Judging the Charter
The Charter in judicial practise with a special focus on the case of protection of refugees and asylum seekers
The Asylum Procedures Directive, with the Qualification Directive (Article 4) and the Dublin III Regulation, regulates the mechanisms to be applied for treating asylum and subsidiary protection applications within the Common European Asylum System (CEAS).
The Directive on minimum standards on procedures in Member States for granting and withdrawing refugee status (Asylum Procedures Directive) was first adopted by the Council on December 1st, 2005. After almost a decade from its adoption, the number of exceptions allowed to Member States, and the proliferation of different schemes within the European Union, led the European Parliament and the Council to adopt Directive 2013/32/EU of 26 June 2013 on common procedures for granting and withdrawing international protection (recast).
The 2013 Asylum Procedures Directive sets clearer rules for the submission of an asylum application, provides for specific clauses on asylum procedures at the borders, and indicates quicker and more efficient procedures, establishing that an asylum procedure should not last more than six months.
The scope of the recast Directive is broader than that of the previous Directive. It covers applications for international protection lodged in the territory and at the border, but also in the territorial waters and in the transit zones of the Member States (Article 3.1). In the case of applications made in territorial waters, the Member States should guarantee that applicants are given access to their territory and that their applications are examined in accordance with the Directive (Recital 26). In contrast, what a Member State does in an adjoining area, or in the high seas, does not seem to fall within the scope of the Directive. However, it should be recalled that rescue operations in high seas carried out by Frontex or by the Member States implementing the Schengen Borders Code should abide by the Charter of Fundamental Rights, guaranteeing, in particular, the prohibition of any form of torture and inhumane or degrading punishment or treatment (Article 4), the right to asylum (Article 18), and the prohibition of refoulement (Article 19).
As regards decisions on asylum applications, the new Directive reaffirms that applications should be examined individually (Article 10.3(a)), and provides, among other things, that a determining authority responsible for the examination of applications should be designated (Article 4) and that the personnel of such an authority should be properly trained (Article 4.3). Moreover, under the recast Directive, the registration of an application should take no more than three working days after the application is made (Article 6).
The Directive also establishes who may make an application for international protection and in which circumstances, including on behalfof dependants or minors (Article 7), the obligation for states to provide for informationand counselling in detention facilities and at border crossing points (Article 8), and theright of applicants to remain in Member States, where the examination of their application is pending (Article 9).
Decisions on asylum applications should be given in writing (Article 11.1) and, when an application is rejected, the reasons in fact and in law should be stated in the decision. Applicants have the right to an effective remedy before a court or tribunal against a rejection decision (Article 46). This remedy should provide for a complete and ex nunc examination of both facts and points of law, including, where applicable, an examination of international protection needs pursuant to Directive 2011/95/UE, at least in the appeals procedures before a court or tribunal of first instance (Article 46.3).
In assessing applications and appeals, national courts should take into account the general principles of EU law on access to justice and, in particular, Articles 2 and 6 of the Treaty of European Union (TEU) and Articles 18, 20, 21, 47, and 51—53 of the Charter of Fundamental Rights of the European Union.
The right to an effective remedy, as set out in Article 47 of the Charter, and the principle of effectiveness limit the possibility of Member States to take advantage of exceptions to the right to remain in the state concerned.
A judgment in the case Tall (C-239/14) was adopted by the CJEU on 17 December 2015. 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. For these reasons, the referring court asked the CJEU whether Article 39 of Directive 2005/85, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union, is to be interpreted as precluding national legislation which does not confer suspensory effect upon 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.
As regards the substance of the case, the 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 of Fundamental Rights of the European Union, 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).
