Case summaries

The Federal Administrative Court (the “Court”) suspended its decision and referred the case to the European Court of Justice (“CJEU”) pursuant to Art. 267 of the Treaty on the Functioning of the European Union (“TFEU”) to obtain a preliminary ruling with regards to the following question:

Do the provisions of Regulation No. 604/2013 (“Dublin-III-Regulation”) 

i)  the obligation of a Member State to (re-)file a request to take back the applicant with another Member State; and

ii) the possible transfer of the responsibility for examining an application,

apply in relation to an applicant who has been deported to the Member State where he had first entered the EU and illegally re-enters the Member State that had filed the request to take back and deported the applicant.

The 6-month period under Art. 29 (1) Dublin-III -Regulation begins after the request by another Member State to take charge or to take back the person concerned has been accepted or the fiction of such acceptance (Art. 29(1) first alternative) or of the final decision on an appeal or review where there is a suspensive effect in accordance with Article 27(3) (Art. 29(1) second alternative). In the second case, the later event determines when the time limit begins to run, unless the time limit for the transfer triggered by the acceptance of the request to take back or to take charge has already expired. In such a case, the latter event is decisive to determine when the period begins, unless the 6-month period triggered by the (deemed) acceptance had already expired. 

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). 

The non-suspensive effect of a decision not to further examine a subsequent application under Article 32 of the 2005 Asylum Procedures Directive is not in violation of Articles 19(2) and 47 of the Charter since the decision’s enforcement will not lead to the applicant being removed and is therefore unlikely to expose the applicant to a risk of inhumane treatment.

This case related to two third country nationals who were ordered to leave the Netherlands, without being granted a period for voluntary departure, on the basis that they constituted a risk to public policy.

The CJEU gave guidance on the meaning of Article 7(4) of the Returns Directive, stating that the concept of a ‘risk to public policy’ should be interpreted strictly with an individualised assessment of the personal conduct of the person. Suspicion or conviction for a criminal offence was a relevant consideration. However, it was unnecessary to conduct a new assessment solely relating to the period for voluntary departure where the person had already been found to constitute a risk to public policy. 

The right to be represented by a lawyer in the context of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 will only apply when an appeal to a return decision has been lodged and free legal assistance will be subject to national domestic legislation. 

This CJEU ruling concerned the interpretation of Article 6 of Directive 2008/115/EC (‘the Return Directive’) in relation to the right to be heard prior to a return decision being made, to return illegally staying third-country nationals.

It was found that where the national authority had explicitly provided for the obligation to leave national territory in cases of illegal stay in its national legislation and the third-country national had properly been heard in the context of the procedure for examining his/her right to stay; the right to be heard did not require the applicant to be given an additional opportunity to present observations prior to the issue of a return decision. 

The Charter of Fundamental Rights of the European Union is also applicable to proceedings to issue a return decision and requires a hearing. With regard to an Applicant who is not represented by anyone legally qualified, such an obligation also exists in cases in which an application for an oral hearing was not expressly lodged. This applies in particular when considering questions concerning private and family life in Austria.

This case concerns the interpretation of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (OJ 2008 L 348, p. 98) and of Article 4(3) TEU.

An asylum application within the meaning of the Asylum Procedures Directive, Article 2, introductory paragraph and Article 2(b), has been made if a foreigner notifies the authorities that he would like to apply for asylum. The provision of the Foreigners Act under which a foreigner who has been declared undesirable has no right to remain is in breach of Article 7 of the Asylum Procedures Directive.

1. The expulsion of a recognised refugee may only take place subject to the requirements of Article 21 (3) in conjunction with (2) and Article 24 (1) of the Qualification Directive.

2. Compelling grounds for public security or order according to Article 24 (1) of the Qualification Directive do not presuppose any outstanding acts of extraordinary danger in support of international terrorism; neither does specific involvement of a sympathiser suffice unless it is characterised by a large degree of continuity and as such shapes and influences the environment of the terrorist organisation.