Provisional text
JUDGMENT OF THE COURT (Third Chamber)
13 May 2026 (*)
( Reference for a preliminary ruling – Area of freedom, security and justice – Common standards and procedures in Member States for returning illegally staying third-country nationals – Directive 2008/115/EC – Articles 6, 8 and 9 – Illegally staying third-country nationals imprisoned for a long term or for life – Possibility of adopting a return decision – Procedural safeguards )
In Case C‑877/24 [Shamsi], (i)
REQUEST for a preliminary ruling under Article 267 TFEU from the Raad van State (Council of State, Netherlands), made by decision of 18 December 2024, received at the Court on the same day, in the proceedings
X,
Y
v
Minister van Asiel en Migratie, formerly Staatssecretaris van Justitie en Veiligheid,
THE COURT (Third Chamber),
composed of C. Lycourgos (Rapporteur), President of the Chamber, O. Spineanu‑Matei, S. Rodin, N. Piçarra and N. Fenger, Judges,
Advocate General: D. Spielmann,
Registrar: A. Calot Escobar,
having regard to the written procedure,
after considering the observations submitted on behalf of:
–        X, by M.F. Wijngaarden, advocaat,
–        Y, by I.C. van Krimpen, advocaat,
–        the Netherlands Government, by M.K. Bulterman and M.H.S. Gijzen, acting as Agents,
–        the Belgian Government, by L. Jans and M. Van Regemorter, acting as Agents,
–        the Czech Government, by A. Edelmannová,
M. Smolek and J. Vláčil, acting as Agents,
–        the German Government, by J. Möller and R. Kanitz, acting as Agents,
–        the European Commission, by F. Blanc, A. Katsimerou, F. van Schaik and J. Vondung, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 22 January 2026,
gives the following
Judgment
1        This request for a preliminary ruling concerns the interpretation of Articles 6, 8 and 9 of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (OJ 2008 L 348, p. 98).
2        The request has been made in the context of proceedings between X and Y, third-country nationals, and the Minister van Asiel en Migratie (Minister for Asylum and Migration, Netherlands) (‘the Minister’), formerly Staatssecretaris van Justitie en Veiligheid, concerning the lawfulness of return decisions issued against them.
Legal context
3        Recital 4 of Directive 2008/115 states:
‘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 of that directive provides:
‘1.      This Directive applies to third-country nationals staying illegally on the territory of a Member State.
2.      Member States may decide not to apply this Directive to third-country nationals who:
(a)      are subject to a refusal of entry … or who are apprehended or intercepted by the competent authorities in connection with the irregular crossing by land, sea or air of the external border of a Member State and who have not subsequently obtained an authorisation or a right to stay in that Member State;
(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.
3.      This Directive shall not apply to persons enjoying the Community right of free movement …’
5        Article 3(3) of the said directive provides:
‘For the purpose of this Directive the following definitions shall apply:
…
(3)      “return” means the process of a third-country national going back – whether in voluntary compliance with an obligation to return, or enforced – to:
–        his or her country of origin, or
–        a country of transit in accordance with Community or bilateral readmission agreements or other arrangements, or
–        another third country, to which the third-country national concerned voluntarily decides to return and in which he or she will be accepted’.
6        Article 5 of the same directive stipulates:
‘When implementing this directive, Member States shall take due account of:
(a)      the best interests of the child;
(b)      family life;
(c)      the state of health of the third-country national concerned,
and respect the principle of non-refoulement.’
7        Article 6(1) to (5) of Directive 2008/115 states:
‘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.’
8        Article 8(1) of that directive is worded as follows:
‘Member States shall take all necessary measures to enforce the return decision if no period for voluntary departure has been granted … or if the obligation to return has not been complied with within the period for voluntary departure granted …’
9        According to Article 9(1) and (2) 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.’
The disputes in the main proceedings and the questions referred for a preliminary ruling
X’s situation
10      X was the holder of a residence permit of unlimited duration in the Netherlands. On 19 January 2015, he was sentenced definitively, by a Netherlands court, to life imprisonment for several murders, committed between 12 May 2011 and 20 May 2011.
11      By decision of 20 September 2018, the Minister withdrew X’s residence permit with retroactive effect from 12 May 2011, ordered him to leave the territory of the European Union immediately and imposed a 10-year entry ban on him. By decision of 27 July 2020, the Minister rejected a complaint made by X against his decision of 20 September 2018.
