20 December 2023

Between Return and Protection

The ECJ Mixes Up Czechia's Return Procedure

Last month, the ECJ responded to a preliminary reference of the Regional Court in Brno concerning Czechia’s so-called return procedure. The ECJ ruled that a third country national cannot be subject to a return decision if they applied for international protection and a first-instance decision on that application has not yet been delivered. Curiously, the ECJ thereby answered a question it had not actually been asked, while contradicting the conclusion of the Grand Chamber of the Czech Supreme Administrative Court (“SAC”), rendered shortly before. While the ECJ’s ruling will nonetheless improve some of the problems that have inhered within Czechia’s approach to international protection and return procedures, its failure to answer the referred question constitutes a missed opportunity to facilitate a productive dialogue with referring courts in an area of law where preliminary references have been exceedingly rare.

The Problem of Simultaneous Procedures

In Czechia, return proceedings and international protection proceedings are conducted before different administrative authorities based on Act no. 326/1999 (“Foreigner’s Act”) and Act no. 325/1999 (“Asylum Act”), respectively. Return proceedings concern a removal of a third-country national from Czechia for their unlawful stay. The Foreign Police renders a decision, and the applicant may appeal to the Ministry of Interior. Judicial review occurs at two stages – before the first instance regional courts and before the SAC. The international protection proceedings are conducted by the Ministry of Interior and revolve around the question whether one is a refugee and whether they can benefit from some form of international protection (e.g., asylum). There is no appeal on the administrative level. The applicant must continue straight to judicial review. Crucially, it is common practice for both proceedings to be initiated simultaneously. Typically, when a third-country national applies for international protection, the Foreign Police learns about their stay in Czechia and immediately starts return proceedings, regardless of their asylum status. However, if the return decision comes before the decision on international protection, it cannot be enforced until the latter is decided as well [§ 119 (7) Foreigner’s Act].

The problem is that this setup goes against the logic of a return decision which should be the final “emergency brake” to prevent a breach of the non-refoulement principle. If the return decision is rendered before the decision on international protection, this emergency brake is not available.

The Question and the Answer (to Something Else)

The Regional Court was reviewing the legality of the return proceedings of Mr CD, an Algerian national. In the first paragraph of its preliminary reference, it mentioned that the applicant applied for international protection and a week later, the Foreign Police initiated return proceedings. The referring court identified two limiting conditions introduced by Czech law as problematic: the use of the safe country of origin (“SCO”) concept and the scope of the non-refoulement principle.

The SCO concept is used in the EU’s Procedural Directive (2013/32/EU) to create a presumption of safety for certain countries for the purpose of determining applicant’s eligibility for international protection. The burden of proof falls on the applicant for international protection to demonstrate that in their particular case, an SCO is unsafe. In Czechia this concept is also used for the purpose of returning applicants, even though the Return Directive (Directive 2008/115) does not use it. If an applicant comes from an SCO and does not state facts indicating that they might face “real danger” then the Foreign Police does not have to request a binding opinion from the Ministry of Interior on whether their return to the country of origin is possible. Moreover, when the referring court submitted the request for a preliminary ruling, the definition of “real danger” contained in the Foreigner’s Act meant only a return in violation of Article 3 of the European Convention on Human Rights (“Convention”). The referring court considered this insufficient for the purpose of assessing the question of non-refoulement, since its scope is wider than just Art. 3 of the Convention but also includes its Art. 2 and Art. 1 of Protocol no. 6 to the Convention (paras. 39-44 of the preliminary reference).

The ECJ’s response did not answer the referred question, focusing instead on the fact that the applicant was subject to a return decision even though the Ministry of Interior had not yet decided on his application for international protection. The ECJ cited the Gnandi (C-181/16) case which had turned on whether a return decision could be issued after an application for international protection had been rejected, but before an appeal was decided. The ECJ deemed this permissible, provided that the legal effects of the return decision were suspended pending the outcome of the appeal. However, contrary to Gnandi, in CD a first-instance decision on the international protection application had not yet been rendered when the return decision was made (C-257/22 CD, paras. 39, 41). This, the ECJ held, was not permissible because an applicant for international protection could not be regarded as ‘staying illegally’ in the Member State during the period from submission of the application for international protection until the adoption of a first-instance decision on that application (C-181/16 Gnandi, paras. 40, 46).

