M. A. v État belge.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2021:197
• Docket Number: C-112/20
• Celex Number: 62020CJ0112
• Court: Court of Justice (European Union)
• Date: 11 March 2021

Provisional text

JUDGMENT OF THE COURT (Tenth Chamber)

11 March 2021 (*)

(Reference for a preliminary ruling – Directive 2008/115/EC – Article 5 – Return decision – Father of a minor child who is a citizen of the European Union – Taking into account the best interests of the child at the time of the adoption of the return decision)

In Case C‑112/20,

REQUEST for a preliminary ruling under Article 267 TFEU from the Conseil d’État (Council of State, Belgium), made by decision of 6 February 2020, received at the Court on 28 February 2020, in the proceedings

M. A.

v

État belge,

THE COURT (Tenth Chamber),

composed of M. Ilešič, President of the Chamber, C. Lycourgos (Rapporteur) and I. Jarukaitis, Judges,

Advocate General: A. Rantos,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– M. A., by D. Andrien, avocat,

– the Belgian Government, by M. Jacobs, M. Van Regemorter and C. Pochet, acting as Agents, and by D. Matray and S. Matray, avocats,

– the European Commission, by C. Cattabriga and E. Montaguti, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of 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), read in conjunction with Article 13 of that directive and with Articles 24 and 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

2 The request has been made in the context of an appeal brought by M. A. against the judgment of the Conseil du contentieux des étrangers (Council for asylum and immigration proceedings, Belgium) dismissing his action for annulment of the decisions ordering him to leave Belgian territory and prohibiting him from entering that territory.

Legal context

International law

3 Article 3(1) of the International Convention on the Rights of the Child, adopted by the United Nations General Assembly on 20 November 1989, provides:

‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.’

EU law

4 Recitals 22 and 24 of Directive 2008/115 state:

‘(22) In line with the 1989 United Nations Convention on the Rights of the Child, the “best interests of the child” should be a primary consideration of Member States when implementing this Directive. In line with the European Convention for the Protection of Human Rights and Fundamental Freedoms [signed in Rome on 4 November 1950], respect for family life should be a primary consideration of Member States when implementing this Directive.

…

(24) This Directive respects the fundamental rights and observes the principles recognised in particular by the [Charter].’

5 Article 2(1) of that directive provides:

‘This Directive applies to third-country nationals staying illegally on the territory of a Member State.’

6 Article 5 of Directive 2008/115 states:

‘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.’

7 Under Article 6(1) of that directive:

‘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.’

8 Article 7(2) of Directive 2008/115 is worded as follows:

‘Member States shall, where necessary, extend the period for voluntary departure by an appropriate period, taking into account the specific circumstances of the individual case, such as the length of stay, the existence of children attending school and the existence of other family and social links.’

9 Article 13(1) of that Directive states:

‘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.’

10 Article 14(1) of that directive states:

‘Member States shall, with the exception of the situation covered in Articles 16 and 17, ensure that the following principles are taken into account as far as possible in relation to third-country nationals during the period for voluntary departure granted in accordance with Article 7 and during periods for which removal has been postponed in accordance with Article 9:

(a) family unity with family members present in their territory is maintained;

(b) emergency health care and essential treatment of illness are provided;

(c) minors are granted access to the basic education system subject to the length of their stay;

(d) special needs of vulnerable persons are taken into account.’

Belgian law

11 Article 74/13 of the loi du 15 décembre 1980 sur l’accès au territoire, l’établissement, le séjour et l’éloignement des étrangers (Law of 15 December 1980 on entry into the territory, residence, establishment and removal of foreign nationals) (Moniteur belge of 31 December 1980, p. 14584), provides:

‘When taking a decision on removal the Minister or his representative shall take due account of the best interests of the child, family life and the state of health of the third-country national concerned.’

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

12 On 24 May 2018, M. A. was the subject of an order to leave Belgian territory and an entry ban, which were notified to him the following day. Whilst noting that the applicant had stated that he had a partner of Belgian...