Opinion of the Advocate General — ECLI:EU:C:2024:413
Date: 2024-05-16
Language of the case: Dutch
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary  C-156/23 – 1 
Case C-156/23 
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:  
14 March 2023 
Referring court:  
Rechtbank Den Haag, zittingsplaats Roermond (Netherlands) 
Date of the decision to refer:  
13 March 2023 
Appellants:  
K 
L 
M 
N 
Respondent:  
Staatssecretaris van Justitie and Veiligheid 
  
Subject matter of the main proceedings 
The appellants in the main proceedings are two sisters and their parents, all of 
whom have Armenian nationality and have resided in the Netherlands since 2011 
without a permanent residence permit. Following the rejection of their application 
for international protection and a new application for permission to stay dating 
from 2016, they submitted a third application for permission to stay in 2019. That 
application was also rejected, as was their objection to that decision, following 
which they brought an action in the main proceedings against the rejection of their 
objection. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-156/23 
 
2  
Subject matter and legal basis of the request 
This request for a preliminary ruling under Article 267 TFEU concerns the 
possible obligation of the national court, in proceedings initiated not by an 
application for international protection but by another application for permission 
to stay, to verify ex officio whether the principle of non-refoulement has been 
observed. 
Questions referred for a preliminary ruling 
I Is Article 47 of the Charter of Fundamental Rights of the European Union, 
read in conjunction with Article 4 of the Charter of Fundamental Rights of the 
European Union, Article 19(2) of the Charter of Fundamental Rights of the 
European Union and Article 5 of the Return Directive to be interpreted as 
meaning that a judicial authority must establish ex officio that the principle of non-
refoulement has not been complied with on the basis of the information in the file 
brought to its attention and as supplemented or clarified in the adversarial 
proceedings brought before it? Does the scope of that obligation depend on 
whether the adversarial proceedings were initiated with an application for 
international protection, and is the scope of that obligation therefore different 
where a refoulement risk is assessed in the context of admission or in the context 
of return? 
II Is Article 5 of the Return Directive, read in conjunction with Article 19(2) of 
the Charter of Fundamental Rights of the European Union, to be interpreted as 
meaning that, where a return decision is issued in proceedings which have not 
been initiated with an application for international protection, the question 
whether or not the refoulement prohibition precludes return must be examined 
before the issue of a return decision and does an established refoulement risk then 
preclude the imposition of a return decision or is an established refoulement risk 
in that situation an obstacle to removal? 
III Is a return decision revived if that return decision has been suspended 
because of new proceedings which have not been initiated with an application for 
international protection, or is Article 5 of the Return Directive, read in conjunction 
with Article 19(2) of the Charter of Fundamental Rights of the European Union, to 
be interpreted as meaning that, where the refoulement risk has not been assessed 
in the proceedings leading to the renewed finding of illegal residence, a current 
assessment of the refoulement risk should follow and a new return decision should 
be imposed? Is the answer to that question different if there is no suspended return 
decision but a return decision which has not been complied with by the third-
country national and the authorities for a prolonged period of time? 
STAATSSECRETARIS VAN JUSTITIE AND VEILIGHEID 
 
3 
Provisions of international law relied on 
European Convention for the Protection of Human Rights and Fundamental 
Freedoms (ECHR), Articles 3, 4, 5, 6, 8 and 13. 
Provisions of European Union law relied on 
Charter of Fundamental Rights of the European Union, Articles 1, 2 and 4, 
Article 19(2), Article 47 and Article 52(3). 
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, Articles 3, 5, 6, 8, 9 and 
Article 13(1). 
Provisions of national law relied on 
Articles 27, 45 and 62a of the Vreemdelingenwet 2000 (Law on foreign nationals 
of 2000; ‘Vw 2000’). 
Article 3.6 of the Vreemdelingenbesluit 2000 (Decree on foreign nationals of 
2000; ‘Vb 2000’). 
Succinct presentation of the facts and the procedure in the main proceedings 
1 The appellants are an Armenian family, composed of two sisters and their parents. 
On 16 March 2011, they applied for international protection. Their application 
was rejected, but they did not return to Armenia. On 10 May 2016, the appellants 
submitted a new application for a residence permit on the basis of a scheme 
intended to resolve the distressing situation of some children residing in the 
Netherlands without a permit for a long period of time. That application was 
rejected, but on 18 February 2019 the appellants again applied for permission to 
stay on the basis of a new scheme applicable to children who were long-term 
residents. Again, the application was rejected, as was the objection to that 
rejection. In the main proceedings, the appellants appeal against that most recent 
rejection. 
2 Unlike the first application, the two subsequent applications did not constitute an 
application for international protection, but applications for legal residence, in 
which the appellants requested to be allowed to lawfully continue their private life 
in the Netherlands. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-156/23 
 
