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On 21 April 2026, the Council of State ruled on the lawfulness of the prohibition of access to classified information in the case of a Syrian national who was granted refugee status in 2017 and was later subject to a revocation procedure based on classified information indicating that the applicant posed danger to the national security of the country.

In the context of the revocation procedure that was initiated, the applicant submitted a request to access the relevant document on the basis of Article 23 (1) of the Asylum Procedures Directive (APD) and Article 76 (4) of Law 4939/2022. The request was rejected due to the confidential nature of the information the document contained. Eventually, the relevant department of the Asylum Authority issued a decision revoking the person’s refugee status. Following an appeal against the revocation decision, the Appeals Committee was able to examine the classified document and confirmed the existence of revocation grounds rejecting the appeal. The applicant sought to annul that second decision before the Athens Administrative Court and the annulment application was referred to the Council of State as it concerned a matter of general interest that affects many individuals. 

The Council of State examined the relevant provisions of EU primary law, including Articles 78, 72 and 73 of the Treaty on the Functioning of the European Union and the EU Charter of Fundamental Rights, in particular Articles 18, 19, and 47. It emphasised the jurisprudence of the Court of Justice of the EU which has found that the right of defence is not absolute but any limitations to it may not nullify the very essence of Article 47. Referring to Case C-159/21, the Council of State held that, although Member States may withhold classified information where disclosure would endanger national security, they must nevertheless ensure respect for the rights of defence. At a minimum, the person concerned must be informed of the substance of the reasons underlying the decision so that they can effectively challenge it. Therefore, the provision of Article 76 (4) of Law 4939/2022, which allows the relevant authority to prohibit access to classified information where national security grounds exist, cannot be interpreted as precluding access to the essence of the grounds that justified the revocation decision.

The Council of State also held that refugee status may be withdrawn on national security grounds and accompanied by a return decision, but the two assessments remain legally distinct. Even after the withdrawal of status, the person may still qualify as a refugee under international and EU law and therefore continue to benefit from the principle of non-refoulement under Article 18 and 19 CFREU and Article 5 of the Return Directive. Accordingly, the national authorities must ensure at every stage of the return process that the individual is not returned to a country where they face a real risk of persecution, torture, or inhuman or degrading treatment, on the basis of an individualised and up-to-date assessment.

On 11 June 2026, the Advocate General Laila Medina delivered her opinion in the Joined Cases C-706/25 and C-707/25 (Comeri and Sidilli). The cases concerned the compatibility of the Italian legislation implementing the Italy–Albania bilateral agreement, which allows the transfer of third-country nationals to detention facilities located in Albanian territory for the purposes of asylum border and return procedures, with EU law, in particular with Directive 2013/32/EU (the recast ‘Asylum Procedures Directive’ (APD)), Directive 2013/33/EU (the recast Reception Conditions Directive (RCD)), and Article 3(2) TFEU.

The Advocate General considered that EU law does not preclude Member States from locating detention facilities for asylum applicants outside the territory of the European Union, provided that those facilities are under the effective and exclusive jurisdiction of that Member State. In such circumstances, the areas concerned must be regarded as falling within the “territory of a Member State” for the purposes of Directives 2013/32 and 2013/33, which therefore apply in full.

She recalled that the grounds for detention listed in Article 8(3) of RCD are exhaustive, and Member States may not introduce additional grounds for detention. She considered that the Italian legislation relied on grounds already recognised by EU law and therefore did not infringe that requirement. However, the Protocol and the implementing legislation are liable to alter the effectiveness of several procedural guarantees harmonised by EU law. In particular, concerns arise regarding the access to legal assistance and judicial protection because of the geographical separation between lawyers and applicants and the systematic use of remote hearings, the confidentiality of lawyer–client communications, the reimbursement for lawyers’ travel costs to Albania, and the rights of communication and visiting for family members.  The Advocate General noted that applicants cannot leave the Albanian facilities by their own means and the legislation does not regulate their return transfer to Italy. This is at odds with the requirement under Directive 2013/33 that detention ceases immediately once its validity ends.

