Article 18 - Right to asylum
Article 19 - Protection in the event of removal, expulsion or extradition
Article 47 - Right to an effective remedy and to a fair trial
Key facts of the case:
Reference for a preliminary ruling — Area of freedom, security and justice — Return of illegally staying third-country nationals — Directive 2008/115/EC — Article 3(2) — Concept of ‘illegal stay’ — Article 6 — Adoption of a return decision before resolution of an appeal against the decision of the determining authority rejecting the application for international protection — Charter of Fundamental Rights of the European Union — Article 18, Article 19(2) and Article 47 — Principle of non-refoulement — Right to an effective remedy — Authorisation to remain in a Member State.
Outcome of the case:
On those grounds, the Court (Grand Chamber) hereby rules:
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, read in conjunction with Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status, and in the light of the principle of non-refoulement and the right to an effective remedy, enshrined in Article 18, Article 19(2) and Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding the adoption of a return decision, under Article 6(1) of Directive 2008/115, in respect of a third-country national who has applied for international protection, immediately after the rejection of that application by the determining authority or together in the same administrative act, and thus before the conclusion of any appeal proceedings brought against that rejection, provided, inter alia, that the Member State concerned ensures that all the legal effects of the return decision are suspended pending the outcome of the appeal, that that applicant is entitled, during that period, to benefit from the rights arising under Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers, and that he is entitled to rely on any change in circumstances that occurred after the adoption of the return decision which may have a significant bearing on the assessment of his situation under Directive 2008/115, and in particular under Article 5 thereof, those being matters for the referring court to determine.
1) This request for a preliminary ruling 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), Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (OJ 2005 L 326, p. 13), and the principle of non-refoulement and the right to an effective remedy enshrined, respectively, in Article 18 and Article 19(2), and Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
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7) Recitals 2 and 8 of Directive 2005/85 state as follows:
‘(2) The European Council … agreed to work towards establishing a Common European Asylum System, based on the full and inclusive application of the [Geneva Convention], thus affirming the principle of non-refoulement and ensuring that nobody is sent back to persecution.
…
(8) This Directive respects the fundamental rights and observes the principles recognised in particular by the [Charter].’
13) Recitals 2, 4, 6, 8, 9, 12 and 24 of Directive 2008/115 state as follows: ...
(24) This Directive respects the fundamental rights and observes the principles recognised in particular by the [Charter].’
29) In the context of those proceedings, the Conseil d’État (Council of State) decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:
‘Must Article 5 of Directive [2008/115], which requires Member States to respect the principle of non-refoulement when they are implementing that directive, and the right to an effective remedy provided for under Article 13(1) of that directive and under Article 47 of the [Charter] be interpreted as precluding the adoption of a return decision, as provided for under Article 6 of Directive [2008/115] and under Article 52/3(1) of the [Law of 15 December 1980] and Article 75(2) of the Royal Decree of 8 October 1981 on the entry to Belgian territory, stay, residence and removal of foreign nationals, immediately after the rejection of the asylum application by the [CGRA] and therefore before the legal remedies available against that rejection decision can be exhausted and before the asylum procedure can be definitively concluded?’
35) By its question, the referring court asks, in essence, whether Directive 2008/115, read in conjunction with Directive 2005/85 and in the light of the principle of non-refoulement and the right to an effective remedy, enshrined in Article 18, Article 19(2) and Article 47 of the Charter, must be interpreted as precluding the adoption of a return decision under Article 6(1) of Directive 2008/115 in relation to a third-country national who has applied for international protection, immediately after the rejection of that application by the determining authority and thus before the conclusion of any appeal proceedings brought against that rejection.
51) Fifthly, as regards the obligation to comply with the requirements arising from the right to an effective remedy and the principle of non-refoulement, highlighted by the referring court in its question, it should be pointed out that any interpretation of Directive 2008/115 or of Directive 2005/85, must, as is apparent from recital 24 of the former and recital 8 of the latter, be consistent with the fundamental rights and principles recognised, in particular, by the Charter (see, to that effect, judgment of 17 December 2015, Tall, C‑239/14, EU:C:2015:824, paragraph 50).
