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CJEU Case C-175/17 / Opinion

X v Belastingdienst/Toeslagen.

Policy area:
Asylum and migration
Deciding Body type:
Court of Justice of the European Union
Deciding Body:
Advocate General
Decision date:
24/01/2018

Key facts of the case:

Reference for a preliminary ruling — Common policy on asylum and subsidiary protection — Directive 2005/85/EC — Article 39 — Directive 2008/115/EC — Article 13 — Charter of Fundamental Rights of the European Union — Article 18, Article 19(2) and Article 47 — Right to an effective remedy — Principle of non-refoulement — Decision rejecting an application for asylum and imposing an obligation to return — National legislation providing for a second level of jurisdiction — Automatic suspensory effect limited to the action at first instance.

Outcome of the case:

In the light of the above considerations, I propose that the Court respond to the questions referred for a preliminary ruling by the Afdeling bestuursrechtspraak van de Raad van State (Administrative Law Division of the Council of State, Netherlands) as follows:

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, Article 13 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, and Article 46 of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection, read in conjunction with Articles 4 and 18, and Article 19(2) and Article 47 of the Charter of Fundamental Rights of the European Union, must not be interpreted as meaning that under EU law the legal remedy of an appeal, if national law makes provision for such a remedy in procedures for challenging a decision which includes a return decision, has automatic suspensory effect, even where the third-country national concerned invokes the fact that enforcement of the return decision would result in a serious risk of infringement of the principle of non-refoulement. However, the right to an effective remedy as established by those provisions precludes the legal effects of a refusal of asylum and a return decision from being maintained despite those measures having been annulled at first instance and requires that, in such a situation, the legal remedy of an appeal be given automatic suspensory effect.