AG Opinion on the suspensive effect of an appeal against a decision ordering removal of a third country national suffering from a serious illness

Thursday, May 28, 2020

On 28 May 2020, Advocate General Szpunar delivered his opinion in case C-233/19, concerning the interpretation of Directive 2008/115 in relation to the suspensive effect of an appeal against a decision ordering a third country national suffering from a serious illness to leave the territory of a Member State.

The applicant’s initial application for asylum and appeal were rejected in 2015. They later made an application for a residence permit on the grounds that they suffered a serious illness, and the applicant was able to benefit from social assistance from the Liège Public Centre for Social Action (CPAS). The request for a residence permit, and subsequent appeals, was rejected and an order was made for the individual to leave the territory of the State and the CPAS withdraw social assistance payments. The referring Court stayed proceedings and referred several questions relating to the interpretation of conditions for granting suspensive effect, outlined in Articles 5 and 13 Directive 2008/115 on an appeal of a decision ordering a third country national who suffers from a serious illness to leave the State.

AG Szpunar noted that it is not for the Court to rule on national procedures governing appeals against return decisions and as such the question posed to the Court should address whether Directive 2008/115 prevents Member States from limiting social assistance to a third country national, subject to a return decision and suffering from a serious illness, to urgent medical assistance only. As such, the AG reiterated that procedures under Directive 2008/115 must be carried out with full respect for fundamental rights and the dignity of persons concerned, which must include, inter alia, the need to take account of an individual’s state of health. He added that previous rulings have made clear that Directive 2008/115 must be interpreted as opposing national legislation that does not provide for the management of basic needs of a third country national with a serious illness to ensure medical care can be provided during the course of return procedures.

The AG opined that that the needs of the applicant is a matter to be assessed out by a national court. However, the provisions of Directive 2008/115 preclude legislation of a Member State in which social benefit received by a third country national, who is subject to a return decision against which they appealed and who suffers from serious illness, if the available medical assistance does not cover the individual’s basic needs and if they are devoid of means to provide for themselves. Moreover, it must be understood that Directive 2008/115 precludes national legislation which does not provide for a suspensive effect of an appeal against a return decision whose execution is likely to amount to a serious and irreversible deterioration of health.

Based on an unofficial translation by the EWLU team. Photo: Transparency International, March 2013, Flickr (CC).

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.                               

Health (right to)
Reception conditions
Right to remain pending a decision (Suspensive effect)
Vulnerable person