Opinion of the Advocate General — ECLI:EU:C:2020:515
Date: 2020-07-02
Language of the case: Dutch
Subject matter: Asylum policy;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary C-441/19 — 1 
Case C-441/19 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date of the decision to refer: 
12 June 2019 
Referring court: 
Rechtbank Den Haag, zittingsplaats ’s-Hertogenbosch (Netherlands) 
Date of the decision to refer: 
12 June 2019 
Appellant: 
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Respondent: 
Staatssecretaris van Justitie en Veiligheid 
  
Subject of the action in the main proceedings 
By decision of 23 March 2018 (the contested decision), the respondent rejected 
the appellant’s application for asylum and a residence permit of limited duration 
as unfounded. The decision imposes on the appellant an obligation to return but 
grants a provisional postponement of departure. The appellant lodged an appeal 
against the contested decision with the referring court. 
Subject and legal basis of the request for a preliminary ruling 
Request pursuant to Article 267 TFEU and Article 107 of the Rules of Procedure 
of the Court of Justice. 
The request for a preliminary ruling essentially raises the question whether the 
policy and practice of the respondent in the main proceedings is compatible with 
Article 5(a), Article 6(1) and (4), Article 8(1) and Article 10 of Directive 
2008/115/EC, Article 15 of Directive 2011/95/EU, and Articles 4 and 24 of the 
Charter of Fundamental Rights of the European Union; more specifically, the 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-441/19  
 
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questions concern the fact that an unaccompanied minor over the age of 15 years 
is obliged to return to his country of origin without the authorities first having 
checked whether, in principle, adequate reception facilities exist and are available 
in that country.  
Questions referred 
1. Should Article 10 of Directive 2008/115/EC (‘the Return Directive’), read in 
conjunction with Articles 4 and 24 of the Charter of Fundamental Rights of 
the European Union (‘the Charter’), recital 22 of the preamble and 
Article 5(a) of the Return Directive and Article 15 of Directive 2011/95/EU 
(‘the Qualification Directive’), be interpreted as meaning that, before 
imposing an obligation to return on an unaccompanied minor, a Member 
State should ascertain and then should investigate whether, at least in 
principle, adequate reception facilities exist and are available in the country 
of origin?  
2. Should Article 6(1) of the Return Directive, read in conjunction with 
Article 21 of the Charter, be interpreted as meaning that a Member State is 
not permitted to make distinctions on the basis of age when granting lawful 
residence on a territory if it is established that an unaccompanied minor does 
not qualify for refugee status or subsidiary protection?  
3. Should Article 6(4) of the Return Directive be interpreted as meaning that, if 
an unaccompanied minor does not comply with his obligation to return and 
the Member State does not and will not undertake any concrete actions to 
proceed with removal, the obligation to return should be suspended and 
lawful residence should be granted? Should Article 8(1) of the Return 
Directive be interpreted as meaning that, where a Member State imposes a 
return decision on an unaccompanied minor without then undertaking any 
removal actions until the unaccompanied minor reaches the age of eighteen, 
that must be considered to be contrary to the principle of loyalty and the 
principle of sincere cooperation in the Union? 
Provisions of European Union law cited 
Article 5(a), Article 6(1) and (4), Article 8(1), and Article 10 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 (Return Directive)  
Article 15 of 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 (Qualification Directive) 
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Articles 4 and 24 of the Charter of Fundamental Rights of the European Union 
Provisions of national law cited 
Article 14(1)(e), Article 28, Article 64 van de Vreemdelingenwet 2000 (Law on 
Foreign Nationals 2000) 
Article 3.6a of the Vreemdelingenbesluit 2000 (Decree on Foreign Nationals 
2000) 
Paragraph B8/6 of the Vreemdelingencirculaire 2000 (Circular on Foreign 
Nationals 2000) 
Brief summary of the facts and the procedure in the main proceedings 
1 The appellant was born in Guinea on 14 February 2002. He does not know where 
his parents are living and knows no other family members. After a stay in Sierra 
Leone through an intermediary from Nigeria, he arrived in the Netherlands. In the 
Netherlands he was the victim of human trafficking and sexual violence. It 
appears from the order for reference that he is now in the care of a foster family in 
the Netherlands.  
2 He lodged an application for a residence permit of limited duration issued to 
persons granted asylum. That request was rejected as unfounded (the contested 
decision). According to the respondent, he is not eligible for a residence permit on 
grounds of asylum law. Because the appellant was older than 15 years at the time 
of the asylum application, the respondent maintains that he is also not eligible for 
a regular residence permit based on the so-called ‘no-fault policy’ for minors. A 
return decision also forms part of the contested decision. Postponement of 
departure for medical reasons was provisionally granted in the contested decision 
but subsequently rejected in a later decision after a medical examination.  
Main submissions of the parties to the main proceedings 
3 At the heart of the dispute is the respondent’s policy and practice regarding the 
imposition of an obligation to return on unaccompanied minors who are older than 
15 years of age. On the basis of the ‘no-fault policy’, minors up to 15 years of age 
are granted a permit for ‘residence as an unaccompanied minor foreign national’ 
(‘verblijf als alleenstaande minderjarige vreemdeling’; ‘AMV’) because up to that 
age they are deemed to have no ‘fault’ in relation to their situation. Such a 
residence permit is issued if, after an investigation, it appears that there are no 
adequate reception facilities in the country of origin. From the age of fifteen years 
such an investigation is not carried out and a minor is also deemed to be able to 
return independently.  
