On 12 September 2024, the Court of Justice of the European Union (CJEU) delivered its judgment in Case C-352/23. The case concerns a FAR beneficiary who has been living in a legal vacuum in Bulgaria for 27 years without being able to return to his country of origin. Over the years, he has made 11 applications for international protection. However, due to the lack of a regularisation mechanism in Bulgaria that would legally enable people like him to settle their stay, he has fallen into 'illegality' and become 'invisible' - without access to basic human rights such as access to non-emergency medical care, the right to work legally, the right to marry or even to recognise his children as his own.
The central issue in Changu concerned the positive obligations of the state to ensure access to basic human rights for people who have been in the country for many years without a legal mechanism to regularize their stay.
In the context of Bulgarian law at present, the only such possibility exists in Article 9(8) of the Asylum and Refugee Act, according to which:
Humanitarian status may also be granted for other reasons of a humanitarian nature, and for the reasons set out in the conclusions of the Executive Committee of the United Nations High Commissioner for Refugees.
In this regard, the CJEU noted in its judgment that a Member State may grant a right of residence on humanitarian grounds to a third-country national who is in a situation of extreme material deprivation on its territory only under its national law. However, such national protection should not be confused with refugee status or subsidiary protection within the meaning of Directive 2011/95. In this regard, you can read the comments of Dr. Adv. Valeria Ilareva in cases C-562/13, Abdida and C-542/13, M'Bodj.
In a case with a similar factual background, Ghadamian v. Switzerland[1], the European Court of Human Rights (ECtHR) held that States have a positive obligation to regularise foreigners residing illegally in their territory. In that case, similarly to the beneficiary of FAR, Switzerland refused to grant a residence permit to an elderly foreign national from Iran who had lived in the country for more than 50 years and relied on strong family and social ties in Switzerland. The Court finds that the arguments put forward by the national authorities (i.e. those relating to the applicant's previous decisions to leave the country, his illegal residence since 2002 and his previous criminal convictions) were relevant but not sufficient grounds, having regard to the applicant's situation. The Court takes into account the applicant's exceptionally long stay in Switzerland, his close ties to that country, his advanced age, the lack of any ongoing ties in Iran, and the absence of serious criminal offences since 2005. The Court therefore finds a violation of Article 8 ECHR (right to private and family life) and that a fair balance has not been struck between the public interest in immigration control and the applicant's right to respect for his private life and his interests in continuing to reside in Switzerland.
In contrast to the case law of the ECtHR, in its judgment of 12 September, the CJEU found that Articles 1 (human dignity), 4 (prohibition of torture and inhuman or degrading treatment or punishment) and 7 (respect for private and family life) of the Charter of Fundamental Rights of the European Union (CFREU) in conjunction with Directive 2008/115 must be interpreted as meaning, that a Member State is not obliged, on imperative humanitarian grounds, to grant a right of residence to a third-country national currently residing unlawfully in its territory, whatever the duration of that residence.
However, the CJEU has categorically stated that , until he is removed, that national may enjoy the rights guaranteed to him both by the CFREU and by Article 14(1) of Directive 2008/115 (Returns Directive). The Member State must still ensure that the person is not subjected to inhuman or degrading treatment under Article 4 of CFREU. This includes the provision of basic needs, such as emergency health care and basic treatment of illnesses, especially for vulnerable persons.
In addition, if that national is also an applicant for international protection, including with a subsequent asylum application, he/she also has: 1) the right to remain in the territory of the Member State pending the determination of his/her appeal, regardless of the specific grounds on which his/her asylum application was rejected; 2) to benefit also from the rights provided for in Directive 2013/33/EU on setting standards on the reception of applicants for international protection, ensuring a standard of living that guarantees his/her subsistence and protects his/her fundamental rights. The latter applies even in cases where the material reception conditions are limited or withdrawn on the ground that the asylum application is a subsequent application. Even in these cases, applicants should be guaranteed at least minimum reception conditions enabling them to lead a decent life.
The full text of the reference for a preliminary ruling from the Administrative Court - Sofia City can be found at this link.
The full text of the CJEU decision can be found at this link.
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