No turning back? The empowerment of national asylum and migration courts under Article 47 of the Charter, by M Reneman

This blog is based on my chapter with the same title which will be published in: M. Bonelli, M. Eliantonio, and G. Gentile, Article 47 of the EU Charter and effective judicial protection: The Court of Justice’s perspective (Volume 1).

Since 1999, the European Union has developed comprehensive legislation on migration. Nowadays, EU legislation covers almost all aspects of the migration of third-country nationals, from their entrance to the territory of the EU to their detention and return if their stay is (or has become) illegal. The level of harmonisation of procedures differs between different fields of migration law. While the Procedures Directive provides detailed rules about the administrative phase of the asylum procedure and (to a lesser extent) appeals before national courts, other directives and regulations only contain the right to a reasoned decision and a remedy provision.

The national courts of the Member States dealing with migration cases operate in a highly politicized arena. They have not only referred preliminary questions to the Court of Justice of the European Union (henceforth: CJEU) to obtain clarification of the often-vague remedy provisions laid down in EU migration law, but also to challenge restrictions on their powers under national law. Such restrictions may be imposed by the administrative law system they operate in or by the political choices of the national legislature. The national courts asked the CJEU questions about jurisdiction and the scope and intensity of their judicial review. In answering these questions, the CJEU has built on its case law concerning Article 47 of the Charter in (less politicised) fields of EU law, thereby ensuring the jurisdiction of national migration courts. Moreover, it has in several cases empowered the national courts, requiring them to disregard national legislation, which limited their scope or intensity of judicial review. This blog piece will show how the CJEU has empowered national courts in migration cases while often, but not always, using Article 47 of the Charter.

Ensuring the jurisdiction of national courts

The CJEU has upheld the right to an effective remedy before a court or tribunal in migration cases. It has done so, irrespective of national legislation and case law or the qualification of the facts by the Member States, which result in the limitation of the jurisdiction of the national court. In El Hassani, the CJEU ruled that a migrant has a right to a remedy before a court against the refusal of a visa application even though the Visa Code provides for the right to an appeal in accordance with the national law of the Member State. The CJEU found that Polish legislation, which only provided for an appeal before the administrative authority that refused the visa application, was contrary to Article 32(3) of the Visa Code, read in the light of Article 47 of the Charter.

Similarly, in I and S, the CJEU concluded that Article 27 of the Dublin Regulation read in the light of Article 47 of the Charter provides for a right to an effective judicial remedy against the decision of a Member State to refuse a take charge request made by another Member State. It concerns the situation in which an unaccompanied minor who applied for asylum in one Member State (for example Greece) has family members in another Member State (for example the Netherlands). Greece can then request the Netherlands to take responsibility for the asylum application of the unaccompanied minor. Article 27 of the Dublin Regulation only provides for the right to an effective remedy ‘against a transfer decision’. Nevertheless, the CJEU found that this right should also apply to the Member State’s decision not to transfer an unaccompanied minor to its territory. As a result of this judgment, the Dutch district court, which referred the preliminary question to the CJEU, managed to overturn the standing case law of the Council of State, the highest administrative court in the Netherlands. According to the Council of State, there was no right to appeal against the refusal of a take charge request.  

A poignant example of Member States side-lining their national courts and thus depriving migrants of an effective judicial remedy by applying an incorrect legal qualification of the facts is the use of de facto detention (detention without a legal basis). This entails that national authorities qualify migrants’ stay in closed areas, such as transit zones or hotspots at the external borders of the EU, as a restriction of liberty instead of detention. While detained migrants enjoy a high level of procedural protection (including the right to a ‘speedy judicial review’), those whose liberty is restricted do not. In FMS and others, the CJEU held that asylum seekers’ stay in the transit zone at the border between Hungary and Serbia constituted de facto detention. The lack of judicial review of this detention thus infringed the right to a speedy judicial review laid down in Articles 9(3) Reception Conditions Directive and 15(2) Return Directive. According to the CJEU, it also undermined ‘the essential content of the right to effective judicial protection, guaranteed in Article 47 of the Charter, in that it absolutely prevents a court from ruling on respect for the rights and freedoms guaranteed by EU law to the third-country national placed in detention’. Therefore, the Hungarian court had to declare that it has jurisdiction to examine the lawfulness of a detention measure, ‘disapplying, where necessary, any national provision which prohibits it from proceeding that way’.

