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( 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 )

REQUEST for a preliminary ruling under Article 267 TFEU from the rechtbank Den Haag, zittingsplaats Roermond (District Court, The Hague, sitting in Roermond, Netherlands), made by decision of 13 March 2023, received at the Court on 14 March 2023, in the proceedings

composed of K. Jürimäe, President of the Second Chamber, acting as President of the Third Chamber, K. Lenaerts, President of the Court, acting as Judge of the Third Chamber, N. Jääskinen, M. Gavalec and N. Piçarra (Rapporteur), Judges,

having regard to the written procedure and further to the hearing on 21 March 2024,

- the Swiss Government, by V. Michel, Minister, and L. Lanzrein, acting as Agent,

- the European Commission, by A. Katsimerou, S. Noë and F. Wilman, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 16 May 2024,

1 This request for a preliminary ruling concerns the interpretation of Article 4, Article 19(2) and Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and 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).

2 The request has been made in proceedings between K, L, M and N, third-country nationals, and the Staatssecretaris van Justitie en Veiligheid (State Secretary for Justice and Security, Netherlands) concerning the lawfulness of a decision rejecting their application for a residence permit provided for by Netherlands law and finding that their residence in the territory of the Kingdom of the Netherlands is illegal, and of the enforcement, consequently, of a return decision previously adopted in a procedure for international protection.

‘(6) Member States should ensure that the ending of illegal stay of third-country nationals is carried out through a fair and transparent procedure. According to general principles of EU law, decisions taken under this Directive should be adopted on a case-by-case basis and based on objective criteria, implying that consideration should go beyond the mere fact of an illegal stay. …

(8) It is recognised that it is legitimate for Member States to return illegally staying third-country nationals, provided that fair and efficient asylum systems are in place which fully respect the principle of non-refoulement.

(15) It should be for the Member States to decide whether or not the review of decisions related to return implies the power for the reviewing authority or body to substitute its own decision related to the return for the earlier decision.

(23) Application of this Directive is without prejudice to the obligations resulting from the [Convention relating to the Status of Refugees, signed in Geneva on 28 July 1951 (United Nations Treaty Series, Vol. 189, p. 150, No 2545 (1954)), as supplemented by the Protocol relating to the Status of Refugees, concluded in New York on 31 January 1967 (“the Geneva Convention”)].’

‘This Directive sets out common standards and procedures to be applied in Member States for returning illegally staying third-country nationals [on the territory of a Member State], in accordance with fundamental rights as general principles of Community law as well as international law, including refugee protection and human rights obligations.’

5 Article 2(1) of Directive 2008/115 states that the Directive applies to third-country nationals staying illegally on the territory of a Member State.

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 [6] of [Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code) (OJ 2016 L 77, p. 1)] 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:

- 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;

7 Article 5 of Directive 2008/115, headed ‘Non-refoulement, best interests of the child, family life and state of health’, provides:

8 Article 6 of that directive, entitled ‘Return decision’, provides, in paragraphs 1, 4 and 6:

‘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.

4. Member States may at any moment decide to grant an autonomous residence permit or other authorisation offering a right to stay for compassionate, humanitarian or other reasons to a third-country national staying illegally on their territory. In that event no return decision shall be issued. Where a return decision has already been issued, it shall be withdrawn or suspended for the duration of validity of the residence permit or other authorisation offering a right to stay.

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.’

9 Article 9 of that directive, entitled ‘Postponement of removal’, provides, in paragraph 1:

(b) for as long as a suspensory effect is granted in accordance with Article 13(2).’

10 Under the first subparagraph of Article 12(1) of that directive, ‘[r]eturn decisions and, if issued, entry-ban decisions and decisions on removal shall be issued in writing and give reasons in fact and in law as well as information about available legal remedies’.

11 Article 13 of Directive 2008/115, entitled ‘Remedies’, provides in paragraphs 1 and 2:

‘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.’

12 Article 8:69 of the Algemene wet bestuursrecht (Administrative Code), in the version applicable to the dispute in the main proceedings (‘the Administrative Code’), 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.

The dispute in the main proceedings and the questions referred for a preliminary ruling

13 On 16 March 2011, K and L, who are two sisters, and their parents, M and N, all third-country nationals, submitted an application for international protection. On 9 August 2012, that application was the subject of a rejection decision which became final, together with a return decision (‘the decision of 9 August 2012’). That latter decision was adopted following an assessment, by the competent administrative authority, in accordance with the principle of non-refoulement, of the possible risk of torture or inhuman or degrading treatment or punishment to which the applicants in the main proceedings would be exposed in the event of enforcement of that decision and removal to that third country.

