ORDER OF THE COURT (Eighth Chamber)
15 February 2023 (*)
(Reference for a preliminary ruling – Article 99 of the Rules of Procedure of the Court of Justice – Immigration policy – Return of illegally staying third-country nationals – Directive 2008/115/EC – Article 5(a) and (b) – Return decision adopted in respect of a third-country national – Minor third-country national separated from parents in the event of return – Best interests of the child – Right to respect for family life)
In Case C‑484/22,
REQUEST for a preliminary ruling under Article 267 TFEU from the Bundesverwaltungsgericht (Federal Administrative Court, Germany), made by decision of 8 June 2022, received at the Court on 20 July 2022, in the proceedings
Bundesrepublik Deutschland
v
GS, represented by his parents,
interested party:
Vertreterin des Bundesinteresses beim Bundesverwaltungsgericht,
THE COURT (Eighth Chamber),
composed of M. Safjan (Rapporteur), President of the Chamber, N. Jääskinen and M. Gavalec, Judges,
Advocate General: A. Rantos,
Registrar: A. Calot Escobar,
having decided, after hearing the Advocate General, to rule by reasoned order, in accordance with Article 99 of the Rules of Procedure of the Court of Justice,
makes the following
Order
1 This request for a preliminary ruling concerns the interpretation of Article 5(a) and (b) 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).
2 The request has been made in proceedings between the Bundesrepublik Deutschland (Federal Republic of Germany), on the one hand, and GS, a minor child represented by his parents, on the other, concerning, inter alia, the notice of intention to deport issued by the Bundesamt für Migration und Flüchtlinge (Federal Office for Migration and Refugees, Germany) (‘the Office’) in respect of that child.
Legal context
European Union law
3 Article 7 of the Charter of Fundamental Rights of the European Union (‘the Charter’), entitled ‘Respect for private and family life’, provides:
‘Everyone has the right to respect for his or her private and family life, home and communications.’
4 Under Article 24 of the Charter, entitled ‘The rights of the child’:
‘…
2. In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration.
3. Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests.’
Directive 2008/115
5 Under Article 2(1) of Directive 2008/115, that directive ‘applies to third-country nationals staying illegally on the territory of a Member State’.
6 According to Article 3 of that directive, entitled ‘Definitions’, the following definitions apply:
‘1. “third-country national” means any person who is not a citizen of the [European] Union within the meaning of Article [9 TEU] and who is not a person enjoying the Community right of free movement, as defined in Article 2(5) of [Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) (OJ 2006 L 105, p. 1)];
2. “illegal stay” means the presence[,] on the territory of a Member State, of a third-country national who does not fulfil, or no longer fulfils[,] the conditions of entry as set out in Article 5 of the Schengen Borders Code or other conditions for entry, stay or residence in that Member State;
3. “return” means the process of a third-country national going back – whether in voluntary compliance with an obligation to return, or enforced – to:
– his or her country of origin, or
– a country of transit in accordance with Community or bilateral readmission agreements or other arrangements, or
– another third country, to which the third-country national concerned voluntarily decides to return and in which he or she will be accepted;
4. “return decision” means an administrative or judicial decision or act, stating or declaring the stay of a third-country national to be illegal and imposing or stating an obligation to return;
5. “removal” means the enforcement of the obligation to return, namely the physical transportation out of the Member State;
…
8. “voluntary departure” means compliance with the obligation to return within the time limit fixed for that purpose in the return decision;
…’
7 Article 5 of that directive, entitled ‘Non-refoulement, best interests of the child, family life and state of health’, provides:
‘When implementing this Directive, Member States shall take due account of:
(a) the best interests of the child;
(b) family life;
(c) the state of health of the third-country national concerned,
and respect the principle of non-refoulement.’
German law
The Law on the residence of foreign nationals
8 The Gesetz über den Aufenthalt, die Erwerbstätigkeit und die Integration von Ausländern im Bundesgebiet (Law on the residence, employment and integration of foreign nationals in the Federal territory) of 30 July 2004 (BGBl. 2004 I, p. 1950), in the version applicable to the dispute in the main proceedings (BGBl. 2017 I, p. 2780) (‘the Law on the residence of foreign nationals’), contains Paragraph 59, entitled ‘Threat of removal’, which provides:
‘1. Removal shall be preceded by a notice of intention to deport setting a reasonable period for voluntary departure of between 7 and 30 days. …
2. The notice of intention to deport shall designate the State to which the foreign national will be removed and shall specify that that foreign national may also be removed to another State whose territory he or she is authorised to enter or which is required to admit him or her. …
3. The existence of prohibitions on removal and of grounds for suspending the enforcement of removal shall not preclude the issuing of a notice of intention to deport. …
4. Once the notice of intention to deport is no longer subject to appeal, the Ausländerbehörde (foreign nationals authority) shall not take into account in further decisions regarding removal or suspension of enforcement of removal circumstances which constitute an obstacle to removal to the State specified in [that notice] and which occurred before [the notice] ceased to be subject to appeal; other circumstances relied on by the foreign national which constitute an obstacle to removal to that State may be ignored. The provisions enabling the foreign national to rely on the circumstances referred to in [the first sentence of this subparagraph] before a court of law in a legal action or in proceedings for interim relief pursuant to the Verwaltungsgerichtsordnung (Code of Administrative Court Procedure) remain unaffected.’
