Belgium - Council of State, 8 March 2016, Nr. 234.074
Keywords:
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Effective access to procedures
Description
Effective access to legal and administrative procedures undertaken by UNHCR and/or States in accordance with the Asylum Procedures Directive to determine whether an individual should be recognized as a refugee in accordance with national and international law. |
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Effective remedy (right to)
Description
A general principle of EU law now set out in Article 47 of the Charter of Fundamental Rights: "Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.” “[It] is based on Article 13 of the ECHR: ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’ However, in Community law the protection is more extensive since it guarantees the right to an effective remedy before a court. The Court of Justice enshrined the principle in its judgment of 15 May 1986 (Case 222/84 Johnston [1986] ECR 1651; see also judgment of 15 October 1987, Case 222/86 Heylens [1987] ECR 4097 and judgment of 3 December 1992, Case C-97/91 Borelli [1992] ECR I-6313. According to the Court, this principle also applies to the Member States when they are implementing Community law. The inclusion of this precedent in the Charter is not intended to change the appeal system laid down by the Treaties, and particularly the rules relating to admissibility. This principle is therefore to be implemented according to the procedures laid down in the Treaties. It applies to the institutions of the Union and of Member States when they are implementing Union law and does so for all rights guaranteed by Union law.” |
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Non-refoulement
Description
A core principle of international Refugee Law that prohibits States from returning refugees in any manner whatsoever to countries or territories in which their lives or freedom may be threatened. Note: The principle of non-refoulement is a part of customary international law and is therefore binding on all States, whether or not they are parties to the Geneva Convention. |
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Procedural guarantees
Description
“In the interests of a correct recognition of those persons in need of protection … every applicant should, subject to certain exceptions, have an effective access to procedures, the opportunity to cooperate and properly communicate with the competent authorities so as to present the relevant facts of his/her case and sufficient procedural guarantees to pursue his/her case throughout all stages of the procedure.” Procedures should satisfy certain basic requirements, which reflect the special situation of the applicant for refugee status, and which would ensure that the applicant is provided with certain essential guarantees. Some of these basic requirements are set out in on p.31 of the UNHCR Handbook as well as the APD Arts. 10, 17 and 34 and include: a personal interview, the right to legal assistance and representation, specific guarantees for vulnerable persons and regarding the examination procedure, and those guarantees set out in the Asylum Procedures Directive. |
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Right to remain pending a decision (Suspensive effect)
Description
According to Asylum Procedures Directive, Article 7 "Applicants shall be allowed to remain in the Member State, for the sole purpose of the procedure, until the determining authority has made a decision in accordance with the procedures at first instance set out in Chapter III. This right to remain shall not constitute an entitlement to a residence permit. Member States can make an exception only where, in accordance with Articles 32 and 34, a subsequent application will not be further examined or where they will surrender or extradite, as appropriate, a person either to another Member State pursuant to obligations in accordance with a European arrest warrant or otherwise, or to a third country, or to international criminal courts or tribunals." Art 39 APD requires applicants for asylum to have the right to an effective remedy before a court or tribunal, against a number of listed decisions. Member States must, where appropriate, provide for rules in accordance with their international obligations dealing with the question of whether the remedy shall have the effect of allowing applicants to remain in the Member State concerned pending its outcome. |
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Final decision
Description
A decision on whether the third-country national or stateless person be granted refugee status by virtue of the Qualification Directive and which is no longer subject to a remedy within the framework of the Asylum Procedures Directive Chapter V (concerning appeals procedures and the right to an effective remedy) irrespective of whether such remedy has the effect of allowing applicants to remain in the Member States concerned pending its outcome (subject to Annex III which is particular to Spain). |
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Return
Description
"In the context of the Return Directive (2008/115/EC), the process of going back - whether in voluntary compliance with an obligation to return, or enforced - to: - one's country of origin; or - a country of transit in accordance with EU or bilateral readmission agreements or other arrangements; or - another third country, to which the third-country national concerned voluntarily decides to return and in which he/she will be accepted. There are subcategories of return which can describe the way the return is implemented, e.g. voluntary, forced, assisted and spontaneous return; as well as sub-categories which describe who is participating in the return, e.g. repatriation (for refugees)." |
Headnote:
The Council of State requested a preliminary ruling from the Court of Justice of the European Union (CJEU) on the compatibility of Belgian Law with Article 5 of Directive 2008/115/EC (the “Directive”). The Directive requires Member States to respect the principle of non-refoulement, as well as ensure that there is a right to an effective remedy.
