CJEU - Case C-562/13 Centre public d’action sociale d’Ottignies-Louvain-La-Neuve v Moussa Abdida, 18 December 2014

Tuesday, January 6, 2015

Facts of the case: Mr. Abdida, a Nigerian national diagnosed with AIDS, submitted an application to the Belgian state requesting leave to remain due to medical reasons. Under Belgian law transposing the Qualification Directive the state refused his leave to remain and an order to leave the country was issued. When appealing against this decision, Mr. Abdida was not granted with a remedy having suspensive effect. In addition, during the litigation procedure, Mr. Abdida had his basic social security and medical care withdrawn. Domestic litigation concerning Mr Abdidas entitlement under EU law to such suspensive remedies and social rights reached the Brussels Employment Court, which referred two questions to the CJEU.

Questions referred for a preliminary ruling

1. On a proper construction of Directives 2004/83/EC, 2005/85/EC and 2003/9/EC, is a Member State which provides that a foreign national has the right to subsidiary protection for the purposes of Article 15(b) of Directive 2004/83/EC if that person suffers from an illness which is of such a kind as to entail a real risk to his life or physical integrity or a real risk of inhuman or degrading treatment where there is no adequate treatment for that illness in his country of originunder an obligation to

provide for a remedy with suspensive effect in respect of the administrative decision refusing leave to remain and/or subsidiary protection, and ordering the person to leave the territory of that State,

make provision under its social security or reception system for the basic needs of the person applying for subsidiary protection (other than his medical needs) to be met pending a ruling on his appeal against that administrative decision?

2. If the answer to Question 1 is in the negative, does the Charter of Fundamental Rights and, in particular, Articles 1 to 3 (human dignity, right to life and integrity), Article 4 (prohibition of inhuman or degrading treatment), Article 19(2) (right not to be removed to a State where there is a serious risk of inhuman or degrading treatment), Articles 20 and 21 (equality and non-discrimination as compared with other categories of applicants for subsidiary protection) and/or Article 47 (right to an effective remedy) of that Charter place a Member State in course of transposing Directives 2004/83/EC, 2005/85/EC and 2003/9/EC into national law under an obligation to make provision for a remedy with suspensive effect and for the requisite means of meeting the basic needs referred to in Question 1?

Consideration of questions referred

The Court examines the questions together and first reiterates its recent finding in MBodj that an application under national legislation granting leave to remain due to a serious illness coupled with a lack of treatment in the country of origin does not constitute a claim for international protection within the meaning of Article 2(g) of the Qualification Directive [33]. Nevertheless, the present case clearly raises issues under the Returns Directive given that Mr. Abdida has been provided with a decision declaring his stay as illegal and stating an obligation to return.

With this in mind and with regards to the suspensive effect of an appeal against a return decision the Court refers to Article 13(1) read in conjunction with 12(1) of the Directive which provides that a third country national must be afforded an effective remedy to appeal against or seek review of a decision ordering his return [43].Moreover, and again citing the ECtHR jurisprudence in N v UK, albeit to advance a different proposition than in MBodj, the Court affirms that in exceptional cases the removal of a third country national suffering from a serious illness to a country in which appropriate treatment is not available may infringe the principle of non-refoulement and subsequently a violation of Article 5 of the Returns Directive. Given that this may lead to a serious and irreparable harm, the Court submits that a third country national must be able to avail himself, in such circumstances, of a remedy with suspensive effect, in order to ensure that the return decision is not enforced before a competent authority has had the opportunity to examine an objection alleging infringement ofnon-refoulement in both the Returns Directive and the Charter [50]. The Court thus advances that national legislation which does not give suspensive effect to an appeal challenging a return decision and which may expose the applicant to a serious risk of grave and irreversible deterioration in his state of health must be precluded [53].

In this manner the Court further submits that where an application raises these issues and an appeal has been lodged, the Member State is required to provide under Article 14 (1)(b) of the Returns Directive for the basic needs of a third country national suffering from a serious illness where such a person lacks the means to make such provision for himself.However, the Court concludes that it is for the Member States to determine the form in which such provision for the basic needs of the third country national concerned is to be made [61].

19 December 2014                                      

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Health (right to)
Right to remain pending a decision (Suspensive effect)