CJEU: Case C-239/14 Abdoulaye Amadou Tall, 17 December 2015

Thursday, December 17, 2015

This case relates to a national of Senegal, Mr Tall, who made a subsequent application for asylum following the rejection of his first claim by the Belgian authorities and courts. The Commissariat-General for Refugees and Stateless Persons refused to take this second application into account. This led to CPAS withdrawing social assistance to Mr Tall. He was later served with an order to leave the territory.

He appealed to CALL against the decision refusing to consider his second application for asylum. At the same time he challenged the decision of CPAS (public social service centre) to withdraw his social assistance before the Labour Court of Liege. The Labour Court found that the only remedy under national law against a decision refusing to take into account a subsequent application was an appeal seeking annulment and suspension under the extreme urgency procedure. It stayed proceedings and requested a preliminary ruling from the CJEU on the issue of whether this was compatible with the right to an effective remedy as contained in Article 39 of the Asylum Procedures Directive (APD), and Article 47 of the EU Charter, given that in such an appeal there was not full jurisdiction to determine issues of fact and law, the appeal was not suspensory and the applicant had no right of residence or material assistance while it was being considered.

The CJEU first considered the admissibility of the question referred, as since the referral, there had been amendments to domestic law, with transitional provisions which meant that Mr Tall’s appeal had suspensory effect and he was entitled to material assistance during its examination. It considered that it was bound to give a ruling in Article 267 TFEU proceedings and that the matter was admissible as the interpretation of EU law sought was still relevant to resolving the dispute, especially as the CJEU had no jurisdiction to give a ruling in relation to the effect of the new domestic provisions.

The CJEU examined the relevant provisions of the APD, noting that Article 39(1)c) obliged Member States to ensure that asylum applicants have the right to an effective remedy before a court or tribunal against a decision not to further examine a subsequent application. In this case, a decision had been made not to further examine Mr Tall’s subsequent application, following a preliminary examination as provided for in article 32(3). In such situations, Article 7(2) set out an exception to the obligation to permit asylum applicants to remain in the Member State pending examination of the application. As such it was open to Member States to provide that an appeal against such a decision is devoid of suspensory effect. In contrast, an appeal must have suspensory effect if brought against a return decision which if enforced, could expose the person concerned to a serious risk of being subjected to inhuman or degrading treatment, in view of the requirements of Article 19(2) CFEU, Article 47 CFEU, Article 13 ECHR, and case law from the European courts. This was not at issue in the present proceedings and as such the CJEU concluded that Article 39 APD did not preclude national legislation that did not confer suspensory effect on an appeal brought against a decision such as the one at issue in the main proceedings. 

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Effective remedy (right to)
Material reception conditions
Reception conditions
Right to remain pending a decision (Suspensive effect)
Subsequent application