Press release no. 11/2020 of 20 February 2020

Conclusions from the "Gnandi" decision of the Court of Justice of the European Union for conjoining a rejection of asylum with a deportation warning

Conjoining a decision to reject an asylum application with a return decision in the form of a deportation warning conforms with the Return Directive 2008/115/EC only if it is ensured that the foreign national is allowed to remain until the relevant remedy against the rejection of the application is resolved, and that this remedy has its full effect. In cases of rejection of the application as manifestly unfounded, the Federal Office for Migration and Refugees (Bundesamt für Migration und Flüchtlinge, hereinafter Federal Office) may achieve this by suspending the execution of the deportation warning until the decision in the court asylum proceedings on granting interim protection (section 36 (3) of the Asylm Act (AsylG, Asylgesetz)). That was decided by the Federal Administrative Court (BVerwG, Bundesverwaltungsgericht) in Leipzig today.


The claimants in the main proceedings are from Afghanistan, Ghana and Azerbaijan. The Federal Office rejected their asylum applications in the years 2015 to 2018 in part as (simply) unfounded and in part as manifestly unfounded. The notices of rejection were each conjoined with a deportation warning threatening the claimants with deportation to their countries of origin if they did not depart voluntarily within a certain period of time. The Court of Justice of the European Union (CJEU, hereinafter Court of Justice) has ruled in the middle of 2018 that conjoining an asylum and a return decision was only possible under EU law if an effective remedy against the rejection of the asylum application existed and if all the effects of the return decision were suspended during the time period prescribed for bringing the remedy and until resolution of the remedy; the foreign national was to be informed about the rights guaranteed by EU law (see, inter alia, CJEU, judgment of 19 June 2019 - C 181/16, Gnandi). Following this, the claimants based their actions regarding the deportation warning, inter alia, on a violation of the Federal Office's obligation to provide information and on the fact that the rights mentioned by the Court of Justice were not or not sufficiently guaranteed during the procedure in Germany. In all proceedings, the action had either suspensive effect by virtue of law or the Federal Office had suspended the execution during the proceedings or the court had ordered the suspensive effect of the action. The actions were unsuccessful in each case. In any event, the Baden-Württemberg Higher Administrative Court (Verwaltungsgerichtshof), the North Rhine-Westphalia Higher Administrative Court (Oberverwaltungsgericht) and the Minden Administrative Court (Verwaltungsgericht) considered that the guarantees required under EU law when interpreting national law in conformity with EU law had been sufficiently respected; the simple failure to comply with the obligations to provide information did not result in an annulment of the deportation warning. The Courts allowed the (leapfrog) appeal on points of law in each case insofar as the action challenged the deportation warning together with setting a time period for departure. The claimants' appeals on points of law were unsuccessful.


The 1st Senate of the Federal Administrative Court made clear that conjoining the rejection of asylum with a deportation warning that is possible under EU law and provided as a general rule by the national legislature is only compatible with EU law if the procedural rights, protective rights and rights to participation guaranteed under EU law remain unaffected during the relevant proceedings for judicial protection. Insofar as these rights based on national law are not or not sufficiently guaranteed, limits are set within the legal consequences due to the possibility available under national law to (provisionally) refrain from simultaneously issuing a deportation warning, to interpret in conformity with EU law or to invoke the primacy of application of EU law. However, the Federal Office can regularly ensure conformity with EU law by suspending ex officio the execution of the deportation warning, including the running of the time periods for departure laid down by the legislature in the event of a simultaneous issuing according to section 80 (4) of the Code of Administrative Court Procedure (VwGO, Verwaltungsgerichtsordnung), insofar as this is necessary under EU law in order to guarantee that the remedy has its full effect; the suspension can also be undertaken in the course of a judicial proceeding. This has been done in the present case insofar as the relevant remedy did not otherwise have suspensive effect and the deportation warnings did therefore no longer give rise to any objections in this respect.


The lower instances correctly assumed that the violation of the obligation to inform the foreign national of the rights to which he or she continues to be entitled under EU law until the action is resolved or - in the cases of a rejection of the application as manifestly unfounded - until the temporary relief proceedings are resolved, does not lead to an annulment of the deportation warning. Such a breach of objective law does not affect a constituent element of the deportation warning, and is also not otherwise connected with that warning in a manner that would affect lawfulness, and is furthermore not capable of impairing the legal position of a foreign national who - as in the present case - benefits from these rights and advantages when he or she is (provisionally) allowed to remain.


BVerwG 1 C 1.19 - judgment of 20 February 2020

BVerwG 1 C 19.19 - judgment of 20 February 2020

BVerwG 1 C 20.19 - judgment of 20 February 2020

BVerwG 1 C 21.19 - judgment of 20 February 2020

BVerwG 1 C 22.19 - judgment of 20 February 2020


Judgment of 20 February 2020 -
BVerwG 1 C 19.19ECLI:DE:BVerwG:2020:200220U1C19.19.0


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. Numbers of paragraphs that have completely been omitted in the edited version will not be shown.
When citing this ruling it is recommended to indicate the court, the date of the ruling, the case number and the paragraph: BVerwG, judgment of 20 February 2020 - 1 C 19.19 - para. 16.

Conformity of conjoining a rejection of asylum as manifestly unfounded with a deportation warning under the Gnandi decision of the Court of Justice of the European Union

Headnotes

1. Conjoining a decision to reject an asylum application with a return decision in the form of a deportation warning conforms with the Return Directive 2008/115/EC only if it is ensured that the foreign national is allowed to remain until the relevant remedy against the rejection of the application is resolved, and that this remedy has its full effect (as in BVerwG, judgment of 20 February 2020 - 1 C 1.19 -).

2. A deportation warning issued by the Federal Office together with the decision to reject an application for asylum as (manifestly) unfounded and in which a time period for departure of one week is set, starting to run upon notification of the rejecting decision, does not ensure in full the procedural rights and rights to protection and participation required under EU law.

