Provisional text
OPINION OF ADVOCATE GENERAL
RICHARD DE LA TOUR
delivered on 16 May 2024 (1)
Case C‑156/23 [Ararat] (i)
K,
L,
M,
N
v
Staatssecretaris van Justitie en Veiligheid
(request for a preliminary ruling from the Rechtbank Den Haag, zittingsplaats Roermond (District Court, The Hague, sitting in Roermond, Netherlands))
(Reference for a preliminary ruling – Area of freedom, security and justice – Return of illegally staying third country nationals – Directive 2008/115/EC – Article 5 – Principle of non-refoulement – Act by which the competent national authority rejects an application for a residence permit provided for by national law and refers to an earlier return decision which has become final – Legality of the implementation of the return decision – Obligation to carry out an updated assessment of the risks encountered in the event of removal – Article 13 – Remedies – Obligation for the judicial authority to raise ex officio the breach of the principle of non-refoulement – Charter of Fundamental Rights of the European Union – Article 19(2) – Protection in the event of removal – Article 47 – Right to an effective remedy)
I. Introduction
1. Respect for the principle of non-refoulement in the context of the return of an illegally staying third-country national raises a particular problem where the Member State does not implement the return decision which it has adopted with regard to that national in a timely manner. With the passing of time, although that decision becomes final vis-à-vis that national, conversely, the assessment on which it is based and, in particular, the assessment of the risks which he or she will encounter in the event of removal to the intended country of destination, becomes obsolete.
2. In that regard, the judge at the European Court of Human Rights, Ledi Bianku, has observed that ‘the non-refoulement principle and the role of the courts in its implementation [is a subject which] takes on a particular significance because it concerns cases which involve, above all, absolute rights protected by the Convention [for the Protection of Human Rights and Fundamental Freedoms (2)]. In addition, the courts, whether national or international, must rule on situations that are very distant from them and of which they do not necessarily have full and direct knowledge. In addition, non-refoulement cases are generally cases concerning fluctuating situations – situations which are changing all the time’. (3)
3. The present request for a preliminary ruling concerns the interpretation of Articles 5 and 13 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, (4) which guarantee the principle of non-refoulement and effective judicial protection, respectively, to those nationals.
4. The request was made in proceedings between K, L, M and N, Armenian nationals, and the Staatssecretaris van Justitie en Veiligheid (State Secretary for Justice and Security, Netherlands) (‘the State Secretary’) concerning the legality of an act whereby the State Secretary rejected their application for a residence permit provided for by Netherlands law and in which the State Secretary referred to an earlier return decision, which had become final, for the purposes of resuming the return procedure.
5. The request contains, in essence, two questions.
6. First, the rechtbank Den Haag, zittingsplaats Roermond (District Court, The Hague, sitting in Roermond, Netherlands) asks the Court whether, in a situation in which a competent national authority establishes the illegality of the stay of a third-country national with respect to whom an earlier return decision, which has become final, was adopted. that authority is required, before resuming the return proceedings, to carry out an updated assessment of the risks which that national will encounter in the event of return to the intended country of destination.
7. Second, the referring court asks the Court whether the judicial authority is required, in the context of the review of legality pending before it, and on the basis of the material available to it, to raise ex officio the breach of the principle of non-refoulement where the competent national authority has not carried out such an assessment.
8. In this Opinion, I shall propose that the Court should rule that, in a situation in which the return procedure has been suspended for a prolonged period of time, the competent national authority is required to determine, before implementing the earlier return decision, whether the situation of the third-country national has not been altered in such a way that there are serious and substantiated grounds to believe that, if that decision is implemented, he or she would be exposed to a risk of torture or inhuman or degrading treatment or punishment in the intended country of destination. I shall also set out the reasons why I consider that, in the absence of such an assessment, the national court is required to raise ex officio the failure to comply with the principle of non-refoulement which has not been relied on by that national, provided that it has evidence to that effect.
II. Legal context
A. European Union law
9. Directive 2008/115 provides, in Article 5, that ‘[w]hen implementing this Directive, Member States shall … respect the principle of non-refoulement’.
10. Article 6(1) and (6) of that directive is worded as follows:
‘1. Member States shall issue a return decision to any third-country national staying illegally on their territory, without prejudice to the exceptions referred to in paragraphs 2 to 5.
