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delivered on 4 September 2014  (2)

Case C‑562/13

Centre public d’action sociale d’Ottignies-Louvain-la-Neuve

v

Moussa Abdida

(Request for a preliminary ruling from the Cour du travail de Bruxelles (Belgium))

(Reference for a preliminary ruling — Common European Asylum System — Directive 2003/9/EC — Minimum standards for the reception of asylum seekers in the Member States — Directive 2004/83/EC — Minimum standards for the qualification and status of third-country nationals or stateless persons as refugees — Person eligible for subsidiary protection — Article 2(e) — Real risk of suffering serious harm — Article 15(b) — Inhuman or degrading treatment — Directive 2005/85/EC — Minimum standards on procedures in Member States for granting and withdrawing refugee status — Directive 2008/115/EC — Common standards and procedures for returning illegally staying third-country nationals — Article 13(2) — Suspensive effect of remedies — Article 14(1) — Safeguards pending return — Charter of Fundamental Rights of the European Union — Decision by the Member State refusing to grant a third-country national who is seriously ill leave to reside on medical grounds and ordering that person to leave national territory — No remedy automatically suspending enforcement of the removal — No provision made for basic needs other than medical needs to be met — Grant of emergency medical assistance)

1.       By the present request for a preliminary ruling, the referring court seeks clarification on the procedural safeguards and social benefits that a Member State is required to grant to a third-country national whose state of health is such that he requires medical treatment, where that person is awaiting a ruling on the lawfulness of the decision rejecting his application for leave to reside on medical grounds and ordering him to leave national territory.

2.       More specifically, the referring court is in essence asking the Court to assess whether national legislation which, on the one hand, does not make available a remedy automatically suspending enforcement of a removal order and, on the other hand, limits provision for the basic needs of the person concerned to emergency medical assistance for the entire duration of the judicial proceedings, is compatible with Directives 2003/9/EC,  (3) 2004/83/EC  (4) and 2005/85/EC  (5)  — which form the basis of the Common European Asylum System — and with the Charter of Fundamental Rights of the European Union.  (6)

3.       This request for a preliminary ruling has been made in the course of a dispute between the centre public d’action sociale d’Ottignies-Louvain-la-Neuve (Public Centre for Social Welfare, Ottignies-Louvain-la-Neuve) (‘the CPAS’) and Mr Abdida, a Nigerian national suffering from AIDS. Following the Belgian State’s decision rejecting his application for leave to reside on medical grounds and ordering him to leave Belgium, the registration certificate entitling Mr Abdida to the free provision of facilities to meet his basic needs was withdrawn. In addition, no remedy automatically suspending enforcement of the removal order was available to him when he brought an action for annulment of that decision.

4.       In essence, the request for a preliminary ruling raises three questions.

5.       First, can a third-country national suffering from a serious illness who, if returned to his country of origin, would face a real risk of being subjected to inhuman or degrading treatment because of the lack of appropriate medical treatment in that country, be regarded as a ‘person eligible for subsidiary protection’ within the meaning of Article 2(e) of Directive 2004/83?

6.       This question is the same as that referred by the Cour constitutionnelle in M’Bodj, which is currently pending before the Court and in which I gave my Opinion on 17 July 2014.  (7)

7.       Secondly, should an action brought against a decision rejecting an application for leave to reside on medical grounds and ordering the removal of the person concerned have automatic suspensive effect in view of the rights granted to that person under Directives 2003/9, 2004/83 and 2005/85 and the Charter?

8.       Thirdly, and on the basis of those provisions, are the Member States required to make provision for the basic needs of the person concerned, other than medical needs, pending a ruling on the lawfulness of the return decision, given that, in the present case, the CPAS limited social assistance to the grant of emergency medical assistance?

9.       In this Opinion, I shall argue that none of the provisions governing the Common European Asylum System, that is to say Directives 2003/9, 2004/83 and 2005/85, are applicable to an application for leave to reside on medical grounds under Article 9b of the Law of 15 December 1980 on the entry in Belgian territory, residence, establishment and removal of foreign nationals, since that law does not relate to any subsidiary form of international protection.

10.     Next, I shall explain why my examination of whether, in circumstances such as those in the main proceedings, the lack of a remedy automatically suspending enforcement of a removal order and of any provision enabling the basic needs of the person concerned to be met respect the rights conferred on migrants in the European Union will be carried out in the light of the requirements laid down by Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals  (8) and the fundamental rights set out in the Charter.

11.     I shall propose that the Court give a ruling to the effect that the right to an effective judicial remedy provided for under Article 13(1) of Directive 2008/115 and enshrined in Article 47(1) of the Charter presupposes that a remedy with automatic suspensive effect will be made available where enforcement of a return decision may, on account of the state of health of the person concerned, expose that person to a risk of inhuman or degrading treatment contrary to Article 4 of the Charter.

12.     I shall also explain why, in such a situation, the objective of Article 14 of Directive 2008/115 and respect for fundamental rights, in particular the requirements arising from Articles 1 to 4 and 35 of the Charter, require Member States to ensure, for the entire duration of the judicial proceedings, that provision is made for the basic needs of the person concerned to a level sufficient to ensure that his subsistence needs are catered for and a decent standard of living adequate for his health, by enabling him, inter alia, to secure accommodation and by taking into account any special needs he may have.

I –  Legal framework

A – European Union law

1.     The Common European Asylum System

13.     Three provisions make up the Common European Asylum System: Directives 2003/9, 2004/83 and 2005/85.

(a) Directive 2003/9

14.     Directive 2003/9 lays down minimum standards for the reception of asylum seekers in the Member States.

15.     Under Article 3(1), that directive ‘shall apply to all third country nationals and stateless persons who make an application for asylum at the border or in the territory of a Member State as long as they are allowed to remain on the territory as asylum seekers’.

16.     However, in accordance with Article 3(4), ‘Member States may decide to apply this Directive in connection with procedures for deciding on applications for kinds of protection other than that emanating from the Geneva Convention for third-country nationals or stateless persons who are found not to be refugees’.

17.     In Chapter II, Directive 2003/9 lays down the minimum conditions under which Member States are to receive asylum seekers in order to guarantee them a standard of living adequate for their health and to provide for their subsistence.

18.     In Articles 7 to 10 and Article 15 of Directive 2003/9, the EU legislature establishes safeguards relating in particular to the residence and free movement of applicants, the maintenance of family unity, medical screening and health care, schooling and the education of minors.

19.     In Chapter IV, in particular Articles 17 to 20, Directive 2003/9 establishes specific provisions for persons with special needs.

(b) Directive 2004/83

20.     The objective of Directive 2004/83 is to set criteria common to all the Member States with regard to the substantive conditions governing the qualification of third-country nationals for international protection  (9) and the material content of that protection.  (10) It is within that framework that Directive 2004/83 determines, in Article 2(c) and (e), who is eligible for refugee status and subsidiary protection status, lays down, in Chapters II, III and V, the substantive conditions applicable to such status, and determines, in Chapter VII, the rights attached to each such status.

21.     Under the Common European Asylum System, subsidiary protection supplements and adds to the rules governing refugee status laid down by the Convention relating to the Status of Refugees.  (11)

22.     Subsidiary protection is international protection which, in accordance with Article 2(e) of Directive 2004/83, is directed at ‘a third country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, … would face a real risk of suffering serious harm as defined in Article 15, … and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country’.

23.     In accordance with Article 18 of that directive, ‘Member States shall grant subsidiary protection status to a third country national … eligible for subsidiary protection in accordance with Chapters II and V’.

24.     Chapter II of that directive concerns the ‘[a]ssessment of applications for international protection’. Article 6 thereof, entitled ‘Actors of persecution or serious harm’, provides as follows:

‘Actors of persecution or serious harm include:

(a)

the State;

(b)

parties or organisations controlling the State or a substantial part of the territory of the State;

(c)

non-State actors, if it can be demonstrated that the actors mentioned in (a) and (b), including international organisations, are unable or unwilling to provide protection against persecution or serious harm as defined in Article 7.’

25.     Chapter V of Directive 2004/83 concerns ‘[q]ualification for subsidiary protection’. Article 15 thereof defines ‘serious harm’ as follows:

‘Serious harm consists of:

(a)

death penalty or execution; or

(b)

torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or

(c)

serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict.’

26.     Furthermore, in Chapter VII of that directive, concerning the ‘[c]ontent of international protection’, the EU legislature makes clear, in Articles 28 and 29, that the grant of international protection, be it in the form of refugee or subsidiary protection status, requires Member States to afford the person concerned the same social assistance and the same conditions of access to health care as are provided for the benefit of Member State nationals. The Member States may nevertheless draw a distinction between those two statuses since those provisions allow them to limit the social assistance granted to beneficiaries of subsidiary protection status to core benefits.  (12)

27.     Finally, it should be noted that Directive 2004/83 seeks to establish minimum standards. In accordance with recital 8 and Article 3 thereof, Member States therefore remain free to introduce or retain more favourable standards for determining who qualifies as a refugee or as a person eligible for subsidiary protection, in so far as those standards are compatible with that directive.

