Provisional text

delivered on 1 August 2025 (1)

Case C‑313/25 (PPU) [Adrar] (i)

GB

Minister van Asiel en Migratie

(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 – Urgent preliminary ruling procedure – Immigration policy – Return of third-country nationals staying illegally in a Member State – Directive 2008/115/EC – Enforcement of a return decision – Article 5 – Principle of non-refoulement – Best interests of the child and family life – Article 15 – Detention for the purpose of removal – Review of compliance with the conditions governing the lawfulness of the detention )

Introduction

Respect for the principle of non-refoulement, an absolute principle that reflects one of the fundamental values of the European Union and its Member States, and for the interests referred to in Article 5 of Directive 2008/115/EC, (2) raises complex questions where the situation of the illegally staying third-country national has changed since the adoption of a return decision that has become final. This is particularly the case when a judicial authority responsible for reviewing the lawfulness of the detention of that third country national finds that that principle and those interests have not previously been raised or examined during the return procedure.

This request for a preliminary ruling concerns the interpretation of Article 5, Article 13(1) and (2) and Article 15 of Directive 2008/115, which guarantee, respectively, respect for the principle of non-refoulement and certain interests of illegally staying third-country nationals, effective judicial protection with regard to decisions related to return, and strict conditions and procedures for the adoption of a measure involving deprivation of liberty.

The request was made by the rechtbank Den Haag, zittingsplaats Roermond (District Court, The Hague, sitting in Roermond, Netherlands), in proceedings between GB and the Minister van Asiel en Migratie (Minister for Asylum and Migration, Netherlands), (‘the Minister’), concerning the Minister’s decision to detain GB for the purpose of removal pursuant to a return decision.

Legal context

European Union law

Article 5 of Directive 2008/115, headed ‘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’.

Article 9(1)(a) of that directive, entitled ‘Postponement of removal’, provides:

‘1. Member States shall postpone removal:

(a)when it would violate the principle of non-refoulement …’

Article 13 of that directive, headed ‘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.

Article 15 of that directive, entitled ‘Detention’, provides, in paragraphs 1 to 5:

‘1. Unless other sufficient but less coercive measures can be applied effectively in a specific case, Member States may only keep in detention a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular when:

(a)there is a risk of absconding or

(b)the third-country national concerned avoids or hampers the preparation of return or the removal process.

Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence.

Detention shall be ordered in writing with reasons being given in fact and in law.

When detention has been ordered by administrative authorities, Member States shall:

(a)either provide for a speedy judicial review of the lawfulness of detention to be decided on as speedily as possible from the beginning of detention;

(b)or grant the third-country national concerned the right to take proceedings by means of which the lawfulness of detention shall be subject to a speedy judicial review to be decided on as speedily as possible after the launch of the relevant proceedings. In such a case Member States shall immediately inform the third-country national concerned about the possibility of taking such proceedings.

The third-country national concerned shall be released immediately if the detention is not lawful.

3. In every case, detention shall be reviewed at reasonable intervals of time either on application by the third-country national concerned or ex officio. In the case of prolonged detention periods, reviews shall be subject to the supervision of a judicial authority.

4. When it appears that a reasonable prospect of removal no longer exists for legal or other considerations or the conditions laid down in paragraph 1 no longer exist, detention ceases to be justified and the person concerned shall be released immediately.

Netherlands law

Article 59(1)(a) of the Vreemdelingenwet 2000 (Vreemdelingenwet 2000 (Law of 2000 on Foreign Nationals) of 23 November 2000 (Stb. 2000, No 495), in the version applicable to the dispute in the main proceedings, provides:

‘If required in the interests of public order or national security, [the Minister] may detain, for the purpose of his or her removal, a foreign national who … is not legally resident.’

The dispute in the main proceedings, the questions referred and the procedure before the Court

On 11 September 2024, GB, who states that he has Algerian nationality, lodged an application for international protection in the Netherlands. He did not appear at the hearing concerning the grounds of that application.

By decision of 7 October 2024, the Minister rejected the application and took a decision that constitutes a return decision (‘the return decision’). Since GB did not lodge an appeal within the period prescribed for that purpose, the return decision became final. GB did not voluntarily comply with the resulting obligation to return.

On 26 March 2025, GB was transferred to the Netherlands by the French authorities pursuant to Regulation (EU) No 604/2013, known as the ‘Dublin III Regulation’. (3) GB was subsequently detained under Article 8 of Directive 2013/33/EU laying down standards for the reception of applicants for international protection. (4)

On the same day, GB lodged a further application for international protection in the Netherlands, which had the effect of suspending the enforcement of the return decision. He also expressed the fear that he faced a serious risk of being subjected to inhuman or degrading treatment or punishment if he returned to Algeria. On 7 April 2025, GB was heard on the grounds of that application and was informed of the intention to reject that application as manifestly unfounded. On 9 April 2025, GB withdrew his application before a decision could be taken on it. The suspension of the return decision therefore ended by operation of law.

On 10 April 2025, the detention measure which had been imposed on 26 March 2025 under Article 8 of Directive 2013/33 was lifted. However, another detention measure was ordered against GB in order to carry out his removal to Algeria pursuant to the return decision, under Article 15 of Directive 2008/115. At the hearing prior to that detention, held on the same day, GB declared that he feared being subjected to inhuman or degrading treatment or punishment if he returned to Algeria. He also said that he was the father of a child born in France on 18 September 2024, whom he wanted to be able to care for.

