The dispute between the parties relates to the lawfulness of a deportation warning that the Federal Office for Migration and Refugees (Bundesamt für Migration und Flüchtlinge, hereinafter Federal Office) had conjoined with a decision to reject the claimant's application for asylum.

The claimant, born in 1988, is an Afghan national, and applied for asylum in the federal territory in 2016 because, he claimed, he had been persecuted by the Taliban on account of his activity for a foreign company. The Federal Office rejected this application for asylum in full in a notice of 24 August 2016, and in particular found that there were no deportation bans under section 60 (5) and (7) first sentence of the Residence Act (AufenthG, Aufenthaltsgesetz). The claimant was further ordered, in no. 5 of the notice, to leave the Federal Republic of Germany within 30 days after notification of this decision, although in the event that an action was brought, the time period for departure would expire 30 days after the incontestable conclusion of the asylum procedure; in the event that the claimant did not depart in good time, he was threatened with deportation to Afghanistan or another state to which he was allowed to immigrate, or that was required to take him back.

The Administrative Court (VG, Verwaltungsgericht) dismissed the action against this notice. In a decision of 18 August 2017, the Court of Appeal granted leave to appeal on points of fact and law insofar as the action for granting subsidiary protection and for a declaration that there was a national deportation ban, as well as against the deportation warning was dismissed. Subsequently, in a judgment dated 12 December 2018, the Court of Appeal dismissed the appeal on points of fact and law and granted leave to appeal on points of law insofar as the appeal on points of fact and law regarding the challenge of the regulations in no. 5 of the contested notice was dismissed.

The requirements for the granting of subsidiary protection, the Court of Appeal found, were not met; the claimant also was not entitled to a declaration on the existence of national deportation bans. The deportation warning could properly be issued together with the decision on the asylum application, because the structure of the proceedings for judicial protection in the administrative courts ensured that, in compliance with the case-law of the Court of Justice of the European Union (CJEU, hereinafter Court of Justice), the procedural safeguards named in Chapter III of the Return Directive would be satisfied, as would the other relevant provisions of EU law. The Court ruled that section 67 (1) first sentence no. 6 of the Asylum Act (AsylG, Asylgesetz) ensured that the deportation warning could have no effect until a remedy was brought, and subsequently to that, until the proceedings had been concluded; if an action was brought that has suspensive effect, according to section 38 (1) second sentence AsylG, the time period for departure begins to run only after the return decision issued as a deportation warning has become legally binding. The Court ruled that detention pending deportation could not be ordered, because, among other reasons, it presupposes the existence of an executable (vollziehbare) obligation to depart. Finally, the Court held, the person concerned was able, under section 77 (1) first sentence AsylG, to rely on any change in circumstances that occurred; moreover, section 74 (2) second sentence AsylG or section 87b of the Code of Administrative Court Procedure (VwGO, Verwaltungsgerichtsordnung) did not preclude the introduction of new facts and evidence.

The fact that the Federal Office did not provide full information about the above safeguards did not result in an annulment of the deportation warning. It can be left open whether a breach of obligations to provide information would affect the lawfulness of the deportation warning, since even if it did, the claimant would not have a claim for the warning to be annulled. The Court reasoned that it followed from EU law, and particularly from a weighing of the various objectives of the Return Directive and the obligations to provide information, that a breach of obligations to provide information could result in an annulment of the deportation warning at most if there was an actual possibility that failing to provide information had resulted or would result in a threat to the procedural implementation of the principle of non-refoulement. There were no indications of such a situation in the claimant's case.

In his appeal on points of law, which the Court of Appeal granted and limited to the aspect of the decision to issue a deportation warning, the claimant argues that the breach of the obligations to provide information, presumed by the Court of Appeal to have taken place, pertained to a prerequisite for the lawfulness of the deportation warning, and the warning should therefore be annulled. He argues that the distinction between protection from deportation under asylum law and other protection from deportation, which were to be decided by two authorities according to different aspects, was contrary to recital 6 of the Return Directive (fair and transparent procedure) because national law permitted a deportation to be upheld even when it had not been clarified whether there were national impediments to deportation.

The defendant defends the contested appeal judgment.

The Representative of the Interests of the Federation at the Federal Administrative Court (Vertreter des Bundesinteresses beim Bundesverwaltungsgericht) did not take part in the proceedings.