3. An application for an interim protection pursuant to section 80 (5) VwGO in conjunction with section 36 (3) first sentence AsylG suspends execution of the threatened deportation, pursuant to section 36 (3) eighth sentence AsylG (impediment to execution), but not the executability of that deportation. Section 59 (1) sixth and seventh sentence AufenthG, which relate to the cessation of "executability of the obligation to depart or the deportation warning," are not applicable (mutatis mutandis).

4. Section 36 (3) AsylG cannot be interpreted in conformity with EU law as meaning that an application pursuant to section 80 (5) VwGO results in a suspension of all legal effects of the deportation warning that is limited to the duration of the temporary relief proceedings.

5. Under section 80 (4) first sentence VwGO, the Federal Office may suspend execution of a deportation warning so as to comply, both with the statutory requirement of section 34 (2) first sentence AsylG to conjoin a deportation warning with a decision to reject asylum, and at the same time, with the requirements under EU law for such a conjunction.

6. A violation of the obligation to provide information for the foreign national on the procedural rights and rights of protection and participation to which EU law entitles him or her until the action is resolved does not render a deportation warning unlawful (as in BVerwG, judgment of 20 February 2020 - 1 C 1.19 -).

  • Sources of law
    Treaty on the Functioning of the European Union (TFEU)article 267
    Asylum Seekers Benefits ActAsylbLG, Asylbewerberleistungsgesetzsection 1 (1) no. 5, section 1a
    Asylum ActAsylG, Asylgesetzsections 34 (1) and (2), 36, 67, 74 (2), 75 (1), 77 (1)
    Residence ActAufenthG, Aufenthaltsgesetzsections 58, 59 (2), 60 (5) and (7) first sentence
    Charter of Fundamental Rights of the European Union (CFR)articles 18, 19 (2), 47
    Directive 2003/9/EC
    Directive 2005/85/EC
    Directive 2008/115/ECarticles 5 and 6 (6)
    Directive 2013/32/EUarticle 46
    Directive 2013/33/EU
    Code of Administrative Court ProcedureVwGO, Verwaltungsgerichtsordnungsections 80, 113 (1) first sentence

Summary of the facts

The dispute between the parties relates to the lawfulness of a deportation warning that was conjoined with a notice rejecting asylum by the Federal Office for Migration and Refugees (Bundesamt für Migration und Flüchtlinge, hereinafter Federal Office).

The claimant, born in [...], comes from Ghana and applied for asylum in the federal territory in March 2015. In a notice of August 2015, the Federal Office initially rejected this application as inadmissible for lack of international responsibility, but it subsequently repealed this rejection. In a notice of 20 July 2018, it again rejected the application for asylum in full, stating that the request for asylum and international protection was manifestly unfounded, and declared that there were no bans on deportation under section 60 (5) and (7) first sentence AufenthG (AufenthG, Aufenthaltsgesetz). Furthermore, in addition to ordering and setting a time limit for a ban on entry and residence, it asked the claimant to leave the Federal Republic of Germany within one week after notification of the decision, and, in the event of not departing in good time, threatened him with deportation to Ghana or another state to which he was allowed to immigrate, or that was required to take him back (deportation warning <no. 5 of the notice>).

The claimant brought a timely action against this notice and, at the same time, applied for ordering the suspensive effect of his action (application for temporary relief).

The Administrative Court (VG, Verwaltungsgericht) dismissed the application for temporary relief in a decision of 18 September 2018. The declaration of the request for protection being manifestly unfounded did not give rise to any objections, because there were no indications that would justify the assumption that contrary to the legal presumption, the claimant would suffer political persecution or serious harm if he departed for Ghana. In March 2019, referring to the judgment of the Court of Justice of the European Union (CJEU, hereinafter Court of Justice) of 19 June 2018 - C-181/16 - (the Gnandi judgment), the claimant again applied, under section 80 (7) of the Code of Administrative Court Procedure (VwGO, Verwaltungsgerichtsordnung), to order the suspensive effect of his action. The parties declared this proceeding to be terminated as to its main issue after the defendant, in a notice of 5 April 2019, suspended execution (Vollziehung) of the deportation warning under section 80 (4) VwGO until the incontestable conclusion of the proceedings.

By judgment of 16 April 2019, the Administrative Court dismissed the action. At the relevant date of the last oral hearing, the claimant had neither a claim for the granting of refugee status nor of subsidiary protection status or for a declaration that there are deportation bans pursuant to section 60 (5) and (7) AufenthG.

The action was also unfounded insofar as it was directed against the deportation warning (no. 5 of the notice). The claimant was staying illegally in the federal territory. The deportation warning was allowed to be conjoined with the rejection of the asylum application (article 6 (6) Directive 2008/115/EC), because ultimately national law fulfilled the rights and safeguards necessary to comply with the procedural safeguards mentioned in article 6 (6) of Directive 2008/115/EC. Pursuant to what is known as the Gnandi judgment, in the case of such a conjunction, it must be ensured that a remedy against the return decision has its full effectiveness, such that all effects of the return decision must be suspended during the time period prescribed for bringing that remedy, and if such a remedy is brought, until the resolution of that remedy. In the case of a rejection of an asylum application as manifestly unfounded, "remedy" must be understood to mean not the action, but the application for temporary relief pursuant to section 36 (3) first sentence of the Asylum Act (AsylG, Asylgesetz). For that reason, the time period for voluntary departure could not start to run before that point, the person concerned must not be held in detention with a view to the deportation, he must be entitled to benefit from the rights arising from Directive 2003/9/EC and Directive 2013/33/EU, and he must be able to rely on any change in circumstances that occurred after the issuance of the return decision.

