Analysis: “CPAS de Seraing and CPAS de Liège: Towards a more coherent legal framework for ‘non-removable’ vulnerable migrants?” by Janine Silga
In the cases CPAS de Seraing (C-402/19) and CPAS de Liège (C-233/19), the Court of Justice had to provide further guidance on the extent to which ‘non-removable’ third-country nationals staying irregularly in the European Union (EU) are entitled to social assistance. Both decisions stem from the Abdida case (C-562/13). In this case, the Court had ruled, first, that an appeal lodged against a return decision by a migrant suffering from a serious illness was automatically suspensive. Second, the Court drew from this suspensive effect the need to ensure the basic needs of this person. It left the issue of their precise definition and how they should be provided to Member States’ discretion.
This developing case law addresses the unclear legal situation of ‘non-removable’ irregular migrants in the EU. In M’Bodj (C-542/13) – delivered on the same day as Abdida – the Court had stated that migrants suffering from a serious illness could not qualify for EU international protection merely on that ground. The Court’s position appeared to be in contradiction with the case law of the European Court of Human Rights on the removal of seriously ill migrants on the basis of Article 3 of the European Convention of Human Rights. In Abdida, the Court confirmed the relevance of the Strasbourg case law, while irrevocably excluding seriously ill irregular migrants from the scope of EU international protection. By doing so, the Court left it to Member States to define their legal status.
Like M’Bodj and Abdida, CPAS de Seraing and CPAS de Liège originate in Belgium, which provides for a specific immigration status on medical grounds. Litigation concerning this status is, however, fragmented. While issues relating to the right to reside fall within the jurisdiction of a specialised administrative court (Conseil du contentieux des étrangers), matters relating to the social assistance deriving from this status are for social courts to settle. This institutional fragmentation forms the legal background of CPAS de Liège. In this case, the applicant was no more entitled to social assistance after the rejection of her application for a residence permit on medical grounds. She brought an action before the administrative court to overrule the administrative decision and suspend its effects. She also asked the social court – the referring court – to reinstate her right to social assistance. The complexity of the case consisted in the fact that the ‘social’ part of the litigation depended on the decision of the administrative court. In other words, as long as the administrative decision was not suspended, the social court did not appear to be in a position to draw the full consequences of Abdida and re-establish the social rights of the applicant.
In his conclusions, Advocate General Szpunar attempts to ‘square the circle’ by staying in line with Abdida, while respecting national procedural autonomy. For him, it is for social courts to assess the needs of the applicant on the basis of a factual examination and to grant her the corresponding assistance covering her basic needs.
Unlike the Advocate General, the Court takes a step back and adopts a more constitutional approach. By using the principles of direct effect and primacy, the Court reaffirms the role of the national court, which is responsible for ensuring the effectiveness of EU law at the national level. What resembles a classical approach may constitute a discrete step forward to deconstruct immigration law as a legal ‘ghetto’. Indeed, these principles allow the social court to solve the apparent contradiction between national procedural rules and the obligation to ensure an effective remedy under EU law.
Although the question asked in CPAS de Seraing was different, it also dealt with the consequences to be drawn from the automatic suspension of the removal of a seriously ill migrant. In this case, the question was not asked in relation to the situation of the applicant but in connection with his dependent child who was seriously ill. The parent, LM, had asked for leave to remain on medical grounds for his daughter and for himself. While waiting for the administrative decisions, they were both eligible for social assistance. Subsequently, their requests were rejected and they were ordered to leave Belgium. LM appealed against these decisions and asked for their suspension. Because his daughter reached the age of majority in the course of the proceedings, LM was no longer entitled to social assistance. Advocate General Pikamäe considers that the automatic suspensive effect of a removal decision on medical grounds has to be extended to a parent as the caregiver of his seriously ill migrant child. Therefore, the basic needs of the parent have to be met ‘as far as possible’. In this respect, he reads the notion of ‘basic needs’ as going beyond emergency healthcare and essential treatments, to include accommodation, food and clothing.
Overall, the Court follows this approach in its final decision by restating the principles established in Abdida. In particular, the Court reaffirms the connection between the right to an effective remedy and the protection against refoulement enshrined in Article 19(2) of the Charter. As for the ‘basic needs’, the Court does not go as far as the Advocate General to give details as to what they entail but it requires, nevertheless, that assistance is ‘adequate and sufficient’.
By replacing national procedural rules within the broader constitutional framework of EU law, the Court may have just contributed to ‘normalise’ immigration law considered for too long as the ‘forgotten child’ of the rule of law.
Janine Silga is a postdoctoral researcher at the University of Luxembourg. Her recent publications include: Le droit au regroupement familial des réfugiés mineurs non accompagnés devenus majeurs: l’affaire A et S, entre progrès incontestable et portée relative (European Papers) and Luxembourg Financial Aid for Higher Studies and Children of Frontier Workers: Evolution and Challenges in Light of the Case-Law of the Court of Justice (European Public Law).