9 The claimant's appeal on points of law is admissible but without merit. Ultimately, the Court of Appeal correctly decided that the deportation warning, which is now the sole subject matter of these proceedings (1.), does not violate the claimant's rights, and therefore is not to be annulled (section 113 (1) first sentence VwGO). The deportation warning and conjoining it with the decision to reject asylum complies with the legal requirements of national law (2.). According to the case-law of the Court of Justice (judgment of 19 June 2018 - C-181/16 [ECLI:EU:C:2018:465], Gnandi -), the requirements that proceed from EU law for conjoining a decision to reject asylum with a return decision in the form of a deportation warning (3.1) are likewise ultimately met (3.2). The violation of the obligation under EU law to provide information for a foreign national on the rights and safeguards to which he or she is entitled under EU law until his or her action is resolved does not have the result of rendering the deportation warning unlawful (4.).

10 1. The sole subject matter of this appeal on points of law is the decision of the Court of Appeal concerning the lawfulness of the deportation warning (no. 5 of the Federal Office's notice); the appeal on points of law has been granted, submitted and reasoned only to that extent. This deportation warning is to be assessed in the form it took at the time of the decision on the appeal on points of fact and law (section 77 AsylG). The time period for departure that was initially set, 30 days after notification of the notice, has been replaced by virtue of law (section 38 (1) second sentence AsylG), at the time of and owing to the bringing of the action, by a rule according to which the time period for departure expires 30 days after the incontestable conclusion of the asylum procedure; this is also stated expressly and transparently in the deportation warning itself.

11 The legal assessment of the claimants' requests is based on the Asylum Act in its latest version (currently: in the version promulgated on 2 September 2008 <Federal Law Gazette (BGBl., Bundesgesetzblatt) I p. 1798>, last amended by the Second EU Data Protection Amendment and Transposition Act (Zweites Datenschutz-Anpassungs- und Umsetzungsgesetz EU) of 20 November 2019, which entered into force on 26 November 2019 <BGBl. I p. 1626> - the Asylum Act). Changes in the law occurring after the last oral hearing or the decision of the court responsible for finding the facts must be taken into consideration in appeal proceedings on points of law if they had to be considered by the court responsible for finding the facts - if it were to decide instead of the court deciding on appeals on points of law (Federal Administrative Court (BVerwG, Bundesverwaltungsgericht), judgment of 11 September 2007 - 10 C 8.07 - Rulings of the Federal Administrative Court (BVerwGE, Entscheidungen des Bundesverwaltungsgerichts) 129, 251 para. 19). Since the present case concerns a dispute under asylum law where the court responsible for finding the facts regularly had to refer to the factual and legal situation at the time of the last oral hearing or the decision pursuant to section 77 (1) AsylG, it would have to base a decision on the latest version if it were to decide on the matter now, unless a derogation is required for reasons of substantive law (established jurisprudence, see BVerwG, judgment of 20 February 2013 - 10 C 23.12 - BVerwGE 146, 67 para. 12). The provisions relevant here have not changed since the oral hearing in the proceedings on points of fact and law.

12 2. The deportation warning and conjoining it with the decision to reject asylum complies with the legal requirements of national law. Under section 34 (1) first sentence AsylG, the Federal Office is to issue a written deportation warning if a foreign national who does not hold a residence title (no. 4) is not granted asylum or international protection (no. 1 to 2a) and the requirements of section 60 (5) and (7) AufenthG are also not met (no. 3). That was the case here after the Federal Office's decision, which has been affirmed by the lower courts. Any permission to stay that continues to apply (sections 63 et seqq., section 67 AsylG) is not a residence title within the meaning of section 34 (1) first sentence no. 4 AsylG; as a right to remain that is contingent on the proceedings, it also alters nothing about the fact that once his or her asylum application has been rejected, the foreign national is staying "illegally" in the federal territory, within the meaning of article 3 (1) no. 2 and article 6 (1) of Directive 2008/115/EC.

13 According to section 34 (2) first sentence AsylG, which in this regard ties in with the scope for action left under article 6 (6) of Directive 2008/115/EC for arrangements to be made by provisions of national law, a deportation warning is to be issued in conjunction with the decision on the asylum application. The court responsible for finding the facts has found no reasons, apart from the requirements under EU law for such a conjunction (see 3.1 below), that would have permitted or required refraining from a deportation warning in the claimant's case, nor are any such reasons evident otherwise. The time periods for voluntary departure set by the Federal Office's notice conform to section 38 (1) first and second sentence AsylG. The designation and choice of the country of destination to which the claimant is to be removed take due account of section 59 (2) AufenthG.