On 16 April 2025, GB lodged an appeal against the detention order with the rechtbank Den Haag, zittingsplaats Roermond (District Court, The Hague, sitting in Roermond), which is the referring court.

That court asks whether, under EU law, it must, when reviewing compliance with the conditions governing the lawfulness of the detention, assess, if necessary of its own motion, whether the principle of non-refoulement and the interests referred to in Article 5 of Directive 2008/115 preclude the removal of GB to Algeria, if relevant circumstances and facts have occurred or emerged after the adoption of the return decision that has become final.

Under Netherlands law and the case-law of the Afdeling Bestuursrechtspraak van de Raad van State (Administrative Jurisdiction Division of the Council of State, Netherlands), (5) the referring court is prohibited from making such an assessment. It would only be able to do so if a separate appeal had been lodged against the return decision, and the review of the detention and the review of the return decision take place in the context of the same procedure.

However, the referring court considers itself the only judicial authority able to assess whether the removal of GB to Algeria is compatible with the principle of non-refoulement and with the interests referred to in Article 5 of Directive 2008/115.

At no point in the proceedings had it been assessed whether that principle and those interests preclude the removal of GB. Specifically, no such assessment had taken place at the time of the adoption of the return decision, since GB had not appeared at the hearing on his application for international protection. Furthermore, in the absence of an appeal against the return decision, the lawfulness of that decision had not subsequently been reviewed by a judicial authority.

In addition, no assessment of the principle of non-refoulement and the interests referred to in Article 5 of Directive 2008/115 took place when GB was detained for the purpose of his removal, even though GB had, in essence, at the hearing prior to his detention, on 10 April 2025, relied on a significant change in circumstances in mentioning his fear of being subjected to inhuman or degrading treatment or punishment in the event of his return to Algeria and by claiming that he wanted to care for his child.

Nor could such an assessment be made at any other stage of the proceedings. Netherlands law does not provide for any verification or periodic review of the return decision, having regard to the principle of non-refoulement or the interests referred to in Article 5 of Directive 2008/115, even where a certain period of time has elapsed between the adoption of that decision and its enforcement. The only exception would be if another third country was designated as the country of return or where a decision was taken following the submission of an application for international protection or an application for a residence permit under national law.

Netherlands law does not provide for an independent remedy against the enforcement of a return decision that has become final. An illegally staying third-country national may only lodge a complaint against an envisaged and planned ‘effective removal’, once he or she has been notified of the date and time of removal. However, such a complaint would not prevent a detention that proved to be unjustified. Moreover, in accordance with the case-law of the Afdeling Bestuursrechtspraak van de Raad van State (Administrative Jurisdiction Division of the Council of State), it would only be possible ‘if the situation at the time of effective removal differs to such an extent from that existing at the time of the decision from which the power of removal derives that the legality of the intention of actual removal can no longer be unreservedly taken for granted’. Furthermore, that complaint would also only concern the practical arrangements for enforcing the return decision and would not give rise to an assessment of the principle of non-refoulement or of the interests referred to in Article 5 of Directive 2008/115. (6)

However, detention for the purpose of removal would not be justified and would no longer serve its purpose if removal could not take place because of the principle of non-refoulement or the interests referred to in Article 5 of Directive 2008/115. In such a case, the person concerned would have to be released immediately in accordance with Article 15 of that directive. Therefore, before detaining the third-country national for the purpose of his or her removal, it should first be established whether the removal is permitted.

The referring court therefore asks the Court to clarify whether EU law requires it to make an assessment of the principle of non-refoulement and of the interests referred to in Article 5 of Directive 2008/115.

In that regard, the referring court submits that Article 5 of that directive, as interpreted by the case-law of the Court, (7) requires all competent national authorities to respect the principle of non-refoulement at all stages of the return procedure. However, the detention of a third-country national for the purpose of his or her removal would give effect to that directive and would constitute a ‘stage of the return procedure’.

It also follows from Article 9(1)(a) of Directive 2008/115 and from the Court’s case-law (8) that a return decision may coexist with a postponement of removal, such that the existence of a return decision adopted previously and which may have become final does not prevent a review of the compatibility of removal, pursuant to that decision, with the principle of non-refoulement.

The referring court adds that the right to an effective remedy, enshrined in Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and given specific expression in Article 13(1) and (2) of Directive 2008/115, requires that the court called upon to review compliance with the conditions governing the lawfulness of the detention for the purpose of removal of the illegally staying third-country national, pursuant to a return decision, should be able to determine whether the principle of non-refoulement and the interests referred to in Article 5 of that directive preclude such removal. Such an approach is even more necessary where there is no other effective remedy.

It is in those circumstances that 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) Are Articles 5, 13(1) and (2), and 15 of Directive 2008/115, read in conjunction with Articles 6, 19(2) and 47 of the [Charter], to be interpreted as meaning that a judicial authority, when reviewing compliance with the conditions governing the lawfulness of the detention of a third-country national which derive from EU law, is required to satisfy itself, if necessary of its own motion, that the principle of non-refoulement does not preclude the enforcement of the return decision previously adopted and for the purposes of its enforcement the third-country national was detained?

