CJEU Case C-313/25 / Opinion

GB v Minister van Asiel en Migratie
Deciding body type
Court of Justice of the European Union
Type
Opinion
Decision date
01/08/2025
ECLI (European case law identifier)
ECLI:EU:C:2025:625
  • CJEU Case C-313/25 / Opinion

    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 – Article 5 – Principle of non-refoulement – Best interests of the child and family life – Article 15 – Detention for the purpose of removal – Review of compliance with the conditions governing the lawfulness of the detention

    Outcome of the case:

     In the light of the foregoing considerations, I propose that the Court answer the questions referred for a preliminary ruling by the rechtbank Den Haag, zittingsplaats Roermond (District Court, The Hague, sitting in Roermond, Netherlands) as follows:

    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 together 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 the judicial authority called upon to review the lawfulness of the detention of an illegally staying third-country national, for the purpose of his or her removal pursuant to a return decision that has become final, is required to satisfy itself, if necessary of its own motion, that the principle of non-refoulement does not preclude that removal, where that principle has not previously been taken into account, particularly in the event of a change in circumstances that occurred after the adoption of the return decision and that may have a significant bearing on the assessment of the situation of the national concerned in the light of the principle of non-refoulement.

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

      must be interpreted as meaning that the judicial authority called upon to review the lawfulness of the detention of an illegally staying third-country national, for the purpose of his or her removal pursuant to a return decision that has become final, is required to satisfy itself, if necessary of its own motion, that family life and the best interests of the child, as referred to in Article 5 of Directive 2008/115, do not preclude such removal, where they have not previously been taken into account and provided that the national concerned cannot be considered to have failed in his or her duty of honest cooperation, which is for the referring court to ascertain having regard to the circumstances of the case.

  • Paragraphs referring to EU Charter

    26. The referring court adds that the right to an effective remedy, enshrined in Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and given specific expression in Article 13(1) and (2) of Directive 2008/115, requires that the court called upon to review compliance with the conditions governing the lawfulness of the detention for the purpose of removal of the illegally staying third-country national, pursuant to a return decision, should be able to determine whether the principle of non-refoulement and the interests referred to in Article 5 of that directive preclude such removal. Such an approach is even more necessary where there is no other effective remedy.

    27. It is in those circumstances that the rechtbank Den Haag zittingsplaats Roermond (District Court, The Hague, sitting in Roermond), decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

    ‘(1) Are Articles 5, 13(1) and (2), and 15 of Directive 2008/115, read in conjunction with Articles 6, 19(2) and 47 of the [Charter], to be interpreted as meaning that a judicial authority, when reviewing compliance with the conditions governing the lawfulness of the detention of a third-country national which derive from EU law, is required to satisfy itself, if necessary of its own motion, that the principle of non-refoulement does not preclude the enforcement of the return decision previously adopted and for the purposes of its enforcement the third-country national was detained?

    (2) Are Articles 5, 13(1) and (2), and 15 of Directive 2008/115, read in conjunction with Articles 6, 7, 24(2) and 47 of the [Charter], to be interpreted as meaning that a judicial authority, when reviewing compliance with the conditions governing the lawfulness of the detention of a third-country national which derive from EU law, is required to satisfy itself, if necessary of its own motion, that the interests referred to in Article 5 of Directive 2008/115 do not preclude the enforcement of the return decision previously adopted and for the purposes of its enforcement the third-country national was detained?’

    ...

    33.  Since any detention of a third-country national constitutes serious interference with the right to liberty enshrined in Article 6 of the Charter, the Court has made clear that 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, as set out, inter alia, in Article 15(1), the second subparagraph of Article 15(2) and Article 15(4) to (6) of Directive 2008/115. 

    ...

    36. As regards the right of detained third-country nationals to effective judicial protection, common EU standards on judicial protection are set out in the third subparagraph of Article 15(2) of Directive 2008/115. According to that provision, which gives concrete form, in the sphere in question, to the right to effective judicial protection safeguarded in Article 47 of the Charter, each Member State must provide, where detention has been ordered by an administrative authority, for a ‘speedy’ judicial review, either ex officio or at the request of the person concerned, of the lawfulness of that detention.

    ...

    38. By its first question, the referring court asks the Court, in essence, whether Articles 5 and 15 of Directive 2008/115, read together with Article 6, Article 19(2) and Article 47 of the Charter, must be interpreted as meaning that the judicial authority called upon to review the lawfulness of the detention of an illegally staying third-country national, for the purpose of his or her removal pursuant to a return decision that has become final, is required to satisfy itself, if necessary of its own motion, that the principle of non-refoulement does not preclude such removal, where that principle has not previously been taken into account.

    39. First of all, I note that the principle of non-refoulement is a fundamental principle enshrined in Article 19(2) of the Charter, pursuant to which ‘no one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment’. That principle, which is absolute, is also linked to Article 18 of the Charter on the right to asylum, as well as Article 4 of the Charter on the prohibition of torture and inhuman or degrading treatment or punishment. 

    ...