14 3. The deportation warning is also ultimately consistent (see 3.2 below) with the requirements that proceed from EU law for conjoining a decision to reject asylum with the return decision in the form of a deportation warning (see 3.1 below).

15 3.1 Under article 6 (6) of Directive 2008/115/EC, the authorisation for the Member States to issue a decision on the ending of a legal stay together with a return decision and/or a decision on a deportation and/or entry ban in a single administrative or judicial decision as provided for in their national legislation, applies only "without prejudice to the procedural safeguards available under Chapter III and under other relevant provisions of Community and national law".

16 Concerning situations where a decision by the responsible authority to reject an application for the granting of international protection is conjoined with issuing a return decision before the remedy against the rejection of the application is resolved, the Court of Justice has ruled (judgment of 19 June 2018 - C-181/16 -; see also decision of 5 July 2018 - C-269/18 PPU [ECLI:EU:C:2018:544] -) that in light of the principle of non-refoulement and the right to an effective remedy, which are anchored in articles 18, 19 (2) and 47 of the Charter of Fundamental Rights of the European Union, Directive 2008/115/EC in conjunction with Directive 2005/85/EC does not inherently preclude the issuing of a return decision conjointly with a rejection of an application for protection. However, the Member State concerned must ensure that all legal effects of a return decision are suspended until a remedy against the rejection is resolved, that during this period the applicant is entitled to benefit from the rights arising from Directive 2003/9/EC laying down minimum standards for the reception of asylum seekers in the Member States, and that the applicant can rely on any change in circumstances that occurred after the issuance of the return decision and that may have a significant bearing on the assessment of his or her situation under Directive 2008/115/EC, and in particular under article 5 thereof (CJEU, judgment of 19 June 2018 - C-181/16 - para. 60 et seqq., 68). It must also ensure that the person is not held in detention with a view to deportation (CJEU, judgment of 19 June 2018 - C-181/16 - para. 62; decision of 5 July 2018 - C-269/18 PPU - para. 54, 56). To meet the requirement of ensuring the full effectiveness of a remedy against a decision rejecting an application for international protection, and to ensure that all the effects of the return decision, among others, are suspended during the time period prescribed for bringing that remedy and, if such a remedy is brought, until the resolution of that remedy, it is not sufficient for the Member State concerned to refrain from enforcing (zwangsweise durchsetzen) the return decision. On the contrary, it is necessary that all the legal effects of that decision be suspended. Therefore, in particular, the time period granted for voluntary departure in accordance with article 7 of Directive 2008/115/EC should not start to run as long as the person concerned is allowed to remain (CJEU, judgment of 19 June 2018 - C-181/16 - para. 61 et seq.).

17 Not least of all because the requirements for a conjoined asylum decision and return decision also derive from primary law, these principles demand to be applied as well in cases where what are known as the Reception Conditions Directive (Directive 2013/33/EU) or the Asylum Procedures Directive (Directive 2013/32/EU), in their recast versions, may apply.

18 3.2 These requirements are met here in the case of the deportation warning in the form submitted for review by the court deciding on the appeal on points of law, so that it was licit under EU law to conjoin that warning with the decision to reject asylum, and such a conjunction did not have to be avoided under section 34 (2) first sentence AsylG. It is ensured that deportation cannot take place (3.2.1) and that there is a right to remain, meaning no obligation to leave (3.2.2); that the claimant's rights as an asylum applicant under Directive 2003/9/EC continue to apply (3.2.3); that he is able to present new circumstances in the judicial proceedings (3.2.4, 3.2.5); that no detention pending deportation may be imposed (3.2.6); and also that the time period for voluntary departure will not begin to run before the incontestable conclusion of the asylum procedure (3.2.7).