12      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 had been required to adopt a return decision against X and that that decision was necessary in order to ensure his removal in the event that he were to be released, such release being possible after 25 years of detention.
13      X brought an appeal against that judgment before the Raad van State (Council of State, Netherlands), which is the referring court.
Y’s situation
14      Y entered the Netherlands on 31 August 2018. On 16 November 2020, he was sentenced definitively, by a Netherlands court, to 25 years of imprisonment for two counts of attempted murder with a terrorist aim, committed on the day of his entry into the Netherlands.
15      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 a 20-year entry ban on him.
16      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, due to the execution of a long-term prison sentence, he was not able to effect the removal.
17      The Minister has lodged an appeal against that judgment before the referring court.
Considerations common to X and Y’s situations
18      The referring court emphasises 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.
19      The parties to the main proceedings nevertheless disagree as to whether it is possible for the Minister to adopt a return decision against X and Y, in a context in which the Minister cannot remove them and they are unable to comply with their return obligation until the end of their detention on the basis of the sentences imposed on them.
20      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 situations 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 situations, any possibility of return is ruled out for a long period. According to that court, an analysis of the case-law of the Court of Justice does not resolve the difficulty of interpreting the said directive with which it is faced.
21      In the second place, in the event that the Minister was not empowered to adopt a return decision in the cases in the main proceedings, the referring court wishes to ascertain whether he was then obliged, by virtue of 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.
22      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 return decisions such as those at issue in the main proceedings.
23      In those circumstances, the Raad van State (Council of State) decided to stay the proceedings and to refer the following questions to the Court of Justice 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?’
Consideration of the questions referred
The first and third questions
24      By its first and third questions, which it is appropriate to examine together, the referring court asks, in essence, whether Articles 6, 8 and 9 of Directive 2008/115, read in combination with the principle of proportionality, must be interpreted as precluding the adoption of a return decision against an illegally staying third-country national where, due to the execution of a long-term or lifelong sentence imposed on him or her, he or she will not be able either to leave the territory of the Member State concerned voluntarily or to be removed for a long period.
25      Article 2(1) of Directive 2008/115 stipulates that that directive applies to third-country nationals staying illegally on the territory of a Member State.
26      While Article 2(2) and (3) thereof provide for certain limitations, either mandatory or optional, to the scope of that directive, Article 2(2)(b) thereof authorising, in particular, Member States to decide not to apply it to third-country nationals who are subject to return as a criminal law sanction or as a consequence of a criminal law sanction, it must be pointed out that those provisions in no way preclude that same directive from being applied to third-country nationals who have been sentenced to a term of imprisonment or who are serving such a sentence.
27      It follows from Article 6(1) of Directive 2008/115 that, once the unlawful nature of residence has been established, any third-country national must, without prejudice to the exceptions provided for in paragraphs 2 to 5 of that Article 6 and in strict compliance with the requirements laid down in Article 5 of that directive, be the subject of a return decision, which must identify, among the third countries referred to in Article 3(3) of that directive, the country to which the third-country national must return (judgment of 22 November 2022, Staatssecretaris van Justitie en Veiligheid (Removal – Medicinal cannabis), C‑69/21, EU:C:2022:913, paragraph 53 and the case-law cited).
28      In that regard, it is important to emphasise that none of the exceptions set out in Article 6(2) to (5) of that same directive applies, either directly or indirectly, to third-country nationals who have been sentenced to a term of imprisonment or who are serving such a sentence.
29      Likewise, it does not follow from the requirements of Article 5 of Directive 2008/115, which obliges Member States to take due account of certain interests and to respect the principle of non-refoulement, that a Member State should, as a general rule, refrain from adopting a return decision against an illegally staying third-country national where he or she has been sentenced to a term of imprisonment or is serving such a sentence.