28.     None the less, the EU legislature stated in recital 9 to Directive 2004/83 that ‘[t]hose third country nationals or stateless persons, who are allowed to remain in the territories of the Member States for reasons not due to a need for international protection but on a discretionary basis on compassionate or humanitarian grounds, fall outside the scope of this Directive’.

(c) Directive 2005/85

29.     Directive 2005/85 lays down the procedural rules for examining an application for international protection. Article 1 of that directive states that its purpose is to establish minimum standards on procedures common to all Member States for granting and withdrawing refugee status, while Chapters II and III set out the procedural rights and obligations of the applicant and the Member State respectively with regard to the assessment of an application for international protection.

30.     The scope of that directive is defined in Article 3 as follows:

‘1.     This Directive shall apply to all applications for asylum made in the territory, including at the border or in the transit zones of the Member States, and to the withdrawal of refugee status.

…

3.       Where Member States employ or introduce a procedure in which asylum applications are examined both as applications on the basis of the Geneva Convention and as applications for other kinds of international protection given under the circumstances defined by Article 15 of Directive [2004/83], they shall apply this Directive throughout their procedure.

4.       Moreover, Member States may decide to apply this Directive in procedures for deciding on applications for any kind of international protection.’

31.     Under the heading ‘The right to an effective remedy’, Article 39 of that directive states:

‘1.     Member States shall ensure that applicants for asylum have the right to an effective remedy before a court or tribunal, against the following:

(a)

a decision taken on their application for asylum;

…

3.       Member States shall, where appropriate, provide for rules in accordance with their international obligations dealing with:

(a)

the question of whether the remedy pursuant to paragraph 1 shall have the effect of allowing applicants to remain in the Member State concerned pending its outcome;

(b)

the possibility of legal remedy or protective measures where the remedy pursuant to paragraph 1 does not have the effect of allowing applicants to remain in the Member State concerned pending its outcome. Member States may also provide for an ex officio remedy …’

2.     The return of illegally staying third-country nationals

32.     The rules governing the removal of illegally staying third-country nationals are laid down in Directive 2008/115.

33.     In accordance with Article 2 thereof, Directive 2008/115 applies to third-country nationals staying illegally in the territory of a Member State.

34.     The purpose of the directive is to establish an effective removal and repatriation policy, based on common standards and legal safeguards, for persons to be returned in a humane manner and with full respect for their fundamental rights and dignity.  (13)

35.     With that in mind, Article 13(1) and (2) of Directive 2008/115 affords the third-country national concerned procedural safeguards in relation to any review of or appeal against the return decision.

36.     That provision reads as follows:

‘1.    The third-country national concerned shall be afforded an effective remedy to appeal against or seek review of decisions related to return …

2.      The authority or body mentioned in paragraph 1 shall have the power to review decisions related to return … including the possibility of temporarily suspending their enforcement, unless a temporary suspension is already applicable under national legislation.’

37.     Article 14 of Directive 2008/115 establishes the economic and social rights available to the migrant pending his removal.

38.     Article 14(1) reads as follows:

‘Member States shall, with the exception of the situation covered in Articles 16 and 17, ensure that the following principles are taken into account as far as possible in relation to third-country nationals during the period for voluntary departure granted in accordance with Article 7 and during periods for which removal has been postponed in accordance with Article 9:

(a)

family unity with family members present in their territory is maintained;

(b)

emergency health care and essential treatment of illness are provided;

(c)

minors are granted access to the basic education system subject to the length of their stay;

(d)

special needs of vulnerable persons are taken into account.’

B – Belgian law

1.     The Law of 15 December 1980 on entry to Belgian territory, residence, establishment and removal of foreign nationals

39.     The purpose of the Law of 15 December 1980 on entry to Belgian territory, residence, establishment and removal of foreign nationals  (14) is to transpose Directive 2004/83 into Belgian law.

(a) Substantive rules and procedures for granting leave to reside on medical grounds

40.     Article 9b of that law lays down the conditions on which leave to reside may be granted on medical grounds. Paragraph 1 of that article is worded as follows:

‘A foreign national residing in Belgium who can prove his identity in accordance with paragraph 2 and who suffers from an illness occasioning a real risk to his life or physical integrity or a real risk of inhuman or degrading treatment, where there is no appropriate treatment in his country of origin or in the country in which he resides, may apply to the Minister or his representative for leave to reside in the Kingdom of Belgium.

The application shall be made by registered post to the Minister or his representative and shall contain the address of the actual place of residence of the foreign national in Belgium.

The foreign national shall submit with his application all relevant and up-to-date information regarding his illness and the options for and availability of appropriate treatment in his country of origin or in the country in which he is resident.

The foreign national shall submit a standard-form medical certificate, as established by the King by decree deliberated in the Council of Ministers. The medical certificate must dated less than three months prior to the date of the application and indicate the illness, its degree of severity and the treatment considered necessary.

The assessment of the risk referred to in the first subparagraph, the treatment options, the availability thereof in the person’s country of origin or in the country in which he is resident and of the illness, its degree of severity and the treatment considered necessary, as stated on the medical certificate, shall be carried out by a medical official or a doctor appointed by the Minister or his representative, who shall issue an opinion on that matter. That doctor may, if he considers it necessary, examine the foreign national and seek an additional expert opinion.

…’

41.     If leave to reside on medical grounds is granted, the competent national authorities are to issue the person concerned with a residence permit, the duration of which is limited to one year but which may be extended. That person is then entitled to social assistance from the CPAS, which may, if the person concerned is in need, cover his contributions to sickness and invalidity insurance and his medical expenses. After a period of five years, the person concerned may qualify for a residence permit of unlimited duration, giving him the same rights enjoyed by Member State nationals.

42.     If leave to reside is refused, the competent national authorities are to serve on the person concerned an order to leave national territory and that person’s stay on Belgian territory now becomes unlawful. In those circumstances, social assistance is limited to the provision of emergency medical assistance. In accordance with the case-law of the Cour constitutionnelle (Constitutional Court), such medical assistance must cover medical care, both preventive and curative, aimed at ensuring that persons suffering from a serious illness are not exposed to a risk to their life or physical integrity.  (15)

43.     The person concerned may bring an action before the Conseil du contentieux des étrangers (Belgian Asylum and Immigration Board) for the annulment of the decision rejecting his application for leave to reside. Such an action does not suspend enforcement of the removal order.

44.     Article 39/82 of the Law of 15 December 1980 provides that that action may be accompanied by an application for suspension of the removal order, which may be made by way of the ordinary procedure or under the emergency procedure, which itself suspends enforcement of the order.

45.     That provision is worded as follows:

‘(1)  Where an act of an administrative authority is amenable to annulment under Article 39/2, the Board alone shall have jurisdiction to order the suspension of its enforcement.

Suspension shall be ordered, after the parties have been heard or have been duly summoned to appear, by reasoned decision of the President of the chamber to which the case has been assigned or the judge of the asylum and immigration board appointed by the President for that purpose.

In cases of extreme urgency, suspension may be ordered on a provisional basis, even though the parties, or some of them, have not been heard.

Where the applicant seeks suspension of enforcement, he must opt for either suspension on grounds of extreme urgency or ordinary suspension. The applicant must not, either simultaneously or consecutively, seek further application of the third subparagraph or make a further request for suspension in the application referred to in paragraph 3, failing which the application will be inadmissible.

By way of derogation from the fourth subparagraph and without prejudice to paragraph 3, a rejection of the application for suspension under the emergency procedure shall not preclude the applicant from making a subsequent application for suspension under the ordinary procedure, where that application for suspension on grounds of extreme urgency was rejected on the ground that urgency was not sufficiently established.

(2)    Suspension of enforcement may be ordered only on serious grounds capable of justifying the annulment of the contested act and on condition that immediate enforcement of the act is liable to cause serious harm which would not be readily reparable.

…

(3)    Other than in cases of extreme urgency, the application for suspension and the application for annulment must be brought by one and the same document.

The heading of the application must indicate whether the relief sought is an action for annulment or an application for suspension together with an action for annulment. If that formal requirement is not complied with, the application shall be deemed to consist of an action for annulment only.

Once the action for annulment has been brought, an application for suspension made subsequently shall be inadmissible; this shall not, however, preclude the applicant from bringing a new action for annulment combined with an application for suspension in the manner indicated above, if the time-limit for bringing the action has not yet expired.

