjoys the legal status of foreign national entitled to subsidiary protection within the meaning of section 4 (1) of the Asylum Act or
6. possesses a residence permit pursuant to section 23 (4), sections 24, 25 (4a) third sentence, or pursuant to section 29 (2) or (4).
(2) There shall be a serious individual interest in remaining within the meaning of section 53 (1) in particular where
1. the foreign national is a minor and possesses a residence permit,
2. the foreign national possesses a residence permit and has resided in the federal territory for at least five years,
3. the foreign national exercises his or her rights of care and custody for an unmarried minor residing lawfully in the federal territory or exercises his or her right of access to that minor,
4. the foreign national is a minor and his or her parents or parent holding rights of care and custody reside or resides lawfully in the federal territory,
5. consideration is to be given to the interests or the well-being of a child or
6. the foreign national possesses a residence permit pursuant to section 25 (4a) first sentence.
Section 58 AufenthG - Deportation
(1) The foreign national shall be deported if the requirement to leave the federal territory is enforceable, no period has been allowed for departure or such a period has expired, and voluntary fulfilment of the obligation to leave is not assured or supervision of departure appears necessary on grounds of public security and order. (...)
(2) (...) The obligation to leave the federal territory shall otherwise become enforceable only when the denial of the residence title or another administrative act requiring the foreign national to leave pursuant to section 50 (1) becomes enforceable.
Section 59 AufenthG - Deportation warning
(1) A warning to deport a foreign national shall be issued specifying a reasonable period of between seven and 30 days for voluntary departure. (...)
(2) The deportation warning should specify the state to which the foreign national is to be deported and should inform the foreign national that he or she may also be deported to another state which he or she is permitted to enter or which is obliged to admit him or her.
Section 60a AufenthG - Temporary suspension of deportation (Duldung)
(2) The deportation of a foreign national shall be suspended for as long as deportation is impossible for factual or legal reasons and no residence permit is granted. (...)
(3) Suspension of deportation shall not affect the foreign national's obligation to leave the federal territory.
(4) The foreign national must be issued a certificate confirming the suspension of deportation.
22 2. The questions referred for a preliminary ruling are relevant for the decision and require clarification by the Court of Justice.
23 2.1 The questions referred for a preliminary ruling are relevant for the decision.
24 A) National law neither requires the annulment of the ban on entry and residence based on section 11 (1) AufenthG nor the obligation of the defendant to issue a new decision concerning the application to limit the ban on entry and residence in time, as subsidiarily applied for.
25 aa) The requirements of section 11 (1) AufenthG are met. According to this provision, a foreign national who has been expelled shall be permitted neither to re-enter nor to stay in the federal territory, nor may he or she be granted a residence title, even if he or she is entitled thereto under this Act (ban on entry and residence). The claimant has been expelled in a legally binding manner. His appeals against the expulsion were finally unsuccessful, since the Federal Administrative Court in its judgment of 9 May 2019 - 1 C 21.18 - dismissed the claimant's appeal on points of law against the judgments of the lower courts which had dismissed his action.
26 The expulsion was lawful and permissible, even though the claimant may not be deported to Syria for the foreseeable future due to an imminent violation of his rights under article 3 ECHR. Under German residence law, an expulsion is not directly linked to termination of residence, nor does it always result in such. Instead, persons whose continued residence endangers public security may also be expelled even if a deportation is not possible due to the situation in the country of destination. This then at least has the effect that the foreign national's residence title expires (section 51 (1) no. 5 AufenthG) and in some cases surveillance measures under the law on foreign nationals apply. However, foreign nationals who have never held a residence title, as is the case for the claimant, and only reside in Germany because their deportation is temporarily suspended within the meaning of section 60a AufenthG may also be expelled under German law. In this case, the expulsion has the effect that no residence title may be granted to the foreign national until the time limit of the expulsion has expired (section 11 (1) third alternative AufenthG).
27 bb) The defendant limited the time of the ban on entry and residence ex officio in accordance with section 11 (2) first sentence AufenthG. The four-year period of validity of the ban on entry and residence is linked to the time the claimant leaves the country, as provided for in section 11 (2) second sentence AufenthG. The constitutive order of a ban on entry which is limited in time is also routinely included in any decision of an authority to set a time limit, at least if the decision is taken prior to deportation (see BVerwG, judgments of 27 July 2017 - 1 C 28.16 - (…) and of 21 August 2018 - 1 C 21.17 - (…)).