Case (C-348/16) refers to a Malian, who arrived in Italy in 2015 and submitted an application for international protection. On 10 March 2016 he was interviewed by the Regional Commission for the grant of international protection, that rejected his application. On 3 May 2016 Mr Sacko lodged an appeal against the decision of the Commission, but the Tribunale di Milano considered the application as manifestly unfounded. Under the Italian law in force at that time, the judge could follow two procedural patterns: it could hold a hearing with the parties or opt for deciding without hearing the applicant, when he/she found that the solution that could be reached on the basis of the evidence existing in the case file would be no different even if a further interview would be conducted with the applicant.
The referring court indicated that it was minded to dismiss Mr Sacko’s appeal as manifestly unfounded, without first giving him the opportunity to be heard. However, as it entertained doubts as to whether that approach was compatible with EU law, the Tribunale di Milano decided to stay proceedings and to refer to the CJEU for a preliminary ruling. In particular, the Tribunale asked the court, if Directive 2013/32 (in particular, Articles 12, 14, 31 and 46) must be interpreted as permitting a procedure, such as the Italian procedure (under Article 19.9 of Legislative Decree No 150 of 2011), whereby a judicial authority seized by an asylum-seeker — whose application has been rejected by the administrative authority responsible for considering applications for asylum after it has conducted a full examination, including an interview — may, in cases where the application for judicial review is manifestly unfounded and the administrative authority’s rejection of the application is thus incontrovertible, dismiss the application for judicial review without preparatory inquiries and without being required to afford the applicant a further opportunity to be heard?
The Court considered that fundamental rights, such as respect for the rights of the defence, which includes the right to be heard, do not constitute unfettered prerogatives and may be restricted, provided that the restrictions in fact correspond to objectives of general interest pursued by the measure in question and that they do not entail, with regard to the objectives pursued, a disproportionate and intolerable interference which infringes upon the very substance of the rights guaranteed (para 38). The Court also noted that an interpretation of the right to be heard, guaranteed by Article 47 of the Charter, to the effect that it is not an absolute right is confirmed by the case-law of the European Court of Human Rights, in the light of which Article 47 of the Charter must be interpreted, as the first and second paragraphs of that Article correspond to Article 6(1) and Article 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 (para 39).
In the light of those considerations, the Court stated that the Directive 2013/32, in particular Articles 12, 14, 31 and 46 thereof, read in the light of Article 47 of the Charter, must be interpreted as not precluding the national court or tribunal hearing an appeal against a decision rejecting a manifestly unfounded application for international protection from dismissing the appeal without hearing the applicant where the factual circumstances leave no doubt as to whether that decision was well founded, on condition that, first, during the proceedings at first instance, the applicant was given the opportunity of a personal interview on his or her application for international protection, in accordance with Article 14 of the directive, and the report or transcript of the interview, if an interview was conducted, was placed on the case-file, in accordance with Article 17(2) of the directive, and, second, the court hearing the appeal may order that a hearing be conducted if it considers it necessary for the purpose of ensuring that there is a full and ex nunc examination of both facts and points of law, as required under Article 46(3) of the directive (para 49).
In the case of Mr Gnandi (C-181/16), adopted by the CJEU on 19 June 2018, a Togolese national, submitted an application for international protection to the Belgian authorities, which was rejected. Subsequently, the Belgian authorities issued a return decision against Mr Gnandi. Mr Gnandi brought an appeal against the decision on asylum refusal and requested the annulment and suspension of execution of the order requiring him to leave the territory.
Both appeals were dismissed by the Council for Asylum and Immigration Proceedings in two separate judgments. Mr Gnandi brought an appeal against those two judgments before the Council of State, which set aside the judgment of the Council for Asylum and Immigration Proceedings on asylum refusal and referred the case back to it. In the case concerning the order to leave the territory the Council of State decided to refer the case to the CJEU.
The legal question considered by the CJEU was, whether Directive 2008/115, read in conjunction with Directive 2005/85 and in the light of the principle of non-refoulement and the right to an effective remedy, enshrined in Article 18, Article 19(2) and Article 47 of the Charter, must be interpreted as precluding the adoption of a return decision under Article 6(1) of Directive 2008/115 in relation to a third-country national, who has applied for international protection, immediately after the rejection of that application by the determining authority, and thus before the conclusion of any appeal proceedings brought against that rejection.