…
6. This Directive shall not prevent Member States from adopting a decision on the ending of a legal stay together with a return decision and/or a decision on a removal and/or entry ban in a single administrative or judicial decision or act as provided for in their national legislation, without prejudice to the procedural safeguards available under Chapter III and under other relevant provisions of Community and national law.’
11. Article 9(1)(a) of that directive provides:
‘Member States shall postpone removal:
(a) when it would violate the principle of non-refoulement …’
12. Last, Article 13(1) and (2) of that directive is worded as follows:
‘1. The third-country national concerned shall be afforded an effective remedy to appeal against or seek review of decisions related to return, as referred to in Article 12(1), before a competent judicial or administrative authority or a competent body composed of members who are impartial and who enjoy safeguards of independence.
2. The authority or body mentioned in paragraph 1 shall have the power to review decisions related to return, as referred to in Article 12(1), including the possibility of temporarily suspending their enforcement, unless a temporary suspension is already applicable under national legislation.’
B. Netherlands law
13. Article 8:69 of the Algemene wet bestuursrecht (General act relating to administrative law) (5) of 4 June 1992 provides:
‘1. The court seised shall adjudicate on the basis of the appeal, the documents produced, the preliminary investigation and the investigation of the case at the hearing.
2. The court shall supplement ex officio the pleas in law.
3. The court may supplement the facts ex officio.’
III. The facts of the main proceedings and the questions referred for a preliminary ruling
14. On 16 March 2011, the applicants, a family consisting of two sisters, K and L, and their parents, M and N, all of Armenian nationality, submitted an application for international protection. That application was rejected by a decision of 9 August 2012. Furthermore, the applicants were notified of a return decision which was adopted following an assessment of the risks which they would encounter in the event of their removal to Armenia. That decision became final.
15. On 10 May 2016, the applicants submitted an application for a residence permit provided for by Netherlands law. That application was rejected by a decision delivered on 16 June 2016, which also became final following the dismissal of their appeal.
16. On 18 February 2019, the applicants sought another residence permit provided for by Netherlands law, in favour of long-term resident children (‘afsluitingsregeling langdurig verblijvende kinderen’ (definitive scheme for long-term resident children)). (6) By an act dated 8 October 2019, the State Secretary rejected their application and established, first, the illegal nature of their stay and, second, the validity of the return decision adopted in respect of them on 9 August 2012 (‘the act at issue’). That act was confirmed on 12 November 2020 following the rejection of the complaint lodged by the applicants.
17. The applicants lodged an appeal against the rejection of their complaint before the rechtbank Den Haag, zittingsplaats Roermond (District Court, The Hague, sitting in Roermond), which decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
‘(1) Is Article 47 of the Charter of Fundamental Rights of the European Union, [(7)] read in conjunction with Article 4 [and] Article 19(2) of the [Charter] and [with] Article 5 of Directive [2008/115] to be interpreted as meaning that a judicial authority must establish ex officio that the principle of non-refoulement has not been complied with on the basis of the information in the file brought to its attention and as supplemented or clarified in the adversarial proceedings brought before it? Does the scope of that obligation depend on whether the adversarial proceedings were initiated with an application for international protection, and is the scope of that obligation therefore different where a refoulement risk is assessed in the context of admission or in the context of return?
(2) Is Article 5 of [Directive 2008/115], read in conjunction with Article 19(2) of the [Charter], to be interpreted as meaning that, where a return decision is issued in proceedings which have not been initiated with an application for international protection, the question whether or not the refoulement prohibition precludes return must be examined before the issue of a return decision and does an established refoulement risk then preclude the imposition of a return decision or is an established refoulement risk in that situation an obstacle to removal?
(3) Is a return decision revived if [it] has been suspended because of new proceedings which have not been initiated with an application for international protection, or is Article 5 of [Directive 2008/115], read in conjunction with Article 19(2) of the [Charter], to be interpreted as meaning that, where the refoulement risk has not been assessed in the proceedings leading to the renewed finding of illegal residence, a current assessment of the refoulement risk should follow and a new return decision should be imposed? Is the answer to that question different if there is no suspended return decision but a return decision which has not been complied with by the third-country national and the authorities for a prolonged period of time?’
