Provisional text
OPINION OF ADVOCATE GENERAL
SPIELMANN
delivered on 22 January 2026 (1)
Case C‑877/24 [Shamsi (i)]
X,
Minister van Asiel en Migratie, formerly Staatssecretaris van Justitie en Veiligheid
other party:
Y
(Request for a preliminary ruling from the Raad van State (Council of State, Netherlands))
( Reference for a preliminary ruling – Immigration policy – Directive 2008/115/EC – Articles 6, 8 and 9 – Return decision issued against illegally staying third-country nationals serving life or long-term sentences – Impossibility of complying with the obligation to return in the near future – Principle of proportionality )
Introduction
1.        The present case provides the Court with the opportunity to clarify the scope of Directive 2008/115/EC on common standards and procedures in Member States for returning illegally staying third-country nationals (2) in a particular situation, namely that of (illegally staying) third-country nationals who have been sentenced, in the Member State concerned, to life or long-term sentences in prison, for crimes which are not related to the illegal nature of their stay. More specifically, it involves determining whether, and under what conditions, a Member State remains obliged to adopt a return decision against them when, owing to the execution of those sentences, neither voluntary departure nor forced removal will be possible in the near future.
2.        The Court’s answers to the questions referred by the national court, the Raad van State (Council of State, Netherlands), will make it possible to clarify, inter alia, the relationship between the obligation laid down in Article 6 of Directive 2008/115 to adopt a return decision in the event of illegal stay and the requirement arising from Article 8 of that directive to carry out the removal ‘as soon as possible’, (3) where the execution of a custodial sentence creates a lasting impediment. The present case will also provide an opportunity to clarify the function of Article 9(2) of Directive 2008/115 as a mechanism for postponing the removal, as well as the role of the principle of proportionality in that context.
Legal framework
European Union law
3.        Recitals 2 and 4 of Directive 2008/115 are worded as follows:
‘(2)      The Brussels European Council of 4 and 5 November 2004 called for the establishment of an effective removal and repatriation policy, based on common standards, for persons to be returned in a humane manner and with full respect for their fundamental rights and dignity.
…
(4)      Clear, transparent and fair rules need to be fixed to provide for an effective return policy as a necessary element of a well managed migration policy.’
4.        Article 2(2)(b) of that directive provides:
‘Member States may decide not to apply this Directive to third-country nationals who:
…
(b)      are subject to return as a criminal law sanction or as a consequence of a criminal law sanction, according to national law, or who are the subject of extradition procedures.’
5.        Article 5 of the said
directive is worded as follows:
‘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.’
6.        Article 6(1) to (5) of Directive 2008/115 provides:
‘1.      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.
2.      Third-country nationals staying illegally on the territory of a Member State and holding a valid residence permit or other authorisation offering a right to stay issued by another Member State shall be required to go to the territory of that other Member State immediately. In the event of non-compliance by the third-country national concerned with this requirement, or where the third-country national’s immediate departure is required for reasons of public policy or national security, paragraph 1
shall apply.
3.      Member States may refrain from issuing a return decision to a third-country national staying illegally on their territory if the third-country national concerned is taken back by another Member State under bilateral agreements or arrangements existing on the date of entry into force of this Directive. In such a case the Member State which has taken back the third-country national concerned shall apply paragraph 1.
4.      Member States may at any moment decide to grant an autonomous residence permit or other authorisation offering a right to stay for compassionate, humanitarian or other reasons to a third-country national staying illegally on their territory. In that event no return decision shall be issued. Where a return decision has already been issued, it shall be withdrawn or suspended for the duration of validity of the residence permit or other authorisation offering a right to stay.
5.      If a third-country national staying illegally on the territory of a Member State is the subject of a pending procedure for renewing his or her residence permit or other authorisation offering a right to stay, that Member State shall consider refraining from issuing a return decision, until the pending procedure is finished, without prejudice to paragraph 6.’
7.        Article 8(1) to (3) of that directive is worded:
‘1.      Member States shall take all necessary measures to enforce the return decision if no period for voluntary departure has been granted in accordance with Article 7(4) or if the obligation to return has not been complied with within the period for voluntary departure granted in accordance with Article 7.
2.      If a Member State has granted a period for voluntary departure in accordance with Article 7, the return decision may be enforced only after the period has expired, unless a risk as referred to in Article 7(4) arises during that period.
3.      Member States may adopt a separate administrative or judicial decision or act ordering the removal.’
8.        In accordance with Article 9 of the said directive:
‘1.      Member States shall postpone removal:
(a)      when it would violate the principle of non-refoulement, or
(b)      for as long as a suspensory effect is granted in accordance with Article 13(2).
2.      Member States may postpone removal for an appropriate period taking into account the specific circumstances of the individual case. Member States shall in particular take into account:
(a)      the third-country national’s physical state or mental capacity;
(b)      technical reasons, such as lack of transport capacity, or failure of the removal due to lack of identification.
3.      If a removal is postponed as provided for in paragraphs 1 and 2, the obligations set out in Article 7(3) may be imposed on the third-country national concerned.’
Netherlands law
9.        Article 64 of the Vreemdelingenwet 2000 (Law of 2000 on foreign nationals) (4) of 23 November 2000 provides:
‘Removal shall be postponed as long as the state of health of the foreign national or of a member of his or her family prevents him or her from travelling.’
10.      Article 6.1b of the Vreemdelingenbesluit 2000 (Decree of 2000 on foreign nationals) (5) of 23 November 2000 states:
‘If the foreign national must leave the territory immediately … or has failed to leave within the prescribed period, removal may be postponed. The postponement shall take into account in any event the foreign national’s physical state or mental capacity and technical reasons, such as lack of transport capacity, or failure of the removal due to lack of identification.
…’
The disputes in the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court
11.      The main proceedings concern two return decisions adopted by the Minister van Asiel en Migratie (Minister for Asylum and Migration, Netherlands) (‘the Minister’) in respect of X and Y, two third-country nationals.
