Judicial Interaction Techniques; Use of the Preliminary Reference Procedure

Krajský soud v Brně

Regional Court Brno

41 A 35/2021-118

19/01/2024

N/A

Direct follow-up of case C-257/22.

Art. 3 of the European Convention on Human Rights

Simultaneous asylum and expulsion proceedings - Reference for a preliminary ruling - Reversal of the opinion of the Enlarged Senate of the Supreme Administrative Court

Could the police initiate and decide on an administrative expulsion procedure against the applicant if the applicant had previously applied for international protection and the Ministry of the Interior had not yet decided on his application?

No

No

§ 119(7); § 120a(7) and (8) of the act no. 326/1999 Coll., Act on Residence of Foreigners (zákon o pobytu cizinců)

The applicant, an Algerian national, arrived in a detention centre for foreigners in the Czech Republic, where he applied for international protection. At the time, he did not have a valid residence permit or travel document. Despite his request for international protection, the Czech police initiated an administrative expulsion procedure against him.
Subsequently, the police issued a decision ordering the applicant's deportation and imposing a one-year re-entry ban. In parallel proceedings, the Ministry of the Interior examined the applicant's application for international protection and, one month after the expulsion decision, rejected it as manifestly unfounded. The applicant appealed the expulsion decision to a regional court, arguing that the expulsion procedure should not have been initiated while his application for international protection was still pending.

First, the Regional Court summarised the current development of case law. Initially, the Supreme Administrative Court had ruled that it was unlawful to initiate deportation proceedings after an foreigner had declared his intention to apply for international protection. However, another chamber of the same court disagreed with this conclusion and referred the matter to the enlarged senate (special chamber in charge of unifying case law). The enlarged senate overturned the previous decision and ruled that the authorities could indeed initiate deportation proceedings against a foreigner even after he or she had applied for international protection.
Shortly afterwards, the CJEU issued a ruling on a preliminary reference made by the regional court in this case, which changed the legal landscape. The ECJ ruled that a deportation procedure cannot be initiated until the application for international protection has been decided. This ruling effectively overturned the decision of the enlarged senate.
The Regional Court expressed significant doubts about the CJEU response. It criticised the CJEU for not resolving the core issue it had raised in the preliminary reference and for creating additional problems, in particular regarding the initiation of expulsion proceedings after an application for international protection has been lodged and the timing of such decisions. The Regional Court noted that the CJEU's conclusions undermined the well-established structure of parallel proceedings in Czech law, which, in the Regional Court's view, was not in conflict with EU law. Finally, while the Regional Court considered challenging the CJEU's decision through a further preliminary question, it chose instead to follow the guidance of another Supreme Administrative Court decision that had already interpreted the CJEU's decision, despite some remaining doubts about its interpretation.
As a result, the Regional Court quashed the administrative expulsion order and referred the matter back to the police.

N/A

N/A

preliminary reference; disapplication of national law in favour of EU law

The Regional Court does not cite decisions of others regional courts or foreign courts.

The Regional Court based its interpretation of the CJEU decision on the preliminary reference it had received from the Supreme Administrative Court in another case.

The Regional Court made the preliminary reference to the CJEU because it identified an unresolved legal question regarding the interpretation of EU law on the incorporation of the concept of ""safe country of origin"" from the asylum system into return procedures for the purpose of assessing non-refoulement.
This issue was critical as it concerns the protection of fundamental rights under the EU Return Directive and the Charter. The Czech legislation in question, which extended the concept of ""safe country of origin"" from asylum law to return procedures, potentially limited the scope of non-refoulement protection by focusing only on the prohibition of ill-treatment. The Regional Court questioned whether this approach was compatible with the broader non-refoulement obligations under EU law.

The Regional Court followed the CJEU's decision without any deviation, although it noted that the CJEU had not answered the questions posed and had decided on something different (see description above).

The Regional Court based its decision only on the above-mentioned CJEU judgments, which were also cited by the CJEU.

No

No

The cassation complaint was not lodged.

Yes, there was a consensus, because the CJEU's answer was clear and its implications in the Czech context in relation to the previous decision of the enlarged senate were quickly covered by the Supreme Administrative Court's decision in another case.

This case is interesting because only one month after the decision of the enlarged senate, the legal landscape changed significantly due to a related decision of the CJEU. The Enlarged Senate had overturned previous case law and allowed expulsion procedures to be initiated and decided on even after an asylum application has been lodged. This interpretation was based on the belief that return procedures could be conducted independently of the asylum procedure.
However, the CJEU judgment in case C-257/22 made it clear that such an approach was incompatible with EU law. The CJEU ruled that return decisions cannot be taken while an asylum application is pending at first instance. This ruling directly challenged the position of the enlarged senate. As a result, the jurisprudence changed again at short notice.

Decision of the SAC from 31. 3. 2023, no. 5 Azs 96/2021-36
Decision of the SAC from 04.05.2023, no. 5 Azs 344/2022-21
Decision of the SAC from 08.12.2023, no. 5 Azs 50/2021-45
Decision of the SAC from 29.02.2024, no. 9 Azs 48/2024-20
Decision of the SAC from 18.03.2024, no. 8 Azs 272/2023-33
Judgement of a Regional Court in Prague from 04.12.2023, no. 14 A 139/2023-162
Judgement of a Regional Court in Prague from 11.12.2023, no. 45 A 7/2023-17
Judgement of a Regional Court in Prague from 04.01.2024, no. 19 A 2/2022-72
Judgement of a Regional Court in Brno from 19.01.2024, no. 41 A 35/2021-118
Judgement of a Regional Court in Prague from 14.03.2024, no. 2 A 3/2024-26
Judgement of a Regional Court in Prague from 20.05.2024, no. 21 A 18/2023-53

Ondřej Kadlec, Šimon Chvojka, Masaryk University