28 cc) According to the assessment of the Higher Administrative Court, to which no objection can be raised in the proceedings of the appeal on points of law, the defendant has limited the ban on entry and residence linked to the time of departure to a period of four years without committing any errors in the exercise of discretion. The time limit to be taken into account for an order of expulsion that is purely for general preventive purposes (on this, see BVerwG, judgment of 9 May 2019 - 1 C 21.18 - para. 19) does not restrict the time limit of a ban on entry and residence linked to this. For reasons, which do not need to be presented in more detail for the purpose of this reference, the Senate assumes that it may not exceed the triple of the absolute period of limitation; in case of adjudicated criminal offences, the period of the ban on entry may also not exceed the time limit provided for under the Act on the Central Criminal Register and the Educative Measures Register (BZRG, Bundeszentralregistergesetz) for deletion of entries in the register. Neither is the case here. The absolute time limitation ordered additionally, and running independent of the foreign national having left the country, does not infringe the claimant's rights even if there were no sufficient legal basis for it (section 113 (1) or (5) VwGO).
29 b) Legal issues that require clarification within the meaning of article 267 TFEU arise, however, concerning the question of whether a (time-limited) ban on entry and residence that is possible under national law even without a deportation warning and that is linked to the expulsion itself, conforms with EU law.
30 aa) The "return decision" within the meaning of article 3 no. 4 of Directive 2008/115/EC - assuming that it is applicable to measures ending residence for reasons of public security and order - at least as a rule is not simply the expulsion itself according to the national understanding of the law to date (sections 53 et seqq. AufenthG), which in any case ends the lawfulness of residence by virtue of law (sections 50 (1) and (2), 51 (1) no. 5 AufenthG) but first the deportation warning (section 59 (1) first sentence AufenthG).
31 The term "return decision" is defined in article 3 no. 4 of Directive 2008/115/EC as the 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. According to article 6 (6) of Directive 2008/115/EC, the Directive shall not prevent Member States from adopting a decision on the ending of a legal stay together with a return decision and/or a decision on a removal and/or entry ban in a single administrative or judicial decision as provided for in their national legislation, without prejudice to the procedural safeguards available under Chapter III and under other relevant provisions of Community and national law.
32 The expulsion decision taken under national law merely makes the stay illegal (in any event for lawfully staying foreign nationals). Only at the time of the deportation warning is a time limit for voluntary departure (section 59 (1) AufenthG) required to be provided by an authority or the court in principle under article 7 (1) of Directive 2008/115/EC when issuing a return decision; the lapse of which without the foreign national having complied with his or her obligation to leave the country is the precondition of enforcing the obligations of the foreign national to leave the country through deportation (section 58 AufenthG, see also article 8 (1) of Directive 2008/115/EC).
33 bb) The referring Court assumes that migration-related bans on entry and residence fall under the scope of the Directive without restriction in any case. What requires clarification however - not least with regard to statements of the European Commission - is whether this also applies to "entry bans not related to migration".
34 The question of whether such bans on entry not related to migration actually do not fall within the scope of the Return Directive in general or under certain conditions has not yet been decided by the case-law of the Court of Justice.
35 What is relevant for a decision on the lawfulness of a "ban on entry and residence not related to migration" of section 11 (1) AufenthG linked to an expulsion within the meaning of section 51 (1) first half-sentence no. 5 in conjunction with sections 53 et seqq. AufenthG, and therefore within the meaning of the aforementioned, is whether it falls under the scope of Directive 2008/115/EC and - if this question is answered in the affirmative - whether it proves to be compatible with Directive 2008/115/EC even after an administrative annulment of the return decision accompanying it - in this case the deportation warning under section 59 (1) first sentence AufenthG.
36 2.2. The questions submitted in the operative part of this decision require clarification by the Court of Justice.