Under Belgian Law, the Commissioner-General for Refugees and Stateless Persons (the “Commissioner”) can dismiss an asylum application and issue an order to leave the territory (“Return Order”), before any judicial appeals or other asylum procedures have been exhausted.
The question in the current case was whether the relevant Belgian legislative provisions were contrary to the Directive. The proceedings were suspended pending a preliminary ruling by the CJEU (C-77/17 and C-78/17).
Facts:
On 14 April 2011, the applicant, a Togolese national, filed an application for asylum. On 23 May 2014, the Commissioner rejected this request.
On 23 June 2014, the applicant appealed to the Council of Aliens Law Litigation (the “Council”) against the original decision. On the same date, the applicant applied for the annulment and suspension of the original decision where the Return Order had been issued.
On 31 October 2014, the Council dismissed the appeal. On 19 November 2014, the applicant appealed against the Council’s judgment.
On 18 May 2015, the applicant applied for a residence permit. On 19 May 2015, the Council dismissed the appeal against the issue of the Return Order.
On 10 November 2015, the State Council quashed the judgment of 31 October 2014 and referred the case back to the Council.
Decision & reasoning:
Admissibility:
Memorandum for Applicant
It did not appear either from the Regulation or from the report to the King that the applicant was obliged to formally reply to all the arguments of the respondent concerning the grounds of appeal, provided that his memorandum was complete and that he adequately structured his arguments.
Legal Interest to appeal
The respondent argued that the applicant had no interest in the appeal because the annulment of the judgment under appeal cannot afford an advantage to the appellant.
The respondent argued that because the Return Order could not be enforced until the Council had ruled on the appeal against the Commissioner's decision, the complainant had no grounds for grievance and thus no legal interest to appeal.
Conversely, the applicant argued that the obligation to leave the territory – although not yet enforceable – caused him grievance.
It was argued that the annulment of the judgment under appeal, which rejected the action for annulment brought against the Return Order, was sufficient to establish legal interest in the appeal.
Exception of inadmissibility raised by the respondent
The applicant submitted that issuing a Return Order after rejecting the asylum application but prior to exhausting all judicial and legal avenues of appeal was contrary to EU law. Issuing the Return Order at this time violated the applicant’s right to have an effective remedy and the principle of non-refoulement, as required by the Directive.
If the Directive prevented the issue of a Return Order prior to exhausting judicial and other remedies against the decision of the Commissioner, the applicant would have sufficient legal interest to quash the judgment under appeal.
The Council of State suspended the proceedings pending the preliminary ruling by the CJEU. Once rendered, the Auditor General would consider its impact on the admissibility of the appeal.
The Council of State referred the following preliminary question to the CJEU:
Are Articles 5 of Directive 2008/115 / EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in the Member States for the return of illegally staying third-country nationals, which requires Member States to comply with the principle of non-refoulement when implementing that directive, as well as the right to an effective remedy provided for in Article 13.1. of the Directive and Article 47 of the Charter of Fundamental Rights of the European Union, to be interpreted as precluding the adoption of a return order as provided for in Article 6 of Directive 2008/115 / EC, cited above, in Article 52/3 (1) of the Law of 15 December 1980 on access to the territory, residence, establishment and removal of aliens and Article 75 (2) of the Royal Decree of 8 October 1981 on access to the territory, residence, establishment and removal of aliens, as soon as the Commissioner-General for Refugees and Stateless Persons has rejected the application for asylum, and thus before the judicial remedies against this rejection decision can be exhausted and before the asylum procedure can be finalised?
Outcome:
The State Council suspended the proceedings pending the preliminary ruling by the CJEU.
Observations/comments:
This case summary was competed by Linklaters LLP.