CJEU - Case C-239/14, Abdoulaye Amadou Tall

Facts:

This case relates to a national of Senegal, Mr Tall, who made a subsequent application for asylum following the rejection of his first claim by the Belgian authorities and courts. The Commissariat-General for Refugees and Stateless Persons refused to take this second application into account. This led to CPAS withdrawing social assistance to Mr Tall. He was later served with an order to leave the territory.

He appealed to CALL against the decision refusing to consider his second application for asylum. At the same time he challenged the decision of CPAS (public social service centre) to withdraw his social assistance before the Labour Court of Liege. The Labour Court found that the only remedy under national law against a decision refusing to take into account a subsequent application was an appeal seeking annulment and suspension under the extreme urgency procedure. It stayed proceedings and requested a preliminary ruling from the CJEU with the following questions:

‘According to Article 39/1 of the Law of 15 December 1980, read in conjunction with [the third subparagraph of Article 39/2(1), Article 39/76, point (d) of the second subparagraph of Article 39/82(4) and Article 57/6/2] of the same law, only appeals seeking annulment and suspension due to extreme urgency may be brought against a decision refusing to consider a multiple asylum claim. Given that in such an appeal the court does not have full jurisdiction to determine issues of fact and law, the appeal does not have suspensory effect and the applicant does not have the right of residence nor to material assistance while it is under consideration, are such appeals compatible with the requirements of Article 47 of the [Charter] and Article 39 of [Directive 2005/85] which lay down the right to an effective remedy?’

Decision & reasoning:

The CJEU first considered the admissibility of the question referred, as since the referral, there had been amendments to domestic law (The Law of 10 April 2014 laying down various provisions concerning the procedure before the Conseil du contentieux des étrangers and before the Conseil d’État), with transitional provisions which meant that Mr Tall’s appeal had suspensory effect and he was entitled to material assistance during its examination. It considered that it was bound to give a ruling in Article 267 TFEU proceedings and that the matter was admissible as the interpretation of EU law sought was still relevant to resolving the dispute, especially as the CJEU had no jurisdiction to give a ruling in relation to the effect of the new domestic provisions.

The CJEU then went onto its analysis as to whether the non-suspensory effect of an appeal against a rejected subsequent application decision was compatible with Article 39 of the Asylum Procedures Directive (APD) 2005 and Article 47 of the Charter. It firstly underlined that Article 39(1)c) obliged Member States to ensure that asylum applicants have the right to an effective remedy before a court or tribunal against a decision not to further examine a subsequent application. However, the Chamber does note that Article 24 of the APD allows for specific procedures derogating from basic guarantees under Chapter II of the Directive, one of which is the decision not to further examine a subsequent application after a preliminary examination. In such a case Article 7(2) sets out an exception to the obligation to permit asylum applicants to remain in the Member State pending examination of the application. As such it was open to Member States to provide that an appeal against such a decision is devoid of suspensory effect.

However, a remedy under Article 39 of the Directive must be determined in a manner consistent with Article 47 of the Charter (Abdida, C‑562/13), which is derived from Article 13 of the ECHR. Moreover, in light of Article 19(2) of the Charter, who has its counterpart Article 3 ECHR, an effective remedy requires that “a remedy enabling suspension of enforcement of the measure authorising removal should, ipso jure, be available to the applicant”. Nonetheless a decision taken under Article 32 of the APD and its enforcement does not lead to the applicant’s removal and so the lack of suspensive effect does not breach Article 19(2) and 47 of the Charter. In contrast, an appeal must have suspensory effect if brought against a return decision which if enforced, could expose the person concerned to a serious risk of being subjected to inhuman or degrading treatment, in view of the requirements of Article 19(2) CFEU, Article 47 CFEU, Article 13 ECHR, and case law from the European courts. 

Outcome:

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, 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.

Observations/comments:

The CJEU judgment was preceded by an Opinion from AG Cruz Villalón who considered that by virtue of the new appeal regime in Belgium, the preliminary reference procedure was rendered hypothetical and devoid of purpose and proposed that the Court consider it inadmissible with no need to rule on the merits.