(2) Are Articles 5, 13(1) and (2), and 15 of Directive 2008/115, read in conjunction with Articles 6, 7, 24(2) and 47 of the [Charter], to be interpreted as meaning that a judicial authority, when reviewing compliance with the conditions governing the lawfulness of the detention of a third-country national which derive from EU law, is required to satisfy itself, if necessary of its own motion, that the interests referred to in Article 5 of Directive 2008/115 do not preclude the enforcement of the return decision previously adopted and for the purposes of its enforcement the third-country national was detained?’

The referring court has requested that the present reference for a preliminary ruling be dealt with under the urgent preliminary ruling procedure provided for in Article 107 of the Rules of Procedure of the Court of Justice.

By decision of 21 May 2025, the Court granted that request.

Written observations were submitted by the Netherlands Government, GB and the European Commission. The same parties also presented oral argument at the hearing held on 1 July 2025.

Analysis

Preliminary observations

The objective of Directive 2008/115 is, as is apparent from recitals 2 and 11 in the preamble thereto, to establish an effective removal and repatriation policy, based on common standards and common legal safeguards, for persons concerned to be returned in a humane manner and with full respect for their fundamental rights and dignity. (9)

32.Where a third-country national falls, like the person in the case in the main proceedings, within the scope of that directive, he or she must, in principle, be subject to the common standards and procedures laid down by that 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. (10) In that regard, I note that, where it is ordered for the purpose of removal, the detention of an illegally staying third-country national is intended only to ensure the effectiveness of the return procedure. (11)

33.Since any detention of a third-country national constitutes serious interference with the right to liberty enshrined in Article 6 of the Charter, the Court has made clear that the power of the competent national authorities to detain third-country nationals is strictly circumscribed. A detention measure may thus be ordered or extended only in compliance with the general and abstract rules laying down the conditions and procedures, as set out, inter alia, in Article 15(1), the second subparagraph of Article 15(2) and Article 15(4) to (6) of Directive 2008/115. (12)

34.Thus, in accordance with Article 15(1) of Directive 2008/115, the deprivation of liberty represented by the detention of a person for the purpose of removal may be imposed only in compliance with certain substantive conditions, which include the absence of other less restrictive measures than detention and the assumption that removal may be compromised by the behaviour of the person concerned. Moreover, detention must be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence. Under paragraphs 3 and 4 of that provision, such deprivation of liberty is subject to review at reasonable intervals of time and is to be terminated when it appears that a reasonable prospect of removal no longer exists, implying that there must be a real prospect that the removal can be carried out successfully, having regard to the periods laid down in Article 15(5) and (6) of that directive and which are binding on all Member States. (13)

35.Where it is apparent that the substantive conditions that served as a basis for the initial decision to detain the person concerned have not been or are no longer satisfied, or where the maximum duration of detention has been reached, the person concerned must, as the EU legislature expressly states in the fourth subparagraph of Article 15(2) and (4) of that directive, be released immediately. (14)

36.As regards the right of detained third-country nationals to effective judicial protection, common EU standards on judicial protection are set out in the third subparagraph of Article 15(2) of Directive 2008/115. According to that provision, which gives concrete form, in the sphere in question, to the right to effective judicial protection safeguarded in Article 47 of the Charter, each Member State must provide, where detention has been ordered by an administrative authority, for a ‘speedy’ judicial review, either ex officio or at the request of the person concerned, of the lawfulness of that detention. (15)

37.In the present case, in view of the evidence in the file, the question that more particularly arises is whether the court called upon to review the lawfulness of the detention of an illegally staying third-country national, for the purpose of his or her removal pursuant to a return decision that has become final, can or must assess whether the principle of non-refoulement, on the one hand, and the interests referred to in Article 5 of Directive 2008/115, and more specifically the best interests of a child and family life, on the other hand, preclude such removal, where the final return decision has been adopted against that national and the detention has been ordered by an administrative authority without that principle or those interests having previously been taken into account. It is in that order that I will examine each of the two questions referred by the national court for a preliminary ruling.

The first question

38.By its first question, the referring court asks the Court, in essence, whether Articles 5 and 15 of Directive 2008/115, (16) read together with Article 6, Article 19(2) and Article 47 of the Charter, must be interpreted as meaning that the judicial authority called upon to review the lawfulness of the detention of an illegally staying third-country national, for the purpose of his or her removal pursuant to a return decision that has become final, is required to satisfy itself, if necessary of its own motion, that the principle of non-refoulement does not preclude such removal, where that principle has not previously been taken into account.

39.First of all, I note that the principle of non-refoulement is a fundamental principle enshrined in Article 19(2) of the Charter, pursuant to which ‘no one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment’. That principle, which is absolute, is also linked to Article 18 of the Charter on the right to asylum, as well as Article 4 of the Charter on the prohibition of torture and inhuman or degrading treatment or punishment. (17)

40.The principle of non-refoulement is enshrined in particular in the final part of the sentence of Article 5 of Directive 2008/115, which provides that, when Member States implement that directive, they must observe the principle of non-refoulement. (18)

41.It is clear from the settled case-law of the Court that, having regard to the objective which it pursues, Article 5 of Directive 2008/115 cannot be interpreted restrictively. It also 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. (19)