12.      X, an Azerbaijani national, was sentenced by a Netherlands court on 19 January 2015 to life imprisonment for multiple murders, committed in May 2011. Following that conviction, by decision of 20 September 2018, the Minister withdrew X’s residence permit with retroactive effect from 12 May 2011 and ordered him to leave the territory of the European Union immediately. He also imposed a 10-year entry ban on him. By decision of 27 July 2020, the Minister rejected the complaint made by X against his decision of 20 September 2018.
13.      X brought an action against the Minister’s decision of 27 July 2020 before the rechtbank Den Haag, zittingsplaatsen ’s-Hertogenbosch en Amsterdam (District Court, The Hague, sitting in
’s-Hertogenbosch and Amsterdam, Netherlands). By judgment of 14 January 2022, that court dismissed that action on the ground, inter alia, that the Minister was obliged to issue a return decision under Article 6(1) of Directive 2008/115. In particular, according to that court, owing to the withdrawal of his residence permit, X was residing illegally in the Netherlands and the return decision was necessary to ensure his removal were he to be released. Such a release could occur after he had spent 25 years in detention. (6)
14.      X brought an appeal against that judgment before the referring court.
15.      In the meantime, Y, an Afghan national, had entered the Netherlands from Germany on 31 August 2018 after his asylum application lodged in Germany had been definitively rejected there. On 16 November 2020, he was sentenced by final judgment by a Netherlands court to 25 years’ imprisonment for two counts of attempted murder with a terrorist aim, committed on the day of his entry into the Netherlands. Since then, he has been held in prison. Moreover, Y has never had a right of residence in the Netherlands.
16.      By decision of 25 April 2023, the Minister found that Y was not legally resident in the Netherlands, ordered him to leave the territory of the European Union immediately and imposed on him a 20-year entry ban.
17.      Y brought an action against that decision before the rechtbank Den Haag, zittingsplaatsen ’s-Hertogenbosch en Amsterdam (District Court, The Hague, sitting in
’s-Hertogenbosch and Amsterdam). By judgment of 22 December 2023, that court upheld that action and annulled the said decision, taking the view that the Minister could not validly adopt a return decision in a situation where he would not be able to carry out the removal due to the execution of a long-term custodial sentence. That court drew that conclusion, inter alia, from the judgments of the Court of 14 January 2021, Staatssecretaris van Justitie en Veiligheid (Return of an unaccompanied minor) (7) and of 24 February 2021, M and Others (Transfer to a Member State). (8)
18.      The Minister lodged an appeal against that judgment before the referring court.
19.      The referring court points out that it is not disputed that X and Y are staying in the Netherlands illegally, that they have not relied on the principles listed in Article 5 of Directive 2008/115 and that they are not covered by the exceptions to the obligation to adopt a return decision set out in Article 6(2) to (5) of that directive.
20.      In that context, the parties to the main proceedings nevertheless disagree as to whether the Minister may adopt a return decision against X and Y when, owing to their imprisonment, they are unable to comply with their obligation to return and the Minister cannot remove them.
21.      In that regard, the referring court notes, in the first place, that, although Article 6(1) of Directive 2008/115 appears to impose an obligation to adopt a return decision in a situation such as those at issue in the main proceedings, that directive does not clearly determine the relationship between that obligation and the fact that, in such a situation, any possibility of actual return is ruled out for a long period. Moreover, it is not clear that it is possible to postpone X and Y’s removal on the basis of Article 9(2) of the said directive, since that provision seems to cover cases of postponement of limited duration. Furthermore, the transposition of that provision into Netherlands law does not allow for the postponement of removal on account of the execution of a custodial sentence. (9)
22.      The referring court also considers that an analysis of the case-law of the Court, which indicates, inter alia, an obligation to carry out the removal ‘as soon as possible’, does not resolve the difficulty in interpreting Directive 2008/115 at issue, either.
23.      In the second place, in the event that the Minister was not entitled to adopt a return decision in the cases in the main proceedings, the referring court wishes to ascertain whether he was then obliged, under Directive 2008/115, to grant X and Y a residence permit in order to avoid the persistence of a situation in which those individuals could not be the subject of a return procedure, without, however, being legally resident on the territory of the Member State concerned.
24.      In the third place, that court asks whether it is possible to rely on the principle of proportionality in order to preclude the adoption of a return decision.
25.      In those circumstances the Raad van State (Council of State) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
‘(1)      Does Directive [2008/115], in particular Articles 6, 8 and 9 thereof, preclude the issue of a return decision against a foreign national who, due to the [execution] of a long-term or lifelong prison sentence, cannot fulfil his or her return obligation for a long period of time and, as a result, cannot be removed from the territory of the European Union?
(2)      If the answer to the first question is yes, is the Member State then obliged to grant a foreign national an independent residence permit or some other form of permission to stay during the stay in long-term or lifelong detention, whether or not under Article 6(4) of Directive [2008/115]?
(3)      Is there scope under Article 6(1) of Directive [2008/115] for a proportionality assessment in the individual case, beyond the exceptions referred to in paragraphs 2 to 5 and the principles and interests listed in Article 5 of that directive?’
26.      Written observations were lodged by the parties to the proceedings, X and Y, by the Netherlands, Belgian, Czech and German Governments and by the European Commission.
Analysis
27.      At the outset, it is worth bearing in mind that the questions referred for a preliminary ruling are structured in two parts. Within the first part fall the first and third questions, which ask the Court to rule on the compatibility with Directive 2008/115 of the adoption of a return decision in respect of third-country nationals who are required to serve, beforehand, long-term or even life sentences. The second question forms the second part. Based on the assumption that the first question will be answered in the affirmative, it concerns whether there might be an obligation on the Member State concerned to issue the person concerned, during the execution of his or her sentence and until his or her effective removal, with a permit authorising him or her to reside on its territory. I shall first examine the first and third questions before turning to the second.
