Article 7 - Respect for private and family life
Article 24 - The rights of the child
Key facts of the case:
Request for a preliminary ruling from the Conseil d'État. Reference for a preliminary ruling – Directive 2008/115/EC – Article 5 – Return decision – Father of a minor child who is a citizen of the European Union – Taking into account the best interests of the child at the time of the adoption of the return decision.
Outcome of the case:
On those grounds, the Court (Tenth Chamber) hereby rules:
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 24 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that Member States are required to take due account of the best interests of the child before adopting a return decision accompanied by an entry ban, even where the person to whom that decision is addressed is not a minor but his or her father.
1) This request for a preliminary ruling concerns the interpretation of 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 (OJ 2008 L 348, p. 98), read in conjunction with Article 13 of that directive and with Articles 24 and 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
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15) In support of his appeal, M. A. submits, inter alia, that the Conseil du contentieux des étrangers (Council for asylum and immigration proceedings) wrongly considered that he had no interest in bringing his claim alleging infringement of Article 24 of the Charter, on the ground that he did not state that he was acting on behalf of his minor child. In that regard, M. A. notes, first, that his child has Belgian nationality, is not the person to whom the measures contested before the Conseil du contentieux des étrangers (Council for asylum and immigration proceedings) are addressed and therefore does not have locus standi and, secondly, that it is not necessary for him to act on behalf of the child for the best interests of that child to be protected. Moreover, M. A. observes that, in order to continue family life with him, his child is required to leave the territory of the European Union and to deny herself the effective enjoyment of the rights conferred on her by virtue of her status as a Union citizen.
18) In those circumstances, the Conseil d’État (Council of State, Belgium) decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:
‘Should Article 5 of Directive 2008/115 …, which requires Member States, when implementing the directive, to take account of the best interests of the child, together with Article 13 of that directive and Articles 24 and 47 of the [Charter], be interpreted as requiring the best interests of the child, an EU citizen, to be taken into account even if the return decision is taken with regard to the child’s parent alone?’
19) By its question, the referring court asks, in essence, whether Article 5 of Directive 2008/115, read in conjunction with Article 13 of that directive as well as Articles 24 and 47 of the Charter, must be interpreted as meaning that Member States are required to take due account of the best interests of the child before adopting a return decision, accompanied by an entry ban, even where the person to whom that decision is addressed is not a minor but his or her father.
20) As a preliminary point, first, it should be noted that, according to M. A., as the Conseil d’État (Council of State) has asked the Court about the interpretation of Article 47 of the Charter and Article 13 of Directive 2008/115, it is necessary to examine whether those provisions must be interpreted as precluding national legislation under which a third-country national, to whom a return decision accompanied by an entry ban is addressed, must act on behalf of his or her minor child before the court with jurisdiction to rule on the legality of that decision in order to ensure that the best interests of that child are taken into account.
23) Therefore, the question raised by the referring court must be answered without taking into account M. A.’s request. In addition, in that situation, the interpretation of Article 47 of the Charter and Article 13(1) of Directive 2008/115 does not appear to be necessary in order to provide the referring court with a useful answer.
26) Such a circumstance may mean that M. A. must be granted permission to reside on Belgian territory pursuant to Article 20 TFEU. That is, in principle, the case if, in the absence of a residence permit, M. A. and his daughter would be obliged to leave the territory of the European Union as a whole (see, to that effect, judgment of 27 February 2020, Subdelegación del Gobierno en Ciudad Real (Spouse of a Union citizen), C‑836/18, EU:C:2020:119, paragraphs 41 to 44 and the case-law cited). In making that assessment, the competent authorities must take due account of the right to respect for family life and the best interests of the child, recognised in Article 7 and Article 24(2) of the Charter.
35) Thus, as regards, in the first place, the objective pursued by Article 5 of Directive 2008/115, it should be noted, first, that, as confirmed by recitals 22 and 24 of that directive, that article seeks to ensure, in the context of the return procedure established by that directive, respect for a number of fundamental rights, including the fundamental rights of the child, as enshrined in Article 24 of the Charter. It follows that, in the light of the objective which it pursues, Article 5 of the directive cannot be interpreted restrictively (see, by analogy, judgments of 14 February 2019, Buivids, C‑345/17, EU:C:2019:122, paragraph 51, and of 26 March 2019, SM (Child placed under Algerian kafala), C‑129/18, EU:C:2019:248, paragraph 53).
36) 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. It follows that such a provision is itself worded in broad terms and applies to decisions which, like a return decision adopted against a third-country national who is the parent of a minor, are not addressed to that minor but have significant consequences for him or her.
37) That finding is confirmed by Article 3(1) of the International Convention on the Rights of the Child, to which the explanations relating to Article 24 of the Charter expressly refer.
41) Secondly, it follows from Article 5(b) of that directive that, when contemplating the adoption of a return decision, Member States must also take due account of family life. Article 7 of the Charter, relating inter alia to the right to respect for family life, on which an illegally staying third-country national may rely, who, like M. A., is the father of a minor child, must be read in conjunction with Article 24(2) of the Charter, which lays down the obligation to have regard to the best interests of the minor child (see, to that effect, judgment of 26 March 2019, SM (Child placed under Algerian kafala), C‑129/18, EU:C:2019:248, paragraph 67 and the case-law cited).
42) Thirdly, other provisions of Directive 2008/115, such as Article 7(2) and Article 14(1) thereof, implement the obligation to take into account the best interests of the child, including where the child is not the person to whom the decision at issue is addressed.
43) It follows from all the foregoing considerations that Article 5 of Directive 2008/115, read in conjunction with Article 24 of the Charter, must be interpreted as meaning that Member States are required to take due account of the best interests of the child before adopting a return decision accompanied by an entry ban, even where the person to whom that decision is addressed is not a minor but his or her father.
