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CJEU Case C-585/16 / Opinion

Serin Alheto v Zamestnik-predsedatel na Darzhavna agentsia za bezhantsite
Policy area
Justice, freedom and security
Asylum and migration
Deciding body type
Court of Justice of the European Union
Deciding body
Advocate General
Type
Opinion
Decision date
17/05/2018
ECLI (European case law identifier)
ECLI:EU:C:2018:327

Handvest van de grondrechten van de Europese Unie

Title II: Freedoms

Article 18 - Right to asylum

Title II: Freedoms

Article 19 - Protection in the event of removal, expulsion or extradition

Title VI: Justice

Article 47 - Right to an effective remedy and to a fair trial

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  • CJEU Case C-585/16 / Opinion

    Key facts of the case:

    Reference for a preliminary ruling — Common policy on asylum and subsidiary protection — Standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection — Directive 2011/95/EU — Article 12 — Exclusion from refugee status — Persons registered with the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) — Existence of a ‘first country of asylum’, for a refugee from Palestine, in the UNRWA area of operations — Common procedures for granting international protection — Directive 2013/32/EU — Article 46 — Right to an effective remedy — Full and ex nunc examination — Scope of the powers of the court of first instance — Examination by the courts of international protection needs — Examination of grounds of inadmissibility.

    Outcome of the case:

    In the light of all the foregoing considerations, I propose that the Court should declare inadmissible the third, fourth, fifth and sixth questions referred by the Administrativen sad Sofia-grad (Administrative Court, Sofia, Bulgaria) for a preliminary ruling and answer the first and second questions as follows:

    Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted is to be interpreted as meaning that an application for international protection made by a stateless person of Palestinian origin registered with UNRWA, whose habitual residence before entering the European Union was located within the area of operations of that agency, must be examined on the basis of the provisions of Article 12(1)(a) of that directive.

    The second sentence of Article 12(1)(a) of Directive 2011/95 contains a provision which is sufficiently precise and unconditional to be relied upon by individuals in proceedings before a national court. The fact that a provision of European Union law that has direct effect has not been relied upon in legal proceedings by the person concerned does not preclude a national court from applying it directly, where it considers it necessary to do so.

  • Paragraphs referring to EU Charter

    4) Does it follow from the provisions of Article 46(3) of Directive 2013/32, concerning the right to an effective remedy incorporating the requirement of a ‘full and ex nunc examination of both facts and points of law’, interpreted in conjunction with Article 33, Article 34 and the second paragraph of Article 35 of that directive, Article 21(1) of Directive 2011/95 and Articles 18, 19 and 47 of the Charter of Fundamental Rights of the European Union, that, in an appeal before a court or tribunal against a decision refusing international protection adopted in accordance with Article 10(2) of Directive 2013/32, those provisions permit the court or tribunal of first instance:

    (A) to decide for the first time on the admissibility of the application for international protection and on the refoulement of the stateless person to the country in which he or she was resident before making the application for international protection, after requiring the determining authority to produce the evidence necessary for that purpose and after giving the person in question the opportunity to present his or her views on the admissibility of the application; or

    (B) to annul the decision for breach of an essential procedural requirement and to require the determining authority, following directions on the interpretation and application of the law, to re-examine the application for international protection, inter alia, by conducting the admissibility interview provided for in Article 34 of Directive 2013/32 and deciding whether it is possible to return the stateless person to the country in which he or she was resident before making the application for international protection;

    (C) to assess the security status of the country in which the person had been resident, at the time of the hearing or, where there have been fundamental changes in the situation that must be taken into account in the person’s favour in the decision to be taken, at the time when judgment is given?

    ...

    6) Does it follow from Article 46(3) of Directive 2013/32, read in conjunction with Article 47 of the Charter of Fundamental Rights, that the right to an effective remedy incorporating the requirement, ‘where applicable, [for] an examination of the international protection needs pursuant to Directive 2011/95’ compels the court or tribunal of first instance, in an appeal against a decision examining the substance of an application for international protection and refusing to grant such protection, to give a judgment:

    (А) which has the force of res judicata in relation not only to the question of the lawfulness of the refusal but also to the applicant’s need for international protection pursuant to Directive 2011/95, including in cases where, under the national law of the Member State concerned, international protection may be granted only by decision of an administrative authority;

    (B) on the necessity of granting international protection, by carrying out a proper examination of the application for international protection, irrespectively of any breaches of procedural requirements made by the determining authority when assessing the application?’

    ...

    25) Directive 2011/95 must, for those reasons, be interpreted in the light of its general scheme and purpose, and in a manner consistent with the Geneva Convention and the other relevant treaties referred to in Article 78(1) TFEU. As is apparent from recital 16 thereof, the directive must also be interpreted in a manner consistent with the rights recognised by the Charter of Fundamental Rights of the European Union. ( 15 ) It is in the light of those interpretative criteria that the questions referred for a preliminary ruling must be examined in this Opinion.

  • Paragraphs referring to EU Charter (original language)