19 3.2.1 If a notice of the Federal Office rejects an asylum application, not in a qualified form pursuant to sections 34a, 35 or 36 AsylG, but rather as (simply) unfounded (section 38 (1) AsylG), then according to section 75 (1) first sentence AsylG an action brought against that notice has suspensive effect. The suspensive effect (section 80 (1) VwGO) prevents execution (Vollziehbarkeit) of burdensome administrative decisions; in addition to measures for enforcement (Vollstreckung), this in any case also embraces all other measures for execution (Vollziehung) or consequences of a factual or legal nature, in the sense of a comprehensive prohibition of realisation and utilisation (...). These effects in procedural law do not alter the fact that once a decision has been issued rejecting the asylum application, the foreign national's stay becomes "illegal" within the meaning of article 6 (1) of Directive 2008/115/EC.

20 3.2.2 In cases where an application is rejected as simply unfounded, the suspensive effect, by virtue of law, of an action brought against the Federal Office's notice has the result that under section 67 (1) no. 6 AsylG, permission to stay does not expire until the Federal Office's notice has become incontestable. It is true that this permission to stay confers a right to remain that is contingent on proceedings and that does not result in granting the foreign national a residence permit or other authorisation offering a right to stay within the meaning of article 6 (4) of Directive 2008/115/EC; but in any event such a right does meet the requirement under EU law that the foreign national must be allowed to remain until the proceedings are resolved. Therefore there is no need to decide in the present case whether the continued validity of a permission to stay is always necessary for this purpose, or whether the same effect can also be ensured in some other way.

21 3.2.3 For the duration of the suspensive effect of their remedy, persons seeking protection also continue to enjoy the rights that proceed from the Reception Conditions Directive (Directive 2003/9/EC and Directive 2013/33/EU). Irrespective of the fact that their remaining is substantively "illegal", the right to remain associated with the suspensive effect means that they have no "executable obligation to depart" ("vollziehbare Ausreisepflicht") within the meaning of section 1 (1) no. 5 of the Asylum Seekers Benefits Act (AsylbLG, Asylbewerberleistungsgesetz), and will continue to receive benefits under sections 2 et seqq. AsylbLG. The permission to stay under sections 55 et seqq. AsylG alone confers a right to remain, contingent on proceedings, that proceeds directly from the law, and even though this is not a residence title as defined in section 4 (1) second sentence AufenthG (...), at any event it opposes any application of section 50 (1) and section 58 (2) AufenthG until the time period for departure expires. These persons' entitlement to benefits would then in any case also proceed from section 1 (1) no. 1 AsylbLG, so that there can be no reductions of benefits as provided for in section 1a AsylbLG for beneficiaries authorised under section 1 (1) no. 5 AsylbLG if further conditions arise.

22 3.2.4 Under the system of legal protection of the Code of Administrative Court Procedure, the person concerned is also allowed "to rely on any change in circumstances that occurred after the [issuance] of the return decision and that may have a significant bearing on the assessment of his [or her] situation under Directive 2008/115, and in particular under article 5 thereof" (CJEU, judgment of 19 June 2018 - C-181/16 - para. 64). In accordance with section 77 (1) AsylG, in disputes resulting from this Act, the court shall base its decision on the factual and legal situation at the time of the last oral hearing (or the time the decision is taken); this leaves room for an appeal on points of fact and law on the basis of new or changed circumstances that have occurred after issuing the return decision, and requires them then to be taken into account. The provision ordering the extinction of the exercise of a right (Präklusion, hereinafter preclusion) in section 74 (2) AsylG expressly leaves unaffected the submission of new facts and evidence (section 74 (2) fourth sentence AsylG), quite apart from the fact that the judicial discretion to refuse admission must be exercised in conformity with constitutional law and EU law, and must take account of material legal disadvantages that are threatened by the preclusion (see, e.g., Mannheim Higher Administrative Court (VGH, Verwaltungsgerichtshof), decision of 24 February 2017 - A 11 S 368/17 - (...); VGH Munich, decision of 13 June 2019 - 13a ZB 18 March 0460 - (...)). An exclusion of preclusion rules per se in asylum procedures (...) does not follow either from the Gnandi judgment (CJEU, judgment of 19 June 2018 - C-181/16 -) or from any other case-law of the Court of Justice, and also does not raise any points of law for the Senate that would be in need of clarification under article 267 of the Treaty on the Functioning of the European Union (TFEU).

