Key facts of the case:
Reference for a preliminary ruling – Area of freedom, security and justice – Directive 2008/115/EC – Return of illegally staying third-country nationals – Third-country national suffering from a serious illness – Return decision – Judicial remedy – Automatic suspensory effect – Conditions – Grant of social assistance – Articles 19 and 47 of the Charter of Fundamental Rights of the European Union.
Outcome of the case:
In the light of the foregoing considerations, I propose that the Court should answer the question referred for a preliminary ruling by the cour du travail de Liège (Higher Labour Court, Liège, Belgium) as follows:
The provisions 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, in particular Articles 5, 13 and 14(1)(b), preclude the legislation of a Member State under which the social assistance received by a third-country national who is the subject of a return decision against which an appeal has been lodged and who is suffering from a serious illness is limited to urgent medical assistance, if (i) that assistance does not cover his basic needs by guaranteeing that he may in fact avail himself of emergency health care and essential treatment for illness and (ii) the national in question lacks the means to provide for himself.
22) It is in those circumstances that the cour du travail de Liège (Higher Labour Court, Liège) decided, by decision of 11 March 2019, received at the Court on 18 March 2019, to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling: ‘Must Articles 5 and 13 of Directive [2008/115], read in the light of Articles 19(2) and 47 of the Charter of Fundamental Rights of the European Union [(‘the Charter’)], and Article 14(1)(b) of that directive, read in the light of the [Abdida judgment], ( 8 ) be interpreted as endowing with suspensive effect an appeal brought against a decision ordering a third-country national suffering from a serious illness to leave the territory of a Member State, in the case where the appellant claims that the enforcement of that decision is liable to expose him to a serious risk of grave and irreversible deterioration in his state of health:
– without it being necessary to examine the appeal, its mere introduction being sufficient to suspend the enforcement of the decision ordering the third-country national to leave the territory of that Member State; or
– following a marginal review as to whether there is an arguable complaint, lack of grounds for inadmissibility or whether the action brought before the Conseil du contentieux des étrangers is manifestly unfounded; or
– following a full and comprehensive judicial review carried out by the labour courts in order to determine whether the enforcement of that decision is indeed liable to expose the appellant to a serious risk of grave and irreversible deterioration in his state of health?’
56) I take the view that this means that a system of administrative remedies under which only an appeal against a removal order, not an appeal against a return decision, is endowed with suspensive effect, is not in line with the judgment in Abdida. ( 38 ) In that regard, I would point out that, in that judgment, the Court held that ‘Articles 5 and 13 of Directive 2008/115, taken in conjunction with Articles 19(2) and 47 of the Charter, must be interpreted as precluding national legislation which does not make provision for a remedy with suspensive effect in respect of a return decision whose enforcement may expose the third country national concerned to a serious risk of grave and irreversible deterioration in his state of health’. ( 39 ) Contrary to what the Belgian Government stated in its observations, it cannot in any circumstances be inferred from the clear wording of that passage taken from the judgment in Abdida ( 40 ) that the Court was referring only to a removal order.
57) With regard to the conditions attached to suspensive effect, I would point out that the Court held, in its judgment in Gnandi, ( 41 ) that ‘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 …Convention [relating to the Status of Refugees, which was signed in Geneva on 28 July 1951, ( 42 ) as supplemented by the Protocol relating to the Status of Refugees, concluded in New York on 31 January 1967, which entered into force on 4 October 1967], or contrary to Article 19(2) of the Charter’. ( 43 )