CHAPTER V

APPEALS PROCEDURES

The right to an effective remedy
Article 39
1
Member States shall ensure that applicants for asylum have the right to an effective remedy before a court or tribunal, against the following:
a
a decision taken on their application for asylum, including a decision:
1. to consider an application inadmissible pursuant to Article 25(2),
2. taken at the border or in the transit zones of a Member State as described in Article 35(1),
3. not to conduct an examination pursuant to Article 36;
b
a refusal to re-open the examination of an application after its discontinuation pursuant to Articles 19 and 20;
c
a decision not to further examine the subsequent application pursuant to Articles 32 and 34;
d
a decision refusing entry within the framework of the procedures provided for under Article 35(2);
e
a decision to withdraw of refugee status pursuant to Article 38.
2
Member States shall provide for time-limits and other necessary rules for the applicant to exercise his/her right to an effective remedy pursuant to paragraph 1.
3
Member States shall, where appropriate, provide for rules in accordance with their international obligations dealing with:
a
the question of whether the remedy pursuant to paragraph 1 shall have the effect of allowing applicants to remain in the Member State concerned pending its outcome;
b
the possibility of legal remedy or protective measures where the remedy pursuant to paragraph 1 does not have the effect of allowing applicants to remain in the Member State concerned pending its outcome. Member States may also provide for an ex officio remedy; and
c
the grounds for challenging a decision under Article 25(2)(c) in accordance with the methodology applied under Article 27(2)(b) and (c).
4
Member States may lay down time-limits for the court or tribunal pursuant to paragraph 1 to examine the decision of the determining authority.
5
Where an applicant has been granted a status which offers the same rights and benefits under national and Community law as the refugee status by virtue of Directive 2004/83/EC, the applicant may be considered as having an effective remedy where a court or tribunal decides that the remedy pursuant to paragraph 1 is inadmissible or unlikely to succeed on the basis of insufficient interest on the part of the applicant in maintaining the proceedings.
6
Member States may also lay down in national legislation the conditions under which it can be assumed that an applicant has implicitly withdrawn or abandoned his/her remedy pursuant to paragraph 1, together with the rules on the procedure to be followed.