OPINION OF ADVOCATE GENERAL

PIKAMÄE

delivered on 2 July 2020 ( 1 )

Case C‑441/19

TQ

v

Staatssecretaris van Justitie en Veiligheid

(Request for a preliminary ruling

from the Rechtbank Den Haag, zittingsplaats ’s‑Hertogenbosch (District Court, The Hague, sitting in ’s‑Hertogenbosch, Netherlands))

(Reference for a preliminary ruling – Area of freedom, security and justice – Directive 2008/115/EC – Article 5(a) – Article 6(1) and (4) – Article 8(1) – Article 10 – Return of illegally staying third-country nationals – Return decision – Removal of unaccompanied minors – Investigation to determine whether there are adequate reception facilities in the country of origin – Distinction based on the age of the minor – Return decision not followed by removal measures – Consequences)

I. Introduction

1. In the present request for a preliminary ruling under Article 267 TFEU, the Rechtbank Den Haag, zittingsplaats ’s‑Hertogenbosch (District Court, The Hague, sitting in ’s‑Hertogenbosch, Netherlands) has referred to the Court for a preliminary ruling three questions concerning the interpretation of Articles 4, 21 and 24 of the Charter of Fundamental Rights of the European Union (‘the Charter’), of Article 5(a), Article 6(1) and (4), Article 8(1) and Article 10 of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, ( 2 ) and Article 15 of Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted. ( 3 )

2. This request has been made in the course of proceedings between TQ, an unaccompanied minor who is an illegally staying third-country national, and the Staatssecretaris van Justitie en Veiligheid (State Secretary for Justice and Security, Netherlands; ‘the State Secretary’) concerning a return decision issued against that minor. By its request for a preliminary ruling, the referring court seeks, in essence, clarification as to whether the administrative practice currently applied in the Netherlands concerning the treatment of unaccompanied minors who are not beneficiaries of international protection is compliant with EU law.

3. The present case will allow the Court of Justice to provide clarification on the extent of Member States’ obligations towards that category of vulnerable persons, in particular the obligation to ensure that all unaccompanied minors are returned to a member of their family, a nominated guardian or adequate reception facilities in the State of return. In so doing, the Court will have to draw attention to the importance of taking into account the best interests of the minor when administrative decisions are taken which affect his or her residence status. The Court will also have to ensure that the effectiveness of the European Union’s policy for the removal and repatriation of third-country nationals staying illegally on Member State territory is not compromised, particularly at a time when migration towards Europe is significantly increasing. In so far as the effectiveness of another important EU policy, namely that relating to asylum, is measured by how successful it is in granting protection to those who most need it, the Court’s interpretation of the relevant provisions must enable the European Union and its Member States to allocate the necessary human and material resources to meet their needs.

II. Legal framework

A. EU law

1. The Charter

4. Article 21(1) of the Charter states: ‘Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.’

5. Under Article 24 of the Charter: ‘1. Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity. 2. In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration.’

2. Directive 2008/115

6. Recital 22 of Directive 2008/115 states: ‘In line with the 1989 United Nations Convention on the Rights of the Child, the “best interests of the child” should be a primary consideration of Member States when implementing this Directive. In line with the European Convention for the Protection of Human Rights and Fundamental Freedoms, respect for family life should be a primary consideration of Member States when implementing this Directive.’

7. Article 1 of that directive, entitled ‘Subject matter’, provides: ‘This Directive sets out common standards and procedures to be applied in Member States for returning illegally staying third-country nationals, in accordance with fundamental rights as general principles of Community law as well as international law, including refugee protection and human rights obligations.’

8. Article 2 of that directive, entitled ‘Scope’, provides in paragraph 1: ‘This Directive applies to third-country nationals staying illegally on the territory of a Member State.’

9. Article 3.9 of that directive contains the following definition: ‘For the purpose of this Directive the following definitions shall apply: … 9. “vulnerable persons” means minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence.’

10. Article 5 of Directive 2008/115, entitled ‘Non-refoulement, best interests of the child, family life and state of health’, provides: ‘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.’

11. Article 6 of that directive, entitled ‘Return decision’, is worded as follows in paragraphs 1 and 4 thereof: ‘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. … 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.’

12. Article 8 of that directive, entitled ‘Removal’, states in paragraph 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.’

13. Article 9 of that directive, entitled ‘Postponement of removal’, provides in paragraph 1: ‘Member States shall postpone removal: … (b) for as long as a suspensory effect is granted in accordance with Article 13(2).’

