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Case C-663/21, Bundesamt für Fremdenwesen und Asyl v. AA (C.J.E.U.)

Published online by Cambridge University Press:  09 January 2024

Elspeth Guild*
Elspeth Guild is a Jean Monnet Professor ad personam at Queen Mary University of London, United Kingdom and visiting professor at the College of Europe, Bruges, Belgium.


On July 6, 2023, the Court of Justice of the European Union (CJEU) delivered its judgment in C-663/21 AA on a preliminary reference from the Austrian Supreme Administrative Court. The CJEU examined the international legal principle of non-refoulement and how it applies in EU law, particularly to expulsion decisions following the withdrawal of refugee status. It held that EU law “preclude[es] the adoption of a return decision in respect of a third-country national where it is established that removal of that third-country national to the intended country of destination is, by reason of the principle of non-refoulement, precluded for an indefinite period.”

International Legal Documents
Copyright © The Author(s), 2024. Published by Cambridge University Press on behalf of The American Society of International Law

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1 Case C-663/21, Bundesamt für Fremdenwesen und Asyl v. AA, ECLI:EU:C:2023:540 (July 6, 2023) [hereinafter Judgment].

2 189 U.N.T.S. 137, opened for signature July 28, 1951 [hereinafter Refugee Convention]; 606 U.N.T.S. 267, opened for signature Jan. 31, 1967.

3 Refugee Convention, id., art 33(2).

4 Article 78(1) of the Treaty on the Functioning of the European Union reads: “The Union shall develop a common policy on asylum, subsidiary protection and temporary protection with a view to offering appropriate status to any third-country national requiring international protection and ensuring compliance with the principle of non-refoulement. This policy must be in accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees, and other relevant treaties.” See Consolidated Version of the Treaty on the Functioning of the European Union, May 9, 2008, 2008 O.J. (C 115) 47.

5 Charter of Fundamental Rights of the European Union art. 52(3), Oct. 26, 2012, 2012 O.J. (C 326) 391.

6 See, in particular, C-391/16 M, ECLI:EU:C:2019:403 (May 14, 2019); C-69/21 X, ECLI:EU:C:2022:913 (Nov. 22, 2022); C-402/22, MA, ECLI:EU:C:2023:543 (July 6, 2023).

7 All member states are parties to Protocol 13 European Convention on Human Rights (ETS 187) which abolishes the death penalty.

8 Judgment ¶ 32.

9 Id. ¶ 30.

10 Id. ¶ 31.

11 Id. ¶ 32.

12 Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, 2008 O.J. (L 348) 98.

13 The CJEU's preferred term though one which the UN General Assembly and other UN institutions have rejected; see

14 Judgment ¶¶ 46–47.

15 Id. ¶ 49.

16 Id. ¶¶ 49–50.

17 C-443/14, Alo and Osso, ECLI:EU:C:2016:127 (Mar. 1, 2016); C-181/16, Gnandi, ECLI:EU:C:2018:465 (June 19, 2018); C-391/16, M, supra note 6.

19 Olivier de Schutter, The Implementation of the Charter of Fundamental Rights in the EU Institutional Framework; research paper requested by the European Parliament's Committee on Constitutional Affairs and commissioned and published by the Policy Department for Citizens' Rights and Constitutional Affairs, PE 571.397, Brussels (Nov. 2016),

20 Proposal for a recast of the Directive on common standards and procedures in Member States for returning illegally staying third-country nationals, COM (2018) 634. View the current status of this proposal at

22 Janja Simentić Popović, The Dangers of Conflation, Verfassungsblog (July 8, 2023),