The Charter and other EU legislation relevant to the field of asylum

Besides the legislation described above there are also several other EU directives and regulations, which are relevant to the field of asylum or migration and contain references to fundamental rights or to the Charter. There is also a number of CJEU judgments interpreting those provisions and containing references to the Charter. Below we provide relevant quotations from the legislation and information about the rulings.

The Returns Directive[21]

Article 1 of the Returns Directive states, that this Directive sets out common standards and procedures to be applied in Member States for returning illegally staying third-country nationals, in accordance with fundamental rights as general principles of Community law as well as international law, including refugee protection and human rights obligations.

Recital (24) of the Returns Directive refers directly to the Charter: This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union.

The Returns Directive contains provisions concerning definitions of irregular stay, return decision, entry-ban, remedies to appeal against decisions related to return and detention for the purpose of removal.

Recital 9 of the Returns Directive states that a third-country national who has applied for asylum in a Member State should not be regarded as staying illegally on the territory of that Member State until a negative decision on the application, or a decision ending his or her right of stay as asylum seeker has entered into force. Therefore provisions of this Directive apply to failed asylum seekers.

Several CJEU judgments interpreting the Returns Directive contain references to the Charter.

In the judgment Mahdi, C-146/14 PPU,the CJEU stated that Articles 15(3) and (6) of the Returns Directive [dealing with extension of detention], read in the light of Articles 6 and 47 of the Charter, must be interpreted as meaning that any decision adopted by a competent authority, on expiry of the maximum period allowed for the initial detention of a third-country national, on the further course to take concerning the detention must be in the form of a written measure that includes the reasons in fact and in law for that decision.

In the judgment Sophie Mukarubega, C-166/13, the CJEU ruled, that the right to be heard in all proceedings is affirmed in Articles 47 and 48 of the Charter but also in its Article 41, which guarantees the right to good administration. However, the CJEU stated that Article 41 is addressed not to the Member States, but solely to the institutions, bodies, offices and agencies of the European Union. Therefore the applicant for a resident permit cannot derive from Article 41(2)(a) of the Charter a right to be heard in all proceedings related to his/her application. However, the Court stated that such a right is inherent to the right to defence, which is a general principle of EU law. The CJEU reaffirmed its views concerning the application of Article 41 to return proceedings in its judgment Khaled Boudjlida, C-249/13.

In its judgment Abdida, C-562/13, the CJEU ruled, that the return of the third country national suffering from a serious illness may violate Article 19(2) of the Charter. The Court also stated that an appeal against a return decision in respect to such person should have suspensive effect as stated in Article 47 of the Charter.

The Family Reunification Directive[22]

Article 1 of the Family Reunification Directive states that its purpose is to determine the conditions for the exercise of the right to family reunification by third country nationals residing lawfully in the territory of the Member States.

Recital (2) reads that the Directive respects the fundamental rights and observes the principles recognised in particular in Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and in the Charter of Fundamental Rights of the European Union.

According to Recital (8) special attention should be paid to the situation of refugees on account of the reasons which obliged them to flee their country and prevent them from leading a normal family life there. More favourable conditions should therefore be laid down for the exercise of their right to family reunification.

Chapter V of the Directive provides for a specific regulation concerning the family reunification of refugees (more favourable compared to other categories of migrants).

In the judgment on the joined cases O., S., C-356/11, and L., C-357/11, (this judgment does not refer to the family reunification of refugees, however it contains reference to the Charter), the CJEU ruled that while Member States have the faculty of requiring proof that the sponsor has stable and regular resources, which are sufficient to maintain himself and the members of his family, that faculty must be exercised in the light of Articles 7 and 24(2) and (3) of the Charter, which require the Member States to examine applications for family reunification in the interests of the children concerned and also with a view to promoting family life. The CJEU repeated its position in the judgment Khachab, C-558/14.

Long-Term Residents Directive[23]

According to Article 1 of the Directive it determines:

(a) the terms for conferring and withdrawing long-term resident status granted by a Member State in relation to third-country nationals legally residing in its territory, and the rights pertaining thereto; and

(b) the terms of residence in Member States other than the one which conferred long-term status on them for third-country nationals enjoying that status.

The Directive provides permanent status of long-term resident to third-country nationals, who have resided legally and continuously within its territory for five years, immediately prior to the submission of the relevant application.

Recital (3) of this Directive reads that it respects the fundamental rights and observes the principles recognised in particular by the European Convention for the Protection of Human Rights and Fundamental Freedoms and by the Charter.

Directive 2011/51/EU amending the long-term residents Directive [24] extended its scope to beneficiaries of international protection.

The Schengen Border Code[25]

Adopted in 2016, the code replaced the previous border code of 2006.[26]

The Schengen Border Code provides for the absence of border control of persons crossing the internal borders between the Member States of the Union. It also lays down rules governing the border control of persons crossing the external borders of the Member States of the Union.

Recital (36) of the Code states that it respects fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. It should be applied in accordance with the Member States’ obligations as regards international protection and non-refoulement.

Article 4 of the Schengen Border Code reads that when applying this Regulation, Member States shall act in full compliance with relevant Union law, including the Charter of Fundamental Rights [...].

In the judgment Zakaria, C-23/12, the CJEU interpreted provisions of the Schengen Border Code of 2006. The CJEU ruled that according to Article 6 of the Code, border guards shall, in the performance of their duties, fully respect human dignity. The CJEU stated that it is for the Member States to provide in their domestic legal system for the appropriate legal remedies in order to ensure, in compliance with Article 47 of the Charter, the protection of persons claiming the rights derived from Article 6 of the Schengen Border Code. Although this case concerned a person entering the Schengen territory on the basis of a visa, the judgment also applies to refugees who submit applications for international protection at the border.

The Visa Code [27]

Article 1 of the Visa Code states that this Regulation establishes the procedures and conditions for issuing visas for transit through or intended stays in the territory of the Member States not exceeding three months in any six-month period.

Recital (29) of the Visa Code reads that the Regulation respects fundamental rights and observes the principles recognised in particular by the Council of Europe’s Convention for the Protection of Human Rights and Fundamental Freedoms and by the Charter of Fundamental Rights of the European Union.

Article 25 of the Visa Code provides for the possibility to issue visa with limited territorial validity, in case the Member State concerned considers it necessary on humanitarian grounds,for reasons of national interest or because of international obligations. In its judgment X and X, C-638/16 PPU,the CJEU dealt with the case of Syrian nationals, who submitted applications for visas on the basis of Article 25(1)(a) of the Visa Code. They submitted applications with a view to applying for asylum in Belgium, immediately upon their arrival and, thereafter, to being granted a residence permit with a period of validity not limited to 90 days. The CJEU stated that such an application falls outside the scope of the Visa Code, in particular Article 25(1)(a) thereof. For that reason the provisions of the Charter (in particular, Articles 4 and 18 thereof) do not apply to such situation.