The case concerns a request for a preliminary ruling regarding the interpretation of Article 11 of the Return Directive ("Return decisions shall be accompanied by an entry ban: (a) if no period for voluntary departure has been granted, or (b) if the obligation to return has not been complied with. In other cases, return decisions may be accompanied by an entry ban").
The applicant is a national of Algeria against whom criminal proceedings were brought for illegal stay in the Netherlands despite having an entry ban ordered against him. He was sentenced to two months imprisonment and on appeal he argued that the entry ban would be binding only once he had left the territory of Netherlands, so he could not be criminally convicted for breaching the entry ban.
The CJEU held that Article 11 of the Return Directive "does not preclude national legislation permitting the imprisonment of a third-country national to whom the return procedure established by the said directive has been applied and who is staying illegally in the territory of the relevant Member State with no justified ground for non-return" (Achughbabian judgment). However, the CJEU highlighted that the entry ban produces effects only from the moment the individual leaves the territory of the Member States (Ouhrami judgment). Thus, if the third country national has not left the territory, a punishment can be imposed only on the basis of an initial illegal stay and not on the basis of breaching an entry ban. In addition, to avoid arbitrariness, the national criminal legislation must be sufficiently accessible, precise and foreseeable.
After the rejection of his initial application for asylum, the applicant made a second one which was declared inadmissible by a decision of 18 May 2018 of the Belgian Commissioner-General for Refugees and Stateless Persons (CGRS), on the basis of Article 57/6/2 of the Law 15 December 1980. As he did not specify an address for service in Belgium and in accordance with national law, notice of the contested decision was sent to him, on 22 May 2018, by registered post to the head office of the CGRS. In accordance with Belgian law, the time limit of 10 days to bring an action against that decision started to run on the third working day following that when the letter was delivered to the postal services, on 5 May 2018. Since the day when that period expired was a Sunday, the expiry date was postponed to Monday 4 June 2018. The applicant was present at the head office of the CGRS on 30 May 2018 and, on that date, acknowledged receipt of the registered letter concerning the contested decision. On 7 June 2018, he challenged that decision before the Conseil du contentieux des étrangers (Council for asylum and immigration proceedings, Belgium). By a judgment of 9 October 2018, that court dismissed the action as time-barred. An appeal on points of law was brought before the Conseil d’État (Council of State, Belgium) who stayed the proceedings and referred the following question to the CJEU.
On the question of whether Article 46 of the Procedures Directive precludes national legislation that prescribes that notice of decisions for applicants who have not specified an address for service of decisions in the Member State concerned is to be served at the head office of the national authority responsible for the examination of those applications, the CJUE considered that the Belgian provision, in principle, conforms to EU law, provided that (i) the applicant is informed that, where they have not specified an address for service for the purposes of notification of the decision concerning their application, they will be deemed to have specified an address for service for those purposes at the head office of that national authority; (ii) the conditions for access of those applicants to that head office do not render receipt by those applicants of the decisions concerning them excessively difficult, (iii) genuine access to the procedural safeguards granted to applicants for international protection by EU law is ensured within such a period, and (iv) the principle of equivalence is respected.
The CJEU then addressed the question of whether Article 46 of the Procedures Directive precludes national legislation that prescribes a limitation period of 10 days to challenge such decisions. Invoking the principle of procedural autonomy, the CJEU noted that in the absence of EU procedural rules, it is up to the Member States to establish procedural rules for actions intended to safeguard the rights of individuals and is itself limited by the principle of equivalence and the principle of effectiveness.
The CJEU held that Article 46 of the Procedures Directive, read in the light of Article 47 of the Charter, does not, in principle, preclude a 10-day time limit for the introduction of an appeal against a decision declaring a subsequent application for international protection by a third-country national to be inadmissible.
The case concerned the living conditions in a temporary camp for asylum applicants in Metz. The ECtHR held unanimously that there had been no violation of Article 3 (prohibition of inhuman or degrading treatment) of the ECHR. According to the ECtHR's Press Release:
The seventeen applicants, asylum-seekers, are members of four Albanian, Bosnian and Kosovar2 families, including minor children. They complained that they had been accommodated for several months in a tent camp set up on a carpark in Metz, directly on the concrete ground, and that they had not been provided with the material and financial support to which they were entitled under domestic law.
In March 2013 a camp for around forty-five asylum-seekers was set up near the asylum-seekers’ reception platform in Metz. The camp was later dismantled by decision of the Moselle prefect. Due to the saturation of accommodation facilities in the Moselle département, the prefect opened a camp on 19 June 2013 on a former car park located on Avenue de Blida in Metz. According to the applicants they lived there in tents placed on the concrete ground. The camp was dismantled and closed on 15 November 2013.
Applicants 1 to 12 had not maintained contact with their lawyer and had not provided any indication of their whereabouts or how they could be reached. In those circumstances the Court found that they had lost interest in the proceedings and no longer wished to pursue their application.
Applicants 13 to 17 are a couple of Kosovar nationality and their three children, aged 2, 9 and 11 at the time. The Court observed, first, that the applicants had merely indicated, in a general and unsubstantiated manner, that they had lived in a tent on concrete ground without providing any precise information enabling it to make a proper assessment of their living conditions with their children during the three months and eleven days they had stayed on the site, in particular as regards the possibilities for eating and washing. Secondly, the French authorities had not remained indifferent to the applicants’ situation and their basic needs – housing, food and washing – had all been met.
Although the applicants had not received the waiting allowance until 12 and 21 November 2013, it was not in dispute that they had received food aid in the form of vouchers between 29 June and 9 October 2013, the date of their departure from the camp. The children had been under medical supervision and vaccinated and those who were then aged 9 and 11 had been able to attend school. Lastly, accommodation in a permanent structure had been offered three months and eleven days after their arrival in the camp, which was relatively quick.
In the light of all these factors, the Court found that the applicants’ living conditions had improved rapidly and significantly. Moreover, during the period in question the applicants had not been left without any prospect of seeing their situation improve. They had been summoned to the prefecture on 10 September 2013 to file their asylum application. OFPRA had examined their application under the fast-track procedure and had decided on their asylum application on 3 February 2014.
While it was true that the camp on Avenue de Blida, where the applicants had lived from 29 June to 3 October 2013, had been overcrowded, that its sanitary conditions had been unsatisfactory and that it had become insalubrious over the weeks, the Court was not in a position to conclude that the applicants had found themselves, during the relevant period, in a situation of material deprivation that had reached the threshold of severity necessary to fall within the scope of Article 3.