AG Szpunar: Opinion In A Case On The Returns Directive And The ...

Advocate General Szpunar issued his Opinion in B. v Centre public d’action sociale de Liège (CPAS) (C-233/19) yesterday, in a case examining the impact of suspensive effect of an appeal against a return decision ordering a third country national with a serious illness to leave the Member State’s territory, where social assistance has been withdrawn, in particular in the light of Articles 5, 13 and 14(b) of Returns Directive 2008/115.

The third country national in question, B, unsuccessfully applied for asylum in Belgium, and a year later submitted an application for a residence permit on medical grounds, based on several serious illnesses. Social assistance was granted by CPAS, but a year later, the application for a residence permit was rejected, and the competent authority issued an order for B to leave the territory (‘return decision’).

B brought an action for annulment and suspension of those decisions, and on the same date as the application, CPAS withdrew B’s entitlement to social assistance, granting urgent medical assistance instead. B lodged an appeal, which was dismissed, and is being appealed again before the referring court (‘social assistance withdrawal decision’).

The Advocate General reformulates the questions because the referring court does not actually have jurisdiction to review the legality of the return decision or its suspensive effect, therefore focusing on the social assistance withdrawal decision (and noting that he does so without reviewing the Belgian national procedural law in question or debating the interpretation of national law).

He examines what social rights B is entitled to under Directive 2008/115.

The Advocate General recalls that Member States are obliged to guarantee B’s fundamental rights (under Article 1 and other provisions of the Directive), and generally that the Directive must be interpreted with full respect for B’s fundamental rights and dignity. With respect to B’s state of health, the Advocate General finds it clear that Article 14(1)(b) of the Directive precludes national legislation which does not provide, as far as possible, for his basic needs when suffering from a serious illness, in order to ensure emergency medical care and that essential treatment of illnesses can be provided during the period in which the Member State is obliged to postpone his removal, and in particular ‘where the person concerned is deprived of the means to provide for himself or herself’.

He infers from those earlier findings of the Court that the basic aid in question in this case is justified solely by the recipient’s state of need, which is a factual examination and therefore for the national court to carry out.

It is not clear, points out the Advocate General, that the Directive requires B to receive the same level of social assistance as other legally resident third country nationals or EU citizens, and that the Member State must determine the level of assistance, ensuring that emergency medical care and essential treatment of illnesses can effectively be provided.

However, he observes that EU law does not require B’s residence to be legal for him to be entitled to receive financial assistance and medical aid to cover his basic needs as provided by the Directive, and nor does a stay need to be classified as ‘lawful residence’ in order to assess whether the refusal of social assistance is lawful.

The consequences of the foregoing for the situation of B can be summed up, as stated by the Opinion, as meaning that B falls within the scope of the Directive, and must be entitled to social assistance covering his basic needs if he does not have the means himself, according to Article 14(2)(b) of the Directive, in the context where a challenge has been made to a return decision. Suspensive effect does not have any impact on that, and lawfulness of residence is not required for that. In conclusion, Articles 5, 13 and 14(1)(b) of the Directive preclude legislation of a Member State under which the social benefit received by a third country national who is the subject of a return decision, against which he has lodged an appeal, and who is suffering from a serious illness is limited to urgent medical assistance if on the one hand, that aid does not cover his basic needs by ensuring that emergency medical care and essential treatment of the disease can actually be provided and, on the other hand, that national is deprived of the means to provide for his own needs.