Advocate General Yves Bot said in conclusions reached on Wednesday 24 January (Cases C-175/17 and C-180/17) that, when a first instance decision has rejected a request for asylum with a return obligation, national law must not necessarily mean that the appeal against that decision should have automatic suspensive effect.
The Dutch Council of State asks the Court whether the appeal procedure brought by an Iraqi national (X, Case C-175/17) and by two Russian nationals (X and Y, Case C-180/17) against first instance rulings which confirmed rejection of their request for asylum while ordering their return to their countries of origin, has an automatic suspensive effect. Under Dutch law, the appeal procedure does not automatically have suspensory effect, even if it is possible to call for provisional interim measures aimed at avoiding suspension pending the outcome of the proceedings.
In his conclusions, Bot considers that neither Directive 2005/85/EC on refugee status nor Directive 2008/115/EC on the return of non-EU nationals in a situation of irregular stay, nor Directive 2013/32/EU on the granting and withdrawal of international protection, nor the European Charter on Fundamental Rights makes it mandatory for member states to provide automatic suspensive effect to an appeal when that appeal is filed as part of a procedure brought against an asylum refusal comprising a decision of return, even if the person concerned invokes the risk of the principle of non-refoulment being violated.
Member states may, or not, provide for a two-stage procedure of jurisdiction, with or without suspensive effect. This means it is enough to have at least one of the degrees of jurisdiction provided by national law providing an automatic suspensive effect (which is the first instance case under Dutch law) so that the requirements linked to the right to effective recourse are met.
The advocate general deems, however, that, in the specific Case C-175/17, the right to effective recourse means that the appeal must have automatic suspensive effect. When the first instance ruling annuls a decision for asylum refusal with the obligation of return while maintaining the legal effect, the fact of maintaining the consequences of a decision, albeit cancelled, renders the person’s appeal ineffective although recourse to the appeal is welcomed. In such a case, it is necessary for the appeal procedure to have an automatic suspensive effect so that the right to appeal is guaranteed. (Original in French by Mathieu Bion)