52) As regards, more specifically, the remedies against decisions related to return, as set out in Article 13 of Directive 2008/115, and the remedies against decisions rejecting an application for international protection, as set out in Article 39 of Directive 2005/85, the characteristics of such remedies must be determined in a manner that is consistent with Article 47 of the Charter, which provides that everyone whose rights and freedoms guaranteed by EU law are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in that article (see, to that effect, judgments of 18 December 2014, Abdida, C‑562/13, EU:C:2014:2453, paragraph 45, and of 17 December 2015, Tall, C‑239/14, EU:C:2015:824, paragraph 51).
53) It should also be noted that the principle of non-refoulement is guaranteed as a fundamental right in Article 18 and Article 19(2) of the Charter (judgment of 24 June 2015, H.T., C‑373/13, EU:C:2015:413, paragraph 65) and is reiterated, inter alia, in recital 2 of Directive 2005/85 and in recital 8 and Article 5 of Directive 2008/115. Moreover, Article 18 of the Charter, like Article 78(1) TFEU, guarantees due respect for the rules of the Geneva Convention (see, to that effect, judgment of 21 December 2011, N.S. and Others, C‑411/10 and C‑493/10, EU:C:2011:865, paragraph 75).
54) According to the case-law of the Court, when a State decides to return an applicant for international protection to a country where there are substantial grounds for believing that he will be exposed to a real risk of ill-treatment contrary to Article 18 of the Charter, read in conjunction with Article 33 of the Geneva Convention, or to Article 19(2) of the Charter, the right to an effective remedy provided for in Article 47 of the Charter requires that that applicant have available to him a remedy enabling automatic suspension of enforcement of the measure authorising his removal (see, to that effect, judgments of 18 December 2014, Abdida, C‑562/13, EU:C:2014:2453, paragraph 52, and of 17 December 2015, Tall, C‑239/14, EU:C:2015:824, paragraph 54).
55) It is true that the Court has previously ruled that the lack of suspensory effect of an appeal brought solely against a decision rejecting an application for international protection is, in principle, compatible with the principle of non-refoulement and Article 47 of the Charter, since the enforcement of such a decision cannot, as such, lead to removal of the third-country national concerned (see, to that effect, judgment of 17 December 2015, Tall, C‑239/14, EU:C:2015:824, paragraph 56).
56) By contrast, an appeal brought against a return decision within the meaning of Article 6 of Directive 2008/115 must, in order to ensure, as regards the third-country national concerned, compliance with the requirements arising from the principle of non-refoulement and Article 47 of the Charter, enable automatic suspensory effect, since that decision may expose the person concerned to a real risk of being subjected to treatment contrary to Article 18 of the Charter, read in conjunction with Article 33 of the Geneva Convention, or contrary to Article 19(2) of the Charter (see, to that effect, judgments of 18 December 2014, Abdida, C‑562/13, EU:C:2014:2453, paragraphs 52 and 53, and of 17 December 2015, Tall, C‑239/14, EU:C:2015:824, paragraphs 57 and 58). That applies, a fortiori, to a possible removal decision, within the meaning of Article 8(3) of that directive.
57) Nevertheless, neither Article 39 of Directive 2005/85, nor Article 13 of Directive 2008/115, nor Article 47 of the Charter, read in the light of the safeguards laid down in Article 18 and Article 19(2) of the Charter, require there to be two levels of judicial decision. The only requirement is that there must be a remedy before a judicial body (see, to that effect, judgment of 28 July 2011, Samba Diouf, C‑69/10, EU:C:2011:524, paragraph 69).
67) In the light of the foregoing considerations, the answer to the question referred is that Directive 2008/115, read in conjunction with Directive 2005/85 and in the light of the principle of non-refoulement and the right to an effective remedy, enshrined in Article 18, Article 19(2) and Article 47 of the Charter, must be interpreted as not precluding the adoption of a return decision, under Article 6(1) of Directive 2008/115, in respect of a third-country national who has applied for international protection, immediately after the rejection of that application by the determining authority or together in the same administrative act, and thus before the conclusion of any appeal proceedings brought against that rejection, provided, inter alia, that the Member State concerned ensures that all the legal effects of the return decision are suspended pending the outcome of the appeal, that that applicant is entitled, during that period, to benefit from the rights arising under Directive 2003/9, and that he is entitled to rely on any change in circumstances that occurred after the adoption of the return decision which may have a significant bearing on the assessment of his situation under Directive 2008/115, and in particular under Article 5 thereof, those being matters for the referring court to determine.
68) Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