…

(4)    …

If the foreign national is the subject of a removal or refoulement order the enforcement of which is imminent, and has not yet made an application for suspension, he may seek suspension of that order where justified on grounds of extreme urgency. … [I]f suspension is not granted, the order shall once again become enforceable.’

46.     Under Article 39/84 of that Law, the Conseil du contentieux des étrangers has sole jurisdiction to order any measure necessary to safeguard the interests of the parties or of persons with an interest in the outcome of the case, with the exception of measures relating to civil rights.

47.     Article 39/85 of that Law governs the examination of interim measures sought on grounds of extreme urgency. It provides as follows:

‘If the foreign national is the subject of a removal or refoulement order the enforcement of which is imminent and has already made an application for suspension, he may, provided that the Board has not yet given a ruling on that application, request, by way of interim measure within the meaning of Article 39/84, that the Board examine his application for suspension as soon as is practicable.

The request for interim measures and the application for suspension shall be examined together …

…

Once the Board has received the application for interim measures, the removal or refoulement order cannot be enforced until the Board has given a ruling on the request or has rejected it. … [I]f suspension is not granted, the order shall once again become enforceable.

…’

48.     Both the application for suspension on grounds of extreme urgency and the application for interim measures on grounds of extreme urgency require the person concerned to demonstrate an imminent risk of serious harm and in particular the existence of an enforceable measure requiring him to leave Belgian territory.

(b) Rules for granting subsidiary protection status

49.     Article 48/4 of the Law of 15 December 1980 lays down the conditions of eligibility for subsidiary protection status.  (16) It transposes Articles 2(e), 15 and 17 of Directive 2004/83 and provides as follows:

‘1)    Subsidiary protection status shall be granted to a foreign national who does not qualify as a refugee and to whom Article 9b is not applicable, and with regard to whom there are substantial grounds for believing that, if returned to his country of origin or, in the case of a stateless person, to his country of former habitual residence, he would face a real risk of serious harm as referred to in paragraph 2, and who is unable, or, owing to that risk, unwilling to avail himself of the protection of that country, in so far as that person is not covered by the exclusion clauses set out in Article 55/4.

2)      The following are considered to constitute serious harm:

(a)

death penalty or execution; or

(b)

torture or inhuman or degrading treatment or punishment of the applicant in the country of origin; or

(c)

serious threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict.’

50.     If the application for international protection is rejected, the person concerned may bring an appeal before the Conseil du contentieux des étrangers, which has unlimited jurisdiction in the matter. In accordance with Article 39/70 of the Law of 15 December 1980, such an appeal has suspensive effect: unless the person concerned agrees, no order for removal from national territory or for refoulement may be enforced against him during the period prescribed for bringing the appeal or during the examination of the appeal. Moreover, the person concerned continues to be eligible for social assistance from the CPAS. Such assistance covers all of the basic needs of the person concerned, that is to say medical assistance, welfare benefits, housing, food and children’s education.

2.     The Basic Law of 8 July 1976 on public social welfare centres (CPAS)

51.     Article 1 of the loi organique des centres publics d’action sociale (Basic Law of 8 July 1976 on public social welfare centres) confers a right to social assistance on all citizens with a view to enabling them to lead a life consistent with human dignity.

52.     In accordance with Article 57 of that law, the function of the CPAS is to ensure that individuals and families receive the social assistance which the State is under an obligation to provide. The assistance it provides is not only palliative or curative but also preventive. The assistance may be material, social, medical or psychological.

53.     None the less, the first subparagraph of Article 57(2) of that law introduces a derogation to that principle in that it enables the CPAS to limit its function to the provision of emergency medical assistance in the case of illegally staying foreign nationals.

54.     The Royal Decree of 12 December 1996 on emergency medical assistance provided by public social welfare centres to illegally staying foreign nationals in the Kingdom of Belgium  (17) states that the emergency medical assistance referred to in the first subparagraph of Article 57(2) of the Law of 8 July 1976 concerns assistance that is solely of a medical nature and that the urgent need for such assistance must be attested by a medical certificate. Such assistance cannot take the form of financial support, housing or other social assistance.

II –  The facts of the main proceedings and the questions referred for a preliminary ruling

55.     On 15 April 2009, Mr Abdida applied for leave to reside on medical grounds under Article 9b of the Law of 15 December 1980. That application was accepted as admissible on 4 December 2009 and Mr Abdida thus became eligible for social assistance from the CPAS.

56.     However, on 6 June 2011, the competent national authorities rejected that application on the ground that the applicant’s country of origin has a medical infrastructure equipped to care for persons suffering from AIDS. On 29 June 2011 Mr Abdida was notified of that decision and ordered to leave Belgium. Mr Abdida was also informed that the bringing of an action for annulment and submission of an application for suspension would not have the effect of suspending enforcement of the removal order.

57.     On 7 July 2011, Mr Abdida therefore brought an action for annulment of that decision before the Conseil du contentieux des étrangers. On 13 July 2011, the CPAS decided to withdraw the social assistance it had thus far paid to him and refused to grant him emergency medical assistance. Nevertheless, on 27 July 2011, the CPAS revised that decision and granted Mr Abdida emergency medical assistance.

58.     On 5 August 2011, Mr Abdida brought an action for annulment against the CPAS’s decision before the Tribunal du travail de Nivelles (Labour Court, Nivelles). By judgment of 9 September 2011, that court ordered the CPAS to pay social assistance equivalent to income support for a single person on the ground, inter alia, that the right to social assistance is an essential prerequisite for the effective exercise of a right of appeal and that the social assistance received by Mr Abdida must therefore be maintained pending a decision on his appeal against the decision rejecting his application for a leave to reside.

59.     On 7 October 2011, the CPAS appealed against that judgment to the Cour du travail de Bruxelles (Higher Labour Court, Brussels).

60.     That court states that, under national law, no remedy is available to Mr Abdida for suspension of enforcement of the removal order and that, pending a decision on the appeal against that order, he is not entitled to any form of social assistance other than emergency medical assistance. It also points out that a person seeking subsidiary protection under Article 48/4 of the Law of 15 December 1980 and a person applying for leave to reside on medical grounds under Article 9b of that Law are treated differently. None the less, the Cour constitutionnelle has justified that difference in treatment.

61.     Consequently, the Cour du travail de Bruxelles decided to stay the proceedings and refer the following questions to the Court for a preliminary ruling:

‘(1)

On a proper construction of Directives 2004/83…, 2005/85… and 2003/9…, is a Member State which provides that a foreign national has the right to subsidiary protection for the purposes of Article 15(b) of Directive 2004/83… if that person “suffers from an illness occasioning a real risk to his life or physical integrity or a real risk of inhuman or degrading treatment where there is no appropriate treatment in his country of origin” under an obligation to

–

provide for a remedy with suspensive effect in respect of the administrative decision refusing leave to remain and/or subsidiary protection, and ordering the person concerned to leave the territory of that State,

–

make provision under its social security or reception system for the basic needs of the person applying for subsidiary protection (other than his medical needs) to be met pending a ruling on his appeal against that administrative decision?

(2)

If the answer to Question 1 is in the negative, does the [Charter] — in particular, Articles 1 to 3 (human dignity, right to life and integrity), Article 4 (prohibition of inhuman or degrading treatment), Article 19(2) (right not to be removed to a State where there is a serious risk of inhuman or degrading treatment), Articles 20 and 21 (equality and non-discrimination as compared with other categories of applicants for subsidiary protection) and/or Article 47 (right to an effective remedy) of that Charter — place a Member State in the course of transposing Directives 2004/83…, 2005/85… and 2003/9… into national law under an obligation to make provision for a remedy with suspensive effect and for the requisite means of meeting the basic needs referred to in Question 1?’

62.     Observations have been lodged by the parties to the main proceedings, the Belgian Government, the French Government, the United Kingdom Government and the European Commission.

III –  My Analysis

A – The first question

63.     The first question raised by the referring court concerns the procedural safeguards and social benefits that a Member State is required to provide in connection with the procedure for granting subsidiary protection.

64.     As the Belgian and French Governments and the Commission have pointed out in their observations, that question is based on the premiss that leave to reside granted to a third-country national by reason of his state of health on the basis of Article 9b of the Law of 15 December 1980 constitutes a subsidiary form of international protection within the meaning of Article 2(e) of Directive 2004/83.

65.     For the reasons set out in points 40 to 70 of my Opinion in M’Bodj, which I shall briefly outline here, I consider that premiss to be incorrect.  (18)

66.     I take the view that a third-country national suffering from a serious illness who, if returned to his country of origin, would face a real risk of being subjected to inhuman or degrading treatment due to the lack of appropriate medical treatment in that country cannot be regarded as a ‘person eligible for subsidiary protection’ within the meaning of Article 2(e) of Directive 2004/83. Although, in certain specific circumstances, the suffering caused by an illness may constitute inhuman or degrading treatment, the fact remains that one of the key criteria for granting subsidiary protection, namely the identification of those responsible for inflicting harm, against whom protection is needed, is, in my opinion, not fulfilled.

