101. Article 13(1) of Directive 2008/115, entitled ‘Remedies’, confers on the third-country national concerned the right to an effective remedy to appeal against or seek review of decisions related to return.
102. In accordance with Article 13(2) of that directive, the competent national authorities may, in those circumstances, temporarily suspend the enforcement of the contested decision. In such a situation, the effect of the suspension is to postpone removal, in accordance with Article 9 of that directive.
103. It is clear that, unlike the proposal for a directive put forward by the Commission, that provision does not oblige the Member States to provide for a remedy with suspensive effect where an appeal is lodged against a return decision, (35) the provision of such a remedy being merely an option.
104. In circumstances such as those in the main proceedings, I nevertheless consider that the objective of Directive 2008/115 and respect for fundamental rights, in particular the requirements arising from Articles 1, 2, 3, 4, 19(2) and 47 of the Charter, require that the person concerned have access to a remedy automatically suspending enforcement of a removal order.
105. The purpose of Article 13 of Directive 2008/115 may be clearly inferred from the guiding principle set out by the EU legislature in Article 1 of that directive, which seeks to guarantee, in accordance with the fundamental rights of the persons concerned, the effective protection of their interests, in particular repatriation under humane and dignified conditions. (36)
106. The purpose of that provision may therefore be understood only in accordance with and in a manner consistent with the rights enshrined in Articles 1 to 4 of the Charter, which guarantee respect for human dignity as well as the right to life and the right to the integrity of the person, and prohibit inhuman or degrading treatment. It must also be interpreted in accordance with the principle of non-refoulement enshrined in Article 19(2) of the Charter. Finally, it must ensure respect for the principles of equality and non-discrimination as established in Articles 20 and 21 of the Charter and guarantee the right to an effective judicial remedy provided for in Article 47 of the Charter. Those references are necessarily included in the references to fundamental rights in Article 1 of Directive 2008/115.
107. Consequently, concrete effect may be given, in a manner consistent with those provisions, to Article 13 of that directive, and, more generally, to the provisions dealing specifically with the procedural safeguards on which the foreign nationals concerned may rely in their appeals only if their application ensures that those values are respected.
108. In my view, in a situation such as that in the main proceedings, where enforcement of the return decision may expose the person concerned to a risk of inhuman or degrading treatment contrary to Article 4 of the Charter, the remedy referred to in Article 13(1) of that directive and enshrined in Article 47 of the Charter must, if it is to be effective, have automatic suspensive effect.
109. First, in such a situation, the Member State is required to respect the principle of non-refoulement in accordance with its obligations under Article 5 of Directive 2008/115 and Article 19(2) of the Charter, which, I would point out, states that ‘no one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment’. Compliance with such a requirement therefore means that enforcement of the return decision should be automatically suspended for such time as the competent national authority examines the lawfulness of that decision and the objections raised by the person concerned with respect to the existence of a risk of treatment proscribed by Article 4 of the Charter.
110. Secondly, the ECtHR has held that the right to an effective remedy enshrined in Article 13 of the ECHR requires that the foreign national in respect of whom a deportation order has been made should have access to a remedy with automatic suspensive effect, where such a person submits an ‘arguable complaint’ to the effect that his removal would expose him to a risk of inhuman or degrading treatment contrary to Article 3 of the ECHR. (37) The ECtHR considers that, in such a situation, the enforcement of a removal order the lawfulness of which is contested is liable to lead to irreversible harm, which must be prevented by suspending enforcement of the order. The ECtHR considers that a foreign national suffering from a serious illness who cannot be treated in his country of origin raises just such a complaint. It takes the view, moreover, that the effectiveness of the remedy is also bound up with requirements of quality and expediency. (38)
111. It is on the basis of that case-law that the ECtHR found against the Kingdom of Belgium in a judgment of 27 February 2014. (39) That case concerned a Nigerian national suffering from AIDS in respect of whom the authorities had adopted a removal order. The applicant claimed that her removal to her country of origin would expose her to treatment contrary to Article 3 of the ECHR and pleaded the lack of an effective remedy within the meaning of Article 13 of that convention.
112. After examining the applicable procedural rules, the ECtHR held that the remedies available in respect of a removal order adopted following the refusal of an application for a leave to reside under Article 9b of the Law of 15 December 1980 were not sufficient to ensure compliance with Article 13 of the ECHR, in conjunction with Article 3 thereof.
113. First, the ECtHR noted that, under the national law applicable, such a remedy does not suspend enforcement of a removal order. (40)
114. Next, it reviewed the procedures specifically concerned with suspending enforcement of a removal order laid down in Articles 39/82 to 39/85 of the Law of 15 December 1980.