14. Article 10 of Directive 2008/115, entitled ‘Return and removal of unaccompanied minors’, provides: ‘1. Before deciding to issue a return decision in respect of an unaccompanied minor, assistance by appropriate bodies other than the authorities enforcing return shall be granted with due consideration being given to the best interests of the child. 2. Before removing an unaccompanied minor from the territory of a Member State, the authorities of that Member State shall be satisfied that he or she will be returned to a member of his or her family, a nominated guardian or adequate reception facilities in the State of return.’

3. Directive 2011/95

15. Article 1 of Directive 2011/95, entitled ‘Purpose’, states: ‘The purpose of this Directive is to lay down standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted.’

16. Article 2 of that directive, entitled ‘Definitions’, provides in point (f): ‘(f) “person eligible for subsidiary protection” means a third-country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15, and to whom Article 17(1) and (2) does not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country.’

17. Article 15 of that directive, on qualification for subsidiary protection, and entitled ‘Serious harm’, provides: ‘Serious harm consists of: (a) the death penalty or execution; or (b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or (c) serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict.’

4. Directive 2013/33/EU

18. Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection ( 4 ) contains provisions relating to asylum.

19. Article 2 of that directive, entitled ‘Definitions’, provides: ‘For the purposes of this Directive: … (d) “minor”: means a third-country national or stateless person below the age of 18 years; (e) “unaccompanied minor”: means a minor who arrives on the territory of the Member States unaccompanied by an adult responsible for him or her whether by law or by the practice of the Member State concerned, and for as long as he or she is not effectively taken into the care of such a person; it includes a minor who is left unaccompanied after he or she has entered the territory of the Member States; …’

20. Article 24 of that directive, entitled ‘Unaccompanied minors’, states in paragraph 3: ‘Member States shall start tracing the members of the unaccompanied minor’s family, where necessary with the assistance of international or other relevant organisations, as soon as possible after an application for international protection is made, whilst protecting his or her best interests. …’

B. Netherlands law

21. Article 14(1) of the Wet tot algehele herziening van de Vreemdelingenwet (Law providing for a comprehensive review of the Law on Foreign Nationals), of 23 November 2000 (Stb. 2000, No 495) (‘the Law of 2000 on foreign nationals’) states: ‘The Minister shall be authorised: (a) to approve, to reject or not to consider applications for the grant of fixed-term residence permits; … (e) to grant, ex officio, fixed-term residence permits or to extend the validity thereof …’

22. Article 64 of that law 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.’

23. Article 3.6a of the Vreemdelingenbesluit 2000 (Decree of 2000 on Foreign Nationals) provides: ‘1. If the first application for a fixed-term residence permit for persons granted asylum is rejected, a regular residence permit may nevertheless be granted, ex officio, for a fixed period: (a) to a foreign national whose removal would be contrary to Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms; or (b) in the context of a restriction relating to temporary humanitarian grounds, to a foreign national who is the victim-declarant, victim or witness-declarant of human trafficking, as provided for in Article 3.48(1)(a), (b) or (c). … 4. A residence permit shall be granted on the basis of the first applicable ground referred to in paragraph 1. …’

24. Under Paragraph B8/6.2.1 of the Vreemdelingencirculaire 2000 (Circular of 2000 on Foreign Nationals): ‘A regular fixed-term residence permit may be granted ex officio, without further examination, if the following conditions are satisfied: – the foreign national is under the age of 15 at the time of the first application for residence; – the foreign national has made credible statements regarding his or her identity, nationality, parents and other family members; – it is clear from the statements of the foreign national that there are no family members or other persons to whom he or she can be returned who could provide adequate reception facilities for him or her; – during the procedure, the foreign national has not hindered the investigation concerning possible reception facilities in the country of origin or in another country; – it is well known that, in general, no adequate reception facilities are available, and it is presumed that such reception facilities will not be available in the near future, in the country of origin or in any other country to which the foreign national could reasonably return. In such a situation, it is assumed that the Dienst Terugkeer en Vertrek (Repatriation and Departure Service, Ministry of Justice, Netherlands) will be unable to find adequate reception facilities within three years.’