67.     Consequently, I consider that leave to reside granted on the basis of Article 9b of the Law of 15 December 1980 cannot constitute a subsidiary form of international protection and cannot fall within the scope of the provisions forming the basis of the Common European Asylum System.

68.     Sight should not be lost of the fact that the Common European Asylum System is based on the need to provide individuals who fear either persecution on grounds of race, religion, nationality, political opinion, or membership of a particular social group, or exposure to a risk of serious harm in their country of origin, with protection which their country is unable, or is no longer able, to provide, either because it is intentionally committing those acts or because it is failing to prevent them.

69.     The system by which Member States may grant international protection, in the form of either refugee status or subsidiary protection status, therefore pursues a particular aim and establishes a specific protection mechanism  (19) which requires two key criteria to be fulfilled. First, there must be a risk of persecution or serious harm that the person concerned would face if returned to his country of origin. Second, that country must be directly or indirectly responsible for there being such a risk. Refugee or subsidiary protection status may be granted, therefore, only in cases where the public authorities in the country of origin have not taken any steps to provide such protection, either because they are responsible for the persecution or because they encourage or tolerate persecution by militia or other private groups.

70.     It is essential, in order for international protection to be granted, for those two criteria to be fulfilled, as they form the basis of the fear of the person concerned and justify his inability or unwillingness to avail himself of the protection of his country of origin.

71.     As regards subsidiary protection, those two criteria are clear from the wording of Article 2(e) of Directive 2004/83. The EU legislature states unequivocally that a ‘person eligible for subsidiary protection’ is a person who would not only face a real risk of suffering serious harm as defined in Article 15 of that directive if returned to his country of origin, but who is also unable or unwilling, on account of that risk, to avail himself of the protection of that country.

72.     Furthermore, that article defines ‘serious harm’ in terms of acts or circumstances for which the public authorities in the country of origin are directly or indirectly responsible.

73.     Article 15 of Directive 2004/83 must be read in conjunction with Article 6 thereof.

74.     Article 15 of that directive defines three types of serious harm including, in Article 15(b), inhuman or degrading treatment of an applicant in the country of origin. Here, the legislature defines the substantive component of serious harm. It consists of the death penalty or execution, torture or inhuman or degrading treatment or punishment of an applicant in the country of origin, or serious threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict. Inherent in those acts is a deliberate intention on the part of the perpetrator to inflict particularly intense physical or mental suffering.

75.     Article 6 of Directive 2004/83 defines the personal component, since it defines the ‘actors of serious harm’. The EU legislature thus expressly limits the scope of the harm referred to in Article 15 of Directive 2004/83 to harm caused by the State, by parties or organisations controlling the State or a substantial part of the territory of the State, or by non-State actors, if it can be demonstrated that the State or the parties or organisations controlling it are unable or unwilling to provide protection against persecution or serious harm.

76.     In order for a person to be eligible for subsidiary protection, it is not therefore sufficient to prove that that person would face a risk of being subjected to inhuman or degrading treatment if he were returned to his country of origin. It must also be demonstrated that that risk stems from factors which are attributable, directly or indirectly, to the public authorities of that country, either because the threats to the person concerned are being made or tolerated by the authorities in the country of which he is a national, or because those threats are being made by independent groups against which the authorities of that country are unable to provide effective protection to their citizens.

77.     As the French Government notes in its observations, where an individual’s state of health is such that he requires medical treatment and no appropriate medical treatment is available in his country of origin, the inhuman or degrading treatment to which the individual risks being subjected if he is returned to that country does not stem from any intentional act or omission on the part of the public authorities or bodies acting independently of the State. In other words, in such a case, one of the key criteria for eligibility for subsidiary protection laid down in Article 6 of Directive 2004/83, that is to say that the public authorities in the country of origin should be directly or indirectly responsible for inflicting the serious harm against which protection is needed, would obviously not be met.

78.     In such a situation, the protection provided by the Member State does not meet any need for international protection within the meaning of Article 2(a) of that directive and does not therefore form part of the Common European Asylum System.

79.     In accordance with the closing words of Article 2(g) of Directive 2004/83,  (20) international protection is ‘another kind of protection’ which falls outside the scope of that directive. Such protection is provided for other reasons, on a discretionary basis on compassionate or humanitarian grounds, based on compliance with Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms  (21) and Articles 4 and 19(2) of the Charter. In such a case, it is the implementation of the decision by the host Member State to remove the person concerned, in conjunction with the lack of appropriate medical resources in the country of origin, which may constitute inhuman treatment.

80.     However, the EU legislature clearly wished to exclude cases based on humanitarian grounds from the scope of Directive 2004/83.

81.     Indeed, the legislature expressly states in recital 9 in the preamble to Directive 2004/83 that ‘[t]hose third country nationals or stateless persons, who are allowed to remain in the territories of the Member States for reasons not due to a need for international protection but on a discretionary basis on compassionate or humanitarian grounds, fall outside the scope of [that] Directive’.  (22)

82.     Furthermore, it is interesting to refer to the preparatory documents for Directive 2004/83 that concern the wording of Article 15(b),  (23) in which the EU legislature states as follows:

‘However, if paragraph (b) were to incorporate all the case-law of ECtHR [ (24) ] relating to Article 3 of the ECHR, then account would have been taken of cases based solely on humanitarian grounds, such as D. v United Kingdom (1997) also known as the St Kitts case. [ (25) ]

In the St Kitts case, although the lack of access to a well developed healthcare system and the absence of a support network were not, in themselves, regarded as torture or inhuman or degrading treatment, removal to that country, which would constitute a threat to the life of the concerned person, was described as such.

Consequently, in order to exclude cases which are based on humanitarian grounds from the subsidiary protection regime, as Directive [2004/83] was never intended to cover those cases, the Presidency proposes to limit the scope of paragraph (b) by stating that a real risk of torture or inhuman or degrading treatment or punishment must exist in the country of origin’.  (26)

83.     Although, as the Court pointed out in Elgafaji,  (27) Article 15(b) of Directive 2004/83 ‘corresponds, in essence, to Article 3 of the ECHR’,  (28) the EU legislature nevertheless limited its scope to the treatment ‘of an applicant in the country of origin’,  (29) which presupposes that the public authorities of that country are directly or indirectly responsible. The international protection regime, in particular subsidiary protection status, does indeed establish, therefore, its own specific protection mechanism,  (30) which is distinct from the obligations incumbent on the contracting States under Article 3 of the ECHR.

84.     In the light of the foregoing, I therefore consider that a third-country national suffering from a serious illness who, if returned to his country of origin, would face a real risk of being subjected to inhuman or degrading treatment because of the lack of appropriate medical treatment in his country cannot be regarded as a ‘person eligible for subsidiary protection’ within the meaning of Article 2(e) of Directive 2004/83.

85.     Consequently, an application for leave to reside on medical grounds based on Article 9b of the Law of 15 December 1980 cannot fall within the scope of Directive 2004/83.

86.     Nor does it fall with the scope of the other two provisions forming the basis of the Common European Asylum System, namely Directives 2003/9 and 2005/85.

87.     The material reception conditions laid down by the EU legislature in Directive 2003/9 apply, in accordance with Article 3 of that directive, to asylum seekers or, if the Member State has so decided, to applicants for other kinds of protection.

88.     In the same way, the procedural safeguards conferred by the EU legislature in Directive 2005/85 concern, in accordance with Article 3 of that directive, applications for asylum as well as decisions withdrawing refugee status and, if the Member State has so decided, any other application for other types of international protection.

89.     It is apparent from the documents before the Court that the Kingdom of Belgium did not intend to extend the benefit of those provisions to persons making an application under Article 9b of the Law of 15 December 1980.

90.     I therefore take the view that the procedural safeguards and social benefits established by the EU legislature in Directives 2003/9, 2004/83 and 2005/85 are not applicable to a situation such as that in the present case.

91.     In the light of the foregoing, I therefore consider that Directives 2003/9, 2004/83 and 2005/85 must be interpreted as meaning that the procedural safeguards and social benefits established by the EU legislature under those directives are not applicable to an application for leave to reside on medical grounds based on Article 9b of the Law of 15 December 1980.

B – The second question

92.     By its second question, the referring court is essentially asking the Court to assess whether national legislation which, on the one hand, does not make available a remedy automatically suspending a removal order in the case of decisions refusing leave to reside on medical grounds and, on the other hand, limits provision for the basic needs of the person concerned to emergency medical assistance for the entire duration of the judicial proceedings, is compatible with the fundamental rights enshrined in the Charter and the obligations incumbent on the Member States under Directives 2003/9, 2004/83 and 2005/85.