23 3.2.5 In considering circumstances which are to be taken into account under article 5 of Directive 2008/115/EC when applying the Return Directive and which, as understood under national law, are capable only of establishing a domestically related (legal or factual) impediment to deportation, the general principle of a fair and transparent return procedure, furthermore allowing for circumstances that occur subsequently, also does not foreclose the possibility that such circumstances would not be examined in the proceedings concerning the Federal Office's deportation warning, but might instead be adduced in separate proceedings against the foreigners authority responsible for enforcing the deportation (see on this BVerwG, judgment of 21 September 1999 - 9 C 12.99 - BVerwGE 109, 305; decision of 10 October 2012 - 10 B 39.12 - (...) para. 4).

24 Domestically related impediments to deportation are not tied to an actual or possible violation of the principle of non-refoulement, and also fundamentally do not otherwise affect the issuance of a deportation warning. Moreover, article 6 (4) of Directive 2008/115/EC permits a suspension of the return decision in the case of a right to stay granted for humanitarian reasons, and does not necessarily require one to refrain from or to withdraw such a decision. The allocation of possibilities for obtaining legal protection is covered by the structure of proceedings for legal protection that is left up to the national legislature, and follows the division of responsibilities between the Federal Office and the foreigners authorities. This organisational decision by the legislature follows the principle of article 83 of the Basic Law (GG, Grundgesetz) and at any event is constitutionally possible. It does not affect the full efficacy of a remedy against a (negative) asylum decision; a comprehensive review is assured of all impediments to deportation relating to the country of destination and linked to protection from refoulement, immediately within the proceedings for legal protection against the return decisions conjoined with a decision to reject asylum. The ability to seek legal protection against the foreigners authority with regard to domestically related impediments to enforcement is not affected by the binding effect of the deportation warning from the Federal Office. Legal protection is also effective. If the foreigners authority has not already taken account of the asserted domestically related impediments to deportation by way of a temporary suspension of execution of the deportation, the foreign national can seek legal protection against deportation, including interim measures under section 123 VwGO.

25 3.2.6 Ordering detention pending deportation likewise does not come under consideration as long as the suspensive effect of the action continues. Section 62 AufenthG still requires an executable obligation to depart - at any rate given an interpretation of the principle of proportionality in conformity with the constitution - even in the version that the provision received in the course of the proceedings on the appeal on points of law (article 1 no. 21 of the Second Act to Improve the Enforcement of the Obligation to Depart (Zweites Gesetz zur besseren Durchsetzung der Ausreisepflicht) of 15 August 2019, BGBl. I p. 1294).

26 3.2.7 The deportation warning also does not need to be annulled (even in part) on grounds that according to the notice, the time period for departure of 30 days initially began to run with the notification of the notice.

27 a) The procedural safeguards identified by the Court of Justice nevertheless require that the time period granted for voluntary departure in accordance with article 7 of Directive 2008/115/EC should not start to run as long as the person concerned is allowed to remain (CJEU, judgment of 19 June 2018 - C-181/16 - para. 62). Under the principle of equality of arms, all the effects of the return decision must be suspended during the time period prescribed for bringing a remedy and, if such a remedy is brought, until resolution of the remedy (CJEU, judgment of 19 June 2018 - C-181/16 - para. 61). Therefore the prohibition of letting the time period run and the right to remain also embrace the period during which the remedy has not yet been brought, and mean that during that time the time period for departure to be set by the authorities cannot be allowed to run; the time period for bringing a remedy and the time period for departure cannot run concurrently. This principle is contravened by section 38 (1) first sentence AsylG, which recognisably links the running of the 30-day time period to be set for departure to the notification of the Federal Office's decision, as does the challenged notice, which expressly bases the running of that period on the notification.

28 b) However, upon and by bringing his action, the claimant is no longer adversely affected by this initial objective violation of EU law on the part of the notice, due to the occurrence of the extra-procedural condition indicated in the Act (section 38 (1) second sentence AsylG) and in the notice. The original setting of the time period, which objectively breached EU law, has thus been replaced by a setting of a time period that is in conformity with EU law. This new setting of the time period for departure does not violate the claimant's rights (section 113 (1) first sentence VwGO). There is no need to examine further whether the main issue in the legal dispute concerning the deportation warning has thus been partially terminated. In any event, the claimant has not unilaterally declared that the main issue in the legal dispute with regard to challenging the deportation warning, which remains in effect with an altered content, has (at least partially) been terminated. He has also not applied for a declaratory judgment during the time period for a remedy with respect to the running of the time period, in which regard an interest in a declaratory judgment would in any case not have become evident. The mere possible interest of requiring the Federal Office to proceed in objective compliance with EU law in future, and with reference to third parties' procedures, does not establish that the claimant has an interest in a declaratory judgment. Irrespective of that aspect, for a time period for departure that has already begun running, the Federal Office may at any event maintain conformity with EU law by suspending that running for the duration of the time period for bringing an action, under section 80 (4) VwGO, even in those cases where no action is brought (see also BVerwG, judgment of 20 February 2020 - 1 C 19.19 - II 4.2.3b).