14 On 10 May 2016, the applicants in the main proceedings submitted an application for a residence permit provided for under a national scheme applicable to long-term resident children. That application was rejected by a decision adopted on 16 June 2016, which became final following the dismissal of their appeal against that decision, on 17 January 2017.

15 On 18 February 2019, they submitted a new application for a residence permit on the basis of another national scheme applicable to long-term resident children. By decision of 8 October 2019, the State Secretary for Justice and Security rejected that application. Consequently, it found, first, that the stay of the applicants in the main proceedings on the territory of the Kingdom of the Netherlands was illegal and, second, that the decision adopted of 9 August 2012 had to be enforced.

16 The applicants in the main proceedings lodged a complaint against the decision of 8 October 2019, which was rejected by decision of 12 November 2020 (‘the decision of 12 November 2020’), and lodged an appeal against that decision before the rechtbank Den Haag zittingsplaats Roermond (District Court, The Hague, sitting in Roermond, Netherlands), which is the referring court. That court granted their application for interim measures seeking that they be allowed to await the outcome of that appeal on the national territory and suspended the enforcement of the decision of 9 August 2012.

17 The referring court states that the administrative authority that adopted the decision of 12 November 2020, to which the dispute in the main proceedings relates, did not assess whether the enforcement of the decision of 9 August 2012, issued in respect of the applicants in the main proceedings, complied with the principle of non-refoulement.

18 Furthermore, that court notes, first, that, by their application for a residence permit provided for by national law, dated 18 February 2019, the applicants in the main proceedings sought to obtain authorisation to continue to lead their private life in the Netherlands. It notes, second, that one of the arguments in support of that application is that K and L were ‘westernised’, having grown up on the territory of the Netherlands and having adopted the norms and values prevailing in that Member State, with the result that they fear, if they would have to return to their country of origin, being in a situation that the principle of non-refoulement, set out in Article 5 of Directive 2008/115, prohibits.

19 The referring court observes that such an argument was not relied on in support of the application for international protection lodged on 16 March 2011, but that it may be examined in the light of the rules on international protection and, therefore, may lead the authority competent to carry out such an examination to grant K and L, where appropriate, the status of refugee, within the meaning of the Geneva Convention. In that regard, that court refers to the case that gave rise to the judgment of 11 June 2024, Staatssecretaris van Justitie en Veiligheid (Women identifying with the value of gender equality) (C-646/21, EU:C:2024:487), which was pending before the Court on the date on which the request for a preliminary ruling was lodged in the present case.

20 It adds that K and L decided not to lodge a new application for international protection seeking to submit to such an authority the argument based on their alleged ‘westernisation’ and, therefore, on their fear of persecution on that account, even if they were offered such a possibility, as long as the appeal relating to their application for a residence permit provided for by national law was pending. The referring court also specifies that national law does not preclude the possibility that such an argument could have been relied on by K and L in support of their application for a residence permit provided for by national law and that the authority which adopted the decision of 12 November 2020 could, on that basis, have granted them an ‘ordinary residence permit’.

21 In that context, the referring court wonders, in the first place, whether Article 5 of Directive 2008/115, which, read in conjunction with Article 19(2) of the Charter, ‘contains a clearly stated obligation, without exception or reservation’, for the Member States to respect the principle of non-refoulement when implementing that directive, must be interpreted as meaning that, where the competent administrative authority finds that a third-country national is staying illegally and orders the enforcement, against him or her, of a return decision previously adopted in the context of a procedure for international protection, that authority is required to review that return decision in the light of the principle of non-refoulement, by carrying out an updated assessment of the risk of the addressee of that decision being exposed to torture or inhuman or degrading treatment or punishment in the event of removal to that third country.

22 In that regard, the referring court notes, first, that, in national legal practice, removal is not ordered by a decision or act separate from the return decision. That directive therefore imposes not only an obligation to return on the third-country national to whom it is addressed but also, on the competent administrative authority, the obligation to carry out the physical transportation out of the Member State in the event of a refusal to comply with that obligation to return.