She therefore concluded that detention outside EU territory is not, in itself, incompatible with EU law. However, Article 3(2) TFEU precludes Member States from concluding  international agreements and adopting national ratification and enforcement measures which alter the practical scope of the minimum procedural guarantees harmonised by Article 9(3), (4) and (6) of Directive 2013/33, read in conjunction with Article 22(1) of Directive 2013/32, interpreted in the light of Article 47 of the Charter of fundamental rights of the European Union.

On 4 June 2026 the Advocate General delivered her opinion on Case C-553/24, (Assemblée nationale v Parliament and Council), arising from an action brought before the Court of Justice of the European Union (CJEU) by the National Assembly of the French Parliament seeking annulment of Regulation (EU) 2024/1351 on asylum and migration management in whole or, in the alternative, in the section which concerns the solidarity mechanism.

The National Assembly argued that the relocation regime under the solidarity mechanism of that Regulation exceeds the competences of the EU and infringes the principle of subsidiarity enshrined in Articles 4 and 5 of the Treaty of the European Union (TEU).

The Advocate General recalls that an action under Article 8 of Protocol No 2 is strictly limited to alleged infringements of the principle of subsidiarity, which must be distinguished from the principles of conferral and proportionality governing the division and exercise of EU competences. Applying this distinction, she considers that the first four claims of the National Assembly are inadmissible as they fall within the scope of conferral and proportionality rather than subsidiarity. By contrast, the fifth claim is admissible as it concerns whether Member States could have sufficiently addressed migratory pressure on their own and whether EU-level action was therefore necessary.

As regards the substance of the case, the Advocate General considers that the National Assembly’s subsidiarity claim is unfounded. She notes that Regulation (EU) 2024/1351 seeks to address cross-border challenges relating to asylum and migration management, including migratory pressure on certain Member States and the absence of an effective mechanism for the fair sharing of responsibility required under Article 80 TFEU. In her view, the introduction of a mandatory solidarity mechanism could only be effectively achieved at EU level. She further finds that the Regulation, the Commission proposal and the accompanying legislative materials provide sufficient justification for EU intervention, demonstrating that the objectives pursued could not be satisfactorily achieved by Member States acting alone. Accordingly, she concludes that the Regulation complies with the principle of subsidiarity and proposes that the Court dismiss the National Assembly’s sole admissible claim as unfounded.

On 23 April 2026, the Advocate General Emiliou delivered his opinion in Case C‑414/25 (Sedrata) following a request for a preliminary ruling by the Supreme Court of Cassation, Italy (Corte suprema di cassazione). The case concerned the compatibility of the Italian legislation implementing the Italy-Albania bilateral agreement, which allows the transfer of third-country nationals to facilities located in Albanian territory for the purposes of border and return procedures, with EU law, in particular with the provisions of Directive 2008/115/EC (the Return Directive) and of Directive 2013/32/EU (the recast Asylum Procedures Directive).

The Advocate General considered that the Return Directive does not, in principle, preclude national legislation permitting the transfer of third-country nationals to detention facilities located in a third State, provided that those facilities remain under the jurisdiction of the Member State concerned and that EU law continues to apply in full. However, he stressed that such arrangements are compatible with the Return Directive only insofar as they do not undermine its effectiveness or the rights it guarantees. In particular, the competent authorities must ensure access to legal assistance and communication with legal representatives and family members, guarantee that detention is ended without undue delay where the legal conditions are no longer met and comply with the specific safeguards applicable to children and other vulnerable persons. He further noted that the geographical location of detention facilities may require appropriate organisational and logistical measures to ensure that these guarantees are effectively secured in practice.

Furthermore, the Advocate General considered that Article 9 (1) of the rAPD does not, in principle, preclude national legislation allowing the detention of a third-country national subject to return procedures in facilities located in a third State, where that person lodges an application for international protection while being held there. He explained that EU law does not require Member States to organise border or return procedures exclusively within their territory. For that reason, the requirement that applicants must be allowed to “remain in the Member State” must be understood in a way that it covers situations falling under the jurisdiction of the Member State, even if they take place outside its physical territory. However, he stressed that this approach is only acceptable if the national legislation ensures full respect for the procedural guarantees laid down in the Directive, especially that applicants must have access to information and legal assistance, be able to participate effectively in the procedure and, where necessary, appear before the competent authorities, while also benefiting from the specific safeguards applicable to vulnerable persons. He also stressed that detention-related guarantees, including judicial review, must be fully respected.