9 Paragraph 60a of the Law on the residence of foreign nationals, entitled ‘Temporary suspension of removal (tolerance)’, provides, in subparagraphs 2 to 5 thereof:
‘2. The removal of a foreign national shall be suspended so long as removal is impossible for factual and legal reasons and no residence permit has been issued. …
…
3. The suspension of the removal of a foreign national is without prejudice to his or her obligation to leave the territory.
4. A foreign national who has been granted the benefit of a suspension of removal shall be provided with a certificate to that effect.
5. The suspension of removal shall lapse when the foreign national leaves the territory. …’
The Law on Asylum
10 Paragraph 34 of the Asylgesetz (Law on Asylum) (BGBl. 2008 I, p. 1798), in the version applicable to the dispute in the main proceedings (BGBl. 2013 I, p. 3474), provides:
‘(1) Pursuant to Paragraph 59 and Paragraph 60(10) of the [Law on the residence of foreign nationals], a written notice of intention to deport shall be issued if:
1. the foreign national is not recognised as a person entitled to asylum,
2. the foreign national is not granted refugee status,
2a. the foreign national is not granted subsidiary protection,
3. the conditions of Paragraph 60(5) and (7) of the [Law on the residence of foreign nationals] are not met or removal is permitted on an exceptional basis, regardless of compliance with the conditions laid down in the first sentence of Paragraph 60(7) of the [Law on the residence of foreign nationals], and
4. the foreign national does not hold a residence permit.
A hearing of the foreign national prior to issuing the notice of intention to deport shall not be required. The foreign nationals authority shall otherwise remain competent for decisions pursuant to (i) the fourth sentence of Paragraph 59(1) of the [Law on the residence of foreign nationals] and (ii) Paragraph 59(6) thereof.
(2) The notice of intention to deport must be issued in conjunction with the decision on the application for asylum. …’
The Code of Administrative Court Procedure
11 Paragraph 123 of the Code of Administrative Court Procedure, in the version applicable to the dispute in the main proceedings, provides, generally, that the courts may, on application by the person concerned and irrespective of the bringing of an action on the merits, order interim measures.
The dispute in the main proceedings and the question referred for a preliminary ruling
12 The applicant in the main proceedings, born in Germany in December 2018, is a national of the Federal Republic of Nigeria, as are his parents and siblings.
13 By decisions of March 2017 and March 2018 respectively, the Office decided that the father of the applicant in the main proceedings could not be removed to Nigeria and that the same was true of one of the sisters of the applicant in the main proceedings, who had been born in 2014. In that regard, it held that the conditions for a prohibition on removal, as laid down by national legislation, were satisfied so far as that country was concerned, on the ground that the father of the applicant in the main proceedings, if removed to that country, would not be able to fulfil his maintenance obligations towards his own parents, his wife and his children. By decisions of February 2018 and April 2018 respectively, the competent authority granted the father and the sister of the applicant in the main proceedings residence permits on humanitarian grounds, in accordance with the national rules applicable to prohibitions on removal.
14 By contrast, the application for asylum made by the mother of the applicant in the main proceedings was refused as manifestly unfounded, as was the application for asylum made by another sister of the applicant in the main proceedings, who had been born in 2016. However, their residence in Germany is tolerated.
15 By decision of 13 June 2019, the Office, first, refused the application by the applicant in the main proceedings for refugee status, asylum or subsidiary protection, and, second, issued a notice of intention to deport him to Nigeria, while at the same time granting him a period of 30 days for voluntary departure (‘the notice of intention to deport’).
16 Hearing an action brought against that decision, the Verwaltungsgericht (Administrative Court, Germany), by judgment of 7 June 2021, dismissed most of the claims of the applicant in the main proceedings. It nevertheless annulled the notice of intention to deport issued concerning him, on the ground that his removal would be contrary to the right to respect for family life, enshrined both in the German Constitution and in Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, having regard to the prohibitions on removal enjoyed by his father and one of his sisters, since the separation of the applicant in the main proceedings and his father could not be required.
17 The Federal Republic of Germany brought an appeal on a point of law (Revision) before the Bundesverwaltungsgericht (Federal Administrative Court, Germany) – the referring court – against the judgment of the Verwaltungsgericht (Administrative Court), in so far as that court had annulled the notice of intention to deport.