III. The facts giving rise to the dispute, the main proceedings and the questions referred

25. TQ stated that he was born in Guinea on 14 February 2002.

26. According to the account in his application for asylum, he went to live with his aunt in Sierra Leone at an early age. Following the death of his aunt, TQ came into contact with a man from Nigeria who took him to Europe. In Amsterdam (Netherlands), he claims to have been the victim of human trafficking and sexual exploitation, as a result of which he now suffers serious psychological problems.

27. TQ, an unaccompanied minor, submitted an application for a fixed-term asylum residence permit, on the basis of the Law of 2000 on foreign nationals.

28. By decision of 23 March 2018, the State Secretary rejected that application as unfounded, deciding ex officio that TQ was not eligible for a fixed-term residence permit under Article 14(1) of the Law of 2000 on foreign nationals, read in conjunction with Article 3.6a of the Decree of 2000 on foreign nationals. That decision authorised the temporary postponement of TQ’s deportation, in accordance with Article 64 of the Law of 2000 on foreign nationals, for a maximum of six months or, if an ex officio decision was issued, for a shorter period pending an assessment by the Bureau Medische Advisering (Medical Advice Bureau of the Ministry of Security and Justice, Netherlands) to determine whether or not TQ’s state of health allowed for him to be removed.

29. On 16 April 2018, TQ brought an appeal against that decision before the Rechtbank Den Haag, zittingsplaats ’s‑Hertogenbosch (District Court, The Hague, sitting in ’s‑Hertogenbosch), the referring court.

30. By decision of 18 June 2018, the State Secretary stated that postponement of TQ’s deportation for medical reasons had not been granted, and that he was required to depart within four weeks. TQ lodged a complaint against that decision, on which the State Secretary had not yet ruled when the order for reference was made.

31. The referring court points out that the Law of 2000 on foreign nationals provides that, when a first application for asylum is examined, where the foreign national does not qualify for refugee status or subsidiary protection, his or her eligibility for a regular residence permit is to be assessed ex officio. That law also provides that the rejection of an application for asylum constitutes a return decision.

32. In the case of unaccompanied minors under the age of 15, the Circular of 2000 on foreign nationals imposes an obligation to investigate whether there are adequate reception facilities in the country of return. In the absence of such reception facilities, the unaccompanied minor in question is to be granted a regular residence permit (under the so-called ‘buitenschuld-beleid’ (no-fault policy)).

33. In the present case, the referring court considers that TQ does not qualify for refugee status or subsidiary protection. As regards a regular residence permit, that court notes that TQ was 15 years and four months old when he made his application for asylum. In such circumstances, he has a legal obligation under Netherlands law to leave the territory of the Member States without there being a need to investigate whether there are adequate reception facilities in the country of origin or elsewhere outside the European Union.

34. The referring court expresses doubts as to whether, on the basis of the best interests of the child, it is appropriate to make a distinction between minors under the age of 15 and those over the age of 15. In the light of Article 3 of Directive 2008/115, according to which unaccompanied minors are ‘vulnerable persons’, that court considers that the EU legislature cannot have intended for assistance no longer to be granted, with due consideration being given to the best interests of the child, once a return decision has been issued.

35. In the present case, TQ claims that he does not know where his parents live or whether he would be able to recognise them upon his return. He does not know any other family members and does not even know whether he has any. He states that he cannot return to his country of origin because he has not grown up there, does not know anybody and does not speak the language. TQ stated that he considered the foster family with whom he resides in the Netherlands to be his family.

36. The referring court states that it is illegal for such an applicant to reside in the Netherlands if his application for asylum has been rejected. The Repatriation and Departure Service, which is responsible for the return of persons in such a situation, interviewed TQ repeatedly in order to prepare him for his return to his country of origin, and this exacerbated his psychological problems.

37. The referring court states that, until there has been an investigation into whether adequate reception facilities exist, the State Secretary may not remove an asylum seeker who is a minor. Therefore, in practice, the State Secretary appears to be waiting for the asylum seeker to reach the age of eighteen, the legal age of majority, so that the investigation referred to in Article 10(2) of Directive 2008/115 is no longer required.

38. According to the referring court, the State Secretary cannot impose an obligation to return, and thus decide that the extension of the stay is illegal, without subsequently taking any removal measures, and instead simply wait for the applicant to reach the age of majority.

39. The referring court adds that the Raad van State (Council of State, Netherlands) has never answered the questions of law raised in the present case and has not submitted a request to the Court for a preliminary ruling.