National law ensured that all effects of the deportation warning would be suspended both until the one-week time period for bringing the application for temporary relief has expired and - if such a remedy was brought - until the resolution of that remedy. For the period from the time when the (timely) application for temporary relief is brought until it is resolved, section 36 (3) eighth sentence AsylG is to be interpreted in conformity with EU law as bringing about a comprehensive impediment to execution (Vollzugshemmung), in the sense of a suspension of execution. Nor did anything else apply to the time until the period for bringing the application for temporary relief expires. If the law entailed that bringing a timely application to order the suspensive effect leads to a suspension of all effects of the deportation warning until that application is resolved, then this must be even more the case for the time until the period for bringing the application has expired.

If section 36 (1) AsylG was interpreted in conformity with EU law, the period for voluntary departure also would not start to run as long as the period for bringing the application for temporary relief is still running, or as long as an application for temporary relief has been brought, but not yet been dismissed; section 36 (3) eighth sentence AsylG also opposes starting the period for departure before the right to remain expires. Moreover, a person seeking protection also could not be held in detention until the application for temporary relief has been resolved (with a negative outcome), because section 62 (3) AufenthG always presupposed an executable (vollziehbare) obligation to depart, and such an obligation was absent due to the comprehensive impediment to execution under section 36 (3) eighth sentence AsylG. Until the right to remain expires, the person seeking protection received the benefits under Directive 2013/33/EU, because under the Asylum Seekers Benefits Act (AsylbLG, Asylbewerberleistungsgesetz), benefits under section 1 (1) no. 5 AsylbLG were also to be received by foreign nationals who are under an executable obligation to depart. Moreover, under section 77 AsylG a person seeking protection could rely on any change in circumstances that occurred after the issuance of the return decision, in temporary relief proceedings by way of an application pursuant to section 80 (7) VwGO.

If the time period ordered for departure proved to be unlawful, this did not result in an annulment of the deportation warning. Although the departure period was not unlawful on the grounds of its seven-day duration (see article 7 (1) of Directive 2008/115/EC), it was unlawful because according to the wording of the notice, it started to run with the notification of that notice. However, the fact that the set time period was unlawful did not affect the deportation warning with regard to all other aspects. The annulment of the time period for departure alone was likewise excluded, since the time period expired by decision of 18 September 2018 dismissing the application for temporary relief. Under section 59 (1) sixth and seventh sentence AufenthG in conjunction with section 34 (1) first sentence AsylG, the time period for departure was to be interrupted when the deportation warning ceased to be executable, and did not start to run again until the warning becomes executable once more. The latter case arose when the application for temporary relief was dismissed. Therefore, the original, unlawfully ordered time period for departure ceased to have legal effect. The new time period for departure, however, did not violate the claimant's rights.

The fact that the Federal Office did not meet its obligations to provide information did not result in an annulment of the deportation warning. Such an annulment would only come under consideration if it were established, on the basis of the circumstances of the specific individual case, that the procedural error had in fact deprived the person relying on it of the possibility of better defending himself or herself, to such an extent that the administrative procedure concerned would have led to a different outcome. That was not the case here.

The Administrative Court granted leave to a leapfrog appeal insofar as it had dismissed the action with regard to the deportation warning (no. 5 of the challenged notice).

In his appeal on points of law, which is limited to the decision on the deportation warning, the claimant claims in substance a violation of section 34 AsylG, and argues as grounds that at least with regard to the running of the time period for departure, the deportation warning did not meet the requirements that apply for conjoining a decision to reject asylum with a deportation warning under the Gnandi case-law of the Court of Justice. For that reason, the deportation warning must be annulled. The expiry of the time period for departure, which the Administrative Court cited as reasons, deprives the person concerned of the possibility of review, especially since it opens the option for the court to dispense with such a review by way of a decision in temporary relief proceedings. As most asylum seekers were unaware of the legal consequence of section 59 (1) sixth and seventh sentence AufenthG, the obligation to depart and a time period running for this purpose were not sufficiently discernible either. The application to order the suspensive effect did not, even in itself, have suspensive effect to the extent required under EU law; because of the merely summary assessment, temporary relief proceedings did not guarantee the comprehensive legal protection required by the Court of Justice, especially because in temporary relief proceedings, free-of-charge legal aid and translation services are not necessarily available from the outset within the one-week time period for bringing the application. All in all, German law lacked a remedy that had the effects required by the Court of Justice.

The deportation warning must also be annulled due to a breach of obligations to provide information. Under the principle of equality of arms, unlawful action must be annulled even if it expired. Furthermore, a lack of information could not expire. Deficient information had consequences that extend beyond temporary relief and ordinary proceedings.

The defendant defends the contested judgment. It emphasises that the requirements for the right to remain that is to be granted under article 46 (6) and (8) of Directive 2013/32/EU were adequately taken into account by the fact that before the appeal was brought, protection from deportation was ensured by the running of the period granted for departure (see article 8 (2) of Directive 2008/115/EC); after the appeal was brought, the right to remain was ensured by section 36 (3) eighth sentence AsylG.

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

Reasons (abridged)

16 The claimant's admissible appeal on points of law is without merit. The Administrative Court was ultimately correct in rejecting the claimant's claim - the only one still asserted in the appeal proceedings on points of law - to have the deportation warning with its effects that it had at the relevant time (1.) annulled. However, this does not merely follow from the fact that the deportation warning issued on 20 July 2018 and conjoined with the decision to reject asylum - which was compatible with the regulations of national law (2.) - objectively met the requirements under EU law for conjoining a decision to reject asylum and a return decision in the form of the deportation warning (3.). To that extent, in particular, compatibility with EU law cannot be ensured at all points by an interpretation of national law in conformity with EU law (4.). However, by ordering the suspensive effect in its notice of 5 April 2019, the Federal Office ultimately did arrange for the claimant to benefit from the rights and safeguards required under EU law, so that at the relevant point in time of the last oral hearing before the court responsible for finding the facts the deportation warning was lawful and did not violate the claimant's rights (section 113 (1) first sentence VwGO) (5.). Nor does the violation of obligations to provide information under EU law render the deportation warning unlawful (6.).