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-441/19  
 
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4 The parties to the main proceedings agree that the appellant is not eligible for 
asylum protection on the basis of the facts prior to his arrival in the Netherlands. 
However, the appellant takes the position that he was wrongly not granted a 
residence permit as an AMV. He is of the view that the AMV policy is 
unreasonable, or at least that its consequences in his situation are disproportionate 
due to special circumstances. The appellant was only four months older than 15 
years when he lodged his asylum application and furthermore, the respondent did 
not take his best interests as a child sufficiently into account in its decision-
making. In addition, he argues that there are no adequate reception facilities for 
him in his country of origin and that in that regard the respondent has an active 
duty to investigate. The appellant also takes the position that he is eligible for 
protection because of his medical problems.  
Brief summary of the reasons for the referral 
5 It follows from the decision that the appellant has lawful residence during the 
period that he is availing himself of a legal remedy. As soon as the referring court 
makes a final decision, the return decision and the obligation to leave will be 
revived. The referring court observes that the respondent is therefore only 
suspending the legal effects for procedural reasons, thereby preventing the 
appellant from being removed and consequently suffering serious and irreparable 
damage before the court has had the opportunity to give a final judgment. The 
suspensory effect granted by the respondent as a result of the pursuit of a legal 
remedy does not therefore rule on the substance of the appeal lodged by the 
appellant against the imposition of a return decision, so that a real dispute exists 
and the Court of Justice is not being presented with a hypothetical question.  
6 The referring court finds that the period between the issuing of a return decision to 
an unaccompanied minor and the actual departure, having regard to the best 
interests of the child in general, and having regard to the serious consequences for 
the appellant in particular, raises several legal questions.  
7 In the asylum procedure in the case of unaccompanied minors under the age of 
fifteen years, when assessing whether residence on regular grounds should be 
granted, a further test is carried out in order to determine whether adequate 
reception facilities are available in the country of origin. If there are no adequate 
reception facilities in the country of origin, and the minor cannot therefore return, 
residence is granted.  
8 If adequate reception facilities are available, the unaccompanied minor who is 
younger than fifteen years is not eligible for residence and then, if there is no 
entitlement to protection, a rejection of the asylum application follows. That 
rejection also constitutes a return decision.  
9 Therefore, if it wishes to reject an application for asylum from an unaccompanied 
minor who is less than 15 years old, the decision-making authority has an 
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obligation to investigate whether there are adequate reception facilities in the 
country of origin.  
10 The referring court considers that Article 10(2) of the Return Directive relates to 
the removal of unaccompanied minors. The obligation to investigate laid down in 
Article 10(2) of the Return Directive, which precedes the possibility of removal, is 
prompted by the particular vulnerability of unaccompanied minors. According to 
the referring court, the removal of minors to a country which does not make 
provision for adequate reception facilities is undoubtedly contrary to the best 
interests of the child.  
11 In any case, when a Member State proceeds to removal, the minor does not have 
to organise the departure himself and he is moreover accompanied during the 
departure and the arrival in the country of origin. No provision at all is made for 
an unaccompanied minor who leaves independently as a result of his obligation to 
leave. According to the referring court, a minor is not only a minor because of his 
mental, physical and socio-emotional development, but also because of his legal 
status. It considers that, because of his vulnerability, an unaccompanied minor 
should not be considered capable of bearing the responsibility for his departure 
independently.  
12 The referring court therefore wishes to ascertain from the Court of Justice whether 
the EU legislature’s task in relation to the adoption of the Return Directive was 
incomplete or whether Article 10(2) of the Return Directive should be interpreted 
as meaning that the investigation referred to in that provision should always take 
place before an unaccompanied minor is obliged to leave the territory of the 
Union independently. It appears from the wording of that provision that due 
regard for the best interests of the child only requires assistance to be offered 
before a return decision is taken. However, that would mean that those safeguards 
are only required during the asylum procedure and until the negative decision on 
the asylum application has been taken. In that interpretation, Article 10 of the 
Return Directive would not regulate the time period between paragraphs 1 and 2 
of that article. No specific duty of care would then rest on the Member State in the 
period between the issuing of the return decision and the time of removal. In the 
view of the referring court, however, such a finding is contrary to the best interests 
of the child.  
13 The referring court also asks the Court of Justice to indicate whether the 
obligation to reside in a country of origin where no adequate reception facilities 
are actually available, where this results from a return decision, implies that an 
unaccompanied minor will be in a situation which must be deemed to be contrary 
to Article 4 of the Charter and Article 15(2) of the Qualification Directive. If so, 
the question, according to the court, is whether subsidiary protection should still 
be granted if there are indeed no adequate reception facilities actually available.  