The Conflicting SAC Decision that Came Too Soon

Just a month earlier, the Grand Chamber of the SAC, which was created to unify the case-law of all administrative courts in Czechia, found the opposite to be the case, deeming it lawful for international protection proceedings and return proceedings to take place simultaneously. That alone does not seem to be contrary to the ECJ’s stance: Gnandi does not explicitly forbid that the return proceedings take place, only that their conclusion cannot come before the first-instance international protection decision. However, the SAC based its reasoning on the fact that according to the Foreigner’s Act it is possible to adopt a return decision before the decision on international protection (para. 27) because the return decision is not enforceable until the adoption of the decision on international protection (para. 32). Citing para. 62 of Gnandi, the SAC found that according to the ECJ, if an administrative authority adopts a return decision before the decision on international protection, it is essential that all the legal effects of the return decision be suspended (para. 33). The SAC failed to distinguish that in the Gnandi case, the first-instance decision on international protection had already been rendered and the ECJ was considering the effects of an appeals procedure on the return proceedings (C-181/16, paras. 59-61).

To be sure, the Grand Chamber of the SAC could not have known the ECJ would answer a question it was not asked. However, it is unclear why the SAC did not make a reference itself, especially given that the facts of the Gnandi case differed in the phase of the asylum proceedings (appeals procedure) from the SAC case (first instance procedure). The Grand Chamber did not (as a chamber of a court of last instance) explicitly address why it was not obliged to make a preliminary reference, nor did it address whether the question had already been interpreted by the ECJ based on Gnandi. Yet it arrived at a completely different conclusion than the ECJ despite interpreting the same case. The reluctance to make a preliminary reference from the Grand Chamber is unfortunate since it has actively submitted preliminary references to the ECJ in the last couple of years, most recently just a few weeks ago. However, it never did so in a migration or an asylum case – so far, only matters of economic nature (tax and the four freedoms) have been referred.

Some Improvements to Migrant Protection

Even though the ECJ did not answer the referring court’s actual question, the CD case (C-257/22) nonetheless made a positive impact while still pending. Regarding the non-refoulement consideration, the legislator amended Article 179(2) of the Aliens Act and redefined the term of “real danger” (which was limited to Article 3 of the Convention) to “return in violation of Articles 2 to 6 of the Convention”. That is, however, only a half-way solution. As the preliminary reference clearly showed, the worsening of applicants’ position has two elements. Only reacting to the non-refoulement problem and not the initial SCO problem, is not sufficient.

Following the ECJ’s response, the long-standing administrative practice of concurrently running return and asylum proceedings where a return decision has been adopted first will now also have to change. All return proceedings concerning foreigners who have also applied for international protection will have to be suspended until decisions regarding international protection are adopted.

At the same time, many return proceedings that were concluded prior to international protection proceedings are likely still under judicial review. Based on past practice, courts are unlikely to disregard the ECJ’s instructions in favour of the SAC Grand Chamber’s interpretation, not least because the Grand Chamber does not require that its judgments be followed if the rules have been interpreted differently by courts such as the ECtHR or the CJEU. Thus, no problem of primacy should arise. The reviewing courts should therefore probably quash the return decisions, though the ECJ has not said that such an obligation arises from EU law, as is the case with, for example, detention of third-country nationals. As judicial review in administrative matters stands in Czechia, judges are generally bound by the applicant’s arguments and the existing legal and factual situation at the time of the administrative authority’s decision. Therefore, the applicants must still make an explicit claim reacting to the ECJ’s judgement if they want to have their return decision quashed.

In case the Ministry of Interior brings cassation complaints after losing these cases at the first instance, the SAC could try to submit another preliminary reference, aiming to explain its position on the matter. However, in this case the ECJ already asked the Regional Court for extra explanation in two rounds of requests for information (see para. 27 of the ECJ’s judgement). As such, the ECJ is likely already aware of the (non)enforceability argument, rendering such an attempt unlikely to be successful.

A Missed Opportunity?

Notably, the ECJ’s ruling still does not solve the problem of the use of the SCO concept in the return procedure. The response through reference to Gnandi only helps those who have applied for international protection. It remains unclear how Czech judges should react if the return proceedings have been initiated for someone from an SCO who has not applied for international protection. In such cases, Czech courts will probably have to file another request for a preliminary ruling. In this regard, the preliminary reference arising from the CD case represents a welcome change. Sadly, the topic of asylum and migration law is typically underrepresented in the preliminary references made by Czech courts. This was the first reference from a lower court (with another case pending), while the SAC has made only 4 references in asylum/migration case over the last 20 years. The fact that even the Grand Chamber of the SAC ignored the problem, is witness to this statement. It is hoped that the ECJ’s approach in this case, which provided an answer to a question different from the one referred, has not had a chilling effect on future attempts at dialogue.

SUGGESTED CITATION  Michková, Karolina; Dřínovská, Natálie: Between Return and Protection: The ECJ Mixes Up Czechia's Return Procedure, VerfBlog, 2023/12/20, https://verfassungsblog.de/between-return-and-protection/, DOI: 10.59704/56c59c1abf78687a.

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