Effective Remedies The Recast Asylum Procedures Directive Luc - PowerPoint PPT Presentation

Effective Remedies The Recast Asylum Procedures Directive Luc Leboeuf PhD Candidate – Catholic University of Louvain-la-Neuve EDAL Conference (Dublin, 18 January 2014) Centre Charles De Visscher pour le droit international et européen www.uclouvain.be/cedie Equipe droits européens et migrations

1. Main objectives of the recast  Efficiency and respect of fundamental rights › The Stockholm Programme , pt. 6.2.: ‘While CEAS should be based on high protection standards, due regard should also be given to fair and effective procedures capable of preventing abuse’ › COM(2011) 319fin: ‘A common asylum procedure should be fast and fair ’  Flexibility › COM(2011) 319fin: ‘The system proposed […] is flexible enough to accommodate the particularities of national legal systems ’ › Art. 5 RAPD: minimal harmonisation

2. Appeals procedures: Modifications brought by the recast A. Decisions concerned › Art. 39(1) APD: intermediate and final decisions on the asylum application » EXCEPTION at art. 39(5): when a status offering the same rights and benefits as the refugee status has been granted => lack of interest in the judicial examination of the decision on the asylum application › Art. 46(1) RAPD: intermediate and final decisions on the international protection application » Art. 46(2) RAPD: negative decision on the asylum application shall be submitted to judicial review EVEN IF subsidiary protection is granted

B. Extent of the judicial examination › Art. 39(3) APD: ‘Member States shall, where appropriate, provide for rules in accordance with their international obligations ’ › Art. 46(3) RAPD: Full and ex nunc examination of both facts and points of law C. Automatic suspensive effect › Art. 39(3) APD: ‘Member States shall, where appropriate, provide for rules in accordance with their international obligations ’ › Art. 46(5) RAPD: automatic suspensive effect (right to remain) » Suspensive effect during a ‘reasonable’ time -limit to introduce the appeal; » Suspensive effect pending the outcome of the appeal.

Art. 46(6): EXCEPTIONS to the automatic suspensive effect: accelerated procedures - (manifestly) unfounded applications; - inadmissible applications; - rejection of the reopening of the application after an implicit withdrawal or abandonment; - refusal to fully examine the application introduced by an applicant coming from a ‘European safe third country’  Suspensive effect must be REQUESTED before a Court Art. 46(7): CONDITIONS for the exceptions to apply: 1. Legal and linguistic assistance; 2. One week to prepare the request for suspensive effect; 3. Judicial examination of the negative decision on both facts and points of law.

3. Appeals procedures and general principles of EU law The right to an effective remedy as a general principle of EU Law › Recognised by the CJEU in H.I.D. and B.A . at para 81: ‘[…] in accordance with a fundamental principle of European Union law , the decisions taken in relation to an application for asylum and the withdrawal of refugee status must be subject to an effective remedy before a court or tribunal […]’ › Enshrined by art. 47 EU Charter » Opinion of the AG of the CJEU in Samba Diouf at para 39: ‘once it is recognised and guaranteed by the European Union, that fundamental right [to an effective remedy] goes on to acquire a content of its own , the definition of which is certainly shaped by the international instruments on which that right is based , including, first and foremost, the ECHR , but also by the constitutional traditions from which the right in question stems and, together with them, the conceptual universe within which the defining principles of a State governed by the rule of law operate .’

A. Is there a right to an effective remedy against decisions refusing subsidiary protection? › Yes, there is. » Art. 51 EU Charter: ‘The provisions of this Charter are addressed to […] the Member States only when they are implementing Union law’ » CJEU, M.M., para 82: the right to an effective remedy (art. 47 EU Charter) concerns decisions refusing subsidiary protection

B. Does the right to an effective remedy imply a full and ex nunc examination? › Yes, it does. » CJEU, H.I.D. and B.A. , para 93: ‘[…] the Refugee Appeals Tribunal has a broad discretion, since it takes cognisance of both questions of fact and questions of law […]’ » ECtHR, Salah Sheekh v. The Netherlands , para 136: ‘[…] in assessing an alleged risk of treatment contrary to Article 3 in respect of aliens facing expulsion or extradition, a full and ex nunc assessment is called for as the situation in a country of destination may change in the course of time’

C. Does the right to an effective remedy imply an automatic suspensive effect? › Yes, it does under certain conditions. › ECtHR, M.S.S. v. Belgium and Greece , para 388: » ‘In the Court’s view the requirement flowing from Article 13 that execution of the impugned measure be stayed cannot be considered as a subsidiary measure ’ » CONDITION: arguable complaint » QUESTION: How to translate that condition in a (general) legal instrument? - ANSWER 1: Suspensive effect for every appeal against a refusal of international protection; - ANSWER 2: Suspensive effect must be requested => accelerated procedures when the applicant does not seem to have an arguable complaint

» CJEU, H.I.D. and B.A., para 74 (about first instance procedures): ‘[…] the establishment of a prioritised procedure such as that in the main proceedings must allow in full the exercise of the rights that that directive confers upon applicants for asylum […] In particular, […] [asylum seekers] must enjoy a sufficient period of time within which to gather and present the necessary material in support of their application, thus allowing the determining authority to carry out a fair and comprehensive examination of those applications ’ » ECtHR, I.M. v. France, paras 150 and 151: reasonable time-limit + legal and linguistic assistance Compare with M.E. v. France , where the applicant stayed in France for 3 years before introducing his asylum application

4. Conclusion APD RAPD General Principles Decision Asylum International International concerned application protection protection application application Assessment N/A Full and ex nunc Full and ex nunc Automatic N/A Yes (with Yes (if arguable suspensive exceptions complaint) effect? submitted to certain conditions)

 Thank you for your attention  Visit http://www.uclouvain.be/418487.html to discover EDEM’s studies, newsletters, database and other activities