Judging the Charter

The Charter in judicial practise with a special focus on the case of protection of refugees and asylum seekers

Abdida

Case Number: C-562/13

Relevance of Decision

With this decision, the CJEU ruled that Articles 5 and 13 of Directive 2008/115/EC are to be interpreted as precluding national legislation which does not endow with suspensive effect an appeal against a decision ordering a third country national suffering from a serious illness to leave the territory of a Member State, where the enforcement of that decision may expose him to a serious risk for his state of health. During this period of suspensive effect, the Member State must make provision, in so far as possible, for the basic needs of the third country national. This in order to ensure that emergency health care and essential treatment of illness are in fact made available. This interpretation is in line with Article 47 of the Charter and with Article 13 ECHR.

Facts of the case

On 15 April 2009, submitted an application for leave to reside on medical grounds, because he was suffering from a serious illness. The Mr Abdida’s application was accepted as admissible and he received social assistance. By decision of 6 June 2011, Mr Abdida’s application for leave to reside was rejected, on the ground that his country of origin has adequate medical infrastructure for caring for persons suffering from the illness affecting Mr Abdida. He appealed against this decision before the Belgian asylum and immigration board. The Centre public d’action sociale d’Ottignies-Louvain-la-Neuve (hereinafter CPAS) decided to withdraw social assistance from Mr Abdida and refused to grant him emergency medical assistance. On 27 July 2011, the CPAS revised that decision and granted Mr Abdida emergency medical assistance. On 5 August 2011, Mr Abdida lodged an appeal against the CPAS’ decision withdrawing social assistance before the Labour Court of Nivelles. By judgment of 9 September 2011, that Court granted that application and ordered the CPAS to pay to Mr Abdida social assistance equivalent to income support for a single person. On 7 October 2011, the CPAS lodged an appeal against that judgment before the Higher Labour Court of Brussels, which decided to stay proceedings and refer the question to CJEU for a preliminary ruling.

Legal Questions

The legal questions submitted by the referring concern the interpretation of of Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers, Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status in conjunction with Articles 1 - 4, 19, paragraph 2, 20, 21 and 47 of the Charter. In particular, the referring Court asked whether the above mentioned directives, taken in conjunction with the Charter, are to be interpreted as meaning that ‘a Member State whose competent authorities have adopted a decision refusing the application of a third country national for leave to remain in that Member State under national legislation such as that at issue in the main proceedings, which provides that leave is to be granted to a foreign national suffering from an illness occasioning a real risk to his life or physical integrity or a real risk of inhuman or degrading treatment where there is no appropriate treatment in that foreign national’s country of origin or in the third country in which he resided previously, and ordering that third country national to leave the territory of the Member State must provide for a remedy with suspensive effect in respect of that decision and must make provision for the basic needs of the third country national to be met pending a ruling on his appeal against that decision.’

 

Court Findings

“Articles 5 and 13 of 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, taken in conjunction with Articles 19(2) and 47 of the Charter of Fundamental Rights of the European Union and Article 14(1)(b) of that directive, are to be interpreted as precluding national legislation which:

  • does not endow with suspensive effect an appeal against a decision ordering a third country national suffering from a serious illness to leave the territory of a Member State, where the enforcement of that decision may expose that third country national to a serious risk of grave and irreversible deterioration in his state of health, and
  • does not make provision, in so far as possible, for the basic needs of such a third country national to be met, in order to ensure that that person may in fact avail himself of emergency health care and essential treatment of illness during the period in which that Member State is required to postpone removal of the third country national following the lodging of the appeal”.

Critical Assessment

Could EU law save Paddington Bear? The CJEU develops a new type of protection by Steve Peers, available at: http://eulawanalysis.blogspot.com/2014/12/could-eu-law-save-paddington-bear-cjeu.html

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