40. In those circumstances, the Rechtbank Den Haag, zittingsplaats ’s‑Hertogenbosch (District Court of the Hague, sitting in ’s‑Hertogenbosch) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling: ‘(1) Should Article 10 of Directive 2008/115/EC, read in conjunction with Articles 4 and 24 of the Charter, recital 22 and Article 5(a) of Directive 2008/115 and Article 15 of Directive 2011/95/EU, be interpreted as meaning that, before imposing an obligation to return on an unaccompanied minor, a Member State should ascertain and then should investigate whether, at least in principle, adequate reception facilities exist and are available in the country of origin? (2) Should Article 6(1) of Directive 2008/115, read in conjunction with Article 21 of the Charter, be interpreted as meaning that a Member State is not permitted to make distinctions on the basis of age when granting lawful residence on a territory if it is established that an unaccompanied minor does not qualify for refugee status or subsidiary protection? (3) (a) Should Article 6(4) of Directive 2008/115 be interpreted as meaning that, if an unaccompanied minor does not comply with his obligation to return and the Member State does not and will not undertake any concrete actions to proceed with removal, the obligation to return should be suspended and lawful residence should be granted? (b) Should Article 8(1) of Directive 2008/115 be interpreted as meaning that, where a Member State imposes a return decision on an unaccompanied minor without then undertaking any removal actions until the unaccompanied minor reaches the age of eighteen, that must be considered to be contrary to the principle of loyalty and the principle of sincere cooperation in the European Union?’

IV. Procedure before the Court

41. The order for reference dated 12 June 2019 was received at the Court Registry on that day.

42. The referring court requested that the Court deal with the request for a preliminary ruling under the urgent procedure, in accordance with Article 107(1) of the Rules of Procedure of the Court of Justice.

43. By decision of 27 June 2019, after hearing the Advocate General, the Court rejected that request.

44. Written observations were submitted by TQ, the Netherlands and Belgian Governments and the European Commission within the period laid down in Article 23 of the Statute of the Court of Justice of the European Union.

45. By way of a measure of organisation of procedure, on 17 March 2020, the Court put questions to the Netherlands Government to be answered in writing. The written observations on the questions put by way of that measure of organisation of procedure were lodged within the prescribed period.

V. Legal analysis

A. Preliminary observations

46. There is a growing phenomenon of unaccompanied minors at the external borders of the European Union. ( 5 ) A significant number of minors arrive each year in EU Member States without their parents or other nominated guardian and apply for international protection. ( 6 ) Unaccompanied minors require particular attention from the competent authorities in the host Member States because of their vulnerability associated with factors such as legal incapacity, absence of sponsors, lack of maturity and insufficient means of subsistence. ( 7 ) In recognition of that situation, the EU legislature has adopted a number of legislative acts in the fields of asylum and immigration containing provisions which take account of the specific nature of that category of persons. ( 8 ) In addition to those acts, there are various interpretative acts, adopted by the Commission and by specialised European agencies, ( 9 ) which seek to give practical guidance to the national authorities on the correct manner in which to apply the abovementioned legal acts in their respective context.

47. Thus, although Directive 2008/115 applies to all illegally staying third-country nationals – including unaccompanied minors – there are legal provisions under which the national authorities have certain obligations which they must fulfil, such as the obligation laid down in Article 10(2) of that directive, according to which, ‘before removing an unaccompanied minor from the territory of a Member State, the authorities of that Member State shall be satisfied that he or she will be returned to a member of his or her family, a nominated guardian or adequate reception facilities in the State of return’. Due to the sensitive nature of cases relating to the rights of refugee minors and to the factual complexity of such cases, it can sometimes prove difficult for the national authorities to establish with certainty whether they have duly fulfilled their obligations under EU law. A misinterpretation of the scope of the obligation imposed by the EU law at issue could potentially result in the establishment of an administrative practice at national level which turns out to be incompatible with EU law. In such cases, it is for the Court to play the crucial role of clarifying the scope of that obligation by interpreting the relevant provisions and, in so doing, enable the national authorities to correct their administrative practice.