29 4. The deportation warning also need not be annulled in view of the fact that the claimant was not informed by the Federal Office about the procedural safeguards that tell to his advantage.

30 It is true that under EU law, if a return decision is conjoined with a decision to reject asylum, the person seeking protection must be informed of the rights he or she still has (obligation to provide information under EU law) (4.1). But if this obligation to provide information is met incompletely, as at any event is the present case, that does not render the return decision unlawful (in whole or in part) (4.2).

31 4.1 Member States should ensure a fair and transparent return procedure (recital 6 of Directive 2008/115/EC; CJEU, judgments of 5 June 2014 - C-146/14 PPU [ECLI:EU:C:2014:1320], Mahdi - para. 40 and of 5 November 2014 - C-166/13 [ECLI:EU:C:2014:2336], Mukarubega - para. 61). Where a return decision is adopted immediately after a first instance decision from the determining authority rejecting an application for international protection or together with it in a single administrative act, Member States are required to ensure that the person who has applied for international protection is informed in a transparent way of the Member States' compliance with the safeguards that arise in the event of such a conjunction, such as the suspension of all effects of the return decision, the suspension of the running of the time period for voluntary departure as long the person is allowed to remain, the right to remain until the resolution of the remedy against the rejection, the exclusion of detention pending deportation, benefit from the rights arising under the Reception Conditions Directive, and the ability to rely on any change in circumstances that occurred after the issuance of the return decision which may have a significant bearing on the assessment of his or her situation under Directive 2008/115/EC and in particular under article 5 thereof (CJEU, judgment of 19 June 2018 - C-181/16 - para. 65, 67).

32 However, the Court of Justice does not expressly name the body or institution that is responsible for implementing this obligation to provide information under EU law, or the form the instruction is to take. The Member State's responsibility for safeguards does not preclude the transfer of responsibility to third parties, such as non-government providers of independent counselling on asylum procedure (section 12a AsylG). However, a referral to generally accessible sources or to knowledge actually present among persons seeking protection would not be sufficient, nor would the possibility of seeking counsel from a lawyer, or a sporadic instruction in the course of pending judicial proceedings; most of all, the obligation to provide information under EU law also cannot be ensured for persons seeking protection who are not represented by a lawyer, or those who have not (yet) sought judicial protection. Therefore, as long as responsibility for fulfilling the obligation to provide information under EU law is not clearly assigned to other bodies, it must be performed by the Federal Office, as the body responsible for issuing the return decision. There is no need to examine further whether there are exceptions to this unwritten obligation to provide information, or whether that obligation lapses if the person seeking protection - including recognisably for the Federal Office - is fully and correctly informed of his or her procedural rights or rights to receive protection or to participate.

33 The Federal Office also did not comply adequately in the subsequent period with this obligation to provide information under EU law, which was not yet clarified by the Court of Justice at the time when the decision to reject asylum in conjunction with the return decision was issued. That constitutes an objective breach of EU law.

34 4.2 However, the failure to meet the obligation to provide information under EU law does not render the deportation warning unlawful (in whole or in part). Such a breach of objective law does not affect a constituent element of the deportation warning (4.2.1), and also is not otherwise connected with that warning in a manner that would affect lawfulness, and is furthermore not suitable of impairing the legal position of a foreign national who benefits from these rights and advantages when he or she brings an action (4.2.2).

35 4.2.1 In the Senate's interpretation of the law, a (complete) fulfilment of the obligation to provide information is also not a constituent element of a deportation warning if that warning is conjoined with a decision to reject an asylum application.