The first and third questions
Preliminary observations
28.      As regards the first question, which is closely linked to the third question, it is appropriate to identify the source of the referring court’s doubt. That court is faced, in the cases in the main proceedings, with an application of Directive 2008/115 in which there is a significant time lag between, on the one hand, the adoption of the return decision and, on the other hand, the enforcement of the measure for the removal of the persons concerned. In other words, the referring court’s question highlights an inherent tension between Article 6 of Directive 2008/115, which requires the adoption of a return decision against the illegally staying third-country national, and the obligation, arising from Article 8 of that directive, to carry out the removal of the person concerned, as those two stages of the return procedure must, according to the Court’s case-law, follow one another ‘as soon as possible’. (10)
29.      In order to answer the first part of the questions referred, it is necessary to examine, first, the relationship between the relevant provisions of Directive 2008/115 in the light of the objectives that it pursues, as is apparent from the general scheme of that directive, and, secondly, the way in which those provisions interact with other rules which may be applicable in the present case, in particular Article 9 of the said directive, concerning postponement of removal.
30.      The following questions must thus be addressed in turn: first of all, does Directive 2008/115 require the adoption of a return decision as soon as a third-country national is staying illegally on the territory of a Member State? Next, how does the enforcement of such a decision relate to the institution of criminal proceedings by that Member State, whether or not those proceedings are related to the illegal stay? Finally, in order to determine whether discontinuity in the return procedure is possible under Directive 2008/115, what is the scope of Article 9 thereof, which lists the situations in which removal may be postponed?
The obligation to adopt a return decision
31.      Directive 2008/115 imposes a twofold requirement on the authorities of the Member State concerned. First, under Article 6(1) of that directive, the national authorities are required, without prejudice to the exceptions referred to in paragraphs 2 to 5 of that provision, to adopt a return decision where the illegal nature of a third-country national’s stay is established. (11) Secondly, those authorities must ensure the effective and diligent enforcement of that decision, in accordance with Article 8 of the said directive, by ensuring that the measures adopted genuinely aim to remove the person concerned. It is for that reason that the Court expressly considers that ‘the obligation imposed on the Member States by Article 8 of that directive, in the cases set out in Article 8(1), to carry out the removal, must be fulfilled as soon as possible’. (12)
32.      That twofold requirement, namely the adoption of a return decision in the event of an illegal stay, followed by its diligent enforcement, reflects the very purpose of Directive 2008/115, which is to organise an effective removal and repatriation policy, based on common standards, ensuring that the persons concerned are removed in a humane manner and with full respect for their fundamental rights and dignity. (13) As the Court has consistently recalled, Member States may not, in implementing the measures provided for in Directive 2008/115, adopt practices which risk ‘jeopardising the attainment of the objective pursued by that directive, namely, the establishment of an effective policy of removal and repatriation of illegally staying third-country nationals’. (14)
33.      It follows from the foregoing that the authorities of the Member State concerned do not merely have the option of adopting a return decision, but are, in principle, required (15) to do so
as soon as the person concerned is found to be staying illegally. A derogation from that obligation may occur only in the cases expressly provided for in paragraphs 2 to 5 of Article 6 (16) of Directive 2008/115 or in the event that the requirements exhaustively listed in Article 5
of that directive would preclude the adoption of such a decision.
Application of Directive 2008/115 and the competence of the Member States in criminal matters
34.      It is necessary to examine the way in which the return procedure relates to the competence of the Member State concerned to initiate criminal proceedings in respect of acts related or unrelated to the illegal stay. In that regard, I believe it is necessary to draw a twofold distinction. First, there are the situations already examined by the Court in its case-law, which concern offences directly related to the illegal entry or stay of a third-country national. Secondly, there are the prosecutions and convictions for offences other than the mere fact of staying illegally, which corresponds precisely to the situation at issue in the main proceedings. It seems to me that the nature of the criminal penalty at issue is the relevant criterion for distinguishing between those two categories.
35.      In terms of the first category, it appears that the Court has precisely circumscribed that issue and provided answers which, in its view, are perfectly consistent with the objective referred to in point 32 above which Directive 2008/115 pursues. It is apparent from that case-law that the Court seeks to reconcile, on the one hand, the effectiveness of that
directive and, on the other hand, the competence of the Member States in criminal matters. (17) It follows that the criminal penalty relating to the illegal stay on the territory of a Member State cannot have the effect of reducing the effectiveness of Directive 2008/115 and, in particular, of compromising the effective and diligent enforcement of the return decision.
36.      The Court thus held, in the judgment in El Dridi, that a criminal law sanction is not compatible with Directive 2008/115 where it has the effect of excluding the illegally staying third-country national from the return procedure. (18) Following on from that judgment, the Court has also held that criminal measures targeting the illegal stay alone cannot be interspersed, before or during the implementation of the return procedure, since they impede its enforcement and undermine its effectiveness. (19) That applies inter alia to a home detention order, (20) or to the substitution of a fine for an obligation to return, (21) which are not compatible with Directive 2008/115. By contrast, where the criminal penalty does not prevent effective return, for example because it is a financial penalty, it remains compatible with Directive 2008/115. (22)
37.      As for the second category, namely the situation where the third-country national commits a criminal offence other than merely staying illegally, it must first of all be recalled that, under
Article 2(2)(b) of Directive 2008/115, ‘Member States may decide not to apply this Directive to third-country nationals who … are subject to return as a criminal law sanction or as a consequence of a criminal law sanction, according to national law, or who are the subject of extradition procedures’. In such a case, the person concerned may be removed from the scope of Directive 2008/115 and the Member States may therefore impose a criminal penalty on him or her on account of the illegality of his or her stay without being bound to follow the logic of the case-law stemming from the judgment in El Dridi.
38.      That was reiterated by the Court in the judgment in Achughbabian, in which it ruled that ‘third-country nationals who, in addition to staying illegally, have also committed one or more other offences may in certain cases, under Article 2(2)(b) of Directive 2008/115, be removed from the scope of the latter’. (23) That approach was subsequently clarified in the judgment in Affum, (24) in which the Court stated that ‘Directive 2008/115 does not prevent the Member States from being able to impose a sentence of imprisonment to punish the commission of offences other than those stemming from the mere fact of illegal entry, including in situations where the return procedure has not yet been completed’. (25)
39.      That finding by the Court seems to me to be particularly important in the context of the present case, since the Court uses the term ‘punish’ and not the narrower term of ‘imposing’ a sentence. To my mind, the concept of ‘punishment’ (26) encompasses not only the criminalisation of the offence and the imposition of the sentence, but also, in principle, its execution. Had the Court intended to limit itself solely to the power to establish an offence or impose a sentence, it would not have used a term as encompassing as ‘punish’. Moreover, since the Court confirms that the two sets of proceedings – the criminal proceedings and those relating to the return of the person concerned – may be conducted in parallel, it goes without saying that that applies a fortiori where the criminal conviction precedes the adoption of the return decision, as is the case in the cases in the main proceedings.