4  
The essential arguments of the parties in the main proceedings 
3 In support of their appeal, the appellants refer, inter alia, to the long period of 
residence of the family, the age of the two sisters on their arrival in the 
Netherlands and the fact that both sisters have now grown up in western culture. 
They are currently studying for a university degree and fear they will have to 
adopt different standards and values that apply to young women if they return to 
their country of origin, Armenia. 
4 The respondent, the Staatssecretaris van Veiligheid en Justitie (State Secretary for 
Security and Justice), argues that the appellants’ expulsion will not result in a 
violation of Article 8 ECHR (Right to respect for private life). The Dutch State’s 
interest in a restrictive admission policy outweighs the appellants’ interest in 
being able to lawfully continue their private life in the Netherlands. In addition, 
the rejection of their previous applications for residence meant the family had 
already been obliged to return. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
5 The referring court notes that national law must be applied to assess whether the 
appellants’ applications for a residence permit were rightfully rejected. In 
rejecting these applications, it must also be established that the appellants’ 
continued stay in the Netherlands is illegal. That obligation to establish illegal 
residence arises from EU law, namely Directive 2008/115/EC (‘the Return 
Directive’). It also provides that, in the event of illegal residence, a return decision 
must in principle be issued. The third-country national must return to his or her 
country of origin or, in any event, leave EU territory. If the third-country national 
fails to do so, the Member State must proceed with removal. 
6 The referring court notes that Article 5 of the Return Directive requires Member 
States to observe the principle of non-refoulement when implementing that 
directive. That principle is enshrined in Article 19(2) of the Charter of 
Fundamental Rights of the European Union, according 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. The referring court asks, in essence, whether, in 
proceedings which have not been initiated with an application for international 
protection and in which the parties have not invoked that refoulement prohibition, 
it must nevertheless ascertain ex officio whether that prohibition has been 
complied with. 
7 The referring court first sets out in detail the reasons why its questions are 
admissible, even though the dispute in the main proceedings must itself be 
assessed on the basis of national law. It refers, inter alia, to the judgment of the 
Court of Justice of the European Union (‘the Court’) of 22 November 2022, 
Staatssecretaris van Justitie en Veiligheid (Removal – Medicinal cannabis), 
C-69/21, EU:C:2022:913, which already held that Article 5 of the Return 
STAATSSECRETARIS VAN JUSTITIE AND VEILIGHEID 
 
5 
Directive must be taken into account when assessing whether the right of the 
person concerned to respect for his or her private life precludes a return decision 
being issued against him or her. Similarly, in the present case, the assessment of 
the refoulement prohibition may be relevant in the assessment of the application 
for a residence permit and must therefore be examined before it is established that 
an application for a residence permit must be rejected. In the main proceedings, an 
interpretation of EU law is therefore necessary for the assessments of the 
applications for a residence permit. 
8 The appellants may also put forward in a new application for international 
protection that the two sisters have westernised to such an extent that the 
refoulement prohibition prevents their expulsion. A fresh assessment of that 
prohibition is clearly necessary. However, according to the referring court, that 
possibility does not alter the fact that, in the present proceedings concerning a 
legal residence permit, it may also be required to assess the principle of non-
refoulement ex officio. That is why it is important for that court to know, in the 
context of the present proceedings, whether an ex officio review is necessary not 
only in procedures relating to the admission of foreign nationals, as in the case of 
an application for international protection, but also in proceedings in which their 
return is at issue, and considers that its questions must be declared admissible. 
9 The referring court emphasises that the refoulement prohibition is absolute. It 
considers that the fundamental right to an effective remedy is therefore respected 
only if it is always – and therefore ex officio – examined whether the principle of 
non-refoulement has been respected. This point is also made in the judgment of 
the Court 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 94 
and operative part, which found that, when assessing whether detention was 
lawful, the national court similarly had to ‘raise of its own motion … any failure 
to comply with a condition governing lawfulness which has not been invoked by 
the person concerned’. However, the Court so far has never expressly imposed an 
obligation to review ex officio the principle of non-refoulement, which is why the 
referring court submits the first question. 
10 If the Court agrees to the referring court’s proposal to make that ex officio review 
mandatory, the second and third questions become pertinent. In order to clarify the 
second question, the referring court states, first, that it appears to follow from 
Articles 5 and 9 of the Return Directive that, prior to the adoption of a return 
decision, it is necessary to assess whether possible expulsion by the Member 
States to the country of origin must be postponed because of the refoulement 
prohibition. However, if that is indeed the case, the obligation of an illegally 
resident third-country national to leave does not appear to be deferred. That third-
country national can always travel to another country outside the European Union. 
That leads to the question whether, in a procedure not initiated with an application 
for international protection, a potential refoulement risk should indeed be assessed 
prior to a return decision and has the effect that no return decision may be 
imposed, or whether that decision may be imposed but no expulsion to the country 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-156/23 
 
6  
of origin may take place. The third-country national is still compelled to leave EU 
territory. 
11 According to the referring court, the second question has similarities with the 
second question in the case currently pending before the Court C-663/21 
[Bundesamt für Fremdenwesen und Asyl (Refugee who has committed a serious 
crime)]. However, that case is based on entirely different facts and, in addition, 
the second and third questions in the present case are closely linked. It is therefore 
necessary to answer the second question despite that earlier question. 
12 The third question follows from the referring court’s finding that only an 
application for international protection will always be examined in the light of the 
principle of non-refoulement, even if it is a repeated application. Such an 
application is, after all, based on the fear of return. The validity of that fear must 
therefore always be assessed on the basis of a current assessment of the 
refoulement risk. 
13 The situation is different in the case of an application for a residence permit which 
has not been initiated with an application for international protection. Where a 
return decision has not been enforced and a foreign national initiates a new 
procedure in order to obtain a right of residence, that return decision will only be 
suspended. The question is whether, in the event of a new refusal, the return 
decision comes into force again, with the result that there is no reassessment of the 
refoulement risk. According to the referring court, that could compromise the 
obligation of Member States to provide an effective remedy. In its view, a remedy 
can only be effective if it protects not only against a decision of illegal residence 
but also against refoulement, as the prohibition in that respect is absolute. That 
would mean that a return decision should always be based on a current 
refoulement assessment. That should then apply even if a return decision has not 
been suspended at all, but has simply not been enforced for a long period of time. 
However, the question whether that is actually the case cannot be inferred from 
the legislation, and the Court has never clearly established this. That is why the 
third question has been asked.