18. Written observations were lodged by the Netherlands, German and Swiss Governments and by the European Commission. The Netherlands Government and the Commission, and also the applicants and the Danish Government, took part in the hearing on 21 March 2024, during which they also answered the questions for an oral answer put by the Court.
IV. Preliminary observation
19. Before examining the questions for a preliminary ruling, I consider it useful to make a preliminary observation relating to their object, their admissibility and the order in which I shall examine them.
20. First of all, I think that it is important to answer the third question, which relates to the administrative phase of the return procedure. The referring court wonders about the effects which the introduction, by a third-country national, of a new application for a residence permit provided for by national law has on the return procedure previously carried out against him or her and, in particular, on the existence of the obligation borne by the competent national authority to carry out an updated assessment of the risks that would be encountered in the event of removal.
21. Next, it will be necessary to answer the first question, which relates, more particularly, to the judicial phase of the return procedure and the obligation borne by the judicial authority to raise ex officio the possible failure to comply with the principle of non-refoulement in the context of the review of legality pending before it. Although the referring court asks the Court, in that context, to interpret Article 5 of Directive 2008/115, in the light of Article 4 and Article 19(2) of the Charter, I propose to examine that question by reference to the provisions set out in Article 13 of that directive, which enshrines the right to effective judicial protection when that procedure is implemented.
22. Last, in my view there is no need to examine the second question, in so far as, apart from the confused nature of its formulation, it appears to have no bearing on the subject matter of the main proceedings. The referring court asks the Court to clarify certain points relating to compliance with the principle of non-refoulement where a return decision has not yet been adopted. In the present case, it is common ground that the applicants are the subject of a return decision, which was adopted on 9 August 2012. That decision became final. The main proceedings therefore relate to compliance with that principle in the context, not of the adoption of a return decision, but rather of its implementation when a return procedure is resumed.
23. It follows from the Court’s case-law that that question is therefore inadmissible, since it invites the Court to formulate an advisory opinion on a hypothetical question, in disregard of the task assigned to the Court in the context of the judicial cooperation established by Article 267 TFEU. (8)
V. Analysis
24. It is appropriate to determine the object of the act at issue, the legality of which is disputed before the judicial authority.
25. The act at issue is a hybrid act. It comes within the scope of both Netherlands law, in that it refuses to grant the applicants a residence permit provided for by Netherlands law, and EU law, in that it involves the reactivation of the return procedure which had initially been initiated against them, establishing the validity of the return decision adopted on 9 August 2012. (9)
26. The questions put to the Court relate solely to the legality of the implementation of that decision in so far as it constitutes a return decision within the meaning of Article 3(4) of Directive 2008/115. (10)
A. The obligation of the competent national authority to carry out an updated assessment of the risks encountered in the event of removal (third question)
27. By its third question, the referring court asks the Court, in essence, whether, in a situation in which a competent national authority establishes the illegality of the stay of a third-country national with respect to whom an earlier decision, which has become final, was adopted, Article 5 of Directive 2008/115, read in conjunction with Article 19(2) of the Charter, must be interpreted as meaning that that authority is required to resume the return procedure at the stage of the implementation of that decision or whether it is required, before doing so, to carry out an updated assessment of the risks encountered by that national in the event of removal to the intended country of destination, taking account of the prolonged period during which that procedure was suspended.
28. I observe at the outset that EU law, in particular Directive 2008/115, contains no provisions that expressly determine the effects which the introduction by a third-country national of an application for a residence permit provided for by national law and its subsequent rejection must have on a return decision previously adopted in respect of that national.
29. While the Court set out certain principles in the judgment of 15 February 2016, N., (11) that judgment was delivered in a different factual context. In the case that gave rise to that judgment, the return procedure initiated against the person in question had been interrupted by the introduction, not of an application for a residence permit provided for by national law, but of an application for international protection. In its request for a preliminary ruling, the Raad van State (Council of State, Netherlands) stated that, in accordance with its case-law, the introduction of such an application automatically caused all return decisions that had previously been adopted in the context of that procedure to lapse. The Court considered, on the other hand, that where a procedure initiated under Directive 2008/115, in the context of which a return decision was adopted, has been interrupted because of the introduction of a new application for international protection, the Member States are required, as soon as that application has been rejected, to resume that procedure, not afresh, but at the stage at which it was interrupted. (12) The Court based its assessment on the requirements for effectiveness imposed by the EU legislature when a return procedure is implemented and in particular on the obligation imposed on the Member States to carry out the removal as soon as possible.