The CJEU held, that a third-country national is staying illegally, within the meaning of the Return Directive 2008/115, as soon as his application for international protection is rejected at first instance by the determining authority, irrespective of the existence of an authorisation to remain and the outcome of an appeal against that rejection pending.
The Court stated however, that Directive 2008/115, read in conjunction with Directive 2005/85 and in the light of the principle of non-refoulement and the right to an effective remedy, enshrined in Article 18, Article 19(2) and Article 47 of the Charter, must be interpreted as not precluding the adoption of a return decision in respect of a third-country national whose application for international protection was rejected by the determining authority, and thus before the conclusion of any appeal proceedings brought against that rejection.
However, the Member States should ensure the full effectiveness of an appeal against a decision rejecting an application for international protection, in accordance with the principle of equality of arms, which means, inter alia, that all the effects of the return decision must be suspended until the decision on the appeal.
In that regard, it is not sufficient for the Member State concerned to refrain from enforcing the return decision. Pending the outcome of an appeal, the person concerned must be entitled to benefit from the rights arising under Reception Directive 2003/9 i.a. — an applicant must be allowed to remain, pending the outcome of an appeal against that rejection. The period granted for voluntary departure should not start to run as long as the person concerned is allowed to remain. In addition, during that period, that person may not be held in detention with a view to removal. Furthermore, Member States are required to allow the person concerned to rely on any change in circumstances that occurred after the adoption of the return decision, and that may have a significant bearing on the assessment of his situation under Returns Directive. Member States also must ensure that return procedures are fair and transparent.
Most CJEU preliminary rulings on the interpretation of the Asylum Procedures Directive do not make reference to the Charter of Fundamental Rights. When reference to the Charter is made, this instrument has been used by the Court for the interpretation and the examination of the substance of a case (H.I.D. and B.A., C-175/11; Samba Diouf, C-69/10), or in the conclusions (Tall, C-239/14; Sacko Moussa, C-348/16, Gnandi C-181/16). In all the cases identified, reference is made to Article 47, "Right to an effective remedy and to a fair trial". In Tall and in Gnandi, however, reference was also made to Article 19, "Protection in the event of removal, expulsion or extradition", paragraph 2, "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". In Gnandi the CJEU made also reference to Article 18 of the Charter, to which he does not refer too often in its case law.
Finally, it can be stated that the Charter could assume a more prominent role in order to interpret the Procedure Directive. In this respect, it would seem useful that also referring Courts refer to the Charter in their preliminary ruling — as was in Tall, where the reference to the Charter of Fundamental Rights was made in the request for a preliminary ruling submitted by a Belgian Court.
It should be also remembered that following the increase in migration flows and the crisis in the Common European Asylum System the Commission proposed to replace the Asylum Procedures Directive with a Regulation. With this Proposal, the whole procedure is shorter and simplified. In particular, the Proposal provides that the examination procedure should last for a period of no more than six months, which may be extended by a period of three months (Article 34, paras 2-3).
The introduction of strict time limits at all stages of the procedure is considered necessary by the Commission in order to simplify the procedures and increase their effectiveness. Clearly, the Commission made an effort to strike a balance between the right to have an application examined within a reasonable time limit and the rights to an effective remedy and to defence. This is why the Commission has stressed that the proposed restrictions respect the fundamental rights recognised in the Charter (para 79 of the Proposal), such as the right to human dignity (Article 1), the prohibition of torture and inhuman or degrading treatment or punishment (Article 4), the right to protection of personal data (Article 8), the right to asylum (Article 18), protection in the event of removal, expulsion or extradition (Article 19), non-discrimination (Article 21), equality between women and men (Article 23), the rights of the child (Article 24), and the right to an effective remedy and to a fair trial (Article 47).