23 That court points out, second, that although, according to national practice, the risk of infringement of the principle of non-refoulement is systematically assessed in the context of a procedure for international protection, that is not the case in a situation such as that at issue in the main proceedings, characterised by the rejection of an application for a residence permit provided for by national law. The consequence of that rejection would be that the third-country national concerned is staying illegally and that he or she is under an obligation to return.

24 In the second place, in so far as the possible confirmation, by the referring court, of the legality of the decision of 12 November 2020 rejecting the residence permit provided for by national law will determine whether the applicants in the main proceedings are staying illegally in the territory of the Member State concerned and, therefore, whether the decision of 9 August 2012, the suspension of which comes to an end as a result, is enforced, that court wonders whether Article 5 of Directive 2008/115, read in conjunction not only with Article 19(2) of the Charter but also with Article 47 thereof, requires it to review whether the administrative authority which established the enforcement of that return decision complied with the principle of non-refoulement and, if so, to examine of its own motion the risk of breach of that principle.

25 In that regard, the referring court expresses doubts as to whether Article 8:69 of the Administrative Code, which defines in general terms the ex officio powers of the administrative courts, is applicable in the relevant field. It also notes that, in national practice, courts are not required to raise ex officio an infringement of the principle of non-refoulement guaranteed by Article 5 of Directive 2008/115.

26 The referring court thus wonders whether the reasons which led the Court to rule, in its 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), that the review, by a judicial authority, of compliance with the conditions governing the lawfulness of the detention of a third-country national which derive from EU law must lead that authority to raise of its own motion, on the basis of the information in the file brought to its attention, as supplemented or clarified during the adversarial proceedings before it, any failure to comply with a condition governing lawfulness which was not relied on by the person concerned, apply, by analogy, to the obligation to comply with the principle of non-refoulement when enforcing a return decision such as that at issue in the main proceedings. In addition, it wonders whether the scope of the obligation to raise of its own motion the infringement of the principle of non-refoulement, assuming it is established, varies according to whether it is carried out in the context of a procedure for international protection, or of a procedure, such as that at issue in the main proceedings, which was initiated by an application for a residence permit provided for by national law.

27 The referring court considers, in any event, that both the principle of non-refoulement, which is absolute, and the fundamental right to an effective remedy before a tribunal, provided for in Article 47 of the Charter, are fully guaranteed only if the judicial authority is required to verify of its own motion, applying, where appropriate, Article 8:69 of the Administrative Code, whether the enforcement of a return decision, such as that at issue in the main proceedings, will not expose the third-country nationals to whom it is addressed to a risk of torture or inhuman or degrading treatment or punishment in that third country. In its view, a national legal practice in which judicial review is limited to the assessment of the arguments and grounds expressly put forward by the third-country national concerned cannot be reconciled with the absolute nature of the principle of non-refoulement guaranteed by EU law.

28 In those circumstances, the rechtbank Den Haag, zittingsplaats Roermond (District Court, The Hague, sitting in Roermond) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Is Article 47 of the [Charter], 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?’

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.

30 As a preliminary point, it should be recalled that the main objective of Directive 2008/115, as apparent from recitals 2 and 4 thereof, is the establishment of an effective removal and repatriation policy that fully respects the fundamental rights and dignity of the persons concerned (judgments of 19 June 2018, Gnandi, C-181/16, EU:C:2018:465, paragraph 48, and of 22 November 2022, Staatssecretaris van Justitie en Veiligheid (Removal - Medicinal cannabis), C-69/21, EU:C:2022:913, paragraph 88).

31 Under Article 2(1) of Directive 2008/115 and subject to the exceptions laid down in Article 2(2) thereof, that directive applies to any third-country national staying illegally on the territory of a Member State. Furthermore, it follows from Article 3(2) of that directive, read in conjunction in particular with Article 1 thereof, that any third-country national who is present on the territory of a Member State without fulfilling the conditions for entry, stay or residence there is, by virtue of that fact alone, staying there illegally and falls within the scope of that directive (see, to that effect, judgments of 19 June 2018, Gnandi, C-181/16, EU:C:2018:465, paragraph 39; of 3 June 2021, Westerwaldkreis, C-546/19, EU:C:2021:432, paragraphs 43 and 44; and of 9 November 2023, Odbor azylové a migrační politiky MV (Scope of the Return Directive), C-257/22, EU:C:2023:852, paragraph 36).

32 It follows that the scope of Directive 2008/115 is defined by reference solely to the situation of the illegal stay in which the 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 (judgment of 3 June 2021, Westerwaldkreis, C-546/19, EU:C:2021:432, paragraph 45).

