Order;Summary — ECLI:EU:C:2023:122
Date: 2023-02-15
Language of the case: German
Court formation: Eighth Chamber
Subject matter: Asylum policy;Justice and home affairs;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary C-484/22 – 1 
Case C-484/22 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
20 July 2022 
Referring court: 
Bundesverwaltungsgericht (Germany) 
Date of the decision to refer: 
8 June 2022 
Applicant and respondent in the appeal on a point of law: 
GS 
Defendant and appellant on a point of law: 
Bundesrepublik Deutschland (Federal Republic of Germany) 
  
Subject matter of the main proceedings 
Asylum procedure – Refusal to grant refugee status to the applicant, to recognise 
him or her as a person entitled to asylum and to grant subsidiary protection status 
to him or her – Notice of intention to deport – Grounds preventing removal – 
National legislation providing for the examination of such grounds in a separate 
procedure 
Subject matter and legal basis of the request 
Interpretation of EU law, Article 267 TFEU 
Question referred for a preliminary ruling 
Must Article 5(1)(a) and (b) of Directive 2008/115/EC be interpreted as 
precluding, without exception, the lawfulness of a return decision adopted in 
respect of a minor third-country national, accompanied by a refusal of his or her 
application for international protection and setting him or her a time limit for 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-484/22 
 
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voluntary departure of 30 days from the date on which the decision becomes final, 
where, for legal reasons, neither parent can be returned to a country referred to in 
Article 3(3) of Directive 2008/115/EC in the foreseeable future and the minor 
cannot therefore reasonably be expected to leave the Member State either, on 
account of his or her family life which is worthy of protection (Articles 7 and 
24(2) of the Charter of Fundamental Rights, Article 8 of the ECHR), or is it 
sufficient that, on the basis of a national statutory provision, the child’s best 
interests and family life within the meaning of Article 5(1)(a) and (b) of Directive 
2008/115/EC are to be taken into account, following the adoption of the return 
decision, by virtue of a suspension of the removal? 
Provisions of European Union law relied on 
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), in 
particular Article 5 
Provisions of national law relied on 
Grundgesetz (Basic Law; ‘the GG’), in particular Article 6 (Right to marriage and 
family) 
Gesetz über den Aufenthalt, die Erwerbstätigkeit und die Integration von 
Ausländern im Bundesgebiet (Law on residence, employment and integration of 
foreign nationals in the Federal territory; ‘the AufenthG’), in particular 
Paragraph 59 (Threat of removal) and Paragraph 60a (Suspension of removal 
[temporary admission]) 
Asylgesetz (Law on asylum; ‘the AsylG’), in particular Paragraph 34 (Threat of 
removal) 
Verwaltungsgerichtsordnung (Rules of Procedure of the Administrative Courts; 
‘the VwGO’), in particular Paragraph 123 (Interim measures in proceedings for 
interim relief) 
Succinct presentation of the facts and procedure in the main proceedings 
1 The applicant, who was born in Germany in December 2018, is a national of the 
Federal Republic of Nigeria, as are his parents. In March 2017 and March 2018, 
respectively, the Bundesamt für Migration und Flüchtlinge (Federal Office for 
Migration and Refugees; ‘the Federal Office’) had established a ground 
preventing removal in respect of the father and a sister, born in 2014, of the 
applicant, basing that ground on the fact that the applicant’s father would not be 
able to fulfil his maintenance obligations towards his own parents, his wife and his 
BUNDESREPUBLIK DEUTSCHLAND 
 
