Official Journal of the European Union

C series

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C/2024/7141

(Case C-156/23,

Ararat)

(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)

(C/2024/7141)

Language of the case: Dutch

Referring court

Parties to the main proceedings

Applicants: K, L, M, N

Defendant: Staatssecretaris van Justitie en Veiligheid

Operative part of the judgment

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.

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(1) OJ C 314, 4.9.2023.

(2) The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.

ELI: http://data.europa.eu/eli/C/2024/7141/oj

ISSN 1977-091X (electronic edition)

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