30. In the case at issue in the main proceedings, the State Secretary seems to have resumed the return procedure previously initiated against the applicants not afresh, but indeed at the stage at which it had been interrupted, establishing the validity of the earlier return decision.
31. However, in such a situation, while the implementation of the principle laid down in the judgment of 15 February 2016, N., (13) meets the requirements for effectiveness referred to, in particular, in recital 4 of Directive 2008/115, it does not ensure compliance with the principle of non-refoulement.
32. First, that is linked with the nature of the residence permit sought. Although, when examining an application for international protection, the competent national authority is required to respect the principle of non-refoulement, in accordance with Article 21(1) of Directive 2011/95/EU, (14) conversely, according to the information supplied by the referring court, it is not normal legal practice in the Netherlands to carry out ex officio an assessment of the risks encountered by a person in the event of removal following the rejection of an application for a residence permit provided for by Netherlands law.
33. Second, that is linked with the duration of the suspension of the return procedure. In this instance, although the State Secretary adopted the return decision at a time when the applicants’ removal to their country of origin was lawful in the light of the principle of non-refoulement, it is apparent, in the light of the information provided by the referring court, that that procedure was interrupted for seven years, a prolonged period of time, before it was resumed following the rejection of the last application for a residence permit. It is clear that such a lapse of time will in all likelihood involve changes in the situation of the national concerned and/or in the prevailing circumstances in the intended country of destination.
34. Directive 2008/115 aims to put in place a removal and repatriation policy that is not only effective but also carried out with all due regard for the fundamental rights and dignity of the persons concerned. (15)
35. All return decisions adopted on the basis of Article 6(1) of Directive 2008/115 and implemented on the basis of Article 8(1) of that directive must respect the rights guaranteed by the Charter, among which are Article 4 and Article 19(2) of the Charter. (16) Those provisions prohibit torture and inhuman or degrading treatment or punishment, and also removal to a State where there is a serious risk that a person will be subject to such treatment. (17) According to the Court, such a prohibition enshrines ‘one of the fundamental values of the Union and its Member States’ and is absolute in that it is closely linked to respect for human dignity, the subject of Article 1 of the Charter. (18)
36. In that context, Article 5 of Directive 2008/115 requires that Member States respect the principle of non-refoulement ‘at all stages of the … procedure’, (19) until the removal (that is to say, the physical transportation out of the Member State (20)) of the person concerned. In accordance with the Court’s case-law, Member States must thus allow the person concerned to rely on any change in circumstances that occurred after the adoption of the return decision that may have a significant bearing on the assessment of his or her situation under that directive, and in particular under Article 5 thereof, (21) while under Article 9(1)(a) of that directive Member States are required to postpone removal ‘when it would violate the principle of non-refoulement’.
37. In a situation in which the return procedure has been suspended for a prolonged period of time, it is essential that the competent national authority, before resuming the return procedure, carry out a new assessment of the risks encountered by the person concerned in the event of removal, separate from that carried out at the time of the adoption of the earlier removal decision. The suspension of the procedure for such a long period precludes the competent national authority from drawing a final conclusion in relation to the risks encountered by that person in the intended country of destination, at the risk of failing to comply with the principle of non-refoulement. (22) In the absence of such an assessment, the return obligation might well no longer satisfy the conditions of legality required by EU law and be implemented when there were serious and substantiated grounds to believe that the person concerned would face a real risk of being exposed to torture or inhuman or degrading treatment or punishment in the event of removal to that country.
38. Where that new assessment confirms the conclusions which the competent national authority had reached when it adopted the earlier return decision, it must resume the return procedure at the stage at which it was interrupted and implement the return obligation.