1.     Preliminary observations

93.     First of all, it must be noted that the question which the referring court has put to the Court requires account to be taken of rules of law other than those expressly mentioned in the order for reference.  (31)

94.     The Cour du travail de Bruxelles bases the second question on the rights and procedural safeguards granted to an applicant for international protection by Directives 2003/9, 2004/83 and 2005/85 and by the Charter, in particular the requirements deriving from Articles 1 to 4 thereof, which enshrine the principle of human dignity and the rights to life and physical integrity and the right not to be subjected to inhuman or degrading treatment, Article 19(2), which establishes the principle of non-refoulement, Articles 20 and 21, which lay down the principles of equality and non-discrimination and, finally, Article 47, which guarantees the right to an effective judicial remedy.

95.     However, for the reasons I have just given, the provisions forming the basis of the Common European Asylum System cannot be applied to a situation such as that in the main proceedings. Consequently, in my opinion, there is no need to examine the referring court’s question in the light of Directives 2003/9, 2004/83 and 2005/85.

96.     It is necessary, however, in my opinion, to consider the procedural rules applicable to the return of illegally staying third-country nationals laid down in Directive 2008/115. In accordance with Articles 1 and 13 of that directive, its purpose is to establish standards and procedures common to all Member States with regard, inter alia, to appeals against return decisions. Chapter III of the directive sets out the rights and procedural safeguards that must be granted to an illegally staying third-country national in such circumstances.

97.     In the present case, it is common ground that, throughout the proceedings before the Conseil du contentieux des étrangers, Mr Abdida was considered by the competent national authorities to be an illegally staying foreign national. Mr Abdida therefore falls within the scope of Directive 2008/115, as defined in Article 2 thereof.

98.     Moreover, I take the view that the decision by which the national authorities rejected Mr Abdida’s application for leave to reside and, in accordance with Article 7 of the Law of 15 December 1980, ordered his removal from national territory constitutes a ‘return decision’ within the meaning of Article 3(4) of Directive 2008/115.  (32) By that decision, the Belgian authorities declared Mr Abdida’s stay on Belgian territory to be illegal and imposed on him an obligation to return. That decision is nothing other than the implementation of Article 6(1) of Directive 2008/115, which requires Member States to adopt a return decision in respect of any third-country national staying illegally on their territory.

99.     In such a situation, which is governed by EU law, the Member States are therefore required, in accordance with Article 51(1) of the Charter, to apply the fundamental rights guaranteed by the EU legal order. As the Court observed in Åkerberg Fransson  (33) and Pfleger and Others,  (34) the applicability of EU law in such circumstances entails the applicability of the fundamental rights guaranteed by the Charter.

100.   The examination of whether, in circumstances such as those in the main proceedings, the lack of a remedy suspending enforcement of a removal order and of any provision enabling the basic needs of the person concerned, other than medical needs, to be met respect the rights conferred on such a person in the EU must therefore be carried out in the light of the requirements laid down in Directive 2008/115, on the one hand, and the fundamental rights established in the Charter, on the other.

2.     My interpretation

(a) The existence of a remedy with automatic suspensive effect

101.   Article 13(1) of Directive 2008/115, entitled ‘Remedies’, confers on the third-country national concerned the right to an effective remedy to appeal against or seek review of decisions related to return.

102.   In accordance with Article 13(2) of that directive, the competent national authorities may, in those circumstances, temporarily suspend the enforcement of the contested decision. In such a situation, the effect of the suspension is to postpone removal, in accordance with Article 9 of that directive.

103.   It is clear that, unlike the proposal for a directive put forward by the Commission, that provision does not oblige the Member States to provide for a remedy with suspensive effect where an appeal is lodged against a return decision,  (35) the provision of such a remedy being merely an option.

104.   In circumstances such as those in the main proceedings, I nevertheless consider that the objective of Directive 2008/115 and respect for fundamental rights, in particular the requirements arising from Articles 1, 2, 3, 4, 19(2) and 47 of the Charter, require that the person concerned have access to a remedy automatically suspending enforcement of a removal order.

105.   The purpose of Article 13 of Directive 2008/115 may be clearly inferred from the guiding principle set out by the EU legislature in Article 1 of that directive, which seeks to guarantee, in accordance with the fundamental rights of the persons concerned, the effective protection of their interests, in particular repatriation under humane and dignified conditions.  (36)

106.   The purpose of that provision may therefore be understood only in accordance with and in a manner consistent with the rights enshrined in Articles 1 to 4 of the Charter, which guarantee respect for human dignity as well as the right to life and the right to the integrity of the person, and prohibit inhuman or degrading treatment. It must also be interpreted in accordance with the principle of non-refoulement enshrined in Article 19(2) of the Charter. Finally, it must ensure respect for the principles of equality and non-discrimination as established in Articles 20 and 21 of the Charter and guarantee the right to an effective judicial remedy provided for in Article 47 of the Charter. Those references are necessarily included in the references to fundamental rights in Article 1 of Directive 2008/115.

107.   Consequently, concrete effect may be given, in a manner consistent with those provisions, to Article 13 of that directive, and, more generally, to the provisions dealing specifically with the procedural safeguards on which the foreign nationals concerned may rely in their appeals only if their application ensures that those values are respected.

108.   In my view, in a situation such as that in the main proceedings, where enforcement of the return decision may expose the person concerned to a risk of inhuman or degrading treatment contrary to Article 4 of the Charter, the remedy referred to in Article 13(1) of that directive and enshrined in Article 47 of the Charter must, if it is to be effective, have automatic suspensive effect.

109.   First, in such a situation, the Member State is required to respect the principle of non-refoulement in accordance with its obligations under Article 5 of Directive 2008/115 and Article 19(2) of the Charter, which, I would point out, states that ‘no one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment’. Compliance with such a requirement therefore means that enforcement of the return decision should be automatically suspended for such time as the competent national authority examines the lawfulness of that decision and the objections raised by the person concerned with respect to the existence of a risk of treatment proscribed by Article 4 of the Charter.

110.   Secondly, the ECtHR has held that the right to an effective remedy enshrined in Article 13 of the ECHR requires that the foreign national in respect of whom a deportation order has been made should have access to a remedy with automatic suspensive effect, where such a person submits an ‘arguable complaint’ to the effect that his removal would expose him to a risk of inhuman or degrading treatment contrary to Article 3 of the ECHR.  (37) The ECtHR considers that, in such a situation, the enforcement of a removal order the lawfulness of which is contested is liable to lead to irreversible harm, which must be prevented by suspending enforcement of the order. The ECtHR considers that a foreign national suffering from a serious illness who cannot be treated in his country of origin raises just such a complaint. It takes the view, moreover, that the effectiveness of the remedy is also bound up with requirements of quality and expediency.  (38)

111.   It is on the basis of that case-law that the ECtHR found against the Kingdom of Belgium in a judgment of 27 February 2014.  (39) That case concerned a Nigerian national suffering from AIDS in respect of whom the authorities had adopted a removal order. The applicant claimed that her removal to her country of origin would expose her to treatment contrary to Article 3 of the ECHR and pleaded the lack of an effective remedy within the meaning of Article 13 of that convention.

112.   After examining the applicable procedural rules, the ECtHR held that the remedies available in respect of a removal order adopted following the refusal of an application for a leave to reside under Article 9b of the Law of 15 December 1980 were not sufficient to ensure compliance with Article 13 of the ECHR, in conjunction with Article 3 thereof.

113.   First, the ECtHR noted that, under the national law applicable, such a remedy does not suspend enforcement of a removal order.  (40)

114.   Next, it reviewed the procedures specifically concerned with suspending enforcement of a removal order laid down in Articles 39/82 to 39/85 of the Law of 15 December 1980.