Finally, the Advocate General emphasised that Member States cannot circumvent their obligations under EU law by transferring individuals to facilities outside their territory, and that they remain fully responsible for ensuring compliance with EU rules and fundamental rights, including those guaranteed by the Charter of Fundamental Rights of the European Union.

On 24 March 2026, the Court of Justice of the European Union (CJEU) delivered its judgment in the Case C‑767/23 (Remling). The case arose from a request for a preliminary ruling by the Administrative Jurisdiction Division of the Council of State, Netherlands (Afdeling bestuursrechtspraak van de Raad van State) regarding the interpretation of Article 267 TFEU in the light of Article 47 of the EU Charter of Fundamental Rights, on whether a court of last instance may refuse to make a reference for a preliminary ruling by means of summary reasoning without specifying the applicable exceptions.

The Court reiterated that, where there is no judicial remedy under national law against the decisions of a court or tribunal of a Member State, that court or tribunal are in principle obliged, under the third paragraph of Article 267 TFEU, to refer questions concerning the interpretation or validity of EU law to the Court of Justice. That obligation may be relieved only in a situation corresponding to one of the Cilfit exceptions: (i) where the question of EU law is irrelevant to the resolution of the dispute, (ii) where the provision of EU law has already been interpreted by the Court, or (iii) where the correct interpretation of EU law is so obvious as to leave no scope for reasonable doubt.

Thus, the Court held that where a court of last instance considers that one of those exceptions applies, it must, in accordance with Article 267 TFEU read in the light of Article 47 of the Charter, state the reasons for its decision by setting out specifically and concretely, why the relevant exception is applicable in the circumstances of the case. That obligation applies irrespective of whether the parties have expressly requested a preliminary ruling as long as a question of EU law is raised. National legislation permitting courts to decide by means of summary reasoning for the sound administration of justice does not relieve them of the obligation to provide specific and concrete reasons. A decision merely stating that the conditions for summary reasoning are satisfied is insufficient. However, a court of last instance may, where appropriate, rely on the reasoning of a lower court, provided that the latter has set out the grounds justifying the application of one of the Cilfit exceptions.

On 5 March 2026, the Court of Justice of the European Union (CJEU) delivered its judgment in the Case C-458/24 (Daraa). The case arose from a request for a preliminary ruling by the Administrative Court of Sigmaringen, Germany (Verwaltungsgericht Sigmaringen) concerning the interpretation of the Dublin III Regulation and Directive 2013/32 in a situation where the Member State responsible for examining an asylum application unilaterally suspends transfers.

The Court held that the second and third subparagraphs of Article 3(2) of the Dublin Regulation should be interpreted as meaning that a unilateral suspension by the Member State responsible of take-charge or take-back procedures does not require the determining Member State to continue applying the Charter III criteria, nor to assume responsibility itself. Article 3(2) applies only where two cumulative conditions are met: (i) the existence of systemic flaws in the asylum procedure or reception conditions and (ii) a resulting risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights of the European Union. A unilateral suspension does not, in itself, satisfy those conditions and cannot be treated as evidence of such flaws. Consequently, no additional or implicit condition relating to the willingness of the responsible Member State may be inferred from that provision.

As regards Article 29(1) and (2) of the Dublin Regulation, the Court held that the six-month time limit for carrying out a transfer continues to apply irrespective of the reasons preventing the transfer. Under Article 29(2), where the transfer is not carried out within that period, responsibility automatically passes to the requesting Member State. That transfer of responsibility is unconditional and does not depend on the conduct of the Member State initially responsible, including situations where the failure to transfer results from that State’s unilateral suspension of cooperation. The Regulation does not provide for suspension or interruption of that time limit, and extensions are limited to the situations expressly provided for in Article 29(2). The Court further clarified that, during the running of the transfer period, the Member State initially designated as responsible remains bound by its obligations under the Regulation, and Member States must cooperate to carry out the transfer. However, a failure by one Member State to comply with its obligations cannot justify non-compliance by another; remedies lie in infringement proceedings under Articles 258 and 259 TFEU.

