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Luxembourg / Higher Administrative Court of the Grand Duchy of Luxembourg / Case no. 44376C

Mr. … v. State of Luxembourg (anonymised judgment)

Deciding Body type:
National Court/Tribunal
Deciding Body:
Higher Administrative Court of the Grand Duchy of Luxembourg
Decision date:
Key facts of the case:
On 13 December 2017 the plaintiff lodged a request for international protection with the Ministry of Foreign and European Affairs, Directorate of Immigration. On 17 April 2019, the Minister ruled on the merits of his application, refused granting him international protection and ordered the plaintiff to leave the territory of Luxemburg. The plaintiff appealed the decision on the same day. The Administrative Tribunal declared the appeal manifestly ill-founded in so far as directed against the refusal of granting him international protection, arguing that the plaintiff had failed to demonstrate that his country of origin, Benin, could not be regarded as a safe country. However, in a separate procedure, the Administrative Tribunal declared the appeal justified in so far as directed against the order to leave the territory and quashed that part of the decision, relying on the fact that the plaintiff has been living in a family relationship with her companion who holds a permanent residence permit in Luxembourg, with whom he has a child and who is pregnant with their second child. The Administrative Tribunal arrived to the conclusion that the obligation for the plaintiff to leave the territory of Luxembourg where his partner and their common son are located constitutes a disproportionate interference with his right to respect for family life. On 22 April 2020 the State party appealed against the judgment.
Key legal question raised by the Court:
The State party argued that the decision of the Minister declaring the stay illegal would necessarily imply the decision to leave the territory, which should be interpreted as an automatic legal consequence of the refusal of international protection. He further emphasised that the question of whether the plaintiff had the right to remain in Luxembourg on account of his family life would fall within the scope of a separate procedure under the Immigration Act. At the same time, the plaintiff argued that the automatism provided for by the International Protection Act, i.e. the order to leave the territory once the request for international protection has been refused, should not prevail over Article 7 of the Charter. As the Court itself summarised, the key legal question of the case was whether the Minister would, when rejecting a foreigner's application for international protection and ordering him to leave the country, be required to consider higher standards such as Articles 7 and 24 of the Charter.
Outcome of the case:
The Court recalled that in the present case the first-instance administrative judge was called upon to rule exclusively on the existence of any reasons for the plaintiff to fear persecution in his country of origin. He had no power to rule in this context on the question of a possible violation of the right to respect for one's private and family life as guaranteed by Article 7 of the Charter, considering that this issue falls neither within the scope of the Geneva Convention of 28 July 1951 on the status of refugees nor within the scope of act of 18 December 2015 on international protection. For the same reasons, the Court held that the appeal based on a violation of section 24 of the Charter must be dismissed as unfounded as well. Hence the Court quashed the first-instance administrative judgment and upheld the decision of the Ministry ordering the plaintiff to leave the territory of Luxembourg.