36 The Court of Justice derives the obligation to provide information under EU law not from the idea of the effectiveness of a remedy against the decision to reject asylum, but from the requirement of a fair and transparent return procedure, and formulates its instruction on the safeguards required when conjoining a return decision with an asylum decision in terms of a consequence of the return decision, not as a prerequisite for such a decision. The obligation to provide information under EU law is therefore designed as an independent obligation to provide safeguards in a temporal association with the return decision. Quite logically, then, the final answer of the Court of Justice makes no express mention of the obligation to provide information. The Court of Justice likewise does not mention the (potential) legal consequences of failing to meet the obligation to provide information.

37 Fulfilling the obligation to provide information under EU law is not configured as a further mandatory prerequisite for the lawfulness of a return decision. It is added on as an independent obligation of the authority issuing the decision, and is supposed to provide instruction about the legal consequences associated with that decision, with no retroactive effect on the constituent elements of the decision's issuance. It also does not pertain to the procedure until the return decision is issued, but rather presupposes that the decision has been issued already. A violation of the obligations to provide information about the legal effects that are to be safeguarded when a decision to reject asylum and a return decision are conjoined also cannot change anything in the conferral of those rights and safeguards, which according to the above discussion have been assured here.

38 4.2.2 Nor does the violation of the obligation to provide information under EU law otherwise establish any connection with the return decision that would affect lawfulness. National law provides for no such legal consequence. Nor does such a consequence proceed from EU law and its effective enforcement.

39 a) The obligation to provide information under EU law is intended to instruct the individual about the rights and safeguards to which he or she is entitled in connection with the return decision, and thus to support him or her in effectively exercising the available options for a remedy (CJEU, judgment of 19 June 2018 - C-181/16 - para. 54, 65). A violation of the obligation to provide information therefore cannot affect the content or form of the return decision itself, or the rights and safeguards associated with challenging it. This all by itself already precludes any connection affecting lawfulness under national or EU law.

40 b) However, there is also no connection with a violation of the obligation to provide information that would affect lawfulness if that connection relates not to the content of the return decision, but to the date when the decision was issued, and the fact of its being conjoined with the decision to reject asylum.

41 aa) The case-law of the Court of Justice acknowledges that not every violation of rights in connection with issuing a decision on the matter results in the need to annul the decision itself. There is no such need, for example, if the court, without in any way imposing the burden of proof on the individual, is able to determine that the challenged decision would not have come out differently without the procedural violation that is objectively present (on this, CJEU, judgments of 5 October 2000 - C-288/96 [ECLI:EU:C:2000:537], Federal Republic of Germany/Commission - para. 101 <right to be heard>, of 10 September 2013 - C-383/13 PPU [ECLI:EU:C:2013:533], M.G. and N.R. - para. 39 et seqq. <detention pending deportation>, of 7 November 2013 - C-72/12 [ECLI:EU:C:2013:712], Altrip - para. 49 et seqq. and of 15 October 2015 - C-137/14 [ECLI:EU:C:2015:683], Commission/Federal Republic of Germany - para. 56, 60 <on section 46 of the Administrative Procedure Act (VwVfG, Verwaltungsverfahrensgesetz)> to remedy procedural errors). In cases - as in the present one - where there is no express provision for the consequences of the error under EU law itself, in determining the legal consequences under national law it must be ensured that these consequences are no less favourable than those governing similar domestic actions (principle of equivalence), and must not render impossible in practice or excessively difficult the exercise of the rights conferred by EU law (principle of effectiveness) (CJEU, judgment of 24 October 2018 - C-234/17 [ECLI:EU:C:2018:853], XC et al. - para. 22). The observance of those requirements must be analysed by reference to the role of the rules concerned in the procedure viewed as a whole, to the conduct of that procedure and to the special features of those rules, before the various national instances (CJEU, judgment of 27 June 2013 - C-93/12 [ECLI:EU:C:2013:432], ET Agrokonsulting - para. 38 et seqq.). The consequences of the error must furthermore comply with EU law and must not undermine its practical effectiveness (CJEU, judgment of 10 September 2013 - C-383/13 PPU - para. 36).

42 bb) Based on this case-law, both a different decision in the matter and a breach of the principle of equivalence or the principle of effectiveness are ruled out, so that there is no connection affecting lawfulness.

