Back in December 2014 – on the same day as it gave its Opinion on EU accession to the European Convention on Human Rights which we noted up here – the Court of Justice handed down an interesting judgment in Case C-562/13 Moussa Abdida, EU:C:2014:2453, on what sort of judicial remedies should be available to a third-country immigrant who has been declared to be staying illegally to challenge that declaration when he claims he needs to stay to get medical treatment.

The Court held that such an immigrant must be able to challenge the decision to send him back to his country of origin with suspensive effect and must also, in the meantime, get social assistance to cover his basic needs pending his appeal.

The judgment shows how the Court is willing to interpret the provisions of EU law in such a way that they comply with the Charter of Fundamental Rights and with the European Convention on Human Rights.

A few facts first. Mr Moussa Abdida applied to the Belgian authorities to remain in Belgium  on medical grounds, stating he needed medical treatment there for a serious illness. His request to remain in Belgium was turned down and his social assistance was then withdrawn. He appealed against those decisions. The Belgian court to which he appealed found that, under Belgian law, Mr Abdida had no judicial remedy providing for suspension of the decision refusing him permission to remain in Belgium and he was not entitled to any form of social assistance other than emergency medical assistance. The Belgian court thus asked the Court of Justice whether as a matter of EU law he should have available a remedy with suspensive effect and whether he should receive basic social assistance other then the emergency medical care pending his appeal.

The Court of Justice answered yes to both.

Before doing so, the Court pointed out that the three directives specifically mentioned in the national court’s questions were not applicable to the case. A fourth directive, not mentioned – Directive 2008/115/EC of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (OJ 2008 L 348, p. 98)  – was applicable.

The Court dealt with that procedural point. It recalled that the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it.  The Court can provide the referring court with all the elements of interpretation of EU law which may be of assistance in adjudicating in the case pending before it, whether or not the referring court has referred to them in the wording of its questions. It is, in this regard, for the Court to extract from all the information provided by the national court, in particular from the grounds of the decision to make the reference, the points of EU law which require interpretation in view of the subject-matter of the dispute (see, judgments in Fuß, C‑243/09, EU:C:2010:609, paragraphs 39 and 40, and Hadj Ahmed, C‑45/12, EU:C:2013:390, paragraph 42).

As to the substance of the case, the Court pointed out that Directive 2008/115 provides that a third country national must be afforded an effective remedy to appeal against or seek review of a decision ordering his return, the wording of the Directive does not require that the remedy should necessarily have suspensive effect.

The Court did not stop there, however. It continued to the effect that the characteristics of such a remedy must be determined in a manner consistent with Article 47 of the Charter, which constitutes a reaffirmation of the principle of effective judicial protection (see,  judgments in Unibet, C‑432/05, EU:C:2007:163, paragraph 37, and Agrokonsulting-04, C‑93/12, EU:C:2013:432, paragraph 59), and provides that everyone whose rights and freedoms guaranteed by EU law are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in that article.

The Court also noted that Article 19(2) of the Charter states, inter alia, that no one may be removed to a State where there is a serious risk that he or she would be subjected to inhuman or degrading treatment.

It pointed out that the case-law of the European Court of Human Rights, which, in accordance with Article 52(3) of the Charter, must be taken into account in interpreting Article 19(2) of the Charter, states that, while non-nationals subject to a decision authorising their removal cannot, in principle, claim any entitlement to remain in the territory of a State in order to continue to benefit from medical, social or other forms of assistance and services provided by that State, a decision to remove a foreign national suffering from a serious physical or mental illness to a country where the facilities for the treatment of the illness are inferior to those available in that State may raise an issue under Article 3 ECHR in very exceptional cases, where the humanitarian grounds against removal are compelling (see, inter alia, European Court of Human Rights, judgment in N. v. the United Kingdom [GC], no. 26565/05, § 42, ECHR 2008).

In the very exceptional cases in which the removal of a third country national suffering a serious illness to a country where appropriate treatment is not available would infringe the principle of non-refoulement, Member States cannot therefore, as provided for in Article 5 of Directive 2008/115, taken in conjunction with Article 19(2) of the Charter, proceed with such removal.

The enforcement of a return decision entailing the removal of a third country national suffering from a serious illness to a country in which appropriate treatment is not available may therefore constitute, in certain cases, an infringement of Article 5 of Directive 2008/115.

Those very exceptional cases are characterised by the seriousness and irreparable nature of the harm that may be caused by the removal of a third country national to a country in which there is a serious risk that he will be subjected to inhuman or degrading treatment. In order for the appeal to be effective in respect of a return decision whose enforcement may expose the third country national concerned to a serious risk of grave and irreversible deterioration in his state of health, that third country national must be able to avail himself, in such circumstances, of a remedy with suspensive effect, in order to ensure that the return decision is not enforced before a competent authority has had the opportunity to examine an objection alleging infringement of Article 5 of Directive 2008/115, taken in conjunction with Article 19(2) of the Charter.

The Court continued that such an interpretation is supported by the explanations relating to Article 47 of the Charter, to the effect that the first paragraph of that article is based on Article 13 ECHR (review judgment in Arango Jaramillo and Others v EIB, C‑334/12 RX II, EU:C:2013:134, paragraph 42).

Indeed, the European Court of Human Rights has held that, when a State decides to return a foreign national to a country where, there are substantial grounds for believing, he will be exposed to a real risk of ill-treatment contrary to Article 3 ECHR, the right to an effective remedy provided for in Article 13 ECHR requires that a remedy enabling suspension of enforcement of the measure authorising removal should, ipso jure, be available to the persons concerned (see, inter alia, European Court of Human Rights, judgments in Gebremedhin [Gaberamadhien] v. France, no. 25389/05, § 67, ECHR 2007-II, and Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 200, ECHR 2012).

Accordingly, Directive 2008/115, taken in conjunction with Articles 19(2) and 47 of the Charter, must be interpreted as precluding national legislation which does not make provision for a remedy with suspensive effect in respect of a return decision whose enforcement may expose the third country national concerned to a serious risk of grave and irreversible deterioration in his state of health.

As for the provision of basic needs pending the appeal, the Court held  that it is apparent from the general scheme of Directive 2008/115, which must be taken into account when interpreting its provisions (see, judgment in Abdullahi, C‑394/12, EU:C:2013:813, paragraph 51), that it must cover all situations in which a Member State is required to suspend enforcement of a return decision following the lodging of an appeal against the decision.

Consequently, Member States are required to provide for the basic needs of a third country national suffering from a serious illness who has appealed against a return decision whose enforcement may expose him to a serious risk of grave and irreversible deterioration in his state of health.