CJEU: the consequences of automatic suspensive effect of a return decision on social assistance

Wednesday, September 30, 2020

On 30 September 2020, the CJEU answered preliminary questions regarding the interpretation of Articles 5 and 13 of the Return Directive (Directive 2008/115), read in the light of Article 19 (2) and Article 47 of the Charter.

In 2015, the applicant, B., introduced a first, unsuccessful, application for international protection in Belgium. Subsequently, B. unsuccessfully applied for leave to reside on medical grounds, as she suffers from several serious illnesses, and was notified of a negative decision together with an order to leave the territory. Thereafter, B. launched an appeal against this decision, while the Public Centre for Social Welfare (CPAS) simultaneously withdrew B.’s entitlement to social assistance from the date of the notification of the negative decision and granted her emergency medical assistance from one week after that date. Finally, she unsuccessfully brought an action against the CPAS’ decisions, after which she appealed before the Higher Labour Court, asking for a reversal of the withdrawal of her social assistance. This Court stayed the proceedings and asked the CJEU regarding the circumstances in which a national court, hearing a dispute on social assistance, the outcome of which is linked to the possible suspension of the effects of a return decision taken in respect of a third-country national suffering from a serious illness, must hold that an action for annulment and suspension of that decision automatically entails suspension of that return decision, even though that suspension does not result from the application of national legislation.

The CJEU reiterated that Article 47 of the Charter and the principle of non-refoulement, as codified in Article 19(2) of the Charter and Article 5 of the Return Directive, require the appeal against a return decision to have automatic suspensive effect, when the enforcement of that decision may violate the principle of non-refoulement (Gnandi, par. 56), especially in the case of a seriously ill individual who faces the risk of a grave and irreversible deterioration of his or her health (Abdida, par. 53). Furthermore, in case national legislation does not contain clear, precise and foreseeable rules that allow for a remedy with automatic suspensive effect against such a return decision, the national judge must give national law an interpretation in conformance with the Directive and, if such interpretation is not possible, disapply that national law. The CJEU further underlined that, based on the direct effect resulting from Article 13(1) of the Return Directive and Article 19(2) and 47 of the Charter, the national judge may decide to grant automatic suspensive effect, even if the national court does not have that competence under national law.

Finally, the CJEU clarified that a national court that must evaluate if the conditions for automatic suspensive effect are fulfilled, even if it does not have the competence to grant such an effect, must assess if the non-refoulement argument, based on a serious risk of grave and irreversible deterioration of his or her health, does not appear to be manifestly unfounded.  If the argument is not manifestly unfounded, that court must hold that the return decision is suspended with automatic effect, from the lodging of that appeal, and give due effect to that finding under its powers.

This item was reproduced with the permission of ECRE from the ELENA Weekly Legal Update. 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.                               

Right to remain pending a decision (Suspensive effect)
Vulnerable person