17 1. The sole subject matter of this leapfrog appeal, which was submitted and reasoned in due form and good time, is the Administrative Court's decision concerning the lawfulness of the deportation warning (no. 5 of the notice). The claimant has limited his appeal on points of law to challenging the dismissal of his action with regard to the deportation warning (no. 5 of the notice). In view of the express limitation of the leave for a leapfrog appeal to the judgment's ruling on the deportation warning, it does not need to be decided whether a further-reaching appeal on points of law would already have been inadmissible, or whether, by exception, the limitation of leave for the leapfrog appeal would have been ineffective here. It is true that the deportation warning forms an independent subject matter of the dispute and a separable part of the subject matter of the proceedings to which a limited leapfrog appeal can generally be granted (Federal Administrative Court (BVerwG, Bundesverwaltungsgericht), judgments of 1 April 1976 - II C 39.73 - Rulings of the Federal Administrative Court (BVerwGE, Entscheidungen des Bundesverwaltungsgerichts) 50, 292 <295> and of 25 February 1988 - 2 C 65.86 - (...)). However, to keep a dispute from being pending simultaneously in two different instances, it is argued that granting a partial leave to a leapfrog appeal on a limited subject matter is possible only under more narrow prerequisites than leave to appeal on either points of law or points of fact and law, and is excluded, for example, if there is a consolidation of claims in the form of main and subsidiary applications (eventuelle Klagehäufung) (...); due to the close substantive connection among the regulations conjoined in a decision rejecting asylum, it is also possible in the present case.

18 The deportation warning is to be assessed in the form it took at the time of the Administrative Court's decision (section 77 AsylG). The time period for departure that was initially set, seven days after notification of the notice, has no effect (any longer) since in its notice of 5 April 2019, the Federal Office suspended execution of the deportation warning from its notice of 20 July 2018 until the incontestable conclusion of the proceedings concerning the action brought against this notice.

19 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 Data Protection Adjustment and Transposition Act EU (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 (BVerwG, judgment of 11 September 2007 - 10 C 8.07 - BVerwGE 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 before the Administrative Court.

20 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 Administrative Court.

21 The decision to reject asylum as, inter alia, manifestly unfounded, including the assessment that the requirements of section 60 (5) and (7) AufenthG were not met, as a basis for conjoining a deportation warning does not violate the claimant's rights. In this regard, at any event, the judgment of the Administrative Court does not indicate any legal errors, so that it can be left open whether that judgment has already become final and binding in this respect.

22 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 period for voluntary departure set by the Federal Office's notice conforms to section 36 (1) 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.

23 3. The deportation warning was in any case not entirely consistent (see 3.2 below) - subject to an interpretation in conformity with EU law (see 4. 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).

24 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".

25 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 [ECLI:EU:C:2018:465], Gnandi -; see also order 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.).

26 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.

27 These principles are to be applied to cases of a "qualified" rejection of an application as "manifestly" unfounded provided that the legal effects of the return decision are to be suspended only until a decision is taken about a temporary right to remain in proceedings for interim protection, and not, in other words, until the incontestable conclusion of the proceedings (see also CJEU, order of 5 July 2018 - C-269/18 PPU -). Article 46 (6) of Directive 2013/32/EU, as a more specific provision, supplants the comprehensive right to remain contingent on proceedings, as provided under article 46 (5) of Directive 2013/32/EU, and in cases where an application is rejected as "manifestly unfounded" in compliance with article 32 (2) of Directive 2013/32/EU, it authorises the court to rule, either upon the applicant’s request or acting ex officio, concerning a further stay in the host Member State, if the right to stay further is not provided until the appeal is resolved. In its decision of 5 July 2018 - C-269/18 PPU - para. 52, the Court of Justice recognisably refers to and builds upon its judgment of 19 June 2018 - C-181/16 - which had been rendered only a few weeks before. If not all rights and safeguards that proceed from seeking effective remedy against a decision to reject asylum (or from the possibility of seeking such a remedy) are again mentioned expressly, and instead the Court emphasises the prohibition of detention under Directive 2008/115/EC, that is a consequence of the limited question formulated by the referring Court. The wording of article 46 (8) of Directive 2013/32/EU likewise mitigates against a different categorisation of the right to remain under article 46 (6) of Directive 2013/32/EU, with reference to the rights and safeguards that proceed therefrom, than the right to remain under article 46 (5) of Directive 2013/32/EU, which is likewise contingent on proceedings.

28 3.2 Those requirements are not met here with the deportation warning in the form originally adopted. It is true that it was ensured that deportation could not be carried out until a decision had been taken on a temporary right to remain (3.2.1) and that new circumstances were allowed to be submitted in the judicial proceedings (3.2.2). But it was not ensured that the time period for voluntary departure would not start running before the decision on a temporary right to remain was taken (3.2.3). It can be left open whether there was an obligation to leave (3.2.4). It is at least questionable whether the continued effectiveness of the rights as an asylum applicant under Directive 2003/9/EC or Directive 2013/33/EU (3.2.5) and the freedom from detention pending deportation were adequately ensured (3.2.6).

29 3.2.1 An action against a decision of the Federal Office that has rejected an asylum application under section 30 AsylG as manifestly unfounded does not have the suspensive effect provided in section 75 (1) AsylG. Because of the claimant's origination from a safe country of origin (section 29a AsylG in conjunction with articles 36 et seqq. of Directive 2013/32/EU), there is no need to examine further whether all reasons under section 30 (3) AsylG may be founded on one of the circumstances described in article 31 (8) of Directive 2013/32/EU.