37 a) In its question submitted under 1. a), the referring Court seeks to ascertain whether "bans on entry not related to migration" within the meaning described above under 2.1 b) bb) also fall under the scope of Directive 2008/115/EC at least if, as in the present constellation the Federal Republic of Germany, the Member State has not made use of the option in article 2 (2) (b) of Directive 2008/115/EC. The doubts, which are justified not only because of Recommendation (EU) 2017/2338, concerning the non-applicability of Directive 2008/115/EC to "entry bans not related to migration" (aa) cannot be dispelled in the opinion of the Senate with the required certainty solely based on the Directive itself (bb).
38 aa) In accordance with article 3 no. 6 Directive 2008/115/EC, the term "entry ban" refers to the administrative or judicial decision or act prohibiting entry into and stay on the territory of the Member States for a specified period, accompanying a return decision. With the term "migration-related entry ban" the Commission refers to an entry ban which is based on the infringement of the migration rules in the EU Member States, i.e. those rules for entry into and residence of the third-country national in the respective Member State (see no. 11 of Commission Recommendation (EU) 2017/2338 of 16 November 2017 establishing a common "Return Handbook" to be used by Member States' competent authorities when carrying out return-related tasks <OJ 2017 L 339, p. 83>, - hereinafter Recommendation (EU) 2017/2338). Migration-related entry bans are of a preventive nature. The intention is for them to send a clear message that those who disregard migration rules in the EU Member States will not be allowed to enter the territory of the European Union for a specified period of time (no. 11 Recommendation (EU) 2017/2338). If the infringement of the corresponding migration rules leads to the stay of the third-country national in the respective Member State being or becoming illegal, the common standards and procedures to be applied in Member States for returning illegally staying third-country nationals, in accordance with fundamental rights as general principles of Community law as well as international law, including refugee protection and human rights obligations, have to be applied according to article 1 of Directive 2008/115/EC for returning him or her.
39 By contrast, the term "entry ban not related to migration" as it is used in no. 11 of Recommendation (EU) 2017/2338 refers to an entry ban that is not linked to an infringement of migration rules in the EU Member States but is issued to serve other purposes. These include in particular those entry bans which are imposed due to serious criminal offences having been committed by third-country nationals and their administrative or judicial sanctioning and which serve the purpose of protecting public security and order in the Member State.
40 bb) The wording of both article 3 no. 6 and article 11 (1) of Directive 2008/115/EC does not provide for a corresponding limitation of the scope of the Directive. Neither of the provisions contain information about the purposes for which entry bans are ordered; they only describe their content or set out the requirements under which return decisions are (or may be) accompanied by an entry ban.
41 Nor, when using the systematic interpretation of the Directive, are there any indications in the view of the referring Court for a corresponding limitation of the scope of the Directive. It is indeed true that the French Conseil d'État has decided that the Directive is only applicable to return decisions of the Member States that are taken due to the illegal stay of third-country nationals. However, according to the Conseil d'État it is not applicable to procedures terminating the residence that are based on other reasons, in particular a threat to public security and order (Conseil d'État, no. 360317 of 10 October 2012, ECLI:FR:CESSR:2012:360317.20121010). Article 1 of Directive 2008/115/EC, according to which this Directive contains common standards and procedures to be applied in the Member States for returning illegally staying third-country nationals, in accordance with fundamental rights as general principles of Community law as well as international law, including refugee protection and human rights obligations, does not differentiate, however, between the reasons for imposing an obligation to return on the illegally staying third-country nationals. In accordance with article 2 (1) of Directive 2008/115/EC, the personal scope of this Directive covers third-country nationals illegally staying on the territory of a Member State without differentiating the reasons why the person affected is obliged to leave. The assumption that this also includes entry bans that are not linked to the infringement of migration rules in EU Member States but are ordered as a result of serious criminal offences having been committed by third-country nationals and their administrative or judicial sanctioning is also supported by article 2 (2) (b) of Directive 2008/115/EC, according to which Member States may decide not to apply this Directive to third-country nationals who according to national law are subject to return as a criminal law sanction or as a consequence of a criminal law sanction, or who are the subject of extradition procedures. In the event of such a decision, the Member State is not subject to any obligations under Directive 2008/115/EC with regard to the group of persons concerned. The criminal offences committed by the persons concerned may not consist of staying illegally alone (CJEU, decision of 6 December 2011 - C-329/11 [ECLI:EU:C:2011:807], Achughbabian - para. 41). A further argument in favour of a fundamentally comprehensive, but restrictable, scope of the Directive can be found in article 11 (2) second sentence of Directive 2008/115/EC, according to which the length of the entry ban may exceed five years if the third-country national represents a serious threat to public order, public security or national security.
