CJEU Case C-156/23 / Judgment

K and Others v Staatssecretaris van Justitie en Veiligheid
Policy area
Asylum and migration
Deciding body type
Court of Justice of the European Union
Type
Decision
Decision date
17/10/2024
ECLI (European case law identifier)
ECLI:EU:C:2024:892
  • CJEU Case C-156/23 / Judgment

    Key facts of the case: 

    Reference for a preliminary ruling – Area of freedom, security and justice – Immigration policy – Return of third-country nationals staying illegally in a Member State – Directive 2008/115/EC – Article 5 – Principle of non-refoulement – Enforcement of a return decision adopted in the context of a procedure for international protection, as a result of the illegal stay of the third-country national concerned arising from the rejection of an application for a residence permit provided for by national law – Obligation for the administrative authority to assess whether the enforcement of such a decision complies with the principle of non-refoulement – Article 13 – Remedies against decisions related to return – Obligation, for the national court, to raise of its own motion infringement of the principle of non-refoulement when enforcing a return decision – Scope – Article 4, Article 19(2) and Article 47 of the Charter of Fundamental Rights of the European Union

    Outcome of the case: 

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

    1. Article 5 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 19(2) of the Charter of Fundamental Rights of the European Union, must be interpreted as requiring an administrative authority which rejects an application for a residence permit based on national law and, consequently, finds that the third-country national concerned is staying illegally on the territory of the Member State in question, to ensure compliance with the principle of non-refoulement, by reviewing, in the light of that principle, the return decision previously adopted against that national in the context of a procedure for international protection, the suspension of which came to an end following such a rejection.
    2. Article 13(1) and (2) of Directive 2008/115, read in conjunction with Article 5 of that directive and with Article 19(2) and Article 47 of the Charter of Fundamental Rights, must be interpreted as requiring a national court which is requested to review the legality of an act whereby the competent national authority has rejected an application for a residence permit provided for by national law, and, in so doing, has brought to an end the suspension of the enforcement of a return decision previously adopted in the context of a procedure for international protection, to raise of its own motion any infringement of the principle of non-refoulement resulting from the enforcement of the latter decision, on the basis of the material in the file brought to its attention, as supplemented or clarified following adversarial proceedings.

     

  • Paragraphs referring to EU Charter

    29. By its third question, which it is appropriate to examine first, the referring court asks, in essence, whether Article 5 of Directive 2008/115, read in conjunction with Article 19(2) of the Charter, must be interpreted as requiring an administrative authority which rejects an application for a residence permit provided for by national law and, consequently, finds that the third-country national concerned is staying illegally on the territory of the Member State in question to ensure compliance with the principle of non-refoulement by reviewing, in the light of that principle, the return decision previously adopted against that national in the context of a procedure for international protection, the suspension of which came to an end following such a rejection.

    ...

    35. Article 5 of Directive 2008/115, which is a general rule binding on the Member States as soon as they implement that directive, 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 Geneva Convention, 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 6 July 2023, Bundesamt für Fremdenwesen und Asyl (Refugee who has committed a serious crime), C‑663/21, EU:C:2023:540, paragraph 49). Consequently, having regard to 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). Lastly, that Article 5 has direct effect and may therefore be relied on by an individual and applied by the administrative authorities and by the courts of Member States (judgment of 27 April 2023, M.D. (Ban on entering Hungary), C‑528/21, EU:C:2023:341, paragraph 97).

    36. 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 (see, to that effect, judgments of 6 July 2023, Bundesamt für Fremdenwesen und Asyl (Refugee who has committed a serious crime), C‑663/21, EU:C:2023:540, paragraph 36, and of 18 June 2024, Generalstaatsanwaltschaft Hamm (Request for the extradition of a refugee to Türkiye), C‑352/22, EU:C:2024:521, paragraph 61). That prohibition reflects one of the fundamental values of the European Union and its Member States, as enshrined in Article 2 TEU, and its absolute nature is closely linked to respect for human dignity referred to in Article 2 TEU and Article 1 of the Charter (see, to that effect, judgment of 5 April 2016, Aranyosi and Căldăraru, C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraphs 85 and 87).

    ...

    38. It follows from the foregoing that, in a situation such as that at issue in the main proceedings, Article 5 of Directive 2008/115, read in the light of Article 4 and Article 19(2) of the Charter, requires the national authority to 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 those two provisions 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.

    ...

    40. It also follows from the foregoing that a national rule or practice under which the examination of compliance with the principle of non-refoulement may be carried out only in the context of a procedure for international protection would be contrary to Article 5 of Directive 2008/115, read in conjunction with Article 19(2) of the Charter. As is apparent from paragraphs 30 to 34 of the present judgment, that directive, including Article 5 thereof, applies to any third-country national staying illegally, irrespective of the reasons for that situation. Moreover, the objective of ensuring that removal policy is effective, with due regard for fundamental rights, referred to in paragraph 30 of the present judgment, also militates against such a national rule or practice.