30      It should however be noted that, once a return decision has been adopted, in compliance with the substantive and procedural safeguards established by Directive 2008/115, and, where appropriate, the obligation to return has not been complied with within the period for voluntary departure granted, the Member State concerned is required to remove the third-country national concerned, in accordance with Article 8 of that directive (see, to that effect, judgment of 12 September 2024, Changu, C‑352/23, EU:C:2024:748, paragraph 57 and the case-law cited). It follows both from the duty of sincere cooperation on the Member States and from the requirements of effectiveness referred to, in particular, in recital 4 of the said directive, that that obligation to carry out the removal of that third-country national must be fulfilled as soon as possible (see, to that effect, judgments of 23 April 2015, Zaizoune, C‑38/14, EU:C:2015:260, paragraph 34, and of 15 February 2016, N., C‑601/15 PPU, EU:C:2016:84, paragraph 76).
31      As the referring court observes, however, a Member State which, before the return procedure has been completed, executes a long-term or lifelong prison sentence against a third-country national will not be complying with its obligation to remove that third-country national for several years, or even decades, while that third-country national will also be unable to leave the territory of that Member State voluntarily during that period.
32      That being said, such an obstacle to the swift completion of the return procedure does not prevent the competent authorities of a Member State from handing down a long-term or lifelong prison sentence on an illegally staying third-country national and from executing it.
33      It is true that the Court has held that whilst, in principle, criminal legislation and the rules of criminal procedure fall within the competence of the Member States, this area of law may nevertheless be affected by EU law. The Court inferred that the Member States cannot apply legislation capable of imperilling the realisation of the aims pursued by Directive 2008/115, thus depriving it of its effectiveness (see, to that effect, judgment of 6 December 2011,
Achughbabian, C‑329/11, EU:C:2011:807, paragraph 33).
34      However, it is also apparent from the Court’s case-law that that directive does not prevent the Member States from being able to impose a sentence of imprisonment to punish the commission, by an illegally staying third-country national, of criminal offences other than those stemming from the mere fact of illegal stay or entry, including in situations where the return procedure has not yet been completed (see, to that effect, judgment of 7 June 2016, Affum, C‑47/15, EU:C:2016:408, paragraph 65).
35      As the Advocate General observed in point 39 of his Opinion, the power of the Member States to punish the commission of such criminal offences by a custodial sentence covers not only the power to impose such a sentence, but also the power to execute the sentence imposed.
36      In that context, it appears necessary, in order to answer the first and third questions, to determine whether the obligation on the Member State concerned to remove as soon as possible a third-country national who is the subject of a return decision, recalled in paragraph 30 of the present judgment, precludes the adoption of such a decision in a situation where it is already established, following the handing-down and execution of a long-term or lifelong prison sentence, that an obligation to return will not, in any event, be fulfilled for a long period.
37      In that regard, it should be noted, in the first place, that it follows from the Court’s case-law that the adoption of a return decision at a time when the competent authorities are not yet certain of being able to enforce it is not necessarily ruled out.
38      Thus, the Court has held that it is open to a Member State to adopt a return decision at the same time as a decision rejecting at first instance an application for international protection, even though the possible bringing of an appeal against that rejection would in principle entail, for the person concerned, authorisation to remain on the territory of the Member State at issue pending the examination of that appeal, which authorisation would preclude any possibility of removing that person (see, to that effect, judgment of 19 June 2018, Gnandi, C‑181/16, EU:C:2018:465, paragraph 59).
39      The adoption of a return decision as soon as the illegal nature of the stay is determined is moreover liable to facilitate the achievement of the primary objective of Directive 2008/115, which is to establish an effective removal and repatriation policy that fully respects the fundamental rights and dignity of the persons concerned (see, to that effect, judgments of 19 June 2018, Gnandi, C‑181/16, EU:C:2018:465, paragraph 48, and of 22 November 2022, Staatssecretaris van Justitie en Veiligheid (Removal – Medicinal cannabis), C‑69/21, EU:C:2022:913, paragraph 88), in particular by guaranteeing that any challenges relating to the lawfulness of such a decision may be examined without excessively delaying the fulfilment of the return obligation and by allowing the competent authorities the time necessary to take measures enabling the removal to be carried out in practice.
40      In the second place, it should nevertheless be noted that, even where a third-country national is staying illegally on the territory of a Member State, the foreseeable impossibility of fulfilling a return obligation concerning him or her may, in certain specific cases, preclude the adoption of a return decision against that third-country national.