115.   Under the first combination of remedies, the person concerned may, within 30 days of notification of the removal order, bring an action for annulment and an application under the ordinary procedure for suspension as well as, at the time the person concerned is the subject of an enforceable measure, an application for interim measures on grounds of extreme urgency. Under the second combination, the person concerned may apply for suspension on grounds of extreme urgency, in which case an enforceable measure must have been adopted in respect of the person concerned.  (41)

116.   The ECtHR found that those procedures were ‘difficult to operate’ and ‘too complex’ to satisfy the requirements that remedies should be readily available and accessible under Article 13, in conjunction with Article 3, of the ECHR.  (42)

117.   The ECtHR observed, first of all, that that system has the effect of requiring the person concerned, who is the subject of a removal order and who argues that a stay of enforcement of that order is required as a matter of urgency, to bring an action for protective measures, in this instance an ordinary application for suspension. According to the ECtHR, that action, which does not have suspensive effect, must therefore be brought for the sole purpose of preserving the right of the person concerned to be able to take urgent legal action when the actual urgency, that is to say the existence of an enforceable measure, arises. The ECtHR therefore found that, in a situation where the person concerned had not brought such an action for protective measures at the beginning of the procedure and the urgency arose subsequently, that person would then be permanently deprived of the possibility of seeking suspension of the removal order.  (43) With regard to the rules governing applications for suspension on grounds of extreme urgency, the ECtHR went on to say that they ‘compel the persons concerned, who are already in a vulnerable position, to take further action in extremis at the time when the measure is enforced’.  (44)

118.   It was in the light of those observations that the ECtHR concluded that the person concerned did not have an effective remedy, since the remedy available to her did not have suspensive effect and did not allow for an effective examination of the pleas alleging infringement of Article 3 of the ECHR.  (45)

119.   In the present case, in particular following the observations presented at the hearing, the Belgian Government described a procedure which, to my mind, is indeed difficult to implement, given the urgency and seriousness of the situation, and not readily accessible by the migrants for whom it is intended.  (46) The effectiveness of a remedy must be assessed on a case-by-case basis and by reference to its context. Account must be taken of the state of psychological distress which migrants are likely to experience and the difficulties they may encounter, because of the language they speak, for example, in acquainting themselves with the procedures they must undergo before they may be removed from national territory, there being many who will not have the means by that stage to obtain legal assistance.

120.   At the hearing, the Belgian Government defended its position with respect to the lack of a remedy with automatic suspensive effect, arguing that, in practice, the bringing of an action for annulment before the Conseil du contentieux des étrangers leads to a de facto suspension of enforcement of the removal order, as the Belgian national authorities tolerate the fact that the person concerned is illegally staying in national territory for the duration of the proceedings.

121.   While such a situation is, in practice, the same as that in which the remedy expressly suspends enforcement of the removal order, it nevertheless has numerous disadvantages.

122.   First, notwithstanding such de facto suspension, the person concerned has no official protection against enforced removal, in so far as, in accordance with Article 74/14(1) and (2) of the Law of 15 December 1980, such protection is granted only for the 30-day period allowed for voluntary departure. However, that period soon runs out and the competent national authorities are then able officially to enforce the removal order at any time. This poses a serious problem, particularly in a situation such as that in the main proceedings, where enforcement of the return decision may expose the person concerned to a risk of inhuman or degrading treatment contrary to Article 4 of the Charter.

123.   Secondly, notwithstanding the de facto tolerance shown by the authorities, the person concerned remains liable to criminal penalties due to the fact that he is staying illegally in national territory. He therefore has no official protection against possible arrest.

124.   Thirdly, in so far as removal is unofficially suspended, the rights normally associated with such a measure are not conferred, in particular the economic and social safeguards which the legislature extends in Article 14 of Directive 2008/115 to illegally staying third-country nationals whose removal is officially postponed. This poses another problem, particularly in a situation such as that in the main proceedings, where the removal order concerns a person who is seriously ill and who, as such, should be eligible for the provision of benefits to meet the particular needs connected with his state of health in the same way as any other third-country national whose removal has been officially postponed.

125.   Fourthly, I cannot ignore the considerable length of the proceedings at issue, which commenced on 7 July 2011. Leaving aside the disadvantages connected with the uncertain legal status of the person concerned, his very worrying material circumstances and the seriousness of the complaints which he has raised before the court, it is reasonable to ask whether, given their duration, such proceedings are adequate and provide all the safeguards that must accompany the pursuit of an effective remedy.

126.   In the light of the foregoing, in a situation such as that in the main proceedings, where enforcement of the return decision may expose the person concerned to a risk of inhuman or degrading treatment contrary to Article 4 of the Charter, I am of the view that such a person does not enjoy the rights afforded to him by the Charter, in particular the right to an effective remedy within the meaning of Article 47 thereof.

127.   In the light of all the above considerations, I therefore consider that Article 13(1) and (2) of Directive 2008/115 must be interpreted as precluding a national procedural rule which does not make available a remedy with automatic suspensive effect where an appeal is lodged against a return decision the enforcement of which may expose the person concerned to a risk of inhuman or degrading treatment contrary to Article 4 of the Charter, in view of that person’s state of health.

(b) Provision for the basic needs of the person concerned, other than medical needs

128.   Article 14 of Directive 2008/115, read in conjunction with recital 12 to that directive, sets out social and economic safeguards on which ‘third-country nationals who are staying illegally but who cannot yet be removed’ may rely ‘pending return’. Thus, during the period for voluntary departure and during the periods for which removal has been postponed, the Member States must ensure that family unity is maintained and emergency health care and essential treatment of illness are provided. They must also ensure that minors are granted access to the basic education system and that the special needs of vulnerable persons are taken into account. That provision echoes Article 5 of Directive 2008/115, which requires the Member States to take due account of the medical, family and social situation of the person concerned, in particular his state of health, when implementing that directive.

129.   Although, in recital 12 to that directive, the EU legislature expressed the intention to ‘address’ the situation of such migrants, that objective has, in my opinion, been only partially achieved, for the following reasons.

130.   First, on the strict basis of the wording of Article 14(1) of Directive 2008/115, Mr Abdida does not fall within the scope of that provision or, therefore, benefit from the safeguards provided. The 30-day period granted to him for voluntary departure has expired and the order requiring his removal has not been officially postponed.

131.   That provision does not therefore expressly provide any safeguards in a situation such as that in the main proceedings, where the removal of the person concerned is de facto suspended for the duration of the judicial proceedings.  (47)

132.   Secondly, I would point out that the safeguards provided by the EU legislature in that provision do not cover all rights, in particular the rights which seem to me to be the most crucial at a time when the person concerned no longer necessarily has any source of income and is to be removed from national territory, that is to say the ability to feed, clothe and house himself.

133.   Although family unity must be maintained, basic education for minors guaranteed, emergency health care and ‘essential treatment of illness’ provided and the special needs of vulnerable persons taken into account, Article 14(1) of that directive does not expressly oblige the Member States to make provision for the basic needs of the person concerned other than medical needs.

134.   Directive 2008/115 does not therefore harmonise, even to a minimal degree, the rules governing the provision to be made by the Member States for the basic needs of such migrants to be met. That directive is therefore clearly distinguishable from Directive 2003/9, in which the EU legislature sought to oblige the Member States to guarantee minimum conditions for the reception of asylum seekers, pending a decision, that would cover all their most basic needs.

135.   That conclusion may be arrived at on the basis of a simple reading of recital 12 to Directive 2008/115. In that recital, the EU legislature states that ‘[the] basic conditions of subsistence [of third-country nationals who are staying illegally but who cannot yet be removed] should be defined according to national legislation’.  (48) The use of the conditional and, in particular, the choice of the verb ‘define’, make clear the EU legislature’s intention to give the Member States broad discretion as regards the type of needs which they intend to meet (even though, in my view, the definition of basic conditions of subsistence is self-evident). Moreover, the EU legislature makes no further mention of the requirement to meet those needs in the remainder of that directive.

136.   That wording is different from the wording proposed by the Commission in its proposal for a directive, in which it pushed for an alignment of the safeguards to be granted to illegally staying migrants with those provided for in Directive 2003/9.

137.   Recital 8 to that proposal for a directive reads as follows:

‘The situation of persons who are staying illegally but who cannot (yet) be removed should be addressed. Minimum standards for the conditions of stay of these persons should be established, with reference to the provisions of Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers.’  (49)

138.   In Article 13 of the proposal for a directive, concerning ‘[s]afeguards pending return’, the Commission therefore made express reference to Chapters II and IV of Directive 2003/9, which lay down in much more detailed and specific terms the material reception conditions that the Member States must make available to asylum seekers pending a decision in order, on the one hand, to ensure that they are afforded a decent and adequate standard of living and, on the other hand, to ensure that they enjoy comparable living conditions in all the Member States.  (50) That provision reads as follows:

‘Member States shall ensure that the conditions of stay of third-country nationals for whom the enforcement of a return decision has been postponed or who cannot be removed for the reasons referred to in Article 8 of this Directive are not less favourable than those set out in Articles 7 to 10, Article 15 and Articles 17 to 20 of Directive [2003/9].’  (51)

139.   During the negotiations, those proposals were abandoned, in particular any express reference to the regime provided for asylum seekers by Directive 2003/9. While the new Article 14 of Directive 2008/115 reproduces in part some of the safeguards established by Directive 2003/9, it none the less omits certain fundamental aspects of them, in particular the guarantee of a decent and adequate standard of living.

140.   Finally, Article 14 of Directive 2008/115 is worded in such a way as to make it difficult to determine the scope, form and minimum level of benefits to be granted to the person concerned.