42 According to recital 14 first sentence of Directive 2008/115/EC, the purpose of article 3 no. 6 and article 11 of Directive 2008/115/EC is to give the effects of national return measures a European dimension by establishing an entry ban prohibiting entry into and stay on the territory of all the Member States. The aim is to prevent illegal immigration and to stop illegally staying third-country nationals from circumventing measures terminating residence on account of diverging regulations in the Member States. These aims also suggest in principle a broad formulation of the scope of the provision. No. 11 of Recommendation (EU) 2017/2338 attributes a preventive effect to the return-related entry bans foreseen in the Directive as well as the function of fostering the credibility of the return policy.
43 However, that provision also provides that such entry bans remain unaffected by the provisions of the Return Directive on return-related entry bans which are issued for "purposes not related to migration". Entry bans imposed on third-country nationals who have committed serious criminal offences or for whom there are clear indications that there is an intention to commit such an offence are expressly mentioned in this context. No. 11 of Recommendation (EU) 2017/2338 refers in this regard to article 24 (2) in conjunction with article 24 (1) of Regulation (EC) No 1987/2006 of the European Parliament and of the Council of 20 December 2006 on the establishment, operation and use of the second generation Schengen Information System (SIS II) (OJ L 381 p. 4). According to the Regulation a national alert on refusal of entry or residence shall be entered where a decision taken by the competent administrative authorities or courts is based on a threat to public security or order or to national security which the presence of the third-country national in question in the territory of a Member State may pose. This is the case in particular if a third-country national has been convicted in a Member State of an offence carrying a penalty involving deprivation of liberty of at least one year and if there are serious grounds for believing that a third-country national has committed serious criminal offences or if there are clear indications of his or her intention to commit such offences in the territory of a Member State (see article 24 (2) (b) of Regulation (EU) 2018/1861 of the European Parliament and of the Council of 28 November 2018 on the establishment, operation and use of the Schengen Information System (SIS) in the field of border checks, and amending the Convention implementing the Schengen Agreement, and amending and repealing Regulation (EC) No 1987/2006, <OJ L 312 p. 14> on the qualification of terrorist criminal offences as a serious criminal offence). In contrast to this, article 24 (3) in conjunction with article 24 (1) of Regulation (EC) No 1987/2006 stipulates the requirements for issuing alerts on refusal of entry or residence in cases where national regulations on the entry or residence of third-country nationals have failed to be complied with.
44 No clear indications can be derived from the historical interpretation of Directive 2008/115/EC for the assumption stated in no. 11 of Recommendation (EU) 2017/2338 that entry bans issued for purposes "not related to migration" remain unaffected by the provisions of the Return Directive concerning return-related entry bans. In part 3 no. 12 of its Proposal for a Directive of the European Parliament and of the Council on common standards and procedures in Member States for returning illegally staying third-country nationals (COM(2005) 391 final) the European Commission states that even if there was a case for further harmonising the issue of "expulsion for reasons of public order/security", such harmonisation should not be proposed within the context of the present Directive dealing with the ending of illegal stay/return, but rather within the context of the Directives regulating the conditions of entry and stay - and ending - of lawful residence/stay. However, once the legal stay of a third-country national has been ended for reasons of public order, this person becomes a third-country national staying illegally in the territory of a Member State for the purposes of the present Directive and the provisions of this Directive will be applied to this person, according to the Proposal. In part 4 Chapter I of its Proposal the European Commission adds: The starting point for the applicability of the proposed Directive is "illegal stay". The Proposal, as a measure on illegal immigration based on article 63 (3) (b) of the Treaty, aims to establish a horizontal set of rules applicable to any illegally staying third-country national, whatever the reason of the illegal stay (e.g. expiry of a visa, expiry of a residence title, revocation or withdrawal of a residence title, negative final decision on an asylum application, withdrawal of refugee status, illegal entrance). According to the Proposal, the Directive does not address the reasons or procedures for ending lawful residence.
