Date: 12 September 2024
Jurisdiction: Court of Justice of the European Union
Request for a preliminary ruling under Article 267 TFEU from the Administrativen sad Sofia-grad (Administrative Court, Sofia, Bulgaria)
Articles: Articles 1, 4 and 7 of the Charter of Fundamental Rights of the European Union, read in conjunction with Article 14(1) of Directive 2008/115 (the Returns Directive).
Subject:
The case concerns a FAR beneficiary who has been residing in Bulgaria for 27 years without the possibility of returning to his country of origin. During this period, he has submitted 11 applications for international protection.
However, in the absence of a regularisation mechanism in Bulgaria that would allow people like him to legally regulate their stay, he has become undocumented and effectively invisible. This has resulted in him being denied access to basic human rights, including non-emergency medical care, the right to work legally, the right to marry, and even the right to have his children recognised as his own.
The central issue in this case concerned the positive obligations of the state to ensure access to basic human rights for people who have been in the country for many years without any legal mechanism to regularise their stay.
In the context of Bulgarian law, the only such possibility currently exists in Article 9(8) of the Asylum and Refugee Act, according to which Humanitarian status may also be granted for other reasons of a humanitarian nature and for the reasons set out in the conclusions of the Executive Committee of the United Nations High Commissioner for Refugees.
In this regard, the ECJ stated in its judgment that a Member State may grant a right of residence on humanitarian grounds to a third-country national who is in a situation of extreme material deprivation on its territory only in accordance with its national law. However, such national protection should not be confused with refugee status or subsidiary protection within the meaning of Directive 2011/95.
In its judgment, the ECJ held that Articles 1 (human dignity), 4 (prohibition of torture and inhuman or degrading treatment or punishment) and 7 (respect for private and family life) of the Charter of Fundamental Rights of the European Union (CFREU), read in conjunction with Directive 2008/115, must be interpreted as meaning that a Member State is not obliged, on imperative humanitarian grounds, to grant a right of residence to a third-country national currently residing illegally on its territory, irrespective of the duration of that residence.
However, the ECJ has categorically stated that until he is removed, the person may enjoy the rights guaranteed to him by both the EUCFR and Article 14(1) of Directive 2008/115 (the Returns Directive). The Member State must still ensure that the person is not subjected to inhuman or degrading treatment in accordance with Article 4 of the EUCFR. This includes the provision of basic needs such as emergency health care and basic treatment of illness, especially for vulnerable persons.
In addition, if the national is also an applicant for international protection, including with a subsequent application for asylum, he/she will also have:
1) the right to remain in the territory of the Member State pending the outcome of his/her appeal, irrespective of the specific grounds on which his/her application for asylum was rejected;
2) to benefit also from the rights provided for in Directive 2013/33/EU on setting standards on the reception of applicants for international protection, ensuring a standard of living that guarantees his/her subsistence and protects his/her fundamental rights. The latter applies even in cases where material reception conditions are reduced or withdrawn on the grounds that the asylum application is a subsequent one. Even in such cases, applicants should be guaranteed at least the minimum reception conditions necessary to lead a dignified life.
The full text of the decision can be found here.
English
Jurisdiction:
Court of Justice of the European Union
Subject:
Human rights
Migrant rights
Right to shelter
Country:
