CJEU Case C-313/25 / Judgment

GB v Minister van Asiel en Migratie
Deciding body type
Court of Justice of the European Union
Type
Decision
Decision date
04/09/2025
ECLI (European case law identifier)
ECLI:EU:C:2025:647
  • CJEU Case C-313/25 / Judgment

    Key facts of the case:

    Reference for a preliminary ruling – Urgent preliminary ruling procedure – Immigration policy – Return of third-country nationals staying illegally in a Member State – Directive 2008/115/EC – Enforcement of a return decision that has become final – Article 5 – Principle of non-refoulement – Best interests of the child – Family life – Article 15 – Detention for the purpose of removal – Review of compliance with the conditions governing lawfulness – Obligation for the national court to review compliance with the principle of non-refoulement and the other interests referred to in Article 5 of Directive 2008/115 – Considered of court’s own motion – Articles 6 and 7, Article 19(2), Article 24(2) and Article 47 of the Charter of Fundamental Rights of the European Union

    Outcome of the case:

    On those grounds, the Court (Second Chamber) hereby rules:

    1. Articles 5 and 15 of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, read in conjunction with Article 6, Article 19(2) and Article 47 of the Charter of Fundamental Rights of the European Union,

      must be interpreted as meaning that a national court, called upon to review the lawfulness of the detention of an illegally staying third-country national, with a view to his or her removal pursuant to a final return decision, is required to examine, if necessary of its own motion, whether the principle of non-refoulement precludes that removal.

    2. Articles 5 and 15 of Directive 2008/115, read in conjunction with Articles 6 and 7, Article 24(2) and Article 47 of the Charter of Fundamental Rights,

      must be interpreted as meaning that a national court, called upon to review the lawfulness of the detention of an illegally staying third-country national, with a view to his or her removal pursuant to a final return decision, is required to examine, if necessary of its own motion, whether the best interests of the child and family life, referred to, respectively, in Article 5(a) and (b) of that directive, preclude that removal.

  • Paragraphs referring to EU Charter

    45. By its first question, the referring court seeks, in essence, to ascertain whether Articles 5 and 15 of Directive 2008/115, read in conjunction with Article 6, Article 19(2) and Article 47 of the Charter, must be interpreted as meaning that a national court, called upon to review the lawfulness of the detention of an illegally staying third-country national, with a view to his or her removal pursuant to a final return decision, is required to examine, if necessary of its own motion, whether the principle of non-refoulement precludes that removal.

    ...

    47. It follows that, when they implement Directive 2008/115, including when they adopt detention measures with a view to preparing the removal of an illegally staying third-country national, Member States are required to respect the fundamental rights which the Charter grants to that national (see, to that effect, judgment of 22 November 2022, Staatssecretaris van Justitie en Veiligheid (Removal – Medicinal cannabis), C‑69/21, EU:C:2022:913, paragraph 89).

    48. With the benefit of those preliminary remarks, it should be noted, in the first place, that any detention of a third-country national under Directive 2008/115 in the context of a return procedure as a result of an illegal stay constitutes a serious interference with the right to liberty of the person concerned, enshrined in Article 6 of the Charter (see, to that effect, judgment of 8 November 2022, Staatssecretaris van Justitie en Veiligheid (Ex officio review of detention), C‑704/20 and C‑39/21, EU:C:2022:858, paragraph 72 and the case-law cited).

    ...

    51. In view of the seriousness of that interference with the right to liberty enshrined in Article 6 of the Charter and of the importance of that right, the power of the competent national authorities to detain third-country nationals is strictly circumscribed. A detention measure may thus be ordered or extended only in compliance with the general and abstract rules laying down the conditions and procedures governing such a measure (see, to that effect, judgments of 10 March 2022, Landkreis Gifhorn, C‑519/20, EU:C:2022:178, paragraph 62, and of 8 November 2022, Staatssecretaris van Justitie en Veiligheid (Ex officio review of detention), C‑704/20 and C‑39/21, EU:C:2022:858, paragraph 75).

    52. The general and abstract rules laying down, as common EU standards, the conditions governing the lawfulness of the detention of an illegally staying third-country national in the light of Directive 2008/115, including from the perspective of Article 6 of the Charter, are set out in Article 15 of that directive (see, to that effect, judgment of 8 November 2022, Staatssecretaris van Justitie en Veiligheid (Ex officio review of detention), C‑704/20 and C‑39/21, EU:C:2022:858, paragraphs 76 and 77).

    ...

    60. In particular, Article 5 of Directive 2008/115 obliges the competent national authority to observe, at all stages of the return procedure, the principle of non-refoulement, which is guaranteed, as a fundamental right, in Article 18 of the Charter, read in conjunction with Article 33 of the Convention relating to the Status of Refugees, as amended by the Protocol relating to the Status of Refugees, and in Article 19(2) of the Charter (judgments of 22 November 2022, Staatssecretaris van Justitie en Veiligheid(Removal – Medicinal cannabis), C‑69/21, EU:C:2022:913, paragraph 55, and of 17 October 2024, Ararat, C‑156/23, EU:C:2024:892, paragraph 35).

    61. According to settled case-law, Article 19(2) of the Charter, read in conjunction with Article 4 thereof, prohibits in absolute terms, irrespective of the conduct of the person concerned, removal, expulsion or extradition to a State where there is a serious risk of that person being subjected to the death penalty, torture or inhuman or degrading treatment or punishment. Therefore, Member States may not remove, expel or extradite a foreign national where there are substantial grounds for believing that he or she will face a genuine risk, in the country of destination, of being subjected to treatment prohibited by those two provisions of the Charter (judgment of 17 October 2024, Ararat, C‑156/23, EU:C:2024:892, paragraph 36 and the case-law cited).

    62. Thus, where there are substantial grounds for believing that an illegally staying third-country national will face a genuine risk, in the country of destination, of being subjected to treatment prohibited by those provisions of the Charter, that national cannot be removed while such a risk persists, as is expressly provided for in Article 9(1)(a) of Directive 2008/115 (see, to that effect, judgment of 22 November 2022, Staatssecretaris van Justitie en Veiligheid (Removal – Medicinal cannabis), C‑69/21, EU:C:2022:913, paragraphs 58 and 59).

    ...

    67. As regards, in the second place, the right of third-country nationals who have been detained to effective judicial protection, it is settled case-law that, under Article 47 of the Charter, the Member States must ensure effective judicial protection of rights which individuals derive from EU law (judgment of 8 November 2022, Staatssecretaris van Justitie en Veiligheid (Ex officio review of detention), C‑704/20 and C‑39/21, EU:C:2022:858, paragraph 81).

    ...

    74. It also follows from the foregoing that a national rule or practice under which the full examination of the principle of non-refoulement may be carried out only in the context of a procedure for international protection would be contrary to Articles 5 and 15 of Directive 2008/115, read in conjunction with Article 19(2) of the Charter. That directive, including Article 5 thereof, applies to any third-country national staying illegally, irrespective of the reasons for that situation (see, to that effect, judgments of 3 June 2021, Westerwaldkreis, C‑546/19, EU:C:2021:432, paragraph 45, and of 17 October 2024, Ararat, C‑156/23, EU:C:2024:892, paragraphs 32 and 40).

    75. Thus, contrary to the position expressed by the Netherlands Government at the hearing before the Court, GB cannot be required to lodge an application for international protection in order to be ensured full compliance with the principle of non-refoulement referred to in Article 5 of Directive 2008/115, read in conjunction with Article 19(2) of the Charter (see, by analogy, judgment of 17 October 2024, Ararat, C‑156/23, EU:C:2024:892, paragraph 41).

    76. In the light of the foregoing, the answer to the first question is that Articles 5 and 15 of Directive 2008/115, read in conjunction with Article 6, Article 19(2) and Article 47 of the Charter, must be interpreted as meaning that a national court, called upon to review the lawfulness of the detention of an illegally staying third-country national, with a view to his or her removal pursuant to a final return decision, is required to examine, if necessary of its own motion, whether the principle of non-refoulement precludes that removal.

    77. By its second question, the referring court seeks, in essence, to ascertain whether Articles 5 and 15 of Directive 2008/115, read in conjunction with Articles 6 and 7, Article 24(2) and Article 47 of the Charter, must be interpreted as meaning that a national court, called upon to review the lawfulness of the detention of an illegally staying third-country national, with a view to his or her removal pursuant to a final return decision, is required to examine, if necessary of its own motion, whether the best interests of the child and family life, referred to, respectively, in Article 5(a) and (b) of that directive, preclude that removal.

    ...

    81. That interpretation is supported by the objective pursued by Article 5 of Directive 2008/115. As confirmed by recitals 22 and 24 of that directive, Article 5 seeks to ensure, in the context of the return procedure established by that directive, respect for a number of fundamental rights, including the right to family life and the fundamental rights of the child, as enshrined, respectively, in Articles 7 and 24 of the Charter. It follows that, in the light of the objective which it pursues, Article 5 cannot be interpreted restrictively (see, to that effect, judgment of 11 March 2021, État belge (Return of the parent of a minor), C‑112/20, EU:C:2021:197, paragraph 35).

    82. That said, unlike protection against any inhuman or degrading treatment enshrined in Article 4 of the Charter, the rights guaranteed by Articles 7 and 24 of the Charter are not absolute in nature and may therefore be subject to restrictions under the conditions set out in Article 52(1) thereof (judgment of 22 February 2022, Commissaire général aux réfugiés et aux apatrides (Family unity –Protection already granted), C‑483/20, EU:C:2022:103, paragraph 36).

    ...

    84. In the light of the foregoing, the answer to the second question is that Articles 5 and 15 of Directive 2008/115, read in conjunction with Articles 6 and 7, Article 24(2) and Article 47 of the Charter, must be interpreted as meaning that a national court, called upon to review the lawfulness of the detention of an illegally staying third-country national, with a view to his or her removal pursuant to a final return decision, is required to examine, if necessary of its own motion, whether the best interests of the child and family life, referred to, respectively, in Article 5(a) and (b) of that directive, preclude that removal.

     

     

  • Paragraphs referring to EU Charter (original language)