CJEU: Judgment on the grounds for issuing an admissibility decision and imposition of time-limits in such decisions

Thursday, March 19, 2020

On 19 March 2020, the Court of Justice of the European Union published its judgment in C-564/18 L.H. v Bevándorlási és Menekültügyi Hivatal (Office for Immigration and Asylum) concerning the grounds for issuing an inadmissibility decision of an application for international protection (IP) and the time-limit imposed to make such a decision.

The applicant, a Syrian national of Kurdish origin made an application for IP in a transit zone in July 2018. The request was dismissed without an examination of the merits of the application and without ensuring that the principle of non-refoulement could be guaranteed in a third country. The referring Court questioned whether regard for an applicant’s individual circumstances within a time-limit of 8 days provided under the national Law on Asylum was compatible with Article 33 Directive 2013/32 (rAPD) and Article 47 of the EU Charter of Fundamental Rights.The referring Court stayed proceedings and referred two questions to the CJEU. The opinion of Advocate General Bobek was issued on 5 December 2019.

In its judgment, the CJEU first noted that Article 33 rAPD provides an exhaustive list of grounds for inadmissibility decisions. Article 33(2) provides that a Member State may consider an application for IP to be inadmissible, including cases where a non-EU state is considered a safe third country pursuant to Article 38 rAPD, i.e., where there is, inter alia, no risk of persecution or refoulement. It added, inter alia, that such a decision is subject to a requirement of a case-by-case examination of the country’s safety in general as well as for a given applicant. In the present case, the requirement under Article 38(1) is therefore not satisfied as the state has not provided an indication of an adequate level of protection in the third country. Moreover, the fact that an applicant has transited through a third country cannot, alone, mean that the country is safe, nor be sufficient to demonstrate a connecting link pursuant to Article 38(2)(a) rAPD and, as such, cannot constitute a ground for inadmissibility. It added that under Article 35(1)(a) and (b) a third country can be regarded as the first country of asylum only if the individual has been recognised as a refugee in that country and enjoys sufficient protection, including the principle of non-refoulement. In answer to the first question, the CJEU therefore found that Article 33 rAPD must preclude national legislation which allows for an application for international protection to be rejected as inadmissible on the ground that the applicant has arrived from a State in which he is not exposed to persecution or a risk of serious harm, or in which a sufficient degree of protection is guaranteed.

On question two, the CJEU observed that applicants must be guaranteed the right to an effective remedy under Article 46(1) rAPD interpreted in light of Article 47 of the Charter. It emphasised, inter alia, that domestic courts are required to carry out a full examination of an application for IP to ascertain whether adequate protection is available in a third country. The CJEU concluded that while some inadmissibility decisions will be straightforward, in some circumstances a time-limit of 8 days may be materially insufficient to make such a decision while guaranteeing the right to an effective remedy. As such, Article 46(3) rAPD in light of Article 47 of the Charter must preclude national legislation which imposes a time-limit of 8 days in such decisions.

Based on an unofficial translation by the EWLU team. Photo: Indiana Public Media, November 2010, 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 pusexblished but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.                                                



Effective remedy (right to)
Inadmissible application
Safe third country