48. It appears to me that the Court is faced with such a situation in the present case, given that the referring court raises a number of basic questions relating to the obligation imposed by Article 10(2) of Directive 2008/115. The referring court does not hide the fact that it has doubts as to the manner in which the Netherlands authorities fulfil that obligation, which is why it is seeking an interpretation of that provision from the Court. As already stated in the introduction to this Opinion, in its request for a preliminary ruling the referring court asks the Court to specify at which stage in the procedure before the national authorities it is necessary to investigate whether there are adequate reception conditions in the State of return. The referring court also wishes to know whether a Member State may make a distinction based on age, limiting the obligation to carry out such investigations to cases concerning minors under the age of 15. Lastly, the referring court asks the Court to rule on whether a national administrative practice whereby no concrete removal measures are taken against an unaccompanied minor despite the fact that a return decision has been issued against that minor is compliant with EU law, and what the legal consequences of that practice are. I shall examine those questions in the order in which they were submitted by the referring court.

B. The first question referred for a preliminary ruling

49. By its first question, the referring court seeks to ascertain, in essence, whether, before imposing an obligation to return on an unaccompanied minor, a Member State must ascertain whether, in principle, there are adequate reception facilities in the country of origin.

50. In order to answer that question, it is necessary to examine Article 10 of Directive 2008/115, using methods of interpretation recognised in the case-law of the Court, namely the literal, systematic and teleological methods of interpretation. ( 10 )

51. First of all, I would observe that it could, in principle, be assumed, on the basis of a simple literal and isolated interpretation of Article 10 of Directive 2008/115, that the obligation imposed by that directive on the Member State authorities to satisfy themselves that the unaccompanied minor ‘will be returned to a member of his or her family, a nominated guardian or adequate reception facilities in the State of return’ is applicable solely in the case where a return decision has already been issued and the national authorities are carrying out the removal of the minor.

52. Indeed, it could be argued that Article 10 of Directive 2008/115 distinguishes between two separate categories of obligations applicable at the various stages of the procedure, namely the stage at which the return decision is issued and the stage at which the removal process is carried out, which are governed, respectively, by paragraphs 1 and 2 of that article. On the basis of such an interpretation, it could be argued that the obligation to investigate whether there are adequate reception facilities in the State of return is mentioned only in paragraph 2, which is a provision concerning only the removal process.

53. However, I am certain that such an interpretation of Article 10 of Directive 2008/115 is incorrect, since it fails to take into consideration other essential elements of interpretation to which I shall make reference in my analysis below.

54. It is clear from Article 10(2) of Directive 2008/115 that the abovementioned obligation arises before the removal of the minor, which suggests that the Member State must, as appropriate, fulfil that obligation at an earlier stage of the procedure, or indeed even at the time when it comes to decide whether or not to order the return of the minor. In other words, the wording of that provision does not in any way support the conclusion that it is sufficient if the national authorities satisfy themselves during the removal procedure that there are adequate reception conditions in the State of return.

55. There are, in my view, reasons purely of logic which support such an interpretation, especially as it is not clear why the Member State should disregard a factual aspect as important as the absence of adequate reception facilities in the country of origin when issuing a return decision, and defer that task until the very final stage of the procedure. Adopting a return decision in the full knowledge that there are no adequate reception facilities in the country of origin would be tantamount to adopting a decision while knowing, from the outset, that it could not be implemented immediately afterwards without infringing EU law, in particular the fundamental rights guaranteed to all persons who are subject to removal and repatriation procedures.

56. That said, it must be borne in mind that the provision in Article 10(2) of Directive 2008/115 seeks to protect unaccompanied minors, in so far as it prevents them from being left to an uncertain fate in their country of origin. The need to protect them, preferably at an early stage in the procedure, arises as a result of the fact that they are ‘vulnerable persons’, as expressly recognised in Article 3(9) of Directive 2008/115 and to which I referred in my preliminary observations. ( 11 )

57. The obligation devolving on Member States to protect unaccompanied minors is particularly important in cases where a minor who has unsuccessfully applied for asylum is faced with a real risk of inhuman or degrading treatment in his or her country of origin, within the meaning of Article 15 of Directive 2011/95. It should be recalled that several provisions of EU law on asylum and immigration reflect the commitment to respect the principle of non-refoulement, namely Article 19(2) of the Charter, Article 78(1) TFEU and Article 5 of Directive 2008/115, to name but a few.