45 b) If question 1. a) is answered in the negative, the question formulated under 1. b) arises in the view of the referring Court, namely whether an entry ban issued for "purposes not related to migration" also does not fall within the scope of Directive 2008/115/EC even if the third-country national - as is the case here for the claimant - is already illegally staying independent of an expulsion order issued against him accompanied by the entry ban and therefore in principle falls within the scope of the Directive.
46 If, in addition to an illegal stay for migration-related reasons, due to lack of residence title, that opened up the scope of the Directive, there is a further reason that is not based on migration, namely the expulsion, that additionally renders the stay of the third-country national illegal, it has to be clarified, with regard to the scope, whether this needs to be based on the fact of illegal stay alone or in this respect on the respective administrative or judicial measure, with which the ban on entry and residence under judicial review here is associated.
47 c) With the question under 1. c) the referring Court seeks to ascertain whether an entry ban issued in the context of an expulsion ordered for reasons of public security and order (here: for purely general preventive grounds with the aim of preventing other foreign nationals from committing terrorist criminal offences) is one of the entry bans issued for purposes "not related to migration".
48 This question only arises if entry bans for purposes that are "not related to migration" do not fall under the Directive, according to the answer to the previous question. In the opinion of the referring Court this question would have to be answered in the affirmative. If the term entry bans "not related to migration" includes entry bans for third-country nationals that have committed serious criminal offences in particular, an entry ban associated with the expulsion on general preventive grounds of a third-country national that was convicted due to serious criminal offences should also fall under this category.
49 d) If the answer to question 1 is that an entry ban such as the present one falls under the scope of Directive 2008/115/EC, the question under 2. a) is whether the administrative annulment of the return decision (here: the deportation warning) means that an entry ban issued at the same time as the issuance of the return decision becomes unlawful within the meaning of article 3 no. 6 of Directive 2008/115/EC.
50 Article 3 no. 6 of Directive 2008/115/EC defines "entry ban" as an administrative or judicial decision or act (...), "accompanying a return decision". It does not necessarily follow from this that the annulment of the return decision eliminates the basis for the accompanying entry ban and therefore that a substantive link necessarily and always also follows from the temporal coupling under EU law. As a rule, however, the basis for the entry ban is regularly eliminated when the return decision is annulled (article 3 no. 4 of Directive 2008/115/EC), if the stay of the third-country national is no longer illegal, i.e. the decision does not merely determine the illegal stay - that is already illegal based on other legal grounds - but makes the stay illegal, or if otherwise a right to stay results from the fact that the return obligation associated with the return decision no longer exists, i.e. it does not only have the effect to trigger enforcement of the obligation to return by means of deportation (article 3 no. 5 of Directive 2008/115/EC). Even when a return decision is annulled, there is still room for an (isolated) entry ban under these definitions if the stay of a third-country national continues to be illegal or produces effects in the case of a voluntary departure that is not based on an administrative or judicial return decision. The fact that under article 11 (1) of Directive 2008/115/EC return decisions shall be (first sentence) or may be (second sentence) accompanied by an entry ban does not contain any information about the option under EU law of an entry ban without a (still existing) return decision.
51 e) With question 2. b) raised in the event that the question under 2. a) is answered in the affirmative, the referring Court seeks to ascertain whether the annulment of the return decision will also lead to the entry ban within the meaning of article 3 no. 6 of Directive 2008/115/EC being unlawful if an administrative expulsion order under section 53 AufenthG preceding the return decision is (or has become) legally binding.
52 The question is aimed at a potential decoupling of a (still existing) return decision and an entry ban at least in such cases where the illegal stay is determined in a legally binding manner due to an administrative or judicial decision and therefore can no longer be challenged by the third-country national with the help of legal remedies and whether this results by virtue of national law in the obligation (section 50 (1) AufenthG) of the third-country national to leave the country, which in principle requires leaving also the territory of the EU (section 50 (3) AufenthG), and it is merely the administrative decision to enforce this objectively existing return obligation through deportation that is missing. Conversely, article 6 (6) of Directive 2008/115/EC shows that these decisions have to be distinguished from a systematic perspective.
53 3. The Senate does not see any reason to doubt its entitlement to submit a request under article 267 TFEU with regard to the decision of the Wiesbaden Administrative Court (Verwaltungsgericht) of 28 March 2019 - 6 K 1016/15.WI - that underlies the proceedings C-272/19.