39. In the opposite situation, the competent national authority would be required to postpone the removal of the person concerned to the intended country of destination, in accordance with Article 9(1)(a) of Directive 2008/115. (23) Nonetheless, there is nothing to prevent it from carrying out, in accordance with the provisions of national law, a re-assessment of the earlier return decision or from adopting a new return decision, provided that it respects the substantive and procedural guarantees laid down in that directive. (24)
40. In the light of all of those factors, I consider that, in a situation in which a competent national authority establishes the illegality of the stay of a third-country national against whom an earlier return decision, which has become final, was adopted, Article 5 of Directive 2008/115, read in conjunction with Article 19(2) of the Charter, must be interpreted as meaning that that authority is required, before resuming the return procedure, to determine whether, having regard to the prolonged period of time during which that procedure was suspended, the situation of that national has not been altered in such a way that there are serious and substantiated grounds to believe that, if that decision is implemented, he or she would be exposed to a risk of torture or inhuman or degrading treatment or punishment in the intended country of destination.
B. The obligation for the judicial authority to raise ex officio the breach of the principle of non-refoulement (first question)
41. By its first question, the referring court asks the Court, in essence, whether, in a situation in which a court is requested to review the legality of an act whereby the competent national authority resumes a return procedure which was suspended for a prolonged period of time without having carried out an updated assessment of the risks encountered by a third-country national in the event of his or her removal, Article 13(1) of Directive 2008/115, read in conjunction with Article 5 of that directive and with Article 19(2) and Article 47 of the Charter, must be interpreted as meaning that the national court is required to raise ex officio, within the framework of that review on the basis of the information brought to its attention, the breach of the principle of non-refoulement which has not been relied on by that national.
42. According to the referring court, it would be inconceivable for the judicial authority to remain silent if a risk of non-compliance with the principle of non-refoulement may be imminent or has not been assessed and the third-country nationals, as in the main proceedings, are not aware of that risk and do not rely on it in support of their application for a residence permit or when they challenge the decision establishing the illegality of their stay or the return decision. (25)
43. In addition, the referring court asks the Court to clarify whether the scope of that obligation is different depending on whether the return decision is based on the rejection of an application for international protection or on the rejection of an application for a residence permit provided for by national law.
1. The existence of the obligation
44. EU law does not, in principle, require a national court to examine ex officio a plea alleging infringement of provisions of EU law where the examination of that plea would oblige it to go beyond the ambit of the dispute defined by the parties themselves. That limitation on the power of a national court is justified by the principle that, in a civil suit, it is for the parties to take the initiative. Consequently, according to the Court’s settled case-law, the national court can act ex officio only in exceptional cases where the public interest requires its intervention. (26)
45. As regards Directive 2008/115, the national court’s duty to carry out an assessment ex officio was recognised by the Court with respect to the conditions of legality of a detention measure ordered when a return decision is implemented. In its judgment of 8 November 2022, Staatssecretaris van Justitie en Veiligheid (Ex officio review of detention) (27) – to which the referring court makes express reference – the Court held that the judicial authority is required to take into consideration all the elements, in particular the facts brought to its attention and as supplemented or clarified in the context of procedural measures which it deems necessary to adopt on the basis of its national law and, on the basis of those elements, raise, where appropriate, the failure to comply with a condition governing lawfulness arising from EU law, even if that failure has not been raised by the person concerned. 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. (28) It also distinguished the proceedings relating to the detention of a third-country national, which is strictly circumscribed by the EU legislature, and the administrative proceedings in which the initiative and delimitation of the dispute lie with the parties. (29)
46. I think that such reasoning may be extended to the situation in which the court establishes, having regard to the information brought to its attention, that the implementation of a return decision adopted against a third-country national fails to comply with the principle of non-refoulement. For reasons similar to those which I set out in my Opinion in the case that gave rise to that judgment, (30) the protection of that principle requires that the national court is able to raise ex officio the fact that the competent national authority did not carry out an update of the risks encountered in the event of removal to the country of destination envisaged in the return decision.
47. In points 35 and 36 of this Opinion, I referred to the nature and scope of the principle of non-refoulement in the context of the implementation of a return procedure. I referred to its binding nature and emphasised its importance. I also observed that Member States are required to guarantee respect for that principle ‘at all stages of the … procedure’, that is to say, both in the administrative phase of that procedure, during which the decisions linked with return are adopted, and in its judicial phase, during which the legality of those decisions is examined, while the return procedure comes to an end only when the person concerned is effectively removed to his or her country of origin, a transit country or another country.