141.   That article does not specify the provisions which Member States are required to adopt in order to maintain family unity or what type of provision must be made for the most vulnerable in order to meet their special needs. Similarly, certain expressions such as the ‘essential treatment of illness’ are broad enough to accommodate various interpretations and the scope of such expressions may vary from one Member State to another.

142.   In the light of the foregoing, and at odds with the objective set out by the EU legislature in recital 12 to Directive 2008/115, the situation of those ‘third-country nationals who are staying illegally but who cannot yet be removed’ cannot be regarded as being ‘addressed’.

143.   In its motion for a resolution on reducing health inequalities in the European Union,  (52) moreover, the Parliament stated that the equitable access to health care enshrined in Article 35 of the Charter is not guaranteed, either in practice or in law, for migrants without leave to remain. The Parliament therefore called on the Member States to ensure that undocumented migrants are entitled to and are provided with equitable access to health care and urged them to assess the feasibility of supporting health care for irregular migrants by providing a definition based on common principles for basic elements of health care, as defined in their national legislation.

144.   In addition to the situation identified in the Parliament’s report, the present case discloses another reality, that of the specific legal and material situation in which migrants awaiting removal find themselves.

145.   How exactly has Mr Abdida, who is critically ill, been meeting his most basic needs since he lodged his appeal before the Conseil du contentieux des étrangers on 7 July 2011, that is to say for the past three years?

146.   Mr Abdida has been unlawfully staying in Belgium since 29 June 2011, when the authorities notified him that he must leave the territory and removed him from the register of foreign nationals. None the less, his presence on Belgian territory is de facto being tolerated by the authorities while they deliberate on the legality of the contested decision. As we have seen, this is a long process and for many months, not to say a number of years, Mr Abdida has not only been in a state of uncertainty as to whether or not he will be removed but has also been afforded no protection against possible arrest, stay without leave being a prosecutable offence.

147.   His status as such obviously dictates the degree of access he has to employment, housing and social and medical benefits, which, in those circumstances, is virtually non-existent. Mr Abdida is excluded from the regular job market, which means that he has no income to meet his needs and, in particular, to feed, clothe and house himself. He undoubtedly has serious problems finding accommodation. Indeed, it can be an offence to let to illegally staying migrants. Moreover, he has only partial access to social assistance since, under the national legislation applicable, such assistance is limited to the grant of emergency medical assistance.

148.   Such a state of affairs is clearly capable of rendering Mr Abdida destitute and has a direct bearing on respect for his fundamental rights. Moreover, it is the settled case-law of the ECtHR that a lack of sufficient income may, in certain specific circumstances, pose a risk to the life or physical integrity of the individual as well as a risk of inhuman or degrading treatment contrary to Articles 2 and 3 of the ECHR.  (53)

149.   On the strict basis of the wording of Article 14 of Directive 2008/115, it seems to me to be inconsistent to oblige the Member States to provide emergency medical assistance if, in circumstances such as those in the main proceedings, there is not also a requirement for provision to be made for the most basic needs of the person concerned. Nor, to my mind, is it consistent to oblige the Member States to safeguard family unity or indeed basic education for children if this does not entail an obligation to ensure that the subsistence needs of those individuals are met and to provide them with humane and decent living conditions.

150.   Nor do I consider it fair and equitable that a third-country national whose stay on national territory is de facto tolerated pending an examination of his appeal should be treated less favourably than a third-country national held in detention in accordance with Article 15 of Directive 2008/115. Although the latter is actually deprived of his freedom of movement, on account of his behaviour, he is none the less accommodated in a specialised detention facility which, in principle, caters for all of his basic needs, including legal assistance and health and social care, for a period of up to 18 months. It is clear, on the other hand, that, in a situation such as that in the main proceedings, where the person concerned is also ‘pending removal’, such needs are not catered for.

151.   Nor do I consider it to be consistent to require the Member States to provide effective remedies, in particular to make available a remedy automatically suspending the removal order if, until such time as the court gives its judgment, the migrant cannot feed, house and clothe himself decently.

152.   Finally, it is important not to lose sight of the fact that the failure to make provision for the most basic needs of migrants adds to their marginalisation. The fact that a third-country national awaiting removal is deprived of the means necessary to meet his most basic needs for such a long time after lodging his appeal may prompt him to leave the territory of the host State to go to another Member State, thus fuelling secondary movements by illegally staying migrants and, therefore, clandestine immigration within the borders of the European Union. Such circumstances may also encourage such a person to turn not to unlawful or clandestine activity — as he has already done that — but to crime, in order to meet his needs. Such consequences are obviously a far cry from the objective set out by the EU legislature in recital 4 to Directive 2008/115, which states that ‘clear, transparent and fair rules need to be fixed to provide for an effective return policy as a necessary element of a well managed migration policy’.  (54)

153.   Applying Directive 2008/115 in such a way as to give rise to such inconsistencies and such unlawful conduct clearly does not ensure its effectiveness.

154.   The scope of the safeguards referred to in Article 14 of that directive must therefore be interpreted in the light of its purpose, which, I would reiterate, is to fix clear and fair rules to provide for a return policy that is not only effective but also, in accordance with the guiding principle set out by the EU legislature in Article 1 of that directive, ensures that the values enshrined in the Charter are respected.

155.   In my view, the respect for human dignity and the right to life, integrity and health enshrined in Articles 1, 2, 3 and 35  (55) of the Charter respectively, as well as the prohibition of inhuman or degrading treatment contained in Article 4 of that Charter, mean that, in a situation such as that in the main proceedings, an illegally staying third-country national whose removal has been de facto suspended must not be deprived of the means necessary to meet his basic needs pending the examination of his appeal.

156.   To have one’s most basic needs catered for is, in my opinion, an essential right which cannot depend on the legal status of the person concerned.

157.   Although the extent of the provision for basic needs must be determined by each of the Member States, given the discretion conferred on them by Directive 2008/115, it seems to me that such provision must be sufficient to ensure the subsistence needs of the person concerned are catered for as well as a decent standard of living adequate for that person’s health, by enabling him, inter alia, to secure accommodation and by taking into account any special needs that he may have.  (56)

158.   In the light of the foregoing, I therefore consider that Article 14 of Directive 2008/115 must be interpreted as precluding national legislation which, with regard to illegally staying third-country nationals who have appealed against a return decision, limits provision for their basic needs merely to emergency medical assistance. In such a situation, the Member State is required to ensure, for the entire duration of the judicial proceedings, that provision is made for the basic needs of the person concerned to a level sufficient to ensure that his subsistence needs are catered for and a decent standard of living adequate for his health, by enabling him, inter alia, to secure accommodation and by taking account of any special needs that he may have.

IV –  Conclusion

159.   In the light of the foregoing considerations, I propose that the Court reply to the Cour du travail de Bruxelles as follows:

(1)

Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers, Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third-country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted and Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status must be interpreted as meaning that the procedural safeguards and social benefits established by the EU legislature under those directives are not applicable to an application for leave to reside on medical grounds under Article 9b of the Law of 15 December 1980 on entry to Belgian territory, residence, establishment and removal of foreign nationals.

(2)

Article 13(1) and (2) of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals must be interpreted as precluding a national procedural rule which does not make available a remedy with automatic suspensive effect where an appeal is lodged against a return decision the enforcement of which may expose the person concerned to a risk of inhuman or degrading treatment contrary to Article 4 of the Charter of Fundamental Rights of the European Union, in view of that person’s state of health.

(3)

Article 14 of Directive 2008/115 must be interpreted as precluding national legislation which, with regard to illegally staying third-country nationals who have appealed against a return decision, limits provision for their basic needs merely to emergency medical assistance. In such a situation, the Member State is required to ensure, for the entire duration of the judicial proceedings, that provision is made for the basic needs of the person concerned to a level sufficient to ensure that his subsistence needs are catered for and a decent standard of living adequate for his health, by enabling him, inter alia, to secure accommodation and by taking account of any special needs that he may have.

2 –

Original language: French.

3 –

Council Directive of 27 January 2003 laying down minimum standards for the reception of asylum seekers (OJ 2003 L 31, p. 18). That directive was replaced by Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (OJ 2013 L 180, p. 96).

4 –

Council Directive of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (OJ 2004 L 304, p. 12).

5 –

Council Directive of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (OJ 2005 L 326, p. 13).

6 –

‘The Charter.’

7 –

Opinion in M’Bodj (C‑542/13, EU:C:2014:2113).

8 –

OJ 2008 L 348, p. 98.

9 –

See Article 1 of Directive 2004/83.

10 –

See the Opinion in M., C‑277/11, EU:C:2012:253, point 19, which was followed by the judgment in M., C‑277/11, EU:C:2012:744, paragraph 72.