Prohibiting limitations to the scope and intensity of judicial review

Preliminary questions by national courts have resulted in rather extensive case law on the scope and intensity of judicial review under Article 47 of the Charter. This case law also contains several examples where the CJEU has empowered national courts. The CJEU has made clear inMahdi that an active (habeas corpus) judge is required in detention cases. The national court must conduct an in-depth examination of the matters of fact specific to each case. If it finds the detention to be unlawful, it needs to substitute its own decision for that of the authority and release the migrant. This judgment required the Bulgarian detention courts to broaden the scope of their judicial review.

The CJEU has recently extended the detention courts’ powers even further. A Dutch district court asked the CJEU whether national procedural law may prevent it to review the lawfulness of the detention measure ex officio. According to Dutch law, the district court needs to limit its assessment to the grounds of appeal submitted by the migrant. The Grand Chamber of the CJEU ruled that the relevant remedy provisions in secondary EU legislation concerning detention, read in conjunction with Articles 6 and 47 of the Charter require the national courts to review ex officio whether a detention measure complies with the conditions governing the lawfulness of such a measure. This means that the courts must ‘raise of its own motion, on the basis of the material in the file brought to its attention, as supplemented or clarified during the adversarial proceedings before it, any failure to comply with a condition governing lawfulness which has not been invoked by the person concerned’. 

Also in asylum cases, national courts tried to extend their powers via the CJEU. According to Article 46 of the Procedures Directive, national courts have to provide an effective remedy, carrying out a full and ex nunc examination of the facts and points of law in an asylum appeal. National courts of several Eastern European Member States have referred preliminary questions concerning this provision, in order to stop the ‘endless game of procedural ping-pong’ resulting from the systematic failure of the asylum authorities to comply with their judgments. InTorubarov, the CJEU granted the national courts the power to ‘vary the decision at issue […] and substitute its own decision as to international protection’, if the determining authority has not complied with the national court’s earlier judgment in the same case. National law may not prevent the court from granting asylum status in such a situation.

Finally, after the adoption of the Dublin III Regulation concerning the transfer of asylum seekers to other Member States, the CJEU has extended the required scope of judicial review of Dublin decisions by national courts in the case of Ghezelbash. It considered that the interest in expedient Dublin procedures and the fact that the rules applicable to asylum applications have been harmonised, cannot limit the scope of the remedy provided for in Article 27 Dublin III Regulation. According to the CJEU, asylum seekers have the right to a review of the correct application of the criteria and time limits for determining responsibility.

No turning back?

Even though there seems to be a trend in the CJEU’s case law to empower national courts in migration cases, there is also reason for caution. In its considerations concerning the meaning of a full and ex nunc examination in asylum cases (including Ahmedbekova) and the scope of judicial review in Dublin cases (Ghezelbash), the CJEU has sometimes not referred to Article 47 of the Charter. It has based its conclusions only on secondary EU legislation. With new EU legislation on Dublin and asylum coming up, there is a risk that the provisions concerning the (scope of) judicial review will become more restrictive. Judicial control is almost the only counterbalance against the strong politicisation of the field of asylum. Therefore, the CJEU should step in and use Article 47 of the Charter to prevent Member States from being given free rein, as a result of the exclusion of parts of their asylum decision-making from judicial review.

Posted by Marcelle Reneman

Marcelle Reneman is an assistant professor of migration law at the Amsterdam Centre for Migration and Refugee Law. Her research focuses on the fields of European administrative law and migration law, in particular asylum law. She has published on topics such as judicial review, (medical) evidence and the role of time in asylum procedures.

Suggested citation: M Reneman, “No turning back? The empowerment of national asylum and migration courts under Article 47 of the Charter”, available at