CJEU: AG Opinion in cases C-175/17 X and C-180/17 X and Y, 24 January 2018

Wednesday, January 24, 2018

On 25 January 2018, Advocate General Bot published his opinion in cases C-175/17 X and C-180/17 X and Y on whether an appeal against a negative decision of an asylum application which is followed by a return order should have automatic suspensive effect, particularly in cases where the principle of non-refoulement is raised by the third-country national concerned.

First, AG Bot advanced that the right to a second instance appeal is an issue of domestic law and cannot, in principle, be considered to necessarily have an automatic suspensive effect. According to him, it is up to the Member States to grant the possibility of lodging a further appeal before a second instance court or tribunal, and to decide whether this onward appeal should have suspensive effect or not.

Secondly, the Advocate General recalled that the CJEU’s jurisprudence requires that an appeal should have suspensive effect when it is exercised against a return decision which, if implemented, could expose the third country national to the risk of being subject to the death penalty, torture or other inhuman or degrading treatment. However, he argued that this jurisprudence, which relies on the case-law of the European Court of Human Rights, is only applicable to those return decisions adopted under the Returns Directive, and not to decisions against an asylum application which are followed by a return order.

Therefore, AG Bot recommends the CJEU to rule that the provisions of the recast Asylum Procedures Directive, the Returns Directive and the Charter of Fundamental Rights of the European Union cannot be interpreted as requiring that the legal remedy of an appeal against a negative asylum decision followed by a return order have automatic suspensive effect, even where the third-country national claims that enforcement of the return decision would result in a serious risk of infringement of the principle of non-refoulement. However, the right to an effective remedy precludes that the judicial effects of a negative asylum decision and a return decision be maintained despite the repeal of these measures by a first instance authority and requires, in such a situation, the appeal to have an automatic suspensive effect.

Based on an unofficial translation by the ELENA Weekly Legal Update.

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Effective access to procedures
Effective remedy (right to)
Inhuman or degrading treatment or punishment
Right to remain pending a decision (Suspensive effect)