40.      It follows from all the foregoing considerations that Directive 2008/115 neither has the purpose nor the effect of restricting, in general, the Member States’ competence in criminal matters to penalise offences other than those relating to illegal entry or stay. The Member States thus retain the power to impose custodial sentences for offences unrelated to the illegal stay and to establish, subsequently,
the illegal nature of that stay. In that regard, it should be noted that, in the cases in the main proceedings, neither X nor Y disputes the illegal nature of their stay on the territory of the Member State concerned.
41.      Since, as has already been recalled, the Member States do not merely have the option of adopting a return decision, but are, in principle, required to do so from the moment that the illegal stay is established, it is necessary to examine whether Directive 2008/115 itself provides the key to a harmonious interpretation of Articles 6 and 8 thereof.
Reconciliation of the obligations arising from Articles 6 and 8 by means of Article 9 of Directive 2008/115
42.      I shall examine below whether the inherent tension between Articles 6 and 8 of Directive 2008/115 may be mitigated in the light of the Court’s case-law or by means of a systematic interpretation of those provisions, in particular by comparing them to Article 9 of that directive.
43.      The Court has established, in its recent case-law a ‘reverse’ relationship between Articles 6 and 8 of Directive 2008/115 in the sense that the obligation to adopt a return decision under Article 6
does not arise automatically, but presupposes from the outset an assessment of the real possibility of removal within the meaning of Article 8. It follows from that case-law that the adoption of a return decision involves taking into account, from the beginning, the foreseeable conditions of its enforcement, in the sense that a return decision cannot be validly issued where removal is not feasible in practice.
44.      That is the lesson which emerges from the judgments of 22 November 2022, Staatssecretaris van Justitie en Veiligheid (Removal – Medicinal cannabis), (27) in TQ and in
M. In the first case, the Court held that a return decision cannot be adopted where the person concerned, who is seriously ill and staying illegally on account of appropriate care not being available in the receiving country, runs a real risk of a significant reduction in his or her life expectancy or a rapid, significant and permanent deterioration in his or her state of health. In the second case, the Court required, inter alia, in respect of an unaccompanied minor, that an adequate reception solution be identified in the country of return before a return decision could be adopted, failing which such a decision could not be issued. In the case which gave rise to the judgment in M, it considered, in essence, that a third-country national who has obtained refugee status in another Member State cannot be the subject, in the State in which he or she is staying illegally, of a decision ordering his or her return to his or her country of origin, owing to the principle of non-refoulement. (28)
45.      However, I do not consider it possible to transpose that line of case-law to the situation at issue in the main proceedings. In the abovementioned cases, the obstacle to removal related mainly to the situation awaiting the person concerned in the State of destination (risk of inhuman or degrading treatment, lack of an adequate reception solution, infringement of the principle of non-refoulement). (29) By contrast, in the case of life or long-term sentences, as in the cases in the main proceedings, the obstacle to removal stems from an internal factor specific to the executing Member State, namely the completion of the sentence imposed by its criminal courts.
46.      Therefore, the question of whether a return decision may be adopted where removal is impossible due to the execution of a custodial sentence must be approached according to a different logic, within the very scheme of Directive 2008/115.
47.      In that regard, Article 9(2) of Directive 2008/115 appears to me to be relevant. The situation of a person sentenced to imprisonment may be considered in the light of that provision, which specifically addresses the scenario where the return decision cannot be effected immediately. Paragraph 2 thereof provides that Member States may postpone removal ‘for an appropriate period’, taking into account ‘the specific circumstances of the individual case’, where there are, inter alia, technical reasons or reasons relating to the situation of the person concerned. In my view, it is in that context that the postponement of removal may be considered for the duration of the execution of the custodial sentence.
48.      First, while it is true that the text of Article 9(2) of Directive 2008/115 mentions, in order to justify the postponement, medical or technical reasons, such as ‘the third-country national’s physical state or mental capacity’ or even ‘technical reasons, such as lack of transport capacity, or failure of the removal due to lack of identification’, that list is not exhaustive. By providing that the Member States, when deciding to postpone removal ‘for an appropriate period’, are ‘in particular
[to] take into account’ (30) those situations, the EU legislature, in my view, conferred on paragraph 2 of Article 9 of Directive 2008/115, a more flexible and, so to speak, more functional role than paragraph 1 of that article, which sets out exhaustively the cases in which postponement of removal is required.
49.      The phrase ‘in particular’ is of decisive importance in that regard. It indicates that the reasons listed are illustrative and not exhaustive. (31) In other words, Directive 2008/115 expressly acknowledges the existence of other situations in which removal cannot, in fact or in law, be enforced immediately, even though a return decision has been adopted and the obligation to carry out the removal ‘as soon as possible’ continues, in principle, to weigh on the Member State. (32)
50.      A prison sentence pronounced for offences separate from the illegal stay makes it materially impossible, by its very nature, to carry out the removal before the person concerned is released. It is an objective impediment, independent of the individual’s will, which, in my view, falls within the scope of the ‘specific circumstances of the individual case’ within the meaning of Article 9(2) of Directive 2008/115, and justifies, on that basis, postponement of the enforcement of the return decision.
51.      Secondly, the very scheme of Article 9(2) of Directive 2008/115 supports the idea that it may constitute the basis for postponing removal during the execution of a long custodial sentence. The concept of ‘appropriate period’ does not, as such, equate to a ‘short’ or ‘strictly limited’ period; it refers to a duration which is necessary and proportionate to the reason for the postponement.