48. I would add that, under Article 47 of the Charter, Member States are required to ensure effective judicial protection of the rights which individuals derive from EU law. (31) As regards review of the legality of decisions linked with return, Article 13(1) of Directive 2008/115 requires that Member States afford the person concerned an effective remedy before a competent judicial or administrative authority. In accordance with the Court’s case-law, the characteristics of that remedy must be determined in accordance with Article 47 of the Charter and in compliance with the principle of non-refoulement guaranteed in Article 18 and Article 19(2) of the Charter. (32) Thus, in accordance with the Court’s settled case-law, an appeal must necessarily have suspensive 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, thus ensuring, in respect of that national, compliance with the requirements of Article 19(2) and Article 47 of the Charter. (33)
49. In addition, Article 13(2) of Directive 2008/15 provides that the judicial or administrative authority before which the legality of a decision related to return is challenged is to have the power to review that decision and, where necessary, to postpone the removal. (34) It is thus a binding provision, as demonstrated by the use, in the English language version, of the expression ‘shall have the power’ (not ‘may have the power’).
50. The purpose of the procedural rules thus defined in Article 13(1) and (2) of Directive 2008/115 is to ensure that a person against whom a return decision has been adopted is not removed to the intended country of destination when the conditions governing legality set out in Article 5 of that directive, which include respect for the principle of non-refoulement, are not or are no longer satisfied owing to circumstances that post-date the adoption of that decision.
51. However, the judicial protection required 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 made available to it tended to demonstrate that the return decision was based on an obsolete assessment of the risks and to infer from that situation all the consequences for the implementation of that decision by requiring the competent national authority to carry out an updated assessment of those risks before implementing that decision. Failing that, a limitation of its responsibilities might have the consequence that such a decision would be implemented when the person concerned would be at risk of being subjected, in the intended country of destination, to torture or other inhuman or degrading treatment or punishment, which are acts absolutely prohibited by Article 4 of the Charter.
52. In that regard, the Netherlands Government maintained, in its observations, that the judicial authority should refer the person concerned to the authority responsible for examining applications for international protection – namely the ‘determining authority’ within the meaning of Article 2(f) of Directive 2013/32/EU (35) – to allow that authority to evaluate the risks that might be encountered in the event of removal. Although the choice of the competent national authority for that purpose is a matter for the procedural autonomy of each Member State, and although it is true, as the Netherlands Government observed, that the determining authority is provided with appropriate means and personnel with competence in that area, the person concerned nonetheless cannot be required to submit an application for international protection in order to ensure full compliance with the principle of non-refoulement enshrined in Article 5 of Directive 2008/115.
53. In addition, I would emphasise that such an approach would necessarily mean that the judicial authority be in a position to establish the failure to comply with the principle of non-refoulement and be capable of assessing, to a large extent, the nature and the gravity of the treatment to which he or she might be exposed in the intended country of destination before inviting him or her to submit an application for international protection. Although, as the Netherlands Government maintained at the hearing, such an application would then be given priority, (36) the fact nonetheless remains that, in the present case, it would result in the return procedure against the person concerned being suspended again (37) and in the period during which he or she is in an intermediate situation on the territory of the Member State, without a right to stay or a residence permit, being prolonged.
54. In the light of all of those factors, I consider that, in a situation in which a court is requested to review the legality of an act whereby the competent national authority resumes a return procedure which has been suspended for a prolonged period of time, without having carried out an updated assessment of the risks that would be encountered by the third-country national in the event of his or her removal, Article 13(1) of Directive 2008/115, read in conjunction with Article 5 of that directive and with Article 4, Article 19(2) and Article 47 of the Charter, must be interpreted as meaning that the national court is required to raise ex officio, within the framework of that review on the basis of the information brought to its attention and as supplemented or clarified in the adversarial proceedings before it, the breach of the principle of non-refoulement which has not been relied on by that national.
2. The scope of the obligation
55. The referring court asks the Court to clarify whether the extent of the obligation to raise ex officio the failure to comply with the principle of non-refoulement differs depending on whether the return decision is based on the rejection of an application for international protection or on the rejection of an application for a residence permit provided for by national law. According to the referring court, the competent national authority is required to respect that principle whenever it examines an application for international protection, in accordance with Article 21(1) of Directive 2011/95. On the other hand, it is not normal legal practice in the Netherlands for that authority to assess ex officio whether that principle has been complied with before rejecting an application for a residence permit based on Netherlands law.
