On 29 July, the CJEU published its ruling the case of Torubarov (C–556/17) holding that, in accordance with the right to an effective remedy, judicial courts have the power to overturn administrative decisions in the granting of international protection, in line with the Advocate General Bobek’s Opinion.
The case concerns a Russian national, a businessperson who participated in the activities of an opposition political party and a non-governmental organisation representing the interests of businesspersons. Since 2008, several sets of criminal proceedings have been brought against him in Russia. Mr. Torubarov submitted an application for international protection in Hungary in 2013. The Immigration and Asylum Office (IAO) rejected this application twice, and both times, on appeal, the Administrative and Labour Court, Pécs, annulled these decisions for separate reasons. In the second annulment, the court advised that the third application for international protection be granted. The IAO subsequently refused the third application, disregarding of the judicial guidance of the court. The applicant sought a third judicial review. The court stayed proceedings and submitted a preliminary reference to the CJEU to determine whether the court can derive power from EU law to alter an administrative decision, specifically from the recast Asylum Procedures Directive 2013/32/EU (rAPD) and Article 47 of the Charter of Fundamental Rights of the European Union (the Charter).
In assessing the referred questions, the CJEU recalled that the aim of the rAPD is to establish common procedures for granting and withdrawing international protection pursuant to the Qualification Directive 2011/95/EU (QD). Accordingly, Member States are required, subject to the grounds for exclusion provided for by that directive, to grant international protection status if the person meets the minimum standards set by EU law to qualify for it.
Referencing its own case law, the CJEU held that under Article 46(3) of the rAPD, Member States are required to order their national law in such a way that the processing of appeals includes a ‘full and ex nunc examination’ of the international protection needs of the applicant. While it recognised that the rAPD affords Member States some discretion in the determination of rules for handling an application for international protection, the CJEU ruled that that Member States must comply with Article 47 of the Charter on the right to an effective remedy. It stated that this right would be illusory if a Member State’s legal system were to allow a final, binding judicial decision to remain inoperative to the detriment of one party. It is in that context that the Court held that Article 46(3) of the rAPD would be deprived of any practical effect if the quasi-judicial or administrative body could take a decision that ran counter to that assessment.
Thus, in the event of the file being referred back to the quasi-judicial or administrative body, the CJEU held that that body no longer has discretionary power as to the decision to grant or refuse protection. A new decision must be adopted within a short period of time and must comply with the assessment contained in the judgment annulling the initial decision. In order to guarantee that an applicant for international protection has an effective judicial remedy, a national court or tribunal seised of an appeal is required to vary the decision of the administrative or quasi-judicial body that does not comply with its previous judgment, and to substitute is own decision by disapplying, if necessary, the national law that prohibits it from proceeding in that way.