52.      In other words, the postponement cannot be indefinite or fixed. It must remain limited to the time strictly necessary for the removal of the objective obstacle to removal, which is the custodial sentence. It must also be subject to periodic review enabling examination of any changes in circumstances occurring after the adoption of the return decision and liable to have a significant impact on the assessment of the situation of the person concerned in the light of Directive 2008/115, and
of Article 5 thereof specifically. (33) In particular, the competent authorities of the Member State concerned must ask themselves, at appropriate intervals, whether removal can reasonably be carried out, in particular as the date of conditional release or sentence review approaches. When release becomes foreseeable, those authorities must review the implementation of the return in the light of the safeguards set out in Article 5 of Directive 2008/115. (34)
53.      Thirdly, to accept that the long-term sentence imposed in criminal proceedings constitutes an obstacle to the very adoption of a return decision would necessarily mean defining an abstract threshold in respect of the duration of that sentence beyond which the Member State would be required to refrain from adopting the decision. There is nothing in Directive 2008/115, however, to suggest such a threshold. Neither Article 6, which in principle requires the adoption of a return decision in the event of an illegal stay, nor Articles 8 and 9, which govern its enforcement and postponement, draw a distinction between ‘short’ and ‘long’ sentences or provide for a specific regime for life sentences.
54.      I believe that the introduction, by way of interpretation, of a rigid temporal criterion (1, 5, 10 or 30
years’ detention?) would amount to adding to Directive 2008/115 a condition that it does not contain. Moreover, the diversity of national criminal justice systems, conditional release schemes and detailed rules concerning how sentences are organised would necessarily lead to differentiated thresholds from one Member State to another, with the risk of undermining legal certainty, fragmenting the return regime and ultimately reducing the effectiveness of Directive 2008/115.
55.      Fourthly, and as has been noted in particular by the Netherlands Government, a criterion based solely on the length of the sentence would have paradoxical effects in the light of the purpose of Directive 2008/115. The perpetrators of the most serious offences, sentenced to very long sentences or life imprisonment, such as the persons concerned in the cases in the main proceedings, would escape the adoption of a return decision, at the moment of their criminal conviction, on the ground that their removal could take place only in the very long term, whereas individuals handed lighter sentences would remain fully subject to the regime of that directive.
56.      Such a configuration would, to my mind, create a difference in treatment difficult to justify. The more serious the offence, the more the person concerned would, in practice, be ‘protected’ against the adoption, at the moment of his or her criminal conviction, of a decision establishing that he or she is staying illegally and resulting in his or her removal. The Court has however consistently pointed out, in essence, that Directive 2008/115 is specifically intended to avoid parallel regimes for managing illegal stays, by imposing a uniform framework for the adoption and enforcement of return decisions. (35) The length of the sentence cannot, therefore, function as a factor conditioning the very adoption of the return decision.
57.      Fifthly, such an approach is consistent with the objective of effectiveness pursued by Directive 2008/115. As has been stated in particular by the Commission and by the German and Netherlands Governments, where the return decision is adopted during the execution of the sentence, the authorities have the necessary time to prepare, in advance, the specific arrangements for removal, so that the removal can take place as soon as possible, within the meaning of
Article 8(1) of Directive 2008/115, once the sentence imposed has been served. It also makes it possible, as the Belgian and Netherlands Governments have noted, to preserve the use of international instruments concerning the transfer of sentenced persons, (36) which presuppose the existence of a previously adopted removal measure, without Directive 2008/115 being intended to prevent it provided that the safeguards contained therein are respected.
58.      Sixthly, the relationship between the return decision and custodial sentences may find useful clarification in the judgment in Gnandi. (37) In that judgment, the Court found that, after the rejection at first instance of an application for international protection, the stay of the person concerned becomes illegal within the meaning of Directive 2008/115, such that a return decision may be adopted, or even combined into a single act with the decision ending the legal stay. It added however that, where the appeal against that return decision has suspensory effect, all the effects of that decision must be suspended until the final outcome of the appeal proceedings, the person concerned retaining, in the meantime, the rights necessary for the protection of the principle of non-refoulement. The Court thus recognised the coexistence of three elements: an illegal stay, a return decision already issued and a legal impossibility of enforcing removal for a certain period. According to the Court, Directive 2008/115 does not preclude that, but it regulates its coordination by means of a defined
regime for suspension.
59.      Mutatis mutandis, that logic may be applied by analogy to the situation of a third-country national sentenced to a long term of imprisonment or to a life sentence subject to review. (38) Once the illegal nature of the stay has been established, the Member State must, in principle, adopt a return decision under Article 6 of Directive 2008/115. The obstacle posed by imprisonment must be addressed not by refraining from taking any decision, but by postponing its enforcement for an ‘appropriate period’ within the meaning of Article 9(2) of that directive.
60.      Lastly, seventhly, the case of life sentences in my view calls for a separate analysis. Where a life sentence is subject to review, that is to say eligible for adjustment, periodic reviews or conditional release, there is still a prospect of release, even if remote. In that context, postponement of the enforcement of the return decision remains compatible with Directive 2008/115, as long as it is based on an identifiable prospect of removal and is subject to regular reviews. As has been noted in points 51 and 52 above, the concept of ‘appropriate period’ may thus cover a substantial period of time, provided that the authorities verify periodically whether and when removal may actually be envisaged, in the light of changes in the criminal situation of the person concerned.
61.      However, if the life sentence is not subject to review, that is to say if no mechanism for release or adjustment is provided for and there is no prospect of release under domestic law, (39) it seems to me that the very logic of Directive 2008/115 reaches its limits as to the obligation to adopt a return decision. The concept of ‘appropriate period’ cannot be extended to the point of covering an indefinite suspension, which would amount, in practice, to an indefinite postponement of the removal. Such an unlimited postponement would run counter to the requirement of a realistic prospect of removal (40) and would contradict the purpose of that directive, which seeks to establish an effective policy of removal and repatriation of illegally staying third-country nationals, as has been recalled in point 32 above.