56. To my mind the role of the judicial authority, adjudicating on the legality of a return decision adopted against a third-country national, and the scope of its obligation to raise ex officio failure to comply with the principle of non-refoulement should not be differentiated according to the nature of the residence permit sought and, in particular, according to whether that decision is based on the rejection of an application for international protection or on the rejection of an application for a residence permit based on national law.
57. It follows from the very words of Article 19(2) of the Charter and, in particular, from the expression ‘no one may be removed’, that protection against refoulement is fully applicable to all third-country nationals, whatever their status or the reasons for their refoulement.
58. In addition, the Court observed in the judgment of 3 June 2021, Westerwaldkreis, (38) that the scope of Directive 2008/115 is defined by reference solely to the situation of the illegal stay in which a third-country national finds him- or herself, irrespective of the reasons for that situation or the measures that may be adopted in respect of that national. (39) It thus follows from Article 6(6) of Directive 2008/115 and from paragraph 60 of the judgment of 19 June 2018, Gnandi, (40) that, although the return decision may be adopted at the same time as or immediately after the decision rejecting an application for international protection, they are indeed two separate decisions, while any return decision must be consistent with the procedural safeguards set out in Chapter III of that directive and with other relevant provisions of EU and national law.
59. The judgment of 6 July 2023, Bundesamt für Fremdenwesen und Asyl (Refugee who has committed a serious crime), (41) is a perfect example. In that judgment, the Court held that the revocation of refugee status, pursuant to Article 14(4) of Directive 2011/95, cannot be regarded as implying the adoption of a position on the separate question of whether that person can be deported to his or her country of origin and that the consequences, for the third-country national concerned, of that national’s return to his or her country of origin are to be taken into account not when the decision to revoke refugee status is adopted but, where relevant, when the competent authority considers adopting a return decision against that third-country national. (42)
60. It follows that the principle of non-refoulement must be respected whenever a Member State finds that a third-country national’s stay on its national territory is illegal and adopts a return decision, irrespective of the reasons at the origin of the adoption of a return decision or the form which the act assumes.
61. Consequently, I think that the role of the judicial authority adjudicating on the legality of the implementation of a return decision adopted against a third-country national and the scope of the obligation for it to raise ex officio the breach of the principle of non-refoulement cannot be differentiated according to whether that decision is based on the rejection of an application for international protection or on the rejection of an application for a residence permit provided for by national law.
VI. Conclusion
62. In the light of all of the foregoing considerations, I propose that the Court should answer the questions for a preliminary ruling submitted by the rechtbank Den Haag, zittingsplaats Roermond (District Court, The Hague, sitting in Roermond, Netherlands) as follows:
(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 meaning that in a situation in which a competent national authority establishes that the stay of a third-country national against whom an earlier return decision, which has become final, was adopted, that authority is required, before resuming the return procedure, to determine whether, having regard to the prolonged period of time during which that procedure was suspended, the situation of that national has not been altered in such a way that there are serious and substantiated grounds to believe that, if that decision is implemented, he or she would be exposed to a risk of torture or inhuman or degrading treatment or punishment in the intended country of destination.
(2) Article 13(1) of Directive 2008/115, read in conjunction with Article 5 of that directive and with Article 4, Article 19(2) and Article 47 of the Charter of Fundamental Rights,
must be interpreted as meaning that in a situation in which a court is requested to review the legality of an act whereby the competent national authority resumes a return procedure which has been suspended for a prolonged period of time, without having carried out an updated assessment of the risks that would be encountered by the third-country national in the event of his or her removal, the national court is required to raise ex officio, within the framework of that review on the basis of the information brought to its attention and as supplemented or clarified in the adversarial proceedings before it, the breach of the principle of non-refoulement which has not been relied on by that national.
The role of the judicial authority, adjudicating on the legality of the implementation of a return decision adopted against a third-country national and the scope of its obligation to raise ex officio the breach of the principle of non-refoulement cannot be differentiated according to whether that decision is based on the rejection of an application for international protection or on the rejection of an application for a residence permit provided for by national law.