30 Under national law, the right to remain pending the asylum decision expires upon notification of the rejecting notice (section 67 (1) first sentence no. 4 AsylG). The deportation warning does not thereby become enforceable (vollstreckbar), but it presumably does become immediately executable. All the same, enforcement (Vollstreckung) could not take place. Under section 58 (1) first sentence AufenthG a foreign national cannot be deported until the time period for departure, that has been set, has expired. Due to the synchronism of the time period for bringing an action (section 74 (1) second half sentence AsylG), the time period for bringing an application against the deportation warning pursuant to section 80 (5) VwGO (section 36 (3) first sentence AsylG), and the time period for departure (section 36 (1) AsylG), with each being one week, a deportation - at least in cases where the information on available legal remedies was correct - before the notice becomes legally binding, or in cases where an action and an application pursuant to section 80 (5) VwGO is brought, can be ruled out. If and when an application pursuant to section 80 (5) VwGO is brought in good time, no deportation is permitted prior to the court decision (section 36 (3) eighth sentence AsylG). If the court grants the application for interim protection, the time period for departure expires 30 days after the incontestable conclusion of the asylum procedure (section 37 (2) AsylG).

31 3.2.2 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).

32 a) 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).

33 Even after an application pursuant to section 80 (5) VwGO has been dismissed, provided an action is still pending, and up to the time of execution (Vollzug) of the deportation warning or the person's voluntary departure, changed circumstances may be taken into account through proceedings under section 80 (7) VwGO. Such proceedings can be initiated ex officio or applied for by a party on grounds of a change in circumstances or circumstances that were not submitted, without fault, in the original proceedings.

34 b) The effectiveness of legal protection required under EU law, allowing for new or changed circumstances, is also not compromised by the fact that deportation can be ordered suspended only if there are serious doubts as to the lawfulness of the challenged administrative act (section 36 (4) first sentence AsylG) and facts and evidence not stated by the parties are not to be considered unless they are known to the court or obvious (section 36 (4) second sentence AsylG). Although this constitutes a substantial modification of the principle to conduct ex officio investigations (Amtsermittlungsgrundsatz; section 86 VwGO), which at any rate does not apply without limitations when evidence is being taken in temporary relief proceedings (...), it plainly does not impede the parties from submitting facts relevant for the decision. From the viewpoint of EU law, this does not impair the effectiveness of legal protection, if only because the principle to conduct ex officio investigations under national procedural law is not prescribed by EU law, and constitutes something of an exception in comparison with the rest of the European Union.

35 The lawfulness of a challenged administrative act is already in serious doubt if substantial reasons argue that the measure will not withstand judicial review (Federal Constitutional Court (BVerfG, Bundesverfassungsgericht), judgment of 14 May 1996 - 2 BvR 1516/93 - Rulings of the Federal Constitutional Court (BVerfGE, Entscheidungen des Bundesverfassungsgerichts) 94, 166 <194>); there is no requirement of the court's full conviction that the challenged decision to reject asylum is unlawful. This lowered standard of review preserves the requirements for effectiveness of legal protection, at least in proceedings on a temporary right to remain under section 46 (6) of Directive 2013/32/EU. Neither article 47 of the Charter of Fundamental Rights of the European Union (CFR) (on the applicability in asylum procedures, see BVerwG, decisions of 16 April 2019 - 1 B 22.19 - (...) and of 22 January 2020 - 1 B 5.20 - (...)), nor the effectiveness of legal protection under article 46 of Directive 2013/32/EU mandatorily and regularly require an oral hearing to be held for such an interim decision (see also CJEU, judgment of 26 July 2017 - C-348/16 [ECLI:EU:C:2017:591] -). There is therefore no need to explain further that section 36 (3) fourth sentence AsylG does not preclude an oral hearing to be held, at least in exceptional cases; it is only prohibited to hear the main proceedings at the same time (BVerwG, decision of 24 October 2019 - 1 C 26.16 - (...)).

36 3.2.3 The time period for voluntary departure in the challenged notice is in any case objectively unlawful because it started to run upon notification of the decision to reject asylum.

37 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, inter alia, 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. Incompatible with this is that the challenged notice expressly specified that the time period would start to run upon notification, in fact recognisably consistent with the system of section 36 AsylG. It is true that section 36 (1) AsylG does not expressly specify the start of the one-week time period to be set. However, section 36 (3) fifth sentence AsylG clearly presupposes that the time period for departure (section 36 (1) AsylG) will not only start to run before the time period for bringing a remedy (section 36 (3) first sentence AsylG), but may also expire during the court proceedings.

38 3.2.4 Given this factual situation, there is no need to decide whether the ban on enforcement under section 36 (3) eighth sentence AsylG, which precludes an obligation to leave the country, meets the requirements under EU law for a right to remain. It is true that for a full effectiveness of a remedy, it is not sufficient for the Member State concerned to refrain (de facto) from enforcing the return decision (CJEU, judgment of 19 June 2018 - C-181/16 - para. 62). The protection afforded by section 36 (3) eighth sentence AsylG for the duration of proceedings concerning a temporary right to remain prior to deportation does, however, extend beyond merely refraining de facto from enforcing the return decision, because it confers by virtue of law a protection from enforcement that is binding by law.