62.      That distinction between sentences subject to review and those which are irreducible ultimately leads to an examination of the application of the principle of proportionality (41) in relation to Directive 2008/115. As has been consistently stated in the case-law pertaining to that directive, that principle must be observed at all stages of the return procedure. (42) So far as concerns the dissociation between the issue of the return decision and the removal of the third-country national, a nuanced approach is required. On the one hand, in terms of the obligation arising from Article 6(1) of Directive 2008/115 to adopt a return decision against an illegally staying third-country national, I consider that, beyond the exceptions provided for in paragraphs 2 to 5 of that provision and the interests referred to in Article 5 of that directive, the principle of proportionality cannot transform the duration of the sentence into a criterion conditioning the very adoption of the decision.
63.      On the other hand, that principle requires that the return decision be adopted and maintained only in so far as it remains linked to a realistic prospect of removal. Thus, only exceptional situations, characterised by the definitive absence of any prospect of removal, such as those involving irreducible life sentences, may lead to the finding that a return decision destined to remain permanently unenforceable no longer aligns with the objective of Directive 2008/115 and cannot, therefore, be adopted without infringing the requirements of EU law.
64.      In conclusion, I am of the opinion that Articles 6 and 8 of Directive 2008/115 must be interpreted as not precluding the adoption of a return decision against an illegally staying third-country national who is serving a long-term prison sentence, where his or her removal will take place only at the end of that sentence, provided that the authorities verify periodically whether removal may actually be envisaged, in the light of changes in the criminal situation of the person concerned. However, those provisions, viewed from the perspective of the principle of proportionality, would preclude the adoption of a return decision where an irreducible life sentence would eliminate any prospect of removal, since it would become impossible in practice.
The second question
65.      By its second question, the referring court seeks, in essence, to ascertain whether Directive 2008/115, and in particular Article 6(4) thereof, must be interpreted as requiring a Member State which decides to imprison, for a long period, an illegally staying third-country national, without being able to adopt a return decision in respect of that individual, to issue him or her with a residence permit or permission to stay, be it temporarily.
66.      As the referring court has noted, that question would arise only if the answer to the first question were that Directive 2008/115 precludes, in such a situation, the adoption of a return decision against the national concerned. It is only in that scenario, where the return procedure would remain closed, that the question would arise as to whether the Member State is required to ‘regularise’ the presence of the person concerned on its territory by granting him or her a right of residence.
67.      Assuming that it is necessary to answer that second question, it is appropriate to recall, first of all, the scope of Directive 2008/115. According to settled case-law, that directive is not intended to harmonise in their entirety the national rules of the Member States on the stay of third-country nationals. It establishes common standards and procedures only for the issue of return decisions and the implementation of those decisions. (43) Likewise, the Court has made it clear that Directive 2008/115 is not intended to govern the situation of third-country nationals in respect of whom no return decision can be issued, with the result that the Member States remain competent to determine, in accordance with EU law, the rules applicable to their presence on the territory. (44)
68.      Furthermore, Article 6(4) of Directive 2008/115 provides that Member States may at any moment decide to grant a residence permit or other permission to stay for compassionate, humanitarian or other reasons, including after the adoption of a return decision, in which case that decision is to be withdrawn or suspended. As the Court has pointed out, that power is not limited to the reasons expressly referred to, but allows Member States to rely on any other reason which they deem appropriate. (45) However, Article 6(4) merely recognises that Member States enjoy a margin of discretion; it does not create, conversely, a positive obligation to grant a residence permit in situations where the directive does not permit or no longer permits the adoption of a return decision. (46)
69.      In those circumstances, I consider that Directive 2008/115 does not impose an obligation on a Member State concerned to grant a residence permit to an illegally staying third-country national during the execution of his or her custodial sentence in that Member State.
Conclusion
70.      In light of the foregoing considerations, I propose that the Court answer the questions referred for a preliminary ruling by the Raad van State (Council of State, Netherlands) as follows:
(1)      Articles 6 and 8 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
must be interpreted as
not precluding the adoption of a return decision against an illegally staying third-country national who is serving a long-term prison sentence, where his or her removal will take place only at the end of that sentence, provided that the authorities verify periodically whether removal may actually be envisaged, in the light of changes in the criminal situation of the person concerned. However, those provisions, viewed from the perspective of the principle of proportionality, would preclude the adoption of a return decision where an irreducible life sentence would eliminate any prospect of removal, since it would become impossible in practice.
(2)      Directive 2008/115
must be interpreted as
not imposing an obligation on a Member State concerned to grant a residence permit to an illegally staying third-country national during the execution of his or her custodial sentence in that Member State.
1      Original language: French.
i      The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.
2      Directive of the European Parliament and of the Council of 16 December 2008 (OJ 2008 L 348, p. 98).
3      See, inter alia, judgments of 23 April 2015, Zaizoune (C‑38/14, EU:C:2015:260, paragraph 34), and of 20 October 2022, Centre public d’action sociale de Liège (Withdrawal or suspension of a return decision) (C‑825/21, EU:C:2022:810, paragraph 50).
4      Stb. 2000, No 495.
5      Stb. 2000, No 497.
6      According to the Besluit Adviescollege levenslang gestraften (Decree of the Advisory Board on Life Sentences), the question of granting a pardon to a prisoner serving a life sentence will in any event be examined after 25
years of detention.
7      C‑441/19, ‘the judgment in TQ’, EU:C:2021:9.
8      C‑673/19, ‘the judgment in M’, EU:C:2021:127.
9      See Article 64 of the Law of 2000 on foreign nationals and Article 6.1b(1) of the Decree of 2000 on foreign nationals.
