CJEU - C-69/10, Brahim Samba Diouf v. Ministre du Travail, de l’Emploi et de l’Immigration

Facts:

The Applicant applied for international protection in Luxembourg, alleging that he fled slavery in Mauritania and persecution by his former employer. His application was dealt with under an accelerated procedure, and was rejected as unfounded, and his removal was ordered.

He was informed that his placement under the accelerated procedure was due to (a) he clearly did not qualify for the status conferred by international protection and (b) he had misled the authorities by presenting false information or documents.

His application was rejected because (a) he presented a forged passport, (b) his application reasons were economic, and not in line with international protection criteria, (c) his fear of persecution by his former employer did not have a political ethnic or religious basis, (d) his fear was hypothetical and not established, (e) Mauritania criminalised slavery with a punishment of up to 10 years imprisonment.

The Applicant brought an action in the Tribunal Administratif seeking annulment of the decision to place him under the accelerated procedure. The Tribunal took issue with the fact that under Luxembourg law, such a decision, unlike the substantive decision to grant or refuse protection, is not open to any appeal, which raises questions concerning the right to an effective remedy under Article 39 of the Procedures Directive. The accelerated procedure (a) reduces the time-limit for bringing an action against the substantive decision from 1 month to 15 days, and (b) the judicial remedy entails only one level of jurisdiction, rather than two.

The position of the Luxembourg government was that the decision to place under the accelerated procedure can indirectly be reviewed by the Tribunal when it considers an appeal to the final substantive decision. The Tribunal in these proceedings rejected this argument because it appeared to run against the intention of the legislature to exempt the procedural decision from judicial review.

The Tribunal referred the following two questions to the CJEU:

1. Is Article 39 of Directive 2005/85/EC to be interpreted as precluding national rules such as those established in the Grand Duchy of Luxembourg by Article 20(5) of the … Law [of 5 May 2006], pursuant to which an applicant for asylum does not have a right to appeal to a court against the administrative authority’s decision to rule on the merits of the application for international protection under the accelerated procedure?

2. If the answer [to the first question] is in the negative, is the general principle of an effective remedy under Community law, prompted by Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950, to be interpreted as precluding national rules such as those established in the Grand Duchy of Luxembourg by Article 20(5) of the … Law [of 5 May 2006], pursuant to which an applicant for asylum does not have a right to appeal to a court against the administrative authority’s decision to rule on the merits of the application for international protection under the accelerated procedure?’

Decision & reasoning:

The Court notes that Article 39 of the Procedures Directive requires that applicants must have the right to an effective remedy against decisions ‘taken on their application for asylum’. However, Article 39 covers ‘a series of decisions which, because they entail rejection of an application for asylum or are taken at the border, amount to a final decision rejecting the application on the substance’ [41]. ‘It follows that decisions that are preparatory to the decision on the substance or decisions pertaining to the organisation of the procedure are not covered by that provision’ [43]. Accordingly the Court concluded that ‘Article 39(1) … must be interpreted as not requiring national law to provide for a specific or separate remedy against a decision to examine an application for asylum under an accelerated procedure’ [45]. The Court agreed with the AG’s Opinion that a contrary conclusion ‘would not be consistent with the interest in the expediency of procedures relating to applications for asylum’.

The Court went on to rule that ‘the absence of a remedy at that stage of the procedure does not constitute an infringement of the right to an effective remedy, provided, however, that the legality of the final decision adopted in an accelerated procedure – and, in particular, the reasons which led the competent authority to reject the application for asylum as unfounded – may be the subject of a thorough review by the national court, within the framework of an action against the decision rejecting the application’ [56] (emphasis added).

What is important, according to the Court, is that ‘the reasons justifying the use of an accelerated procedure may be effectively challenged at a later stage before the national court and reviewed by it within the framework of the action that may be brought against the final decision closing the procedure relating to the application for asylum’ [58]. In essence, judicial review of a decision to place on the accelerated procedure must not be wholly precluded, but may be delayed until the review of the substantive final decision.

The Court argued that it was within the framework of the right to an effective remedy ‘that the national court hearing the case must establish whether the decision to examine an application for asylum under an accelerated procedure was taken in compliance with the procedures and basic guarantees’ [61] of the Procedures Directive.

Regarding the 15 day appeal limit applied by the accelerated procedure, the Court noted that it ‘does not seem, generally, to be insufficient in practical terms to prepare and bring an effective action and appears reasonable and proportionate in relation to the rights and interests involved’ [67]. However, the Court ultimately stated it was for the national court to determine whether 15 days was insufficient in a given situation.

On the single level of jurisdiction issue, the Court summarily noted that the Procedures Directive does not require two levels of jurisdiction in any judicial remedy.

Outcome:

The Court thereby ruled that:

On a proper construction, Article 39 of Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status, and the principle of effective judicial protection, do not preclude national rules such as those at issue in the main proceedings, under which no separate action may be brought against the decision of the competent national authority to deal with an application for asylum under an accelerated procedure, provided that the reasons which led that authority to examine the merits of the application under such a procedure can in fact be subject to judicial review in the action which may be brought against the final decision rejecting the application – a matter which falls to be determined by the referring court.

Observations/comments:

The judgment of the Court is in agreement with the Opinion of Advocate General Villalon, delivered on 1 March 2011, available here.

Other sources:

Luxembourg - Judgment of the Cour Administrative of 16 January 2007 (No 22095 C)C-279