18 In support of its appeal on a point of law, the Federal Republic of Germany submits, in essence, that the grounds precluding the removal of a person, relating to the best interests of the child and respect for his or her family life, referred to in Article 5(a) and (b) of Directive 2008/115, must not be taken into account in the procedure leading to the issuance of a notice of intention to deport, which falls within the competence of the Office. In its view, such grounds may be taken into account only in the context of a separate and subsequent procedure for the enforcement of the removal, which falls within the competence of other authorities, namely the regional foreign nationals authorities.
19 In those circumstances, the Bundesverwaltungsgericht (Federal Administrative Court) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:
‘Must [Article 5(a) and (b) of Directive 2008/115] be interpreted as precluding, without exception, the lawfulness of a return decision adopted in respect of a minor third-country national, accompanied by a refusal of his or her application for international protection and setting him or her a time limit for voluntary departure of 30 days from the date on which the decision becomes final, where, for legal reasons, neither parent can be returned to a country referred to in Article 3(3) of [that directive] in the foreseeable future and the minor cannot therefore reasonably be expected to leave the Member State either, on account of his or her family life which is worthy of protection ([Article 7 and Article 24(2)] of the [Charter], Article 8 of the [European Convention for the Protection of Human Rights and Fundamental Freedoms]), or is it sufficient that, on the basis of a national statutory provision, the child’s best interests and family life within the meaning of [Article 5(a) and (b) of Directive 2008/115] are to be taken into account, following the adoption of the return decision, by virtue of a suspension of the removal?’
Consideration of the question referred
20 Under Article 99 of the Rules of Procedure of the Court of Justice, where the reply to a question referred for a preliminary ruling may be clearly deduced from existing case-law, or where the answer to the question referred admits of no reasonable doubt, the Court may at any time, on a proposal by the Judge-Rapporteur and after hearing the Advocate General, decide to rule by reasoned order.
21 It is appropriate to apply that provision in the context of the present reference for a preliminary ruling.
22 By its question, the referring court asks, in essence, whether Article 5(a) and (b) of Directive 2008/115 is to be interpreted as requiring that the best interests of the child and the family life of that child be protected in proceedings leading to the adoption of a return decision in respect of a minor, or whether it is sufficient for that minor to be able effectively to rely on those two protected interests in subsequent proceedings relating to the enforcement of that return decision in order to obtain a suspension of that enforcement, if appropriate.
23 In that regard, it should be recalled that, in the light of its objective of ensuring, 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, Article 5 of Directive 2008/115 cannot be interpreted restrictively (judgment of 11 March 2021, État belge (Return of the parent of a minor), C‑112/20, EU:C:2021:197, paragraph 35).
24 Article 5(a) of Directive 2008/115 and Article 24(2) of the Charter therefore require that the best interests of the child be protected at all stages of the procedure (see, to that effect, judgment of 14 January 2021, Staatssecretaris van Justitie en Veiligheid (Return of an unaccompanied minor), C‑441/19, EU:C:2021:9, paragraph 54), whereas Article 5(b) of that directive requires the Member States also to take due account of family life, (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 41).
25 Accordingly, Article 5 of Directive 2008/115 precludes a Member State from adopting a return decision without taking into account the relevant elements of the family life of the third-country national concerned which that person has put forward in order to oppose the adoption of such a decision (judgment of 8 May 2018, K.A. and Others (Family reunification in Belgium), C‑82/16, EU:C:2018:308, paragraph 104).
26 More specifically, before issuing a return decision in respect of a 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 (see, to that effect, judgment of 14 January 2021, Staatssecretaris van Justitie en Veiligheid, (Return of an unaccompanied minor), C‑441/19, EU:C:2021:9, paragraph 60).
27 Consequently, Article 5(a) and (b) of Directive 2008/115 precludes national case-law according to which the obligation to take into account the best interests of the child and the family life of that child when issuing a notice of intention to deport is deemed to have been fulfilled as long as the removal has not been enforced.
28 In the light of the foregoing, the answer to the question referred is that Article 5(a) and (b) of Directive 2008/115 must be interpreted as requiring that the best interests of the child and the family life of that child be protected in proceedings leading to the adoption of a return decision issued in respect of a minor, and that it is not sufficient for that minor to be able to rely on those two protected interests in subsequent proceedings relating to the enforcement of that return decision in order to obtain a suspension of that enforcement, if appropriate.
Costs
29 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Eighth Chamber) hereby rules:
Article 5(a) and (b) 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
must be interpreted as requiring that the best interests of the child and the family life of that child be protected in proceedings leading to the adoption of a return decision in respect of a minor, and that it is not sufficient for that minor to be able to rely on those two protected interests in subsequent proceedings relating to the enforcement of that return decision in order to obtain a suspension of that enforcement, if appropriate.
[Signatures]