10      See point 2 of this Opinion and the case-law cited.
11      As the Court recalled in paragraph 31 of its judgment of 6 December 2011, Achughbabian (C‑329/11, ‘the judgment in Achughbabian’, EU:C:2011:807): ‘the competent authorities are required, in order to prevent the objective of Directive 2008/115 … from being undermined, to act with diligence and take a position without delay on the legality or otherwise of the stay of the person concerned. Once it has been established that the stay is illegal, the said authorities must, pursuant to Article 6(1) of the said directive and without prejudice to the exceptions laid down by the latter, adopt a return decision’. The same applies to the detention measures provided for, inter alia, by Directive 2008/115. Those measures may not compromise the attainment of the objectives pursued: ‘the aim of detention measures, for the purposes of Directive 2008/115, is not the prosecution or punishment of criminal offences, but the achievement of the objectives pursued by that directive with regard to return’ (see judgment of 4 September 2025, Adrar (C‑313/25 PPU, EU:C:2025:647, paragraph 50)).
12      See point 2 of this Opinion and the case-law cited.
13      See recitals 2 and 4 of Directive 2008/115.
14      See judgments of 28 April 2011, El Dridi (C‑61/11 PPU, ‘the judgment in El Dridi’, EU:C:2011:268, paragraph 59), and in Achughbabian (paragraph 43). See, also, judgment of 5 June 2014, Mahdi (C‑146/14 PPU, EU:C:2014:1320, paragraph 38): ‘in accordance with Article 79(2) TFEU, 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 to be returned in a humane manner and with full respect for their fundamental rights and dignity’. See, also, judgments of 14 May 2020, Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság (C‑924/19 PPU and C‑925/19 PPU, EU:C:2020:367, paragraph 121), and in TQ (paragraph 70).
15      See, to that effect, judgment of 3 June 2021, Westerwaldkreis (C‑546/19, EU:C:2021:432, paragraph 55). It should nevertheless be noted that, as will be analysed in point 44 below, it is clear from the case-law that the adoption of a return decision implies that the authorities of the Member State concerned take into account, from the outset, the foreseeable conditions for its enforcement, with the result that such a decision cannot validly be adopted where, having regard to the circumstances of the case, removal cannot reasonably be envisaged in practice. Moreover, I consider it useful to note that, in the Commission document entitled ‘Proposal for a Directive of the European Parliament and of the Council on common standards and procedures in Member States for returning illegally staying third-country nationals’ (COM(2005) 391 final), the possibility of postponing ‘the enforcement of a return decision for an appropriate period, taking into account the specific circumstances of the individual case’ was included in Article 8(1). In the final text, that option is reproduced in Article 9(2), but is focussed on the phase of the actual ‘removal’. That move reflects, in my view, the legislature’s intention to preserve the mandatory and systematic nature of the adoption of a return decision, while leaving Member States some leeway to adapt the enforcement of removal over time in the light of the circumstances specific to each case.
16      As is apparent from the order for reference, none of those exceptions applies in the cases in the main proceedings.
17      See Lebœuf, L., ‘La Cour de justice à la poursuite d’une conciliation entre la compétence pénale des États membres et l’effet utile de la directive retour. CJUE, 1er octobre 2015, Celaj, aff. C‑290/14, EU:C:2015:640’, Revue des affaires européennes – Law & European affairs, 2015/4, p. 749.
18      Judgment in El Dridi (paragraphs 58 to 62).
19      See judgment in Achughbabian (paragraphs 42 to 45).
20      See judgment of 6 December 2012, Sagor (C‑430/11, ‘the judgment in Sagor’, EU:C:2012:777, paragraph 45). The Court specifically states that ‘[the] risk of undermining the return procedure is present in particular where the applicable legislation does not provide that the enforcement of a home detention order imposed on an illegally staying third-country national must come to an end as soon as it is possible to effect that person’s removal’.
21      See judgment of 23 April 2015, Zaizoune (C‑38/14, EU:C:2015:260, paragraph 37).
22      See judgment in Sagor (paragraph 36).
23      Judgment in Achughbabian (paragraph 41).
24      Judgment of 7 June 2016 (C‑47/15, ‘the judgment in Affum’, EU:C:2016:408).
25      Judgment in Affum (paragraph 65). Emphasis added.
26      The Le Robert dictionary defines the French term ‘répression’, used in the French version of that judgment and translated as ‘punish’ in the English version, as follows: ‘Action de réprimer: châtiment, punition. La répression d’un crime. Répression et prévention’ (The act of repressing: chastisement, punishment. The punishment of a crime.
Repression and prevention), available online at the following address: https://dictionnaire.lerobert.com/definition/repression.
27      C‑69/21, EU:C:2022:913.
28      Judgment in M (paragraphs 38 to 42).
29      It should be noted in that regard that, in the judgment in TQ, the Court held, inter alia, that Article 8 of Directive 2008/115 precluded a practice of the authorities of the Member State concerned consisting of adopting return decisions in respect of unaccompanied minors without removing them until those minors had reached the age of 18 (paragraphs 79 and 80). Despite the similarity in terms of the time lag between the return decision and its enforcement, the solution adopted in the judgment in TQ
does not seem to me to be transposable to the cases in the main proceedings. The judgment in TQ concerned unaccompanied minors and highlighted a lack of diligence on the part of the national authorities in carrying out the checks required by Article 10 of Directive 2008/115 in favour of a particularly vulnerable group. The present cases, for their part, concern adults sentenced to long-term or even life sentences and the de facto suspension of removal results exclusively from the execution of those sentences.
30      Emphasis added.
31      In my view, the two grounds set out by way of example in Article 9(2) of Directive 2008/115 highlight a common criterion. These are situations in which removal is temporarily impossible or meaningless
owing to an objective impediment. It is true that the final version frames more precisely that option than Article 8(1) of the Commission’s initial proposal, which was worded in more general terms (see footnote 15
of the present Opinion). However, I consider that the maintenance, in Article 9(2), of the same basic logic, namely postponement for an appropriate period, depending on the circumstances of the case, shows that the legislature intended to retain that discretion, while including it in a more structured framework. Where a third-country national is sentenced to a long custodial sentence and must serve that sentence, however, it is not possible for the Member State, in fact and in law, to remove him or her during the period of detention. Such a situation therefore falls within the same logic as the situations referred to in that Article 9(2).