42.Lastly, with regard to the conclusions that should be drawn from the principle of non-refoulement, as set out in Article 5 of Directive 2008/115, I note that the Court has, on occasion, held that that principle did not automatically prevent the adoption of a return decision and a possible removal decision against an illegally staying third-country national, (20) but only justified the postponement of his or her removal pursuant to the return decision, as provided for in Article 9(1)(a) of Directive 2008/115. (21)

43.However, the Court has also held that, when the competent national authority is contemplating the adoption of a return decision, that authority must necessarily observe the principle of non-refoulement. (22) In that regard, the Court was called upon to clarify that Article 5 of Directive 2008/115 obliges the competent national authority to observe, at all stages of the return procedure, the principle of non-refoulement, such that that provision precludes a third-country national from being the subject of a return decision where it is established that removal of that third-country national to the intended country of destination is, by reason of the principle of non-refoulement, precluded for an indefinite period. (23)

44.More recently, the Court reiterated that compliance with the principle of non-refoulement is necessary prior to the enforcement of a return decision. Should the competent national authority conclude 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 Directive 2008/115. The Court added that compliance with that principle is required until the judicial review of the enforcement of that decision. (24)

45.In order to do so, according to the Court, 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. (25)

46.Thus, the Court has held that, where a certain period of time has elapsed which leads to a change in circumstances, the national authority must 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 Article 4 and Article 19(2) 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. (26)

47.Furthermore, when ruling on the duty to examine of its own motion a plea alleging infringement of EU provisions where a judicial authority reviews the conditions governing the lawfulness of a detention measure ordered by an administrative authority, the Court held that the competent judicial authority must be in a position to rule on all matters of fact and of law relevant to the review of that lawfulness, and be able to take into account the facts stated and the evidence adduced by the administrative authority which ordered the initial detention, as well as any evidence and observations which may be submitted to it by the person concerned. It must also be able to consider any other element that is relevant for its decision should it so deem necessary. 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. (27)

48.It follows from the case-law cited in points 42 to 44 of this Opinion that Article 5 of Directive 2008/115 requires that Member States respect the principle of non-refoulement ‘at all stages of the procedure’, until the removal, which consists of the ‘physical transportation out of the Member State’ of the person concerned. (28) Depending on the particular circumstances of each case or the stage of the procedure at which the review is carried out of a real and serious risk of believing that a third-country national would be exposed, in the event of return, to the death penalty, torture or other inhuman or degrading treatment or punishment, the principle of non-refoulement will preclude that national from being the subject of a return decision or, where applicable, will only justify the postponement of removal, while such a risk persists.

49.In the present case, it is common ground that the applicant in the main proceedings was the subject of a return decision, which was adopted on 7 October 2024 and has become final. There is nothing in the case file to suggest that the adoption of that decision was unlawful, having regard to the principle of non-refoulement, although since the applicant did not appear at the hearing, the decision was adopted without a substantive assessment of whether a removal was contrary to that principle. The main proceedings therefore relate to compliance with the principle of non-refoulement and the ex officio review by the court in the context, not of the adoption of a return decision, but of its implementation when a return procedure is resumed by detaining the national concerned.

50.Still, as is apparent from points 45 to 47 of this Opinion, the duty to review ex officio the principle of non-refoulement has been recognised when the national authority is considering adopting a return decision or prior to the implementation of a return decision, in particular, when there has been a change in circumstances after the adoption of the return decision, and this is likely to have a significant bearing on the assessment of the situation of the national concerned, and when a judicial authority reviews the conditions governing the lawfulness of a detention measure ordered by an administrative authority when implementing a return procedure.

51.It also applies at the stage of the return procedure involving a review, by a judicial authority, of the lawfulness of the detention of an illegally staying third-country national, ordered for the purpose of removal of that national pursuant to a return decision.

52.In the present case, aside from the fact that the principle of non-refoulement was not the subject of a prior review either by the competent national authority that adopted the return decision or by the administrative authority that ordered the detention, the referring court concluded that there is no other effective judicial remedy by which the current situation of the national may be taken into account.

53.In those circumstances, the fact that GB has relied on a risk of inhuman or degrading treatment in the event of his return to Algeria leads me to consider that the judicial authority responsible for reviewing the lawfulness of the detention pursuant to the return decision must ascertain, at that stage of the procedure, if necessary of its own motion, whether GB may be exposed to such a risk in the event of his return to the intended country of destination.

54.In effect, the judicial protection guaranteed 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 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. (29)

55.Nevertheless, it seems essential to me to clarify that it is not necessarily a question, for the authority responsible for reviewing the lawfulness of the detention, of assessing the lawfulness of the return decision adopted previously, which may have been validly taken by the competent national authority and has become final, nor of substituting its own decision for that of the competent national authority. (30) The rules governing the scope of the review by the court responsible for reviewing the lawfulness of the detention are in principle a matter for the procedural autonomy of the Member States, as is the designation of the national authorities competent to assess the risks encountered in the event of removal. (31) In the Netherlands, however, the judicial authority competent to adopt or review a return decision is different to the authority reviewing the lawfulness of the detention. The latter authority thus has no jurisdiction to re-examine or review the lawfulness of a return decision, and can only find the existence of such a decision.