39 Nevertheless, doubts persist whether this will also suffice for the suspension of all legal effects of the return decision, as required by EU law - in this case limited to the duration of the proceedings on a temporary right to remain. The wording of section 36 (3) eighth sentence AsylG, according to which only deportation is impermissible, provided that an application has been brought in good time, clearly points to a mere impediment to enforcement or execution, or in other words, a special case of a temporary suspension of deportation (Duldung) that proceeds directly from the law and that has no effect on the executability (Vollziehbarkeit) of the notice, and thus also of the deportation warning ((...) BVerwG, judgment of 16 May 1986 - 1 C 16.85 - (...)). However, the express regulation under section 36 (3) eleventh sentence AsylG, which in its wording ("This"), its systematic position and its legislative history (Bundesrat printed paper (BR-Drs., Bundesratsdrucksache) 446/15 p. 43 et seq.) refers only to the cases covered by the newly added tenth sentence, confirms the interpretation that proceeds from the wording of section 36 (3) eighth sentence AsylG. It is systematically reinforced, moreover, by section 36 (3) fifth sentence AsylG; the expiry of the time period for departure presupposed there is not compatible with the Administrative Court's expanded interpretation of the ban on enforcement under section 36 (3) eighth sentence AsylG as a suspension of execution. That interpretation furthermore contradicts the national legislature's clearly evident intent to accelerate matters, according to which section 36 (3) eighth sentence AsylG is intended merely to ensure "that a foreign national is not deported prior to the court's decision" (BT-Drs. 12/4450 p. 24) or that "the foreign national's right to remain [is] further ensured until the judicial temporary relief proceedings are concluded" (BT-Drs. 12/2062 p. 33). Only if interpreted as an impediment to execution, it also becomes comprehensible that under national law as well, once the court has decided to reject an application pursuant to section 80 (5) VwGO, no new setting of a time period is prescribed, and according to the prevailing opinion, none is also necessary (...). The mere suspension of deportation is also not covered by section 59 (1) sixth and seventh sentence AufenthG, which refers to the case where the "obligation to depart or the deportation warning ceases to be executable"; according to this wording, a mere impediment to enforcement does not suffice.

40 3.2.5 Therefore merely suspending enforcement of a deportation for the duration of the proceedings for interim protection, while the obligation to depart and the deportation warning remain executable, does also compromise the continued application of the rights as an asylum applicant under Directive 2003/9/EC or Directive 2013/33/EU that is required under EU law. Admittedly, foreign nationals whose asylum application have been rejected and who no longer hold a permission to stay are entitled to benefits under the Asylum Seekers Benefits Act (AsylbLG, Asylbewerberleistungsgesetz) if they do in fact remain in the federal territory; according to section 1 (1) no. 5 AsylbLG, where there is an executable obligation to depart this still applies if a deportation warning is not yet, or no longer, executable. However, if certain further conditions arise, persons entitled to benefits under section 1 (1) no. 5 AsylbLG are subject to sometimes extensive restrictions on benefits, under the regulations contained in section 1a AsylbLG. The regulations in section 1a AsylbLG, which incidentally can also be presumed to comply with EU law and the constitution, do not at any rate establish any express counter-exception to prescribed reductions of benefits for the case of beneficiaries whose application pursuant to section 80 (5) VwGO has not yet been resolved in accordance with section 36 (3) AsylG. There is also no other assurance that if an application is rejected as manifestly unfounded, any and all effects such a rejection may have on benefits will be excluded for the duration of the proceedings on that application. But in that case there is no need to explain whether, or to what extent, the respective regulations of Directive 2003/9/EC or Directive 2013/33/EU permit reductions in granting benefits for this period, or whether the reduced benefits fully protect the rights ensured under EU law for the duration of the proceedings for interim protection.

41 3.2.6 In the case of an executable deportation warning whose enforcement by deportation is merely impeded, it is also questionable whether an order of detention pending deportation is ruled out with the certainty required by EU law. 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). However, after the time period for departure expires, such an obligation still applies even if the application pursuant to section 80 (5) VwGO against the deportation warning has not yet been resolved.

42 4. The Administrative Court correctly held that the time period for departure ordered under no. 5 of the challenged notice is not compatible with the requirements under EU law for conjoining a decision to reject asylum with a return decision, if and because section 36 (3) eighth sentence AsylG is interpreted as limiting this provision to a mere impediment to execution for the duration of the proceedings for interim protection. In its legal approach, the Court correctly assumed that there was compatibility if the application pursuant to section 80 (5) VwGO was to be invested with full suspensive effect for the duration of the temporary relief proceedings - as when an application is rejected as simply unfounded (on this, see the Senate's judgment of 20 February 2020 - 1 C 1.19 -) - in the sense that all effects of the deportation warning are suspended.

43 However, the Administrative Court's legal opinion that a suspension of all legal effects of the deportation warning, limited to the duration of the temporary relief proceedings, can be achieved by way of an interpretation of section 36 (3) AsylG, particularly of the provision's eighth sentence, in conformity with EU law, is incompatible with federal law (section 137 (1) VwGO). This "harmonisation" of the national legislation and requirements under EU law for conjoining an asylum decision with a return decision oversteps the limits set for interpreting the applicable provisions in conformity with EU law (4.1). The primacy of application of EU law, which must always be complied with, does not justify any other assessment (4.2).

44 4.1 If a situation under national law which is limited to a mere impediment to execution for the duration of the proceedings for interim protection is incompatible with EU law, that fact does not per se justify or require replacing, in conformity with EU law, the contrary legal situation with a legal situation that conforms to EU law by way of a judicial interpretation. Such a correction is reserved first and foremost for the legislature.

45 Irrespective of the primacy of application of EU law, which must always be complied with and must be examined separately (see 4.2), an interpretation in conformity with EU law reaches its limits in the wording of the respective provision and the clearly recognisable intention of the legislature (BVerwG, judgments of 25 November 2004 - 2 C 49.03 - BVerwGE 122, 244 <249> and of 17 July 2019 - 5 C 8.18 - (...) para. 25; CJEU, judgments of 14 July 1994 - C-91/92 [ECLI:EU:C:1994:292] - para. 26 et seq. and of 16 June 2005 - C-105/03 [ECLI:EU:C:2005:386] - para. 47; (...)).