11 –

That Convention, signed in Geneva on 28 July 1951 (United Nations Treaty Series, vol. 189, p. 150, No 2545 (1954)), entered into force on 22 April 1954. It was supplemented by the Protocol relating to the Status of Refugees of 31 January 1967, which entered into force on 4 October 1967.

12 –

In the judgment in M. (EU:C:2012:744), the Court held that the nature of the rights attaching to refugee status and subsidiary protection status are indeed different (paragraph 92). Nevertheless, it should be noted that Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted, which recast Directive 2004/83, removes the differences that exist in the level of rights conferred on refugees and beneficiaries of subsidiary protection in relation to access to health care (Article 30). Such differences have not, however, been removed in relation to social welfare (Article 29).

13 –

See Article 1 of, and recitals 2 and 11 to, that directive.

14 –

Law as amended by the Law of 15 September 2006 (‘the Law of 15 December 1980’).

15 –

See judgment of the Cour constitutionnelle No 43/2013 of 21 March 2013, paragraph B 13, p. 16.

16 –

Subsidiary protection status entitles the person on whom it is conferred to a one-year residence permit renewable for five years. After that five-year period, the person concerned may be granted indefinite leave to remain on the basis of Article 49/2(2) and (3) of the Law of 15 December 1980.

17 –

.Moniteur belge of 31 December 1996, p. 32518, amended on 13 January 2003 (Moniteur belge of 17 January 2003, p. 1553).

18 –

As I pointed out in points 34 to 37 of my Opinion in M’Bodj (EU:C:2014:2113), the national authorities are in disagreement on the question of whether such leave constitutes a transposition of Article 15(b) of Directive 2004/83.

19 –

See, in this regard, judgment in Diakité (C‑285/12, EU:C:2014:39).

20 –

As the Court pointed out in B and D, C‑57/09 and C‑101/09, EU:C:2010:661, it is clear from the closing words of Article 2(g) of Directive 2004/83 that the Directive does not preclude a person from applying for ‘another kind of protection’ outside the scope of Directive 2004/83 (paragraph 116).

21 –

‘The ECHR’. Convention signed in Rome on 4 November 1950.

22 –

Directive 2004/83, like the Convention relating to the Status of Refugees, signed in Geneva on 28 July 1951, is based on the principle that host Member States may, under their national law, grant national protection which includes rights enabling persons excluded from refugee status under Article 12(2) of that directive to remain in the territory of the Member State concerned.

23 –

See the note from the Presidency of the Council of the European Union to the Strategic Committee on Immigration, Frontiers and Asylum of 25 September 2002 (12148/02, p. 6).

24 –

‘European Court of Human Rights.’

25 –

ECtHR, 2 May 1997, Reports of Judgments and Decisions 1997-III. In that case, the ECtHR held that the implementation of the decision to remove an individual suffering from AIDS would constitute a violation of Article 3 of the ECHR if he were returned to his country of origin, in so far as his removal would expose him to a real risk of dying under most distressing circumstances. In its judgment, the ECtHR took account of the fact that the applicant was in the advanced stages of the illness and that the abrupt withdrawal of the medical treatment he was receiving in the host State, in conjunction with the lack of adequate treatment in his country of origin and the absence of any form of moral support or social assistance, would hasten his death and subject him to acute mental and physical suffering (paragraphs 42 and 51 to 54). The ECtHR stated that it must therefore reserve to itself sufficient flexibility to address the application of Article 3 of the ECHR in contexts in which the risk to the person concerned of being subjected to proscribed treatment in the receiving country stems from factors which cannot engage, either directly or indirectly, the responsibility of the public authorities of that country, or which, taken alone, do not in themselves infringe the standards of that provision. In such a case, in view of the compelling humanitarian grounds at stake, the contracting States cannot implement a decision to remove the person concerned without running the risk of engaging their responsibility under Article 3 of the ECHR.

26 –

Emphasis added.

27 –

C‑465/07, EU:C:2009:94.

28 –

Ibid., paragraph 28.

29 –

McAdam, J., ‘The Qualification Directive: An Overview’, The Qualification Directive: Central Themes, Problem Issues, and Implementation in Selected Member States, Wolf Legal Publishers, Nimègue, 2007, p. 19.

30 –

See, in this regard, judgment in Diakité (EU:C:2014:39, paragraph 24).

31 –

It should be recalled that it is settled case-law that, in 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. To that end, the Court may take into consideration rules of EU law to which the national court did not refer in its questions, in so far as those rules are necessary for the purposes of examining the main proceedings (see, inter alia, judgment in Banco Bilbao Vizcaya Argentaria, C‑157/10, EU:C:2011:813, paragraphs 18 to 20 and the case-law cited).

32 –

In accordance with that provision, a ‘return decision’ is ‘an administrative or judicial decision or act, stating or declaring the stay of a third-country national to be illegal and imposing or stating an obligation to return’.

33 –

C‑617/10, EU:C:2013:105, paragraph 21.

34 –

C‑390/12, EU:C:2014:281, paragraph 34.

35 –

See Article 12(2) of the Proposal for a Directive of the European Parliament and of the Council on common standards and procedures in Member States for returning illegally staying third-country nationals, COM(2005) 391 final, of 1 September 2005 (‘the proposal for a directive’), which reads as follows: ‘The judicial remedy shall either have suspensive effect or comprise the right of the third country national to apply for the suspension of the enforcement of the return decision or removal order, in which case the return decision or removal order shall be postponed until it is confirmed or is no longer subject to a remedy which has suspensive effects’ (emphasis added).

36 –

See also recitals 2 and 11 to that directive.

37 –

See the general principles relating to the effectiveness of the remedies and safeguards to be provided by the contracting States in the event of the deportation of a foreign national under the combined provisions of Articles 13 and 3 of the ECHR, summarised in the judgments of the ECtHR in M.S.S. v. Belgium and Greece [GC], No 30696/09, paragraphs 286 to 293, ECHR 2011; I.M. v. France, No 9152/09, paragraphs 127 to 135, 2 February 2012, and De Souza Ribeiro v. France [GC], No 22689/07, paragraphs 77 to 83, ECHR 2012.

38 –

See ECtHR, I.M. v. France, cited above, paragraphs 132 to 134 and the case-law cited.

39 –

.S.J.v.Belgium, No 70055/10, 27 February 2014. That judgment was referred to the Grand Chamber.

40 –

paragraph 95.

41 –

paragraphs 96 and 97.

42 –

pararagraph 103.

43 –

Ibid.

44 –

paragraph 104.

45 –

paragraph 106.

46 –

I refer to the summary of Articles 39/82 to 39/85 of the Law of 15 December 1980 set out in points 44 to 47 of this Opinion.

47 –

In the preparatory documents for the Directive, the European Parliament none the less put forward a proposal to that effect. See amendment 53 to Article 13(1) in the Report by the European Parliament on the proposal for a directive (A6-0339/2007).

48 –

Emphasis added.

49 –

Emphasis added.

50 –

Recitals 7 and 8 to Directive 2003/9.

51 –

Emphasis added. I would none the less point out that the Commission did not make express reference to Articles 13 and 14 of Directive 2003/9, which guarantee asylum seekers material reception conditions so as to ensure that they enjoy an adequate standard of living and their subsistence needs are met. Thus, Article 13(2) of that directive obliges Member States to provide reception conditions (material or financial assistance) so as to ‘ensure a standard of living adequate for the health of [asylum] applicants and capable of ensuring their subsistence’. Article 14 provides that, ‘where housing is provided in kind, it should take [the form of] accommodation centres which guarantee an adequate standard of living [or] private houses, flats, hotels or other premises adapted for housing applicants’.

52 –

Report of 8 February 2011 on reducing health inequalities in the (EU 2010/2089(INI)); see, in particular, recital AD and paragraph 5.

53 –

See, with regard to Article 2 of the ECHR, the judgments of the ECtHR in Kutepov and Anikeyenko v. Russia, No 68029/01, paragraph 62, 25 October 2005, and Huc v. Romania and Germany (decision), No 7269/05, paragraph 59, 1 December 2009, and, with regard to Article 3 of the ECHR, Larioshina v. Russia (decision), No 56869/00, 23 April 2002, and Budina v. Russia (decision), No 45603/05, 18 June 2009.

54 –

Recital 4 to Directive 2008/115. Emphasis added.

55 –

In accordance with that provision, ‘[e]veryone has the right of access to preventive health care and the right to benefit from medical treatment under the conditions established by national laws and practices. A high level of human health protection shall be ensured in the definition and implementation of all Union policies and activities’.

56 –

I refer, in this regard, to Saciri and Others, C‑79/13, EU:C:2014:103, in which the Court ruled on the material reception conditions for asylum seekers, in particular in paragraph 40.