    46. Thus, the Court has held that, where a certain period of time has elapsed which leads to a change in circumstances, the national authority must carry out, prior to enforcing the return decision, an updated assessment of the risks faced by the third-country national of being exposed to treatment prohibited in absolute terms by Article 4 and Article 19(2) of the Charter. That assessment, which must be separate from and independent of that carried out at the time of the adoption of the return decision, must enable the national authority to satisfy itself, taking into account any change in circumstances and any new evidence put forward by that third-country national, that there are no substantial grounds for believing that that third-country national would be exposed, if returned to a third country, to a real risk of being subjected, in that third country, to the death penalty, torture or inhuman or degrading treatment. Such an updated assessment is the only one capable of enabling that authority to satisfy itself that the removal complies with the necessary legal conditions, and in particular with the requirements laid down in Article 5 of Directive 2008/115.

    47. Furthermore, when ruling on the duty to examine of its own motion a plea alleging infringement of EU provisions where a judicial authority reviews the conditions governing the lawfulness of a detention measure ordered by an administrative authority, the Court held that the competent judicial authority must be in a position to rule on all matters of fact and of law relevant to the review of that lawfulness, and be able to take into account the facts stated and the evidence adduced by the administrative authority which ordered the initial detention, as well as any evidence and observations which may be submitted to it by the person concerned. It must also be able to consider any other element that is relevant for its decision should it so deem necessary. To that end, the Court referred to the importance of the right to liberty guaranteed in Article 6 of the Charter and to the gravity of the interference with that right represented by detention and the requirement of a high level of judicial protection.

    ...

    54. In effect, the judicial protection guaranteed by Article 47 of the Charter would be neither effective nor complete if the national court were not required to raise ex officio the failure to comply with the principle of non-refoulement when the material in the file brought to its attention, as supplemented or clarified during the adversarial proceedings before it, tends to demonstrate that the return decision is based on an obsolete assessment of the risks of treatment prohibited by that principle which are faced by the third-country national concerned if he or she were to return to the third country in question.

    ...

    57. Yet contrary to the submissions of the Netherlands Government, the national concerned cannot be required to lodge another application for international protection in order to ensure full compliance with the principle of non-refoulement referred to in Article 5 of Directive 2008/115, read together with Article 19(2) of the Charter. Similarly, he cannot be expected to lodge a complaint against ‘effective removal’, since this may only be done after notification of the date and time of expulsion, and, as the referring court states, does not automatically give rise to an assessment of the principle of non-refoulement and does not prevent a detention which could prove to be unjustified.

    ...

    63. Accordingly, I propose that the Court answer the first question referred for a preliminary ruling to the effect that Articles 5 and 15 of Directive 2008/115, read together with Article 6, Article 19(2) and Article 47 of the Charter, must be interpreted as meaning that the judicial authority called upon to review the lawfulness of the detention of an illegally staying third-country national, for the purpose of his or her removal pursuant to a return decision that has become final, is required to satisfy itself, if necessary of its own motion, that the principle of non-refoulement does not preclude that removal, where that principle has not previously been taken into account, particularly in the event of a change in circumstances that occurred after the adoption of the return decision and that may have a significant bearing on the assessment of the situation of the national concerned in the light of the principle of non-refoulement.

    64. By its second question, the referring court asks, in essence, whether Articles 5 and 15 of Directive 2008/115, read together with Article 6, Article 7, Article 24(2) and Article 47 of the Charter, must be interpreted as meaning that the judicial authority called upon to review the lawfulness of the detention of an illegally staying third-country national, for the purpose of his or her removal pursuant to a return decision that has become final, is required to satisfy itself, if necessary of its own motion, that family life and the best interests of the child, as referred to in Article 5 of Directive 2008/115, do not preclude such removal, where they have not previously been taken into account.

    65. I note that, when they implement Directive 2008/115, including when they envisage adopting a return decision or making a removal order in respect of an illegally staying third-country national, Member States are required to respect the fundamental rights which the Charter grants to that national.

    66. This applies, in particular, to the right to respect for private life and family life, as guaranteed in Article 7 of the Charter, which may be relied on by an illegally staying third-country national who is the father of a minor child, and which must be read together with Article 24(2) of the Charter, which provides that, in all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration.  Yet, 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.

    67.  It also follows from Article 5(a) and (b) of Directive 2008/115 that Member States must take due account of the best interests of the child and family life when implementing that directive. That provision constitutes a general rule, which cannot be interpreted restrictively, and transposes to the field of that directive the obligation laid down in Articles 7 and 24 of the Charter. The Court has thus held that, read together with Article 24 of the Charter, Article 5 of Directive 2008/115 must be interpreted as meaning that Member States are required to take due account of the best interests of the child at all stages of the procedure, before adopting decisions, such as a return decision, accompanied by an entry ban if necessary, which have significant consequences for that minor, even where the person to whom that decision is addressed is not the minor but one of his or her parents. The Court added that the same applies to a removal measure, which cannot be adopted if it disregards family life and the right to respect for the private life of the national concerned. 

    ...

    76. Therefore, I propose that the Court answer the second question referred for a preliminary ruling that Articles 5 and 15 of Directive 2008/115, read together with Article 6, Article 7, Article 24(2) and Article 47 of the Charter, must be interpreted as meaning that the judicial authority called upon to review the lawfulness of the detention of an illegally staying third-country national, for the purpose of his or her removal pursuant to a return decision that has become final, is required to satisfy itself, if necessary of its own motion, that family life and the best interests of the child, as referred to in Article 5 of Directive 2008/115, do not preclude such removal, where they have not previously been taken into account and provided that the national concerned cannot be considered to have failed in his or her duty of honest cooperation, which is for the referring court to ascertain having regard to the circumstances of the case.

  • Paragraphs referring to EU Charter (original language)