46 Those limits are overstepped if the effect, which according to the wording, systematic connection and legislative history of section 36 (3) eighth sentence AsylG is clearly limited to enforceability (Vollstreckbarkeit) of the deportation warning, is "interpreted" as a time-limited yet still comprehensive suspension of all effects of the deportation warning. Insofar as such an interpretation establishes compatibility of the issued deportation warning with the requirements under EU law, it does conform to the legislative intent of section 34 (2) first sentence AsylG to conjoin a decision on (rejecting) asylum with the return decision. However, there is a tension between the legal command of section 34 (2) first sentence AsylG and the design of legal protection in cases where an asylum application is rejected as manifestly unfounded, and this tension cannot be resolved merely by an interpretation of section 36 (3) AsylG. If the national legislature intends to exercise the possibility that is offered under EU law to conjoin a decision to reject asylum with a return decision, it must design the national law in such a way as also to meet the requirements under EU law for that purpose. In any event, section 34 (2) first sentence AsylG does not order that national law opposing the conjunction prescribed there as a standard case should not be applied, or should be applied only partially. De lege lata, this tension can be resolved only by requiring the Federal Office to refrain from conjoining the two if and so long as the requirements under EU law are not ensured either by the legislature itself, or by an administrative decision.

47 4.2 Admittedly, the primacy of application of EU law is fundamentally intended and suitable to exclude the application of national law that is contrary to EU law (4.2.1). However, in the present case that primacy does not apply, if only because article 6 (6) of Directive 2008/115/EC does not mandatorily oblige to conjoin a decision to reject asylum and a return decision under EU law. The Member States are merely not prevented from conjoining them "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" (4.2.2). The great significance that EU law attributes to effectively enforcing an existing return obligation likewise leads to no other assessment, because there as well, if and so long as the legislature - which is the first to be called upon to adjust legal requirements to the requirements under EU law - does not act, the Federal Office has the power, by way of a time-limited suspension of execution of the deportation warning, to ensure satisfaction of the required conditions for conjoining a decision to reject asylum and a return decision, in conformity with EU law (4.2.3).

48 4.2.1 The primacy of application of EU law (established case-law, see CJEU, judgment of 15 July 1964 - Case 6/64 [ECLI:EU:C:1964:66], Costa/E.N.E.L. -), according to which national law is inapplicable insofar as it opposes EU law, ensures that EU law prevails even over contrary national law, and to that extent opens up the possibility for the national courts also to apply EU law against national law (on the constitutional requirements and limits, see BVerfG, judgment of 30 June 2009 - 2 BvE 2/08 et al. - BVerfGE 123, 267 <396 et seqq., 401 et seq.>; decision of 6 July 2010 - 2 BvR 2661/06 - BVerfGE 126, 286 <301 et seqq.>). If there is a conflict between EU law and national law, it is for the national court within the limits of its discretion under national law, when interpreting and applying domestic law, to give to it, where possible, an interpretation which accords with the requirements of the applicable EU law and, to the extent that this is not possible, to hold such domestic law inapplicable (established case-law, see CJEU, judgments of 4 February 1988 - Case 157/86 [ECLI:EU:C:1988:62], Murphy et al. - para. 11 and of 18 March 2004 - C-8/02 [ECLI:EU:C:2004:161], Leichtle - para. 58). This means that if the inapplicability of national law that conflicts with EU law, as a consequence of the primacy of application, leaves a regulatory gap, it opens up the possibility for the national courts to adopt an adjudication contra legem that would not be possible by an interpretation in conformity with EU law alone (...).

49 4.2.2 The tension between section 34 (2) first sentence AsylG and section 36 (1), (3) AsylG cannot be resolved by way of the primacy of application of EU law, by construing section 36 (3) eighth sentence AsylG as a comprehensive suspension of execution of the deportation warning. Since, insofar, the requirements of the primacy of application for such a purpose are absent.

50 According to the case-law of the Court of Justice, the effectiveness of legal protection (article 46 Directive 2013/32/EU) requires a suspension of all effects of a return decision only in the case that the decision to reject asylum is conjoined with a return decision. Under article 6 (6) of Directive 2008/115/EC, and subject to the conditions stated there, according to EU law the national legislature is allowed, but not required, to legislate for conjoining such decisions. If the national legislature wishes to make use of this possibility under EU law, it must design the national legal system in such a way that the applicable requirements under EU law are met. If it fails to do so, it cannot make use of the possibility under EU law to provide for or order a conjunction. If it does so nevertheless, then under the primacy of application of EU law, a national provision that permits or even requires such a conjunction cannot be applied unless and until it ensures the rights and safeguards required under EU law for such situations.

51 At any event, the primacy of application of EU law does not justify or require an "interpretation" of section 36 (3) eighth sentence AsylG contrary to the wording, systematic connection and purpose of this provision. The design of section 34 (2) first sentence AsylG as a directory provision already offers the possibility under national law to resolve the tension without recourse to the primacy of application of EU law. If the requirements under EU law for conjoining a decision to reject asylum and a return decision are not met, then - given the interpretation in conformity with EU law that is then required - for normative reasons there is an atypical case, in which a conjunction (that is not lawfully possible) must be abstained from. The (absolute) primacy of the national legislature's decision for a conjunction, as the defendant assumes to exist, and to which the interpretation of the subsequent provisions would then be subordinate, does not exist under EU law.

52 4.2.3 The interest in ending the stay of illegally staying foreign nationals who are obliged to depart, which is recognised in both EU law (recitals 6 and 8 of Directive 2008/115/EC) and national law (sections 34 et seqq. AsylG), is tied by EU law to compliance with fair and transparent procedures. It likewise neither permits nor requires any interpretation of section 36 (3) eighth sentence AsylG to ensure the lawfulness of a deportation warning that was initially issued.

53 a) Compliance with the requirements of (EU) law for issuing a deportation warning conjoined with a decision to reject asylum is incumbent upon not only the legislature, who must thus permit the authorities to act lawfully - including in conformity with EU law - but also the administration, which is bound by legislation. As part of their subsequent examination of administrative decisions, it is for administrative courts to review the lawfulness of these decisions, not to ensure that adopted administrative decisions conform with (EU) law by interpreting national law to fit the situation.