43 (1) The obligations to provide information serve solely to provide instruction about rights and safeguards that exist independently from the fulfilment of such an obligation. To that extent, they supplement information - which must be provided under national law, and was also given here - about the possibility of seeking judicial protection against the decision to reject asylum and the conjoined return decision. The rights and safeguards themselves have only a supportive function for seeking protection, and for the efficacy of that protection; and this is even more the case for information given about them. The Senate cannot see that the failure to provide adequate information, in violation of the obligation, about the rights and safeguards that exist for the duration of the time period for bringing a remedy or the proceedings on a submitted remedy would deprive someone seeking rights, in the same situation as the claimant - who did bring a remedy - of the ability to bring a valid judicial remedy to defend the rights to which he is entitled under EU law, or would impede him from exercising his rights effectively.

44 (2) A further significant argument against the unlawfulness continuing to have an effect on the return decision is that the removal of any illegally staying third-country national is a matter of priority for the Member States, in accordance with the scheme of Directive 2008/115/EC (CJEU, judgments of 6 December 2011 - C-329/11 [ECLI:EU:C:2011:807], Achughbabian - para. 38 et seq. and of 10 September 2013 - C-383/13 PPU - para. 43). Annulling a return decision for violation of an obligation to provide information under EU law about substantive rights and duties as a consequence of the challenge of the return decision would furthermore impair the practical effectiveness of Directive 2008/115/EC. This is altogether the case when the annulment of a return decision that is otherwise in conformity with EU law in content and time of issuance is sought solely with the argument that an obligation to provide information, identified in detail, has been violated, and yet it is clearly evident from the complaint that the person seeking legal protection knows - at least by this point - about the withheld information. In that case, the question whether there is an actual possibility that the procedural configuration of the principle of non-refoulement might be jeopardised can at any event not be answered in an abstract consideration from the ex ante viewpoint of the date when the order was issued (however, see VG Karlsruhe, judgment of 20 August 2019 - A 19 K 5742/17 - (...) para. 37), if in fact, as a consequence of bringing the remedy, these rights and safeguards were not endangered.

45 (3) It can also be ruled out that if the obligation to provide information had not been violated, the return decision itself might have come out differently, or would not have been issued so as to avoid jeopardising these rights and safeguards. The rights and safeguards to be ensured in the event of a conjoined decision and warning exist independently from the fulfilment of the obligation to provide information, and furthermore, to some extent, take effect without any further action by the person seeking protection. The court responsible for finding the facts has not found, the claimant has not argued in any substantiated form, and it is also not otherwise evident, that with regard to the claimant, the inadequate information would have jeopardised the existence or assertion of the rights and safeguards that the Federal Office neglected to inform him of.

46 (4) The claimant's rights would also not have been violated by the inadequate information about the deportation warning concerning him (section 113 (1) first sentence VwGO) even if inadequate information provided by the Federal Office might be, or had been, capable of keeping other persons seeking protection - irrespective of the information on available legal remedies attached to the notice - from effectively asserting their rights with reference to the decision to reject asylum or the return decision, such that for third parties there would be an actual possibility that neglecting to provide information, or giving information with erroneous content, has given or will give rise to a threat against the procedural configuration of the principle of non-refoulement (however, see VG Karlsruhe, judgment of 20 August 2019 - A 19 K 5742/17 - (...)). At any event this (possible) violation of third parties' rights does not affect the claimant's own rights (section 113 (1) first sentence VwGO). Insofar as the case-law of the Court of Justice, especially in environmental law, adopts an expansive interpretation of the subjective legal positions that proceed from objective law, and grants the individual a "procuratorial" legal position with reference to the objective interest in ensuring the practical effectiveness and the unity of EU law (see BVerwG, judgment of 5 September 2013 - 7 C 21.12 - BVerwGE 147, 312 para. 46), this is to no extent transferable to the present situation. This case-law expands the legal power of individuals to assert objective rights in the interest of an effective protection of common goods in the environmental sphere, but it is not intended to bring about a comprehensive replacement of the system of subjective legal protection with a system of objective legal protection.

47 (5) It is clear from the cited case-law of the Court of Justice that the violation of the obligation to provide information under EU law does not lead to an annulment of the return decision in the present case. This is confirmed by the fact that the Court of Justice, in its Gnandi judgment (CJEU, judgment of 19 June 2018 - C-181/16 - para. 54, 65) saw no cause to expressly address the question of a connection affecting lawfulness, or to clarify it in the negative. The Senate also sees no point of law that is otherwise in need of clarification in this regard within the meaning of article 267 TFEU (...).