41      Thus, the Court has found that a return decision cannot be adopted against an unaccompanied minor without it first being verified that adequate reception conditions enabling the effective fulfilment of the return obligation are in place in the envisaged country of destination (see, to that effect, judgment of 14 January 2021, Staatssecretaris van Justitie en Veiligheid (Return of an unaccompanied minor),
C‑441/19, EU:C:2021:9, paragraphs 55, 59 and 60).
42      More broadly, the Court has held that Article 5 of Directive 2008/115, which is a general rule binding on the Member States as soon as they implement that directive, obliges inter alia the competent national authority to observe, at all stages of the return procedure, the principle of non-refoulement, which is guaranteed, as a fundamental right, in Article 18 of the Charter of Fundamental Rights of the European Union (‘the Charter’), read in conjunction with Article 33 of the Convention relating to the Status of Refugees, signed in Geneva on 28 July 1951 (United Nations Treaty Series, Vol. 189, p. 150, No 2545 (1954)), and in Article 19(2) of the Charter. That is the case, in particular, where that authority is contemplating, after hearing the person concerned, the adoption of a return decision in relation to that person (see, to that effect, judgments of 22 November 2022, Staatssecretaris van Justitie en Veiligheid (Removal – Medicinal cannabis), C‑69/21, EU:C:2022:913, paragraph 55, and of 6 July 2023, Bundesamt für Fremdenwesen und Asyl (Refugee who has committed a serious crime), C‑663/21, EU:C:2023:540, paragraph 49).
43      The Court infers that Article 5 of Directive 2008/115 precludes a third-country national from being the subject of a return decision where that decision concerns, as the country of destination, a country in respect of which substantial grounds have been shown for believing that, if that decision is implemented, that third-country national would be exposed to a real risk of treatment contrary to Article 18 or Article 19(2) of the Charter (judgments of 22 November 2022, Staatssecretaris van Justitie en Veiligheid (Removal – Medicinal cannabis), C‑69/21, EU:C:2022:913, paragraph 56, and of 6 July 2023, Bundesamt für Fremdenwesen und Asyl (Refugee who has committed a serious crime), C‑663/21, EU:C:2023:540, paragraph 50).
44      However, the circumstances characterising the cases which gave rise to the judgments mentioned in paragraphs 41 to 43 of the present judgment differ significantly from situations such as those at issue in the main proceedings.
45      Those judgments, after all, relate to cases in which, on the day on which a return decision was adopted, either it had not been established that the return of the third-country national concerned to the country of destination could take place without violating that third-country national’s fundamental rights, or it had been established that such a return would entail a serious risk of violation of those fundamental rights.
46      Conversely, in the case at hand, the referring court does not indicate that it is alleged or established that a return to the country of destination would be liable to violate the fundamental rights of the third-country nationals concerned. In such situations, the imposition of an obligation to return and the foreseeable conditions for the fulfilment of that obligation do not appear, on the day on which it is envisaged to adopt a return decision, such as to create a risk of violation of the fundamental rights of those third-country nationals, with the result that the grounds which justified, in the judgments mentioned in paragraphs 41 to 43 of the present judgment, the ruling-out of the adoption of such a decision cannot lead to the same solution in the case at hand.
47      In the third place, it should be emphasised that the EU legislature expressly envisaged that, in certain situations, a return decision could not be enforced immediately and defined the legal regime applicable to those situations.
48      In particular, Article 9(2) of Directive 2008/115 provides that Member States may postpone removal for an appropriate period taking into account the specific circumstances of the individual case. That provision states that Member States are in particular to take into account the physical state or mental capacity of the third-country national concerned as well as technical reasons, such as lack of transport capacity, or failure of the removal due to lack of identification.
49      The said provision thus authorises the postponement of removal on the basis of specific circumstances, while providing certain examples, without however listing exhaustively the cases in which such a postponement may be ordered.
50      The imposition of a prison sentence following the commission of a criminal offence other than those relating exclusively to illegal stay or entry, on the one hand, and the execution of that sentence, on the other, must be regarded as constituting such a circumstance, since it follows from paragraphs 34 and 35 of the present judgment that such measures fall within the exercise of a Member State’s criminal jurisdiction which Directive 2008/115 does not preclude.
