Judging the Charter
The Charter in judicial practise with a special focus on the case of protection of refugees and asylum seekers
In this judgement the Court interpreted provisions of the Procedures Directive in the light of Articles 19 and 47 of the Charter in terms of suspensive effect of subsequent asylum application.
According to the CJEU, Article 39.1 let. c) of the Directive 2005/85/EC provided that Member States must ensure the right to an effective remedy and to a fair trial before a court or tribunal against a decision not to further examine a subsequent application. This in conformity with Article 47 of the CFREU. The Court referred also to Article 19.2 of the Charter which states, inter alia, that no one may be removed to a State where there is a serious risk that he or she would be subjected to inhuman or degrading treatment.
However, the CJEU noted that, in this case, the dispute concerns only the lawfulness of a decision not to further examine a subsequent application for asylum for the purposes of Article 32 of Directive 2005/85.
According to the Court, the lack of suspensory effect of an appeal brought against a decision to expel the applicant is not, in principle, inconsistent with Articles 19.2 and 47 of the EU Charter and does not constitute a breach of the right to effective judicial protection.
Mr Tall, a Senegalese national, submitted an application for asylum in Belgium. His application was rejected both in the first instance and by the Conseil d’État. The applicant lodged a second application for asylum, relying on new evidence, but the Commissariat général aux réfugiés et aux apatrides decided not to take the application into consideration. Hence, the Centre Publique d'Action Social withdrew the social assistance that the applicant was receiving and served an order to leave the territory on him. The applicant decided to appeal against these decisions.
The Labour Court of Liège declared Mr Tall’s appeal both well founded and admissible, on the ground that the decision to withdraw social assistance could not enter into force until the date of expiry of the period for departure. However, according to the same court, it was not possible for Mr Tall to bring a legal action having suspensory effect against the decision of not taking a subsequent asylum application into consideration. Under Belgian legislation, the only remedies against a decision not to take a subsequent asylum application into consideration are appeals seeking annulment and suspension due to ‘extreme urgency’, which, as they do not have suspensory effects, deprive the person concerned of the right to residence and the right to social assistance.
Whether Article 39 of Directive 2005/85, read in the light of Article 47 of the Charter, is to be interpreted as precluding national legislation which does not confer suspensory effect upon an appeal brought against a decision not to further examine a subsequent application for asylum.
CJEU emphasised that “any interpretation of Directive 2005/85 must (…) respect the fundamental rights and observe the principles recognised in particular by the Charter”. For these reasons, the CJEU referred to article 47, on the right to an effective remedy and to a fair trial, and article 19.2 of the Charter, stating that “No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment”.
The CJEU also referred to the case-law of the European Court of Human Rights (ECHR), in accordance to which “when a State decides to return a foreign national to a country where there are substantial grounds for believing that he will be exposed to a real risk of ill-treatment contrary to article 3 ECHR, the right to an effective remedy provided for in article 13 ECHR requires that a remedy enabling suspension of enforcement of the measure authorising removal should, ipso jure, be available to that foreign national” (paras 50–60).
According to the CJEU, “in the present case, the dispute in the main proceedings concerns only the lawfulness of a decision not to further examine a subsequent application for asylum”, and “the lack of suspensory effect ... is, in principle, compatible with articles 19(2) and 47 of the Charter. Although such a decision does not allow a third-country national to receive international protection, the enforcement of that decision cannot, as such, lead to that national’s removal”.
By contrast, according to the CJEU, “an appeal must necessarily have suspensory effect when it is brought against a return decision whose enforcement may expose the third-country national concerned to a serious risk of being subjected to the death penalty, torture or other inhuman or degrading treatment or punishment, thereby ensuring that the requirements of articles 19.2 and 47 of the Charter are met in respect of that third-country national”.
For these reasons, the CJEU concluded that “Article 39 of Council Directive 2005/85/EC, read in the light of Articles 19(2) and 47 of the Charter, must be interpreted as not precluding national legislation which does not confer suspensory effect on an appeal brought against a decision, such as the one at issue in the main proceedings, not to further examine a subsequent application for asylum” (para 61).