    41. As the Advocate General observes, in essence, in points 52 and 57 of his Opinion, K and L cannot therefore be required to lodge an application for international protection pursuant to 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), and Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (OJ 2013 L 180, p. 60), in order to ensure, in relation to them, 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.

    42. In the present case, the fact that K and L relied on their ‘westernisation’ should therefore have led the competent authority to examine, pursuant to Article 5 of Directive 2008/115, read in conjunction with Article 19(2) of the Charter, whether the principle of non-refoulement precludes enforcement of the return decision to which they are subject and, if so, to postpone removal, in accordance with Article 9(1)(a) of that directive.

    43. In the light of the foregoing reasons, the answer to the third question is that Article 5 of Directive 2008/115, read in conjunction with Article 19(2) of the Charter, must be interpreted as requiring an administrative authority which rejects an application for a residence permit based on national law and, consequently, finds that the third-country national concerned is staying illegally on the territory of the Member State in question to ensure compliance with the principle of non-refoulement by reviewing, in the light of that principle, the return decision previously adopted against that national in the context of a procedure for international protection, the suspension of which came to an end following such a rejection.

    ...

    44      By its first question, which it is appropriate to examine in the second place, the referring court asks, in essence, whether Article 13(1) and (2) of Directive 2008/115, read in conjunction with Article 5 thereof, and with Article 19(2) and Article 47 of the Charter, must be interpreted as requiring a national court which is requested to review the legality of an act whereby the competent national authority has rejected an application for a residence permit provided for by national law, and, in so doing, has brought to an end the suspension of the enforcement of a return decision previously adopted in the context of a procedure for international protection, to raise of its own motion any infringement of the principle of non-refoulement resulting from the implementation of the latter decision, on the basis of the material in the file brought to its attention, as supplemented or clarified following adversarial proceedings.

    45. Under Article 13(1) of Directive 2008/115, the third-country national concerned must be afforded an effective remedy to appeal against or seek review of decisions related to return, as referred to in Article 12(1) of that directive, before a competent judicial or administrative authority or a competent body composed of members who are impartial and who enjoy safeguards of independence.

    46. The characteristics of that remedy must be determined in accordance with Article 47 of the Charter, under which everyone whose rights and freedoms guaranteed by EU law are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in that article and with the principle of non-refoulement, guaranteed, inter alia, in Article 19(2) of the Charter and in Article 5 of Directive 2008/115 (judgment of 30 September 2020, CPAS Liège, C‑233/19, EU:C:2020:757, paragraph 45). Those provisions, as mentioned in paragraph 35 of the present judgment, require the national authorities to take that principle into account at all stages of the procedure, from the time of the adoption of a return decision until the judicial review of the enforcement of that decision.

    47. To that end, it follows from Article 13(2) of that directive that both the national administrative authorities and the judicial authorities before which the legality of a decision related to return is challenged must be able to review that decision and, where appropriate, postpone removal. (see, to that effect, judgment of 27 April 2023, M.D. (Ban on entering Hungary), C‑528/21, EU:C:2023:341, paragraph 108). On that basis, as stated in recital 15 of that directive, it should be for the Member States to decide whether or not such a review implies the power for those authorities to substitute their own decision related to the return for the earlier decision.

    48. Furthermore, in order for the judicial protection guaranteed in Article 47 of the Charter and given specific expression in Article 13(1) and (2) of Directive 2008/115 to be effective, the appeal must necessarily have suspensory effect where it is exercised against a return decision the implementation of which may expose the third-country national in question to a real risk of being subjected to inhuman or degrading treatment (see, to that effect, judgments of 19 June 2018, Gnandi, C‑181/16, EU:C:2018:465, paragraph 56; of 30 September 2020, CPAS Liège, C‑233/19, EU:C:2020:757, paragraph 46; and of 27 April 2023, M.D. (Ban on entering Hungary), C‑528/21, EU:C:2023:341, paragraph 109).

    ...

    50. As the Advocate General observes in point 51 of his Opinion, the judicial protection guaranteed by Article 47 of the Charter and given specific expression in Article 13(1) and (2) of Directive 2008/115 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, and to infer from that situation all the consequences as regards the enforcement of that decision. A limitation of the role of the national court could result in such a decision being enforced, even though such material indicates that the person concerned might be subjected, in that third country, to such treatment, which is prohibited in absolute terms by Article 4 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 94)).

    ...

    53. By its second question, the referring court asks, in essence, whether Article 5 of Directive 2008/115, read in conjunction with Article 19(2) of the Charter, must be interpreted as requiring an administrative authority which, in a procedure which has not been initiated by an application for international protection, rejects an application for a residence permit provided for by national law and, consequently, finds that the third-country national who made that application is staying illegally on the territory of the Member State concerned not to issue a return decision in respect of him or her without first assessing compliance with the principle of non-refoulement.

  • Paragraphs referring to EU Charter (original language)