51      Certainly, the Court has held that the initiation of a criminal prosecution, followed, in appropriate cases, by a term of imprisonment, does not appear amongst the justifications for a postponement of removal referred to in Article 9 of Directive 2008/115 (see, to that effect, judgment of 6 December 2011, Achughbabian, C‑329/11, EU:C:2011:807, paragraph 45). That clarification related, however, to a particular situation, namely that of a criminal prosecution brought in respect of acts relating to an illegal stay, prior to the initiation of the return procedure.
52      Moreover, the requirement, set out in Article 9(2) of Directive 2008/115, that the postponement of removal must be ordered for an appropriate period cannot be read as meaning that such a postponement may be implemented only in order to ensure the execution of a short-term prison sentence.
53      The EU legislature’s choice not to determine a priori the maximum duration of the period during which removal may be postponed and to refer simply to an ‘appropriate’ period suggests that it intended to allow a certain degree of flexibility in the implementation of Article 9(2) of Directive 2008/115, while nevertheless ruling out the possibility that the postponement of removal may extend over a period exceeding that required by the circumstances which justify it.
54      It follows that, in a situation where, following the imposition of a long-term or lifelong prison sentence and its execution, for a criminal offence other than those relating solely to the fact of an illegal stay or entry, a return obligation will not be implemented for a long period, Article 9(2) of Directive 2008/115 authorises the competent authorities to postpone removal pending the execution of that sentence.
55      In the light of all those factors, it must be held that, in such a situation, the obligation to remove as soon as possible a third-country national who is the subject of a return decision, referred to in paragraph 30 of the present judgment, cannot be regarded as precluding the adoption of such a decision.
56      The fact remains that, in that context, there is necessarily a significant time lag between the time when the competent authorities assessed, when adopting that return decision, the possibility of imposing a return obligation, in compliance with Article 5 of Directive 2008/115 and respecting the fundamental rights of the third-country national concerned, and the time when that obligation can actually be fulfilled.
57      Accordingly, there is a risk that, on the day on which the said obligation can actually be fulfilled, that fulfilment will have become incompatible with that Article 5 or with those fundamental rights, even though the return decision was, on the day on which it was adopted, fully compatible with the said Article 5 and with the said fundamental rights.
58      With a view to preventing that risk, on the one hand, the Member States are required to allow the third-country nationals concerned to rely on any change in circumstances that occurred after the adoption of the return decision and that may have a significant bearing on the assessment of the situation of the third-country national concerned under, in particular, Article 5 of Directive 2008/115 (see, to that effect, judgments of 19 June 2018, Gnandi, C‑181/16, EU:C:2018:465, paragraph 64, and of 4 September 2025, Adrar, C‑313/25 PPU, EU:C:2025:647, paragraph 65).
59      On the other hand, the competent authorities are required to carry out, prior to enforcing the return decision, an updated assessment of the risks faced by the third-country national concerned of being exposed to treatment contrary to the principle of non-refoulement. That assessment, which must be separate from and independent of that carried out at the time of the adoption of that decision, must enable the competent authorities to satisfy themselves, taking into account any change in circumstances and any new evidence put forward by that third-country national, that there are no substantial grounds for believing that he or she would be exposed, if returned to the country of destination, to such risks (see, to that effect, judgment of 17 October 2024, Ararat, C‑156/23, EU:C:2024:892, paragraph 38).
60      That updated assessment will also have to take due account of all the interests set out in Article 5 of Directive 2008/115, in order to ensure that those interests do not preclude the enforcement of the return decision (see, to that effect, judgments of 22 November 2022, Staatssecretaris van Justitie en Veiligheid (Removal – Medicinal cannabis), C‑69/21, EU:C:2022:913, paragraph 91, and of 4 September 2025, Adrar, C‑313/25 PPU, EU:C:2025:647, paragraphs 79 and 80).
61      The obligations recalled in paragraphs 58 to 60 of the present judgment apply even if the third-country national concerned is the subject of a return decision which has become final, including if he or she has not contested that decision in good time (see, to that effect, judgment of 4 September 2025, Adrar, C‑313/25 PPU, EU:C:2025:647, paragraph 63).