56.At the hearing, the Netherlands Government indicated that the court responsible for reviewing the lawfulness of the detention must, in particular, ascertain whether there is a reasonable prospect of removal, in accordance with Article 15(4) of Directive 2008/115, which includes examining whether the authority that ordered the detention has ‘sufficiently taken into account’ the principle of non-refoulement, has ‘correctly assessed’ the statements of the national to that effect and has ‘weighed up that aspect’ appropriately. However, that government added that such a review is limited and that only the administrative authority competent to decide on an application for international protection can carry out a comprehensive review of the situation of the national concerned, including with regard to the principle of non-refoulement. Thus, if such a review has not been carried out by that administrative authority, it is not for the court to carry out that review for the first time, but for the national to lodge a new application for international protection. The Netherlands Government further considers that the separate and specific appeal that the national concerned may lodge when removal is de facto ordered affords sufficient judicial protection.

57.Yet contrary to the submissions of the Netherlands Government, the national concerned cannot be required to lodge another application for international protection in order to ensure full compliance with the principle of non-refoulement referred to in Article 5 of Directive 2008/115, read together with Article 19(2) of the Charter. (32) Similarly, he cannot be expected to lodge a complaint against ‘effective removal’, since this may only be done after notification of the date and time of expulsion, and, as the referring court states, does not automatically give rise to an assessment of the principle of non-refoulement and does not prevent a detention which could prove to be unjustified.

58.Consequently, where the judicial authority is called upon to rule on the lawfulness of the detention, it should be granted full and complete control in that regard. Although it is not a question at this stage of reviewing the lawfulness of a return decision that has become final, the judge responsible for reviewing the lawfulness of the detention must be able to carry out a complete and updated assessment of the situation of the national concerned and the risks encountered in the event of his or her return, having regard to the principle of non-refoulement if that principle was not previously taken into account. This is particularly the case in the event of a change in circumstances occurring after the adoption of the return decision, which may have a significant bearing on the assessment of the situation of the national concerned in the light of the principle of non-refoulement.

59.I would add that, if, after assessing the current situation of the national concerned, the judicial authority responsible for reviewing the lawfulness of the detention concludes that the removal of that national exposes him to a serious risk of being subjected to inhuman and degrading treatment or punishment, that authority should, in accordance with Article 9(1)(a) of Directive 2008/115, postpone the removal while such a risk persists, as is apparent from the case-law cited in points 42 and 44 of this Opinion.

Furthermore, it does not follow from Directive 2008/115 or from the case-law of the Court that, in the event of postponement of removal, the illegally staying third-country national must be immediately released, as removal may be postponed while the risk in question persists. Moreover, any postponement of removal would not automatically be liable to render the detention measure unlawful. Depending on the circumstances, the competent authorities may consider carrying out the removal process later on, particularly where the reasons why the principle of non-refoulement precludes removal at that time prove to be temporary. (33)

I stress, however, that, where the person concerned is kept in detention pursuant to Directive 2008/115, it is on the strict conditions that the principle of non-refoulement applies in full and that the rules and safeguards imposed by that directive are respected, including as regards the maximum period of detention, which is binding on all Member States. Still, I note that, under Article 15(5) and (6) of Directive 2008/115, the postponement of removal because of the principle of non-refoulement is not one of the reasons why detention may be extended for a period exceeding six months.

Therefore, provided that the judicial authority considers, depending on the specific circumstances of the case and after reviewing the updated situation of the national concerned, that his or her removal to the intended country of destination is, by virtue of the principle of non-refoulement, excluded indefinitely, such that it cannot be considered that the removal arrangements are still in progress, or that there is no real prospect that the removal can be completed in view of the maximum time limits set by Directive 2008/115, detention is no longer justified and the national must be immediately released.

Accordingly, I propose that the Court answer the first question referred for a preliminary ruling to the effect that Articles 5 and 15 of Directive 2008/115, read together with Article 6, Article 19(2) and Article 47 of the Charter, must be interpreted as meaning that the judicial authority called upon to review the lawfulness of the detention of an illegally staying third-country national, for the purpose of his or her removal pursuant to a return decision that has become final, is required to satisfy itself, if necessary of its own motion, that the principle of non-refoulement does not preclude that removal, where that principle has not previously been taken into account, particularly in the event of a change in circumstances that occurred after the adoption of the return decision and that may have a significant bearing on the assessment of the situation of the national concerned in the light of the principle of non-refoulement.

The second question

By its second question, the referring court asks, in essence, whether Articles 5 and 15 of Directive 2008/115, (34) read together with Article 6, Article 7, Article 24(2) and Article 47 of the Charter, must be interpreted as meaning that the judicial authority called upon to review the lawfulness of the detention of an illegally staying third-country national, for the purpose of his or her removal pursuant to a return decision that has become final, is required to satisfy itself, if necessary of its own motion, that family life and the best interests of the child, as referred to in Article 5 of Directive 2008/115, do not preclude such removal, where they have not previously been taken into account.

I note that, when they implement Directive 2008/115, including when they envisage adopting a return decision or making a removal order in respect of an illegally staying third-country national, Member States are required to respect the fundamental rights which the Charter grants to that national.