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children in Nigeria merely by working. The applicant’s father and 
abovementioned sister were subsequently granted residence permits in accordance 
with Paragraph 25(3) of the AufenthG for the first time in February 2018 and 
April 2018, respectively. The asylum applications of the mother and another 
sister, born in 2016, of the applicant were refused as manifestly unfounded in 
March 2017. Since then, their residence has been tolerated. 
2 On 13 June 2019, the Federal Office issued an administrative decision in respect 
of the applicant, in which, amongst other things, it (1) refused to grant refugee 
status to him; (2) refused to recognise him as a person entitled to asylum; (3) 
refused to grant subsidiary protection status to him; (4) found that there were no 
grounds preventing removal; and (5) issued notice of intention to deport him to 
Nigeria. 
3 By judgment of 7 June 2021, the Verwaltungsgericht (Administrative Court) 
annulled the notice of intention to deport on the ground that it was unlawful, and 
dismissed the action as to the remainder. It held that, by virtue of the national 
grounds preventing removal which had been established in respect of the father 
and one of the sisters of the applicant, a ground preventing his removal existed 
under Article 6 of the GG and Article 8 of the ECHR. Given the applicant’s age, it 
was reasonable to separate him from his father. 
4 The defendant brought an appeal on a point of law against that judgment before 
the Bundesverwaltungsgericht (Federal Administrative Court) and submitted that, 
in principle, circumstances concerning the best interests of the child, to be taken 
into account pursuant to Article 5(a) of Directive 2008/115, and concerning his or 
her family life, to be taken into account pursuant to Article 5(b) of that directive, 
are not to be asserted in proceedings concerning the Federal Office’s notice of 
intention to deport, but in separate proceedings against the foreign nationals 
authority with competence to enforce removal. That division of competences 
comes within the scope of the discretion left to the national legislature to 
determine the form to be taken by appeal proceedings. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
5 The present request for a preliminary ruling concerns, in essence, the notice of 
intention to deport issued in respect of the applicant, which was annulled by the 
Administrative Court at first instance. The background to the request for a 
preliminary ruling is formed by the different competences existing under German 
law with regard to, on the one hand, decisions on asylum applications and, on the 
other hand, a possible removal of the foreign national following a refusal of his or 
her asylum application. The referring court presents the national legal situation as 
follows: 
6 Under German law on asylum and foreign nationals, the return decision as 
provided for in Article 3(4), Article 6 and Article 7(1) of Directive 2008/115 is the 
notice of intention to deport to be issued on the basis of the first sentence of 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-484/22 
 
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Paragraph 34(1) of the AsylG or Paragraph 59 of the AufenthG. The notice of 
intention to deport is issued irrespective of whether the foreign nationals authority 
has concrete evidence indicating that the foreign national may not voluntarily 
comply with his or her obligation to leave the territory. The purpose of the notice 
of intention to deport is to induce the foreign national to leave the territory 
voluntarily, without that necessarily entailing removal upon expiry of the time 
limit. 
7 Circumstances precluding enforcement of the removal (including those on the 
basis of which the removal of a foreign national is legally impossible in view of a 
separation from family members which is incompatible with Article 6(1) of the 
GG, in conjunction with Article 6(2) thereof, Article 8(1) of the ECHR and 
Article 7 and Article 24(2) of the Charter of Fundamental Rights) are to be taken 
into account not at the time of issuance of the notice of intention to deport – which 
comes within the scope of the competence of the Federal Office in the asylum 
procedure – and thus not at the time of adoption of the return decision, but at the 
time of the decision on a suspension of removal (temporary admission), which is 
to be taken by the foreign nationals authority ex officio, even where the foreign 
national has not made a request to that effect. Any entitlement to a residence 
permit which may result from the lawful residence of family members does not 
preclude the issuance of notice of intention to deport, but must be asserted 
separately before the foreign nationals authority. 
8 If enforcement of the obligation to leave the territory is impossible due to 
circumstances precluding removal, then, in accordance with the first sentence of 
Paragraph 60a(2) of the AufenthG, the removal of the foreign national must be 
suspended ex officio as long as the grounds bringing about the legal impossibility 
of removal continue to exist. Temporary admission is an administrative act in 
favour of the foreign national. 
9 It neither affects the enforceability of the obligation to leave the territory nor 
changes the time limit for voluntary departure. The foreign national continues to 
reside in Germany unlawfully, but does not commit a criminal offence in doing 
so. He or she is required to demonstrate to the foreign nationals authority the facts 
establishing the legal impossibility of removal. The period of validity of 
temporary admission is determined by the nature of the ground for the temporary 
admission and the duration for which that ground is expected to exist. If the 
temporary admission expires and cannot be renewed because the ground for the 
temporary admission has ceased to exist, the foreign national is removed without a 
new notice of intention to deport being issued and a new time limit being set (third 
sentence of Paragraph 60a(5) of the AufenthG). 
10 If the foreign nationals authority considers that there are no grounds for temporary 
admission, it is not, however, obliged to notify the foreign national, prior to 
removal, of the refusal of temporary admission in the form of a written decision 
accompanied by information about available legal remedies (Article 12(1) of 
Directive 2008/115). This is because the return decision, within the meaning of 
BUNDESREPUBLIK DEUTSCHLAND 
 