32      It is worth recalling, in addition, that the Court stated, in paragraph 45 of the judgment in Achughbabian, that the objective of removing a person ‘as soon as possible’ would be thwarted ‘if, after establishing that a third-country national is staying illegally, the Member State were to preface the implementation of the return decision, or even the adoption of that decision, with a criminal prosecution followed, in appropriate cases, by a term of imprisonment. Such a step would delay the removal … and does not, moreover, appear amongst the justifications for a postponement of removal referred to in Article 9 of Directive 2008/115’ (emphasis added). That finding must, however, be read in the light of paragraph 44 of that judgment, in which the Court responded to the argument that ‘Articles 8, 15 and 16 of Directive 2008/115 … do not prevent a Member State from sentencing an illegally staying third-country national to a term of imprisonment before carrying out the removal of that person in accordance with the rules laid down by the directive’. It is clear from that context that the Court was referring to criminal proceedings relating to an illegal stay and not to convictions for other separate criminal offences.
33      See, by analogy, judgment of 19 December 2024, Kaduna (C‑244/24 and C‑290/24, EU:C:2024:1038, in particular paragraph 143).
34      It should also be noted that, following the judgment in TQ (paragraph 81), the Court requires an updated assessment of the risks of refoulement and of the effects of removal on family life.
35      See, inter alia and to that effect, judgments in El Dridi (paragraphs 31 and 55); in Achughbabian (paragraph 43); in Sagor (paragraph 32), and in Affum (paragraphs 61, 82 and 86), where it is essentially recalled that the purpose of Directive 2008/115 is to establish an effective return policy based on ‘common standards and procedures’.
36      See, inter alia, Article 3 of the Additional Protocol to the Convention on the Transfer of Sentenced Persons.
37      Judgment of 19 June 2018 (C‑181/16, ‘the judgment in Gnandi’, EU:C:2018:465).
38      However, the analogy drawn with the judgment in Gnandi must be treated with caution. In the first place, the obstacle to removal is not of the same nature. In the judgment in Gnandi, it derived from a right under EU law: the appeal against the decision rejecting the application for international protection, with suspensory effect, and the resulting right to remain. The impossibility of removal thus resulted directly from the need to guarantee an effective remedy and respect for the principle of non-refoulement. In the present cases, the obstacle is exclusively criminal and domestic. It concerns the execution of a long sentence or life imprisonment in a safe Member State, without any link to a right of residence conferred by EU law. In the second place, the time frame is radically different. The suspension in the judgment in Gnandi is limited to the duration of the appeal, whereas here the impediment may last 10, 15 or 20 years, or indeed a lifetime. The scheme adopted in the judgment in Gnandi (illegal stay established, return decision adopted, but enforcement suspended within a specific legal framework) can therefore be referred to only by way of analogy, and not as a transposable example.
39      It seems important to me to stress that such a scenario remains largely theoretical, since a situation of that kind would most likely come up against
Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ‘ECHR’), as it is interpreted by the European Court of Human Rights. In particular, according to that court, the ECHR does not, in principle, prohibit the imposition of a life sentence. However, in order to be compatible with Article 3 ECHR, such a penalty must be de jure and de facto reducible, that is to say it must offer a prospect of release and a possibility of review (see ECtHR, 9 July 2013, Vinter and Others v. the United Kingdom [GC] (CE:ECHR:2013:0709JUD006606909, § 110 and 122)). See also, on the same subject, ECtHR, 26 April 2016, Murray v. the Netherlands [GC], (CE:ECHR:2016:0426JUD001051110, § 101 to 104); ECtHR, 17 January 2017, Hutchinson v. the United Kingdom [GC] (CE:ECHR:2017:0117JUD005759208, § 42), and ECtHR, 13 June 2019, Marcello Viola v. Italy (No 2) (CE:ECHR:2019:0613JUD007763316, § 136): ‘it would be incompatible with human dignity – which lies at the very essence of the Convention system – forcefully to deprive a person of his freedom without striving towards his rehabilitation and providing him with the chance to someday regain that freedom’ (see, in general, on this issue, Maierhöfer, C., ‘Artikel
3. Verbot des Folter’, in Frowein, J.A., Peukert, W., Europäische MenschenRechtsKonvention. EMRK-Kommentar, N.P. Engel Verlag, Kehl am Rhein, 2024, 4th edition, p. 130 et seq.). Furthermore, it should be noted that, as has been stated in point 13 of this Opinion, in the case of X in the main proceedings, the question of the grant of a pardon will in any event be examined after 25 years of detention.
40      In referring to the absence of a ‘realistic prospect of removal’, I am echoing the concept of a ‘reasonable prospect of removal’ referred to in Article 15(4) of Directive 2008/115, as interpreted by the Court in its judgment of 30 November 2009, Kadzoev (C‑357/09 PPU, EU:C:2009:741). That reference, however, concerns a separate issue, namely that of detention for the purpose of return, and not that which is at issue in the cases in the main proceedings.
41      I would recall that, as regards the ECHR, the compatibility with Article 3 of that convention of a life sentence which is not de jure and de facto subject to review would be called into question (see footnote 39 above).
42      See judgments in El Dridi (paragraph 41), and of 11 June 2015, Zh. and O. (C‑554/13, EU:C:2015:377, paragraph 49).
43      As is apparent, inter alia, from the judgment in M (paragraph 43).
44      See judgment in M (paragraphs 44 and 45). I recall that, in that case, it was not possible to adopt a return decision on account, inter alia, of the application of the principle of non-refoulement.
45      See, to that effect, judgment of 20 October 2022, Centre public d’action sociale de Liège (Withdrawal or suspension of a return decision) (C‑825/21, EU:C:2022:810, paragraph 43). In that regard, the Court indicated that the discretion granted by the EU legislature to Member States is ‘very broad’ (paragraph 44 of that judgment).
46      Thus, in the judgment of 22 November 2022, Staatssecretaris van Justitie en Veiligheid (Removal – Medicinal cannabis) (C‑69/21, EU:C:2022:913, paragraph 86), the Court found that Directive 2008/115 ‘does no more than permit Member States to grant, for compassionate or humanitarian reasons, a right of residence, on the basis of their national law, and not EU law, to third-country nationals who are staying illegally on their territory’.