This applies, in particular, to the right to respect for private life and family life, as guaranteed in Article 7 of the Charter, which may be relied on by an illegally staying third-country national who is the father of a minor child, and which must be read together with Article 24(2) of the Charter, which provides that, in all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration. (35) Yet, unlike protection against any inhuman or degrading treatment enshrined in Article 4 of the Charter, the rights guaranteed by Articles 7 and 24 of the Charter are not absolute in nature. (36)

It also follows from Article 5(a) and (b) of Directive 2008/115 that Member States must take due account of the best interests of the child and family life when implementing that directive. That provision constitutes a general rule, which cannot be interpreted restrictively, and transposes to the field of that directive the obligation laid down in Articles 7 and 24 of the Charter. The Court has thus held that, read together with Article 24 of the Charter, Article 5 of Directive 2008/115 must be interpreted as meaning that Member States are required to take due account of the best interests of the child at all stages of the procedure, before adopting decisions, such as a return decision, accompanied by an entry ban if necessary, which have significant consequences for that minor, even where the person to whom that decision is addressed is not the minor but one of his or her parents. (37) The Court added that the same applies to a removal measure, which cannot be adopted if it disregards family life and the right to respect for the private life of the national concerned. (38)

It follows from that case-law, on the one hand, that Article 5 of Directive 2008/115 precludes the adoption of a return decision in respect of a third-country national without first taking into account his or her family life and the best interests of his or her minor child, and, on the other hand, that considerations relating to the best interests of the child may possibly lead a judicial authority to refrain from carrying out the removal process.

In my view, it must also be possible to consider the best interests of the child during the review of the lawfulness of a detention measure, ordered for the purpose of removal, when that interest has not been the subject of any prior examination during the return procedure and there is no other effective remedy.

I would add that the Court has had the opportunity to clarify some of the relevant details that must be taken into account in order to assess the risk that the child concerned would have to leave the territory of the European Union if his or her parent, a third-country national, were compelled to return. It is thus necessary to consider the question of which parent is the primary carer of the child and whether there is in fact a relationship of dependency between the child and the third-country national parent, whether the child is legally, financially or emotionally dependent on the third-country national parent, and whether the other parent of the child is actually able – and willing – to assume sole responsibility for the primary day-to-day care of the child. In reaching such a conclusion, account must be taken of all the specific circumstances, including the age of the child, the child’s physical and emotional development, the extent of his or her emotional ties both to the EU-citizen parent and to the third-country national parent, and the risks which separation from the latter might entail for that child’s well-being. The Court added, however, that mere economic reasons or the desire to keep the family together in the territory of the European Union are not sufficient, as is the existence of a family link, whether natural or legal. (39)

The Court has already held that the person concerned is subject to a duty of honest cooperation with the competent national authority, which requires him or her to cooperate with that authority in order to provide it with all relevant information about his or her personal and family situation and, where applicable, to inform it, as soon as possible, of any relevant changes in his or her family life. The right of a third-country national to expect that changes in his or her family situation will be taken into account cannot be used in order to re-open or extend indefinitely the return procedure. (40)

In the present case, it is apparent from the evidence before the Court that the alleged child of the third-country national was born on 18 September 2024, that the father lodged an application for international protection on 11 September 2024 and that he did not appear at the hearing concerning the grounds for that application. The return decision was adopted on 7 October 2024 and the national concerned has not lodged an appeal against that decision.

If the competent national authority that adopted the return decision was unable to examine the question of the best interests of the child or the family life of the national concerned, it was not as a result of a change in factual circumstances, since the child was born before the return decision was adopted, but of the fact that that national did not appear at the hearing concerning the grounds of his application for international protection and did not appeal against the return decision. The mere fact of relying on pre-existing facts at a later stage of the procedure cannot in itself constitute a change in circumstances.

It follows from the foregoing that, in so far as the national concerned cannot be considered to have failed in his duty of honest cooperation, which is for the referring court to ascertain, having regard to the circumstances of the case, given the importance that EU law attaches to the consideration of the best interests of the child, I believe that the best interests of the child and the family life of the national must be able to be examined before that national is removed. The court responsible for reviewing the lawfulness of the detention must therefore be able to examine whether those interests preclude that removal.

To that end, that court will be responsible, inter alia, for assessing the evidence establishing that the national concerned is the father of the child, with whom there is a relationship of dependency such that the latter would be compelled to accompany the third-country national in question and leave the territory of the European Union, given that the child already has a parent who has been granted a residence permit in an EU Member State. (41) It may be that the removal must be postponed in order to avoid a situation likely to infringe the fundamental rights of the child, or even that the national concerned must be released.

Therefore, I propose that the Court answer the second question referred for a preliminary ruling that Articles 5 and 15 of Directive 2008/115, read together with Article 6, Article 7, Article 24(2) and Article 47 of the Charter, must be interpreted as meaning that the judicial authority called upon to review the lawfulness of the detention of an illegally staying third-country national, for the purpose of his or her removal pursuant to a return decision that has become final, is required to satisfy itself, if necessary of its own motion, that family life and the best interests of the child, as referred to in Article 5 of Directive 2008/115, do not preclude such removal, where they have not previously been taken into account and provided that the national concerned cannot be considered to have failed in his or her duty of honest cooperation, which is for the referring court to ascertain having regard to the circumstances of the case.