33 Moreover, where a third-country national, like the applicants in the main proceedings, falls within the scope of that directive, he or she must, in principle, be subject to the common standards and procedures laid down by the directive for the purpose of his or her removal, as long as his or her stay has not, as the case may be, been regularised (see, to that effect, judgments of 24 February 2021, M and Others (Transfer to a Member State), C-673/19, EU:C:2021:127, paragraph 31, and of 22 November 2022, Staatssecretaris van Justitie en Veiligheid (Removal - Medicinal cannabis), C-69/21, EU:C:2022:913, paragraph 52).

34 From that point of view, it follows from paragraph 1 of Article 6 of Directive 2008/115 that, once the unlawful nature of residence has been established, any third-country national must, without prejudice to the exceptions provided for in paragraphs 2 to 5 of that article and in strict compliance with the requirements laid down in Article 5 of that directive, be the subject of a return decision, which must identify, among the third countries referred to in Article 3(3) of that directive, the country to which the third-country national must return (judgments of 22 November 2022, Staatssecretaris van Justitie en Veiligheid (Removal - Medicinal cannabis), C-69/21, EU:C:2022:913, paragraph 53, 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 46).

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).

37 Furthermore, Member States are required to allow the person concerned to rely on any change in circumstances that occurred after the adoption of the return decision and that may have a significant bearing on the assessment of his or her situation under, in particular, Article 5 of Directive 2008/115 (see, to that effect, judgment of 19 June 2018, Gnandi, C-181/16, EU:C:2018:465, paragraph 64).

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.

39 Should the competent national authority conclude, following that assessment, that the removal of the third-country national concerned would expose him or her to a serious risk of being subjected to the death penalty, torture or inhuman or degrading treatment or punishment, that authority must postpone that removal while such a risk persists, in accordance with Article 9(1)(a) of that directive (see, to that effect, judgments of 3 June 2021, Westerwaldkreis, C-546/19, EU:C:2021:432, paragraph 59, and of 22 November 2022, Staatssecretaris van Justitie en Veiligheid (Removal - Medicinal cannabis), C-69/21, EU:C:2022:913, paragraphs 58 and 59).

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).

49 It follows that, as the Advocate General observed, in essence, in point 50 of his Opinion, the purpose of the procedural rules defined in Article 13(1) and (2) of Directive 2008/115 is to ensure that a third-country national against whom a return decision has been adopted is not removed under conditions contrary to Article 5 of that directive. Those rules are thus intended to ensure respect for the principle of non-refoulement, which, as stated in paragraph 36 of the present judgment, is of an absolute nature. It is for the competent national courts to ensure, where necessary of their own motion, compliance with that principle where material in the file brought to their attention suggests that it might be undermined.

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)).

51 The existence of that obligation on the national court to ensure, where necessary of its own motion, compliance with the principle of non-refoulement applies in the same way in a procedure for international protection and in a procedure, such as that in the main proceedings, which has been initiated by an application for a residence permit provided for by national law. As is apparent from paragraphs 31 to 34 of the present judgment, Directive 2008/115, Article 13(1) and (2) of which provides the basis for that obligation, applies to any third-country national staying illegally on the territory of a Member State.

52 In the light of the foregoing reasons, the answer to the first question is that 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 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.

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.

54 As the referring court expressly acknowledges, that question ‘relates to the situation in which no return decision has previously been issued’. In so far as, in the main proceedings, the decision of 9 August 2012 was adopted against the applicants in the main proceedings, that question is hypothetical and invites the Court to formulate an advisory opinion, in disregard of its task in the context of the judicial cooperation established by Article 267 TFEU (see, to that effect, judgments of 16 December 1981, Foglia, 244/80, EU:C:1981:302, paragraph 18, and of 22 February 2022, Stichting Rookpreventie Jeugd and Others, C-160/20, EU:C:2022:101, paragraph 84).

56 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.

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.

i The name of the present case is a fictitious name. It does not correspond to the real name of any of the parties to the proceedings.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Ararat (Area of freedom, security and justice - Immigration policy - Return of third-country nationals staying illegally in a Member State - Judgment) [2024] EUECJ C-156/23 (17 October 2024) URL: http://www.bailii.org/eu/cases/EUECJ/2024/C15623.html Cite as: CURIA - Documents ()

Court of Justice of the European Communities (including Court of First Instance Decisions)