14 According to the referring court, a solution must be found whereby the Member 
States, on the one hand, satisfy the requirement that a return decision should be 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-441/19  
 
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imposed where it is established that there can be no question of lawful residence 
while, on the other hand, making the best interests of the child their primary 
consideration as required by the Convention on the Rights of the Child (CRC), the 
Charter and the Return Directive. It is of the view that the suspension of the 
obligation to return can be such a solution, which also provides clarity to the 
unaccompanied minor himself.  
15 According to the order for reference, the Dutch legislation and policy do not 
provide any insight into how the best interests of the child are taken into account 
and what weight they should carry when a return decision is imposed on an 
unaccompanied minor of 15 years of age or older. Nor is it clear from the 
contested decision how the obligation as laid down in Article 24 of the Charter, 
recital 22 and Article 5 of the Return Directive has been fulfilled when an 
obligation to return is imposed. The respondent has limited itself to assessing 
whether the appellant needs asylum protection. The respondent has also argued 
that the appellant has not explained how the decision is detrimental to the best 
interests of the child. However, the referring court finds that the burden of proof 
does not rest on the appellant, but rather, that the respondent is obliged to take the 
best interests of the child into account and must expressly determine what the best 
interests of the child are and how those interests have been taken into account.  
16 The referring court considers that the view that the appellant cannot return to the 
country of origin because he has no parents should be assessed when the return 
decision is reviewed and not when the actual removal is challenged. In view of the 
consequences of imposing an obligation to return on the appellant, as well as the 
right to access to justice and the right to an effective remedy, as laid down in 
Article 47 of the Charter, Article 13 of the Return Directive and the established 
case-law of the Court of Justice, the appellant should have the right to have a 
return decision reviewed by the court, even if the return decision does not 
immediately lead to removal. The fact that a remedy must be available against the 
return decision also follows from Article 12 of the Return Directive which 
stipulates, among other things, that a return decision must give information about 
available legal remedies.  
17 The Rechtbank (District Court) therefore wishes to ascertain from the Court of 
Justice whether Article 10(2) of the Return Directive must be interpreted as 
meaning that a return decision may only be taken if an investigation into adequate 
reception facilities has taken place. The Rechtbank requests the Court of Justice to 
state explicitly whether a distinction should be made between the existence of 
adequate reception facilities in principle, and the actual availability of adequate 
reception facilities, and whether those assessments may or must take place at 
various times, and the extent to which an unaccompanied minor can challenge 
them.  
18 The respondent has imposed an obligation to return on the appellant but has not 
undertaken any of the required actions to expel the appellant as an unaccompanied 
minor. The Rechtbank wishes to ascertain from the Court of Justice whether such 
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conduct is permissible in view of the provisions of Article 6(4) of the Return 
Directive. That provision makes it possible to suspend a return decision that has 
already been issued. The Rechtbank considers that the respondent’s conduct 
seems to indicate that that has de facto also happened in the case of the appellant. 
The referring court points out that the aforementioned Article does not relate to 
the temporary suspension of the legal effects when recourse is made to an 
effective remedy (see the judgment of 19 June 2018, Gnandi, C-181/16, 
ECLI:EU:C:2018:465, and the order of 5 July 2018, C.J. and S., C-269/18 PPU, 
ECLI:EU:C:2018:544), but to the suspension of a return decision.  
19 Instead of undertaking actions relating to removal, the respondent appears to be 
waiting for the appellant to reach the age of eighteen years and thus attain the age 
of majority so that the investigation as referred to in Article 10(2) of the Return 
Directive is no longer required. The Rechtbank therefore wishes to ascertain 
whether Article 6(4) of the Return Directive should be interpreted as meaning that 
the suspension of the return decision should happen de jure, after which lawful 
residence must be granted. The situation that has arisen as a result of the 
respondent’s conduct has the legal nature of a situation of toleration. Thus, the 
appellant does not have lawful residence and he therefore does not acquire any 
identity document issued by the Netherlands in order, if necessary, to be able to 
identify himself and provide proof of his legitimate status. However, the appellant 
has been placed with a foster family, has access to medical care and can receive 
education in the Netherlands until he reaches the age of eighteen years. The 
appellant has indicated that he is in a state of great uncertainty and his doctors 
have indicated that that state of affairs adversely affects the appellant’s medical 
condition.  
20 The referring court concludes from the facts that the appellant meets all the 
conditions for eligibility for regular residence on the basis of the ‘no fault policy’ 
except for the condition relating to age. The appellant was 15 years and 4 months 
old when he applied for asylum. According to the referring court, if the 
respondent’s attitude is one of waiting for the appellant to reach the age of 
majority before then being able to remove him without an investigation into the 
adequacy of reception facilities in the country of origin, this is a circumvention of 
the Return Directive.  
21 The referring court also refers to Article 8(1) of the Return Directive, which 
requires Member States to establish and implement an effective removal policy. In 
its view, the respondent also has a duty vis-à-vis the other Member States to 
actually remove unaccompanied minor third-country nationals staying illegally on 
Union territory or, if that is not possible given the requirements laid down in 
Article 10(2) of the Return Directive, to grant lawful residence. The referring 
court takes into account the principle of sincere cooperation in the European 
Union under Article 4(3) TEU.