115. Under the first combination of remedies, the person concerned may, within 30 days of notification of the removal order, bring an action for annulment and an application under the ordinary procedure for suspension as well as, at the time the person concerned is the subject of an enforceable measure, an application for interim measures on grounds of extreme urgency. Under the second combination, the person concerned may apply for suspension on grounds of extreme urgency, in which case an enforceable measure must have been adopted in respect of the person concerned. (41)
116. The ECtHR found that those procedures were ‘difficult to operate’ and ‘too complex’ to satisfy the requirements that remedies should be readily available and accessible under Article 13, in conjunction with Article 3, of the ECHR. (42)
117. The ECtHR observed, first of all, that that system has the effect of requiring the person concerned, who is the subject of a removal order and who argues that a stay of enforcement of that order is required as a matter of urgency, to bring an action for protective measures, in this instance an ordinary application for suspension. According to the ECtHR, that action, which does not have suspensive effect, must therefore be brought for the sole purpose of preserving the right of the person concerned to be able to take urgent legal action when the actual urgency, that is to say the existence of an enforceable measure, arises. The ECtHR therefore found that, in a situation where the person concerned had not brought such an action for protective measures at the beginning of the procedure and the urgency arose subsequently, that person would then be permanently deprived of the possibility of seeking suspension of the removal order. (43) With regard to the rules governing applications for suspension on grounds of extreme urgency, the ECtHR went on to say that they ‘compel the persons concerned, who are already in a vulnerable position, to take further action in extremis at the time when the measure is enforced’. (44)
118. It was in the light of those observations that the ECtHR concluded that the person concerned did not have an effective remedy, since the remedy available to her did not have suspensive effect and did not allow for an effective examination of the pleas alleging infringement of Article 3 of the ECHR. (45)
119. In the present case, in particular following the observations presented at the hearing, the Belgian Government described a procedure which, to my mind, is indeed difficult to implement, given the urgency and seriousness of the situation, and not readily accessible by the migrants for whom it is intended. (46) The effectiveness of a remedy must be assessed on a case-by-case basis and by reference to its context. Account must be taken of the state of psychological distress which migrants are likely to experience and the difficulties they may encounter, because of the language they speak, for example, in acquainting themselves with the procedures they must undergo before they may be removed from national territory, there being many who will not have the means by that stage to obtain legal assistance.
120. At the hearing, the Belgian Government defended its position with respect to the lack of a remedy with automatic suspensive effect, arguing that, in practice, the bringing of an action for annulment before the Conseil du contentieux des étrangers leads to a de facto suspension of enforcement of the removal order, as the Belgian national authorities tolerate the fact that the person concerned is illegally staying in national territory for the duration of the proceedings.
121. While such a situation is, in practice, the same as that in which the remedy expressly suspends enforcement of the removal order, it nevertheless has numerous disadvantages.
122. First, notwithstanding such de facto suspension, the person concerned has no official protection against enforced removal, in so far as, in accordance with Article 74/14(1) and (2) of the Law of 15 December 1980, such protection is granted only for the 30-day period allowed for voluntary departure. However, that period soon runs out and the competent national authorities are then able officially to enforce the removal order at any time. This poses a serious problem, particularly in a situation such as that in the main proceedings, where enforcement of the return decision may expose the person concerned to a risk of inhuman or degrading treatment contrary to Article 4 of the Charter.
123. Secondly, notwithstanding the de facto tolerance shown by the authorities, the person concerned remains liable to criminal penalties due to the fact that he is staying illegally in national territory. He therefore has no official protection against possible arrest.
124. Thirdly, in so far as removal is unofficially suspended, the rights normally associated with such a measure are not conferred, in particular the economic and social safeguards which the legislature extends in Article 14 of Directive 2008/115 to illegally staying third-country nationals whose removal is officially postponed. This poses another problem, particularly in a situation such as that in the main proceedings, where the removal order concerns a person who is seriously ill and who, as such, should be eligible for the provision of benefits to meet the particular needs connected with his state of health in the same way as any other third-country national whose removal has been officially postponed.
125. Fourthly, I cannot ignore the considerable length of the proceedings at issue, which commenced on 7 July 2011. Leaving aside the disadvantages connected with the uncertain legal status of the person concerned, his very worrying material circumstances and the seriousness of the complaints which he has raised before the court, it is reasonable to ask whether, given their duration, such proceedings are adequate and provide all the safeguards that must accompany the pursuit of an effective remedy.
126. In the light of the foregoing, in a situation such as that in the main proceedings, where enforcement of the return decision may expose the person concerned to a risk of inhuman or degrading treatment contrary to Article 4 of the Charter, I am of the view that such a person does not enjoy the rights afforded to him by the Charter, in particular the right to an effective remedy within the meaning of Article 47 thereof.
127. In the light of all the above considerations, I therefore consider that Article 13(1) and (2) of Directive 2008/115 must be interpreted as precluding a national procedural rule which does not make available a remedy with automatic suspensive effect where an appeal is lodged against a return decision the enforcement of which may expose the person concerned to a risk of inhuman or degrading treatment contrary to Article 4 of the Charter, in view of that person’s state of health.
154. The scope of the safeguards referred to in Article 14 of that directive must therefore be interpreted in the light of its purpose, which, I would reiterate, is to fix clear and fair rules to provide for a return policy that is not only effective but also, in accordance with the guiding principle set out by the EU legislature in Article 1 of that directive, ensures that the values enshrined in the Charter are respected.
155. In my view, the respect for human dignity and the right to life, integrity and health enshrined in Articles 1, 2, 3 and 35 (55) of the Charter respectively, as well as the prohibition of inhuman or degrading treatment contained in Article 4 of that Charter, mean that, in a situation such as that in the main proceedings, an illegally staying third-country national whose removal has been de facto suspended must not be deprived of the means necessary to meet his basic needs pending the examination of his appeal.
156. To have one’s most basic needs catered for is, in my opinion, an essential right which cannot depend on the legal status of the person concerned.
157. Although the extent of the provision for basic needs must be determined by each of the Member States, given the discretion conferred on them by Directive 2008/115, it seems to me that such provision must be sufficient to ensure the subsistence needs of the person concerned are catered for as well as a decent standard of living adequate for that person’s health, by enabling him, inter alia, to secure accommodation and by taking into account any special needs that he may have. (56)
158. In the light of the foregoing, I therefore consider that Article 14 of Directive 2008/115 must be interpreted as precluding national legislation which, with regard to illegally staying third-country nationals who have appealed against a return decision, limits provision for their basic needs merely to emergency medical assistance. In such a situation, the Member State is required to ensure, for the entire duration of the judicial proceedings, that provision is made for the basic needs of the person concerned to a level sufficient to ensure that his subsistence needs are catered for and a decent standard of living adequate for his health, by enabling him, inter alia, to secure accommodation and by taking account of any special needs that he may have.