54 b) At any event, to ensure compliance with the requirements under EU law for conjoining such decisions, an EU law-conform resolution of the tension between the rule under section 34 (2) first sentence AsylG and the regulation under section 36 (3) eighth sentence AsylG does not require the interpretation of section 36 (3) eighth sentence AsylG undertaken by the Administrative Court. The Federal Office itself can achieve the suspension of effects that is required under EU law for a deportation warning conjoined with a decision to reject asylum, even before the legislature takes any action. It can suspend execution of the deportation warning (including the running of the time period for departure) under section 80 (4) VwGO for the duration of the time period for bringing a remedy, and in the event that a remedy is brought in good time under section 36 (3) first sentence AsylG, also for the duration of the temporary relief proceedings in the administrative courts; and it can clarify at the same time that the suspension of the one-week time period for voluntary departure ends with the notification of at least the operative part of the judicial decision dismissing the application for temporary relief, and therefore that time period will start to run. This is not opposed by the fact that when enacting the extensive amendments to the Asylum and Residence Acts during the 2019 year (...), the legislature did not take that occasion as an opportunity for any action in response to the CJEU's Gnandi decision.

55 According to the jurisprudence of the Federal Administrative Court, the Federal Office may make use of its possibility to suspend execution of a deportation warning under section 80 (4) first sentence VwGO if there is an objectively sound, non-arbitrary and non-abusive occasion to do so (BVerwG, judgments of 8 January 2019 - 1 C 16.18 - BVerwGE 164, 165 para. 22 et seqq. and of 15 January 2019 - 1 C 15.18 - BVerwGE 164, 179 para. 49). Such an occasion arises in any case if - as is the case here - the suspension serves to comply with the legal requirement of section 34 (2) first sentence AsylG that a decision to reject asylum must be conjoined with a deportation warning, and at the same time to comply with the requirements under EU law for such a conjunction, as long as the legislature refrains from taking action. Section 75 (1) AsylG, according to which an action brought in such cases does not have suspensive effect by virtue of law, does not include a legal prohibition of ordering such an effect administratively under section 80 (4) VwGO.

56 The Senate does not fail to note that such a suspension, which can also be ordered with ex tunc effect even after a time period for departure that is contrary to EU law has expired, contradicts the system of section 36 AsylG and the idea of accelerating proceedings to which it gives expression. Nevertheless, there is no conflict with the wording of section 36 AsylG, whose subsection 1 does not permit to entirely refrain from setting a time period for departure , or to let such a time period start to run only upon the conclusion of the proceedings for temporary relief. It will be avoided - to this extent in conformity with the acceleration principle under section 36 AsylG - that a deportation warning in general or at least the setting of a time period - with regard to the applicable requirements under EU law - must be waived when taking a decision to reject asylum.

57 The indication that the one-week time period for departure starts to run upon notification of the judicial decision dismissing the application for temporary relief proceeds from section 59 (1) sixth sentence AufenthG, which also covers the cessation of executability by virtue of an administrative decision, and takes due account of the concept of transparency under EU law. The prohibition of notifying a deportation date (section 59 (1) eighth sentence AufenthG) does not apply.

58 In an administrative suspension of execution that is limited to the one-week time period for bringing a remedy - and in the event that such a remedy is brought, for the duration of the proceedings for temporary relief - a necessity and a recognised legal interest in bringing proceedings continue to exist for an application for temporary relief pursuant to section 80 (5) VwGO (section 36 (3) first sentence AsylG). The administrative courts are obliged to - also quickly - decide on the application for temporary relief; this is not altered by the fact that when execution is suspended, the period under section 36 (1) AsylG does not start to run, and therefore also cannot expire under section 36 (3) fifth sentence AsylG.

59 5. However, the Administrative Court's judgment is ultimately correct (section 144 (4) VwGO). The deportation warning, which was objectively unlawful at the time when it was issued, also conforms to the requirements under EU law that applied for conjoined orders at the relevant time of the last oral hearing, because pursuant to section 80 (4) VwGO, in a notice of 5 April 2019 the defendant suspended execution of the deportation warning issued in its notice of 20 July 2018, not only for the duration of the concluded temporary relief proceedings (which had already been unsuccessful), but until the incontestable conclusion of the proceedings concerning the action brought against this notice.

60 The Federal Office was generally authorised to issue such a suspension (see II 4.2.3 above). An administrative suspension is still possible even after the originally set time period for departure has expired; the Administrative Court's decision of 18 September 2018 dismissing the claimant's application to order the suspensive effect of the action has no blocking effect. The Federal Office's decision to suspend execution shows no error in discretion; the fact that the suspension applied until the incontestable conclusion of the pending proceedings does not make the suspension invalid, and in any case does not violate the claimant's rights.

61 This suspension substituted the time period for departure originally set by virtue of law (section 59 (1) sixth sentence AufenthG) with a one-week time period that started to run (again) upon the incontestable conclusion of the proceedings. This new setting of the time period for departure does not violate the claimant's rights (section 113 (1) first sentence VwGO). The suspension of executability also suspends the other effects of the deportation warning ex tunc, so that the remedy against the rejection of the application for international protection has its full effectiveness (see, in detail, the Senate's judgment of 20 February 2020 - 1 C 1.19 -).

62 6. 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.

63 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) (6.1). 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) (6.2).

64 6.1 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).

65 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.

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

67 6.2 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 (6.2.1), and also is not otherwise connected with that warning in a manner that would affect lawfulness, and is 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 (6.2.2).

68 6.2.1 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.

69 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.

70 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.

71 6.2.2 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.

72 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.

73 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.

74 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).

75 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.

76 (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.

77 (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 adopted (although the Karlsruhe Administrative Court did so find, judgment of 20 August 2019 - A 19 K 5742/17 - (...) para. 37), if in fact, as a consequence of bringing the appeal, these rights and safeguards were not endangered.

78 (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.

79 (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.

80 (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 (...).