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Article 6 and Article 12(1) of Directive 2008/115, ordered in Germany is not the 
refusal of temporary admission under Paragraph 60a of the AufenthG, but the 
notice of intention to deport, as provided for in Paragraph 59 of the AufenthG, 
which had already been issued beforehand. A foreign national in respect of whom 
notice of intention to deport has been issued must therefore expect to be removed 
at any time following the expiry of the time limit for voluntary departure; the 
specific date of removal need not be communicated to him or her (eighth sentence 
of Paragraph 59(1) of the AufenthG). 
11 Effective judicial protection is nevertheless guaranteed because the foreign 
national has the possibility to assert domestically relevant grounds preventing 
removal before the administrative court at any time by way of an application for 
interim relief in the form of an interim measure in accordance with Paragraph 123 
of the VwGO and thereby to prevent, on a provisional basis, the enforcement of 
the removal. Following the expiry of the time limit for voluntary departure, it is 
generally the case that there will be a need for judicial protection and such an 
application will be urgent in nature. If the foreign national can credibly 
demonstrate that he or she is entitled to suspension of removal as provided for in 
the first sentence of Paragraph 60a(2) of the AufenthG, the administrative court 
will oblige the foreign nationals authority not to enforce the removal, on a 
provisional basis, until a decision has been taken in the main proceedings (seeking 
the establishment of an obligation to grant temporary admission). 
12 The referring court takes the view that it must be clarified whether the national 
legal situation described above is sufficiently in line with the requirement under 
Article 5(a) and (b) of Directive 2008/115 to take due account of the child’s best 
interests and family life, since the Court has emphasised on several occasions that 
the child’s family life and best interests must be taken into account prior to the 
adoption of a return decision, and specifically at all stages of the procedure (see, 
for example, judgment of 14 January 2021, Staatssecretaris van Justitie en 
Veiligheid [Return of an unaccompanied minor], C-441/19, EU:C:2021:9, 
paragraph 54). 
13 The Member State is therefore obliged, under Article 6(1) of Directive 2008/115, 
read in conjunction with Article 5(a) and (b) of that directive and Article 24(2) of 
the Charter of Fundamental Rights, to carry out an assessment of the situation of a 
minor affected by a return decision before adopting such a decision (judgment of 
14 January 2021, Staatssecretaris van Justitie en Veiligheid [Return of an 
unaccompanied minor], C-441/19, EU:C:2021:9, paragraph 60). In that 
connection, the third-country national must, in principle, be given the opportunity 
effectively to submit his or her point of view on the subject of the illegality of his 
stay and reasons which might, under national law, justify that authority refraining 
from adopting a return decision (judgment of 11 December 2014, Boudjlida, 
C-249/13, EU:C:2014:2431, paragraphs 55 and 63). The Member State must also 
ensure that the third-country national can 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 situation under Directive 2008/115, and in 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-484/22 
 
