CJEU Case C-441/19 / Judgment

TQ v Staatssecretaris van Justitie en Veiligheid
Policy area
Irregular migration and return
Deciding body type
Court of Justice of the European Union
Deciding body
Court (First Chamber)
Type
Decision
Decision date
14/01/2021
ECLI (European case law identifier)
ECLI:EU:C:2021:9
  • CJEU Case C-441/19 / Judgment

    Key facts of the case:

    Request for a preliminary ruling from the Rechtbank Den Haag, zittingsplaats 's-Hertogenbosch.

    Reference for a preliminary ruling – Area of freedom, security and justice – Directive 2008/115/EC – Common standards and procedures in Member States for returning illegally staying third-country nationals – Article 5(a), Article 6(1) and (4), Article 8(1) and Article 10 – Return decision issued against an unaccompanied minor – Best interests of the child – Obligation for the Member State concerned to be satisfied, before the adoption of a return decision, that that minor will be returned to a member of his or her family, a nominated guardian or adequate reception facilities in the State of return – Distinction on the basis solely of the criterion of the age of the minor in order to grant a right of residence – Return decision not followed by removal measures.

     

    Outcome of the case:

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

    1. Article 6(1) 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 5(a) of that directive and Article 24(2) of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that, before issuing a return decision against an unaccompanied minor, the Member State concerned must carry out a general and in-depth assessment of the situation of that minor, taking due account of the best interests of the child. In this context, that Member State must ensure that adequate reception facilities are available for the unaccompanied minor in question in the State of return.
    2. Article 6(1) of Directive 2008/115, read in conjunction with Article 5(a) of that directive and in the light of Article 24(2) of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that a Member State may not distinguish between unaccompanied minors solely on the basis of the criterion of their age for the purpose of ascertaining whether there are adequate reception facilities in the State of return.
    3. Article 8(1) of Directive 2008/115 must be interpreted as precluding a Member State, after it has adopted a return decision in respect of an unaccompanied minor and has been satisfied, in accordance with Article 10(2) of that directive, that that minor will be returned to a member of his or her family, a nominated guardian or adequate reception facilities in the State of return, from refraining from subsequently removing that minor until he or she reaches the age of 18 years.
  • Paragraphs referring to EU Charter

    1) This request for a preliminary ruling concerns the interpretation of Articles 4, 21 and 24 of the Charter of Fundamental Rights of the European Union (‘the Charter’), Article 5(a), Article 6(1) and (4), Article 8(1) and Article 10 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 (OJ 2008 L 348, p. 98), as well as Article 15 of Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (OJ 2011 L 337, p. 9).

    ...

    33) The referring court has doubts as to whether the distinction made by the Netherlands rules between unaccompanied minors over 15 years of age and those under 15 years of age is compatible with Union law. In that regard, that court refers to the concept of the ‘best interests of the child’ referred to in Article 5(a) of Directive 2008/115 and Article 24 of the Charter.

    34) In those circumstances, the Rechtbank Den Haag, zittingsplaats ’s-Hertogenbosch (District Court, The Hague, sitting in ’s-Hertogenbosch.) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

    1. Should Article 10 of Directive [2008/115], read in conjunction with Articles 4 and 24 of the [Charter], recital 22 and Article 5(a) of Directive [2008/115] and Article 15 of Directive [2011/95], be interpreted as meaning that, before imposing an obligation to return on an unaccompanied minor, a Member State should ascertain and then should investigate whether, at least in principle, adequate reception facilities exist and are available in the country of origin?
    2. Should Article 6(1) of Directive [2008/115], read in conjunction with Article 21 of the Charter, be interpreted as meaning that a Member State is not permitted to make distinctions on the basis of age when granting lawful residence on a territory if it is established that an unaccompanied minor does not qualify for refugee status or subsidiary protection?

    ...

    37) By its first question, the referring court asks, in essence, whether Article 6(1) of Directive 2008/115, read in conjunction with Article 5(a) and Article 10 of that directive and Article 24(2) of the Charter, must be interpreted as meaning that, before issuing a return decision against an unaccompanied minor, the Member State concerned must be satisfied that adequate reception facilities are available for that minor in the State of return.

    ...

    45) Moreover, Article 24(2) of the Charter 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. That provision, read in conjunction with Article 51(1) of the Charter, affirms the fundamental nature of the rights of the child, including in the context of the return of third-country nationals staying illegally in a Member State.

    ...

    54) Such a situation would be contrary to the requirement to protect the best interests of the child at all stages of the procedure, as laid down in Article 5(a) of Directive 2008/115 and Article 24(2) of the Charter.

    ...

    60) In the light of the foregoing considerations, the answer to the first question is that Article 6(1) of Directive 2008/115, read in conjunction with Article 5(a) of that directive and Article 24(2) of the Charter, must be interpreted as meaning that, before issuing a return decision against an unaccompanied minor, the Member State concerned must carry out a general and in-depth assessment of the situation of that minor, taking due account of the best interests of the child. In this context, that Member State must ensure that adequate reception facilities are available for the unaccompanied minor in question in the State of return.

    61) By its second question, the national court asks, in essence, whether Article 6(1) of Directive 2008/115, read in conjunction with Article 5(a) of that directive and in the light of Article 24(2) of the Charter, must be interpreted as meaning that a Member State may distinguish between unaccompanied minors solely on the basis of the criterion of their age for the purpose of ascertaining whether there are adequate reception facilities in the State of return.

    ...

    65) However, as is specified in Article 24(2) of the Charter and as is reiterated in Article 5(a) of Directive 2008/115, Member States, when implementing Article 6 of that directive, must take due account of the best interests of the child, including minors over 15 years of age.

    ...

    68) In view of the foregoing, the answer to the second question is that Article 6(1) of Directive 2008/115, read in conjunction with Article 5(a) of that directive and in the light of Article 24(2) of the Charter, must be interpreted as meaning that a Member State may not distinguish between unaccompanied minors solely on the basis of the criterion of their age for the purpose of ascertaining whether there are adequate reception facilities in the State of return.

    ...

    71) Therefore, the obligation arising from Article 6(1) of Directive 2008/115, read in conjunction with Article 5(a) of that directive and Article 24(2) of the Charter, for the Member State concerned to ensure that there are adequate reception facilities before issuing a return decision against an unaccompanied minor does not relieve that Member State of the obligation to be satisfied, in accordance with Article 10(2) of that directive, before removing such a minor, that he or she will be returned to a member of his or her family, a nominated guardian or adequate reception facilities in the State of return. In that context, the Member State concerned must take into account any changes in the situation that may occur after the adoption of such a return decision.