62      Should the competent authorities conclude, following their updated assessment, that the removal of the third-country national concerned would expose him or her to a serious risk of violation of the principle of non-refoulement, those authorities must, at the very least, postpone that removal while such a risk persists, in accordance with Article 9(1)(a) of Directive 2008/115 (see, to that effect, judgment of 17 October 2024, Ararat, C‑156/23, EU:C:2024:892, paragraph 39). In any event, the said authorities cannot remove that third-country national where it appears that that removal would be incompatible with Article 5 of that directive or with a fundamental right guaranteed by the Charter.
63      Moreover, in accordance with Article 47 of the Charter, the third-country national concerned must have access to an effective remedy enabling him or her to challenge the conclusion reached by the competent authorities following their updated assessment (see, by analogy, judgment of 15 April 2021, État belge (Circumstances subsequent to a transfer decision), C‑194/19, EU:C:2021:270, paragraph 35).
64      Furthermore, in so far as the principle of proportionality must be observed throughout all stages of the return procedure, including at the stage relating to the adoption of the return decision (see, to that effect, judgment of 11 June 2015, Zh. and O., C‑554/13, EU:C:2015:377, paragraph 49), the early nature of the return decision’s adoption, in situations such as those at issue in the main proceedings, cannot be deemed to be contrary to that principle, provided that the safeguards set out in paragraphs 56 to 63 of the present judgment are in fact offered to the third-country nationals concerned.
65      In the light of all the foregoing, the answer to the first and third questions is that Articles 6, 8 and 9 of Directive 2008/115, read in combination with the principle of proportionality, must be interpreted as not precluding the adoption of a return decision against an illegally staying third-country national where, due to the execution of a long-term or lifelong sentence imposed on him or her, he or she will not be able either to leave the territory of the Member State concerned voluntarily or to be removed for a long period, provided that national legislation provides for sufficient safeguards to ensure compliance with Article 5 of that directive and with the Charter during the enforcement of that decision.
The second question
66      It is apparent from the order for reference that the second question need only be answered if it is apparent from the answer to the first question that Directive 2008/115 precludes the adoption of a return decision in situations such as those at issue in the main proceedings.
67      Since it is apparent from that answer that the possibility of adopting such a decision is subject to a condition, compliance with which will have to be verified by the referring court, it appears necessary to answer the second question.
68      By that question, the referring court asks, in essence, whether Directive 2008/115 must be interpreted as requiring a Member State to grant a residence permit to a third-country national staying illegally on its territory where that national must serve a long-term or lifelong prison sentence there.
69      The Court has consistently held that Directive 2008/115 is not intended to harmonise in their entirety the national rules of the Member States on the stay of foreign nationals. The common standards and procedures established by that directive concern only the issuing of return decisions and the implementation of those decisions (judgment of 24 February 2021, M and Others (Transfer to a Member State), C‑673/19, EU:C:2021:127, paragraph 43 and the case-law cited).
70      In particular, that directive is not intended to determine the consequences of the illegal residence on the territory of a Member State of third-country nationals in respect of whom no decision on their return to a third country can be issued (judgment of 24 February 2021, M and Others (Transfer to a Member State), C‑673/19, EU:C:2021:127, paragraph 43 and the case-law cited).
71      As regards, in particular, Article 6(4) of Directive 2008/115, that provision 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 (judgment of 22 November 2022, Staatssecretaris van Justitie en Veiligheid (Removal – Medicinal cannabis), C‑69/21, EU:C:2022:913, paragraph 86).
72      Accordingly, the answer to the second question is that Directive 2008/115 must be interpreted as not requiring a Member State to grant a residence permit to a third-country national staying illegally on its territory where that national must serve a long-term or lifelong prison sentence there.
Costs
73      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Third Chamber) hereby rules:
1.      Articles 6, 8 and 9 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, read in combination with the principle of proportionality,
must be interpreted as not precluding the adoption of a return decision against an illegally staying third-country national where, due to the execution of a long-term or lifelong sentence imposed on him or her, he or she will not be able either to leave the territory of the Member State concerned voluntarily or to be removed for a long period, provided that national legislation provides for sufficient safeguards to ensure compliance with Article 5 of that directive and with the Charter of Fundamental Rights of the European Union during the enforcement of that decision.
2.      Directive 2008/115 must be interpreted as not requiring a Member State to grant a residence permit to a third-country national staying illegally on its territory where that national must serve a long-term or lifelong prison sentence there.
[Signatures]
*      Language of the case: Dutch.
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.