CJEU: C-239/14 Tall – Advocate General finds preliminary reference on effective remedy inadmissible

Thursday, September 3, 2015

The Labour Court of Liège requested a preliminary ruling from the CJEU on whether Belgian appeal procedures against a decision not to consider a subsequent claim for asylum was compatible with the right to an effective remedy in Article 39 of the Asylum Procedures Directive (2005/85/EC)  and Article 47 of the Charter of Fundamental Rights.
Belgian law provided that only actions for annulment and suspension under the procedure of extreme urgency could be brought against such a decision. The applicant argued that this deprived him of an effective remedy and created differential treatment between asylum applicants challenging a first refusal, who had access to a suspensive appeal procedure; and those challenging a second refusal. In addition, those appealing against the refusal to consider a subsequent asylum claim were not granted a residence permit, and were not entitled to accommodation and other material aid, which hindered their access to this remedy.
However, since this preliminary reference was lodged, the law was amended to provide for a full judicial review with suspensive effect against decisions of non-consideration of subsequent asylum applications, which entered into force on 31 May 2014. Transitional provisions made this applicable to appeals lodged prior to its entry into force, making this available to the applicant, and entitling him to material support with retroactive effect. Advocate General Cruz Villalón therefore considered that the new appeal regime rendered the preliminary reference hypothetical and devoid of purpose and proposed that the Court consider it inadmissible with no need to rule on the merits.
For further information on asylum procedures in Belgium, please see the AIDA Country Report.

Based on an unofficial ELENA translation. 

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Effective remedy (right to)
Right to remain pending a decision (Suspensive effect)
Subsequent application