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particular under Article 5(a) and (b) thereof (judgment of 19 June 2018, Gnandi, 
C-181/16, EU:C:2018:465, paragraphs 64 and 67). 
14 Under Article 13(1) and (2) of Directive 2008/115, a third-country national must 
be afforded an effective remedy to appeal against or seek a review of a decision 
ordering his or her return. Such a remedy does not necessarily have to have 
suspensive effect (judgments of 30 September 2020, CPAS de Liège, C-233/19, 
EU:C:2020:757, paragraph 44, and CPAS de Seraing, C-402/19, EU:C:2020:759, 
paragraph 33; and order of 5 May 2021, CPAS de Liège, C-641/20, not published, 
EU:C:2021:374, paragraph 22). However, an appeal against a return decision must 
have automatic suspensive effect in the case where the enforcement of that 
decision may in fact expose the foreign national to a real risk of a serious 
impairment of protected legal interests (see judgment of 30 September 2020, 
CPAS de Liège, C-233/19, EU:C:2020:757, paragraphs 46 and 66). 
15 Where a national court concludes that the national legislation does not offer a 
third-country national, who is exposed to a risk of being subjected to treatment 
contrary to Article 19(2) of the Charter of Fundamental Rights as a result of the 
enforcement of the return decision, a remedy against the return decision governed 
by clear, precise and foreseeable rules and leading to the automatic suspension of 
that decision, it is for that court to hold that the appeal brought by that third-
country national has suspensive effect for the purpose of the annulment or 
suspension of the return decision taken in respect of that third-country national, if 
necessary refusing to apply the national legislation precluding that appeal from 
having such an effect (judgment of 30 September 2020, CPAS de Liège, C-233/19, 
EU:C:2020:757, paragraph 57; and order of 5 May 2021, CPAS de Liège, 
C-641/20, not published, EU:C:2021:374, paragraph 28). 
16 Taking into account that case-law of the Court, there are doubts as to whether the 
German legal situation, in which a return decision is adopted irrespective of 
possible domestically relevant grounds preventing removal, and such grounds 
must be asserted before the foreign nationals authority in separate proceedings, is 
compatible with EU law. 
17 That question is answered in the affirmative in some cases in the national case-
law, on the ground that the requirement to take due account of the child’s best 
interests and family life at the time of adoption of the return decision is 
sufficiently taken into account by the fact that, at the time of adoption of the return 
decision, it is already established in abstract and general terms that removal will 
not take place in so far and as long as such removal is legally impossible in view 
of a separation of family members which is incompatible with Articles 7 and 
24(2) of the Charter of Fundamental Rights and Article 8(1) of the ECHR. The 
referring court has hitherto also proceeded on that basis. 
18 However, recent decisions of the Court of Justice (in particular the cited 
judgments of 14 January 2021, Staatssecretaris van Justitie en Veiligheid [Return 
of an unaccompanied minor], C-441/19, EU:C:2021:9, and of 11 March 2021, 
BUNDESREPUBLIK DEUTSCHLAND 
 
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Belgian State [Return of the parent of a minor], C-112/20, EU:C:2021:197) 
reinforce the doubts as to the conformity with EU law of the first sentence of 
Paragraph 34(1) of the AsylG, in conjunction with the first sentence of 
Paragraph 59(3) of the AufenthG. Accordingly, it appears to be conceivable that 
Article 5(a) and (b) of Directive 2008/115 establishes a mandatory obligation to 
carry out, on an individual basis, an assessment of the child’s best interests and 
family life prior to the adoption of a return decision. Moreover, it might be the 
case that an illegal stay justifying the adoption of a return decision may possibly 
be assumed only if it has first been established, following an examination, that the 
foreign national cannot be granted permission to remain (for instance for the 
purposes of family reunification or on humanitarian grounds) (see judgments of 
14 January 2021, Staatssecretaris van Justitie en Veiligheid [Return of an 
unaccompanied minor], C-441/19, EU:C:2021:9, paragraph 71 et seq.; and of 
11 March 2021, Belgian State [Return of the parent of a minor], C-112/20, 
EU:C:2021:197, paragraph 24) et seq.). The first sentence of Paragraph 34(1) of 
the AsylG, in conjunction with the first sentence of Paragraph 59(3) of the 
AufenthG, would also have to be presumed to be unlawful if the asylum authority 
were not free to adopt a return decision without subsequently taking removal 
measures in respect of the third-country national, subject to the situations covered 
by Article 9(1) and (2) of Directive 2008/115 (see judgments of 3 June 2021, 
Westerwaldkreis, C-546/19, EU:C:2021:432, paragraph 57 et seq.; and of 
14 January 2021, Staatssecretaris van Justitie en Veiligheid [Return of an 
unaccompanied minor], C-441/19, EU:C:2021:9. 
19 The question set out above is therefore referred to the Court of Justice of the 
European Union for a preliminary ruling.