Finally, the Court interpreted Article 33(1) and (2) of Directive 2013/32 as precluding a Member State from rejecting an application for international protection as inadmissible on the ground that the Member State responsible is unwilling to take charge or take back the applicant. The grounds for inadmissibility listed in Article 33(2) are exhaustive and must be interpreted strictly, and such a situation is not included among them.

On 5 March 2026, the Advocate General Rimvydas Norkus issued his opinion in the case C-819/25 (PPU) [Gonrieh]. The case related to the preliminary reference by the French-speaking Brussels Court of First Instance (Tribunal de première instance francophone de Bruxelles) regarding the scope of the Directive 2003/86/EC on the right to family reunification (the FRD), concerning the granting of a visa for family reunification which requires the beneficiary to appear in person for its issuance, while the person is unable to leave the third country where they reside and is facing life-threatening conditions. The questions referred enquired whether EU law applies only to the decision to grant the visa, or also to ensure that the person can effectively receive it and, whether Member States are obliged to provide assistance to enable the beneficiary to obtain the visa under such circumstances, including where their physical departure from the third country is impossible due to imminent danger.

The Advocate General considers that the implementation of EU law does not conclude with the decision of granting the visa. Relying on Article 13(1) of the FRD, which requires Member States to authorise entry and to grant “every facility for obtaining the required visas”, he concludes that the obligation extends until the issuance of the visa. That provision, read in light of the objective of the Directive to ensure the effectiveness of family reunification and recital 13 requiring efficient procedures, imposes a duty of active and continuous administrative cooperation. Accordingly, where a Member State requires the beneficiary’s personal appearance to verify identity, EU law and therefore the Charter of Fundamental Rights of the European Union, pursuant to Article 51(1) thereof, applies until the administrative formalities necessary for issuing the visa are completed. Limiting EU law to the mere approval of the visa would undermine the effectiveness of the right to family reunification.

However, the Advocate General makes a distinction between administrative facilitation and diplomatic or consular intervention. He considers that Article 13(1) does not require a Member State which has granted visas to nationals of a third country in the context of family reunification to include them in an evacuation process put in place by that Member State or to inform the authorities of any third country preventing these beneficiaries from travelling to the Union that the latter have a visa to stay in the Member State in question.  Accordingly, while Article 13(1) of Directive 2003/86 requires Member States to grant every facility for obtaining the required visas and to ensure through effective administrative measures that the visa is actually issued, it does not impose an obligation to adopt external, diplomatic or evacuation measures to secure the beneficiaries’ departure from a third country.

Unofficial translation by the EWLU team

On 23 January 2026, the Committee Against Torture of the United Nations (CAT) published its decision in the Communication No. 1079/2021 submitted by A.A. against Australia. The communication concerns the lawfulness of prolonged detention in Australia and at the Manus Regional Processing Centre in Papua New Guinea, and the possible accountability of Australia for alleged violations of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (hereinafter, the Convention).

The complainant, an Iranian national, arrived in Australia in July 2013 and was transferred under a migration cooperation agreement to the Manus Detention Centre in Papua New Guinea, where he was subjected to harsh detention conditions and torture. He was temporarily returned to Australia in 2019 for medical treatment but remained detained administratively until 2022. The applicant claimed that his detention in both Australia and Papua New Guinea was inhuman and degrading and caused him severe physical and mental suffering.

The Committee found that the complainant suffered torture and inhuman treatment while detained at the Manus Regional Processing Centre in Papua New Guinea. Although these acts occurred outside Australian territory, the Committee noted that Australia exercised effective control over the detention system through its central role in designing the migration arrangements, providing full funding, and establishing the overall framework and operational structure of the centre. Even if direct operational control by Australian agents was absent, the Committee held that Australia remained responsible, reflecting both the principle of effective control and the doctrine of joint responsibility under international law. It further observed that Australia failed to take measures to prevent acts of torture, to investigate and punish abuses, and to ensure adequate medical care during his detention, hence constituting a violation of Article 2(1), read in conjunction with Article 1(1) of the Convention.

The Committee also found that the complainant’s administrative detention in Australia was not justified, necessary, or proportionate, and lacked adequate review, thereby amounting to inhuman and degrading treatment, in violation of Article 16(1) of the Convention.
Finally, the Committee recommended that Australia provide the complainant with redress, including compensation, rehabilitation, and guarantees of non-repetition, and take measures to prevent similar violations in the future.