Judgment_paragraph 46 · Sadikou Gnandi v État belge (C-181/16)

46Secondly, neither Article 3(2) of Directive 2008/115 nor any other provision of that directive makes the illegality of the stay dependent on the outcome of an appeal against an administrative decision on the ending of a legal stay or on the absence of an authorisation to remain pending the outcome of such an appeal. On the contrary, whereas, as noted in paragraph 40 of the present judgment, it is clear from a combined reading of Article 7(1) of Directive 2005/85 and recital 9 of Directive 2008/115 that the right of an applicant for international protection to remain on the territory of the Member State concerned, during the period from submission of the application until adoption of a first instance decision on that application, acts to prevent the concerned person’s stay from being regarded as ‘illegal’, within the meaning of Directive 2008/115, during that period; on the contrary, no provision or recital of Directive 2005/85 or of Directive 2008/115 provides that an authorisation to remain on the territory until resolution of an appeal against the rejection acts, in itself, to prevent that stay from being regarded as ‘illegal’.