Conclusion

In the light of the foregoing considerations, I propose that the Court answer the questions referred for a preliminary ruling by the rechtbank Den Haag, zittingsplaats Roermond (District Court, The Hague, sitting in Roermond, Netherlands) as follows:

(1)Articles 5 and 15 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 together with Article 6, Article 19(2) and Article 47 of the Charter of Fundamental Rights of the European Union,

must be interpreted as meaning that the judicial authority called upon to review the lawfulness of the detention of an illegally staying third-country national, for the purpose of his or her removal pursuant to a return decision that has become final, is required to satisfy itself, if necessary of its own motion, that the principle of non-refoulement does not preclude that removal, where that principle has not previously been taken into account, particularly in the event of a change in circumstances that occurred after the adoption of the return decision and that may have a significant bearing on the assessment of the situation of the national concerned in the light of the principle of non-refoulement.

(2)Articles 5 and 15 of Directive 2008/115, read together with Article 6, Article 7, Article 24(2) and Article 47 of the Charter of Fundamental Rights,

must be interpreted as meaning that the judicial authority called upon to review the lawfulness of the detention of an illegally staying third-country national, for the purpose of his or her removal pursuant to a return decision that has become final, is required to satisfy itself, if necessary of its own motion, that family life and the best interests of the child, as referred to in Article 5 of Directive 2008/115, do not preclude such removal, where they have not previously been taken into account and provided that the national concerned cannot be considered to have failed in his or her duty of honest cooperation, which is for the referring court to ascertain having regard to the circumstances of the case.

—

1Original language: French.

iThe name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.

2Directive 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).

3Regulation of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (OJ 2013 L 180, p. 31).

4Directive of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (OJ 2013 L 180, p. 96).

5In its request for a preliminary ruling, the referring court cites the judgments of the Afdeling Bestuursrechtspraak van de Raad van State (Administrative Jurisdiction Division of the Council of State) Nos 201904771/2/V3 of 26 July 2023 (NL:RVS:2023:2829) and 202204434/1/V3 of 12 December 2023 (NL:RVS:2023:4578).

6Judgment No 201306899/1/V2 of the Afdeling Bestuursrechtspraak van de Raad van State (Administrative Jurisdiction Division of the Council of State) of 12 June 2015 (NL:RVS:2015:1995).

7The referring court refers in particular to the judgment of 17 October 2024, Ararat (C‑156/23, ‘judgment in Ararat’, EU:C:2024:892, paragraph 35).

8The referring court refers to the judgments of 3 June 2021, Westerwaldkreis (C‑546/19, ‘judgment in Westerwaldkreis’, EU:C:2021:432), of 22 November 2022, Staatssecretaris van Justitie en Veiligheid (Removal – Medicinal cannabis) (C‑69/21, ‘judgment in Removal – Medicinal cannabis’ EU:C:2022:913), and in Ararat.

9See judgments of 5 June 2014, Mahdi (C‑146/14 PPU, ‘judgment in Mahdi’, EU:C:2014:1320, paragraph 38); of 19 June 2018, Gnandi (C‑181/16, ‘judgment in Gnandi’, EU:C:2018:465, paragraph 48); and in Removal – Medicinal cannabis (paragraph 88).

10See judgment in Ararat (paragraph 33 and the case-law cited).

11See, to that effect, judgments of 6 October 2022, Politsei- ja Piirivalveamet (Detention – Risk of committing a criminal offence) (C‑241/21, EU:C:2022:753, paragraphs 31 and 32 and the case-law cited), and 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 74; ‘Ex officio review of detention’).

12See, to that effect, judgments of 10 March 2022, Landkreis Gifhorn (C‑519/20, EU:C:2022:178, paragraph 62); in Ex officio review of detention (paragraphs 72, 73, 75 to 77 and the case-law cited); and of 4 October 2024, Bouskoura (C‑387/24 PPU, EU:C:2024:868, paragraphs 41 to 45).

13See, to that effect, judgments of 28 April 2011, El Dridi (C‑61/11 PPU, EU:C:2011:268, paragraph 40), and in Mahdi (paragraph 60), in which the Court refers to the judgment of 30 November 2009, Kadzoev (C‑357/09 PPU, EU:C:2009:741, paragraph 65).

14See judgments of 30 November 2009, Kadzoev (C‑357/09 PPU, EU:C:2009:741, paragraph 60); in Ex officio review of detention (paragraph 79); and of 4 October 2024, Bouskoura (C‑387/24 PPU, EU:C:2024:868, paragraph 44).

15See, to that effect, judgments of 14 May 2020, Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság (C‑924/19 PPU and C‑925/19 PPU, ‘judgment in Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság’ EU:C:2020:367, paragraph 289), and in Ex officio review of detention (paragraphs 81 to 83 and the case-law cited).

16Article 13 of Directive 2008/115, entitled ‘Remedies’, establishes a specific right of judicial review of the decisions related to return referred to in Article 12(1) thereof. However, the latter provision only mentions return decisions, entry-ban decisions and decisions on removal. A detention decision therefore does not fall within the scope of Article 13 of that directive.

17See, to that effect, judgments in Removal – Medicinal cannabis (paragraph 57); 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 in Ararat (paragraphs 35, 36, 49 and 50).

18The principle of non-refoulement is also set out in Article 9(1)(a) of Directive 2008/115, according to which Member States must postpone removal when it would violate that principle.

19See, to that effect, judgments in Removal – Medicinal cannabis (paragraph 55), and in Ararat (paragraph 35 and the case-law cited).

20See judgment in Gnandi (paragraphs 59 to 67).

