CJEU - Request for preliminary ruling from the Dutch Council of State (the Netherlands), lodged on 29 March 2017

Date: 
Wednesday, March 29, 2017

The Dutch Council of State has referred preliminary questions to the CJEU on 29 March 2017, asking whether it follows from the Return Directive and the Asylum Procedures Directive that a higher appeal in an asylum case before the Council of State should have automatic suspensive effect.

The following questions are submitted to the CJEU for a preliminary ruling:

1. Does it follow from Article 13 of Directive 2008/115/EC (the Return Directive), read in conjunction with Articles 4, 18, 19(2) and 47 of the Charter of Fundamental Rights of the European Union, that  EU law compels that a remedy of higher appeal, if national law provides this in proceedings against a decision which contains a return decision under Article 3, paragraph of Directive 2008/115/EC, has automatic suspensive effect, when the third-country national states that the execution of the return decision may lead to a serious risk of a breach of the principle of non-refoulement? In other words, is it required in such a case to prevent the expulsion of the third-country national concerned during the term to appeal, or if an appeal is brought, until that appeal is decided upon, without the third-country national concerned being obliged to submit a separate request for suspension?

2. Does it follow from Article 46 of Directive 2013/32/EU (the Asylum Procedures Directive), read in conjunction with Articles 4, 18, 19(2) and 47 of the Charter of Fundamental Rights of the European Union, that EU law compels that a remedy of higher appeal, if national law provides this in proceedings regarding the rejection of an application for international protection, has automatic suspensive effect? In other words, is it required in such a case to prevent the expulsion of the third-country national concerned during the term to appeal, or if an appeal is brought, until that appeal is decided upon, without the third-country national concerned being obliged to submit a separate request for suspension?

3. Is it still relevant for the existence of the above mentioned automatic suspensive effect whether the application for international protection, which prompted the procedures of appeal and subsequently appeal to a higher court, was rejected on one of the grounds under Article 46(6) of Directive 2013/32/EU? Or does the requirement apply to all categories of asylum decisions, as mentioned in the Directive?

Based on an unofficial translation by the ELENA Weekly Legal Update.



This item was reproduced with the permission of ECRE from the weekly ELENA legal update supported by the Fundamental Rights and Citizenship Funding Programme and distributed by email. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE, the IRC or its partners.

                                                     

 

Keywords: 
Effective access to procedures
Effective remedy (right to)
Return
Right to remain pending a decision (Suspensive effect)