21See judgment in Westerwaldkreis (paragraphs 58 and 59), in which the Court refers to the Opinion of Advocate General Pikamäe in Westerwaldkreis (C‑546/19, EU:C:2021:105, point 87).

22See judgments of 11 December 2014, Boudjlida (C‑249/13, EU:C:2014:2431, paragraphs 48 and 49), and in Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság (paragraph 118 and the case-law cited).

23See, to that effect, judgment in Removal – Medicinal cannabis (paragraphs 55, 56 and 59). In essence, the Court held that this is the case, inter alia, where the state of health of the third-country national concerned is particularly serious and that the return may, in itself, entail a real risk of inhuman or degrading treatment for the person concerned, within the meaning of Article 4 of the Charter. However, it added that Article 7 of the Charter cannot require a Member State to refrain from adopting a return decision or a removal order in respect of that national solely because of the risk of a deterioration in his or her state of health in the receiving country, where those strict conditions are not met (paragraphs 60 to 71, 101 and 102). See also judgment of 6 July 2023, Bundesamt für Fremdenwesen und Asyl (Refugee who has committed a serious crime) (C‑663/21, EU:C:2023:540, paragraphs 36 and 52), from which it is apparent that the third-country national concerned would be exposed, if returned to his country of origin, to a risk of torture or death (paragraph 21).

24See, to that effect, judgment in Ararat (paragraphs 38, 39 and 46 and the case-law cited).

25See, to that effect, judgment in Gnandi (paragraph 64), and Ararat (paragraph 37).

26See, to that effect, judgment in Ararat (paragraph 38).

27See, to that effect, judgment in Ex officio review of detention (paragraphs 87 and 88). I note that, in that case, the Court also found that the strict circumscription, established by the EU legislature, of detention and the continuation of a detention measure leads to a situation which is not similar in every respect to administrative proceedings, in which the initiative and delimitation of the dispute lie with the parties (paragraph 92 of that judgment). See, also, Opinion of Advocate General Richard de la Tour in Ararat (C‑156/23, EU:C:2024:413, point 45).

28See Article 3(5) of Directive 2008/115; see also Opinion of Advocate General Richard de la Tour in Ararat (C‑156/23, EU:C:2024:413, point 36).

29See, to that effect, judgments in Ex officio review of detention (paragraph 88), and in Ararat (paragraph 50 and the case-law cited).

30The situation would be different if the judicial authority were to substitute its own decision for that of the administrative authority that ordered the detention or, in the event of the detention being extended, that of the authority that ordered the initial detention (see judgments in Mahdi (paragraph 62), and in Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság (paragraph 293)).

31See, by analogy, judgment in Mahdi (paragraph 50); see, also, Opinion of Advocate General Richard de la Tour in Staatssecretaris van Justitie en Veiligheid (Ex officio review of detention) (C‑704/20 and C‑39/21, EU:C:2022:489, points 73 to 76), and in Ararat (C‑156/23, EU:C:2024:413, point 52).

32See, to that effect, judgment in Ararat (paragraphs 40 and 41).

33This may be the case, for example, of an opponent of the current political regime of a country where a regime change is imminent.

34As mentioned in footnote 16 to this Opinion, the questions relating to the lawfulness of the detention which arise in the case in the main proceedings do not fall within the scope of Article 13 of Directive 2008/115.

35See, to that effect, judgments of 14 January 2021, Staatssecretaris van Justitie en Veiligheid (Return of an unaccompanied minor) (C‑441/19, EU:C:2021:9, paragraph 45), and of 11 March 2021, État belge (Return of the parent of a minor) (C‑112/20, ‘judgment in Return of the parent of a minor’, EU:C:2021:197, paragraphs 36 and 41).

36See judgment of 22 February 2022, Commissaire général aux réfugiés et aux apatrides (Family unity – Protection already granted) (C‑483/20, EU:C:2022:103, paragraph 36).

37See, to that effect, judgments of 8 May 2018, K.A. and Others (Family reunification in Belgium) (C‑82/16, ‘judgment in Family reunification in Belgium’, EU:C:2018:308, paragraph 104); of 14 January 2021, Staatssecretaris van Justitie en Veiligheid (Return of an unaccompanied minor) (C‑441/19, EU:C:2021:9, paragraph 44); in Return of the parent of a minor (paragraphs 31 to 43); and of 27 April 2023, M.D. (Ban on entering Hungary) (C‑528/21, EU:C:2023:341, paragraphs 89 to 91).

38See, to that effect, judgment in Removal – Medicinal cannabis (paragraphs 91 and 92).

39See, to that effect, judgments in Family reunification in Belgium (paragraphs 70 to 75 and the case-law cited), and in Return of the parent of a minor (paragraphs 26 and 27 and the case-law cited).

40See, to that effect, judgment in Family reunification in Belgium (paragraphs 103 and 105). In view of the particular circumstances of that case, the Court has held that where a third-country national has previously been the subject of a return decision, and in so far as, in the course of that initial procedure, he may have provided details of his or her family life, as it previously existed at that time and which acted as the basis for his or her application for residence for the purposes of family reunification, the competent national authority cannot be criticised for failing to take those details into account, in the course of a subsequent return procedure, since those details ought to have been put forward by the person concerned at an earlier procedural stage (paragraphs 106 and 107 of that judgment).

41According to the referring court, the applicant has stated that his ex-partner and his child have a residence permit in France.