58. In that context, it should be noted that the objective pursued by recital 2 of Directive 2008/115 is to establish 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’. ( 12 ) That objective is reflected in Article 1 of Directive 2008/115, in so far as that provision states that the common standards and procedures set out in that directive are to be applied in Member States for returning illegally staying third-country nationals, ‘in accordance with fundamental rights [as recognised in EU law] as well as international law, including refugee protection and human rights obligations’. ( 13 )

59. In my view, it is clear that Article 10 of Directive 2008/115 cannot be interpreted without taking into account other provisions applicable in the present case which are intended to protect the rights of unaccompanied minors, such as that in Article 5(a) of Directive 2008/115. Article 5(a) appears in Chapter I of Directive 2008/115, which contains ‘general provisions’ intended to be applied in all circumstances, and provides that the Member States are to take due account of the best interests of the child when implementing that directive. ( 14 ) As I shall explain in more detail in this Opinion, ( 15 ) determination of the best interests of the child is based on an individual assessment, taking into account several factors relating to his or her situation, including the reception conditions existing in the country of return.

60. The obligation, laid down in Article 24 of the Charter, to provide such protection and care as is necessary for the well-being of children, ( 16 ) and to ensure that, in all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests are a primary consideration, is transposed to the field of EU immigration law by Article 5(a) of Directive 2008/115. It must also be recalled that, under Article 3(3) TEU, the European Union must promote protection of the rights of the child. In view of the importance which EU law clearly attaches to the protection of children, having even enshrined it in primary EU law, Article 5(a) of Directive 2008/115 should be interpreted in the light of the abovementioned higher-ranking provisions.

61. In international law, Article 3(1) of the International Convention on the Rights of the Child, ( 17 ) which has, moreover, been ratified by all the EU Member States, provides that ‘in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration’. ( 18 ) Under Article 12(2) of that convention, ‘the child [must have] the opportunity to be heard in any judicial and administrative proceedings affecting the child’, ( 19 ) which also includes any return procedure concerning an unaccompanied minor. It must therefore be held that, even though the European Union itself is not a party to that convention, its internal law accurately reflects the provisions thereof, ( 20 ) thus enabling the Member States to meet the commitments entered into when they implement EU law and, of particular importance for the purposes of the present case, Directive 2008/115, which the Court has been called upon to interpret.

62. The importance of protecting the rights of the child in the field of immigration is also recognised in the case-law of the Court. ( 21 ) As the Court recalled in the judgment in Parliament v Council, ( 22 ) concerning the interpretation of Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification, ( 23 ) the Member States must ‘have due regard to the best interests of minor children’ when implementing EU law. The reminder that fundamental rights must be respected even when EU law confers a certain margin of discretion on the Member States appears to me to be relevant for the purposes of the present case, because Directive 2008/115 also permits Member States to transpose it, either by way of legislation or administrative provisions, without specifying in detail the way in which Member States are required to fulfil the obligation laid down in Article 10(2) of that directive.

63. Given the importance that EU law attaches to the protection of unaccompanied minors, it seems unthinkable to me that the legislature could have intended that Member States should be required to investigate whether there are adequate reception conditions in the State of return only at the removal stage. Rather, it seems to me that, in order effectively to ensure the protection of the child’s best interests, it is necessary for such an investigation to be carried out at every relevant stage of the procedure, including when considering whether or not to issue a return decision.

64. The provision in Article 24(3) of Directive 2013/33 appears to me to confirm that interpretation, in so far as it provides that ‘Member States shall start tracing the members of the unaccompanied minor’s family, where necessary with the assistance of international or other relevant organisations, as soon as possible after an application for international protection is made, whilst protecting his or her best interests’. ( 24 ) In my view, the main conclusions that can be drawn from the analysis of that provision are as follows.

65. In the first place, the best interests of a minor are best served when family reunification is guaranteed, ( 25 ) which, moreover, is apparent from Article 10(2) of Directive 2008/115, which explicitly sets out the possibility for a minor to be returned to ‘a member of his or her family’. That conclusion is also supported by the Court’s findings in the judgment in Parliament v Council, in which the Court stressed that family reunification is important for migrant children because it makes ‘family life’ possible for them. ( 26 ) In that regard, the Court relies on the case-law of the European Court of Human Rights on the right to respect for family life, within the meaning of Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’). ( 27 ) For the sake of completeness, I would like to supplement the findings of the Court by referring to the judgment of the European Court of Human Rights in Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, ( 28 ) delivered some months after the judgment in Parliament v Council, in which the Court of Human Rights found that there had, in the context of a return procedure, been an infringement of Article 8 of the ECHR on the ground that the Kingdom of Belgium had not taken adequate measures to ensure the reunification of a minor with her family in her country of origin. This appears to me to be particularly relevant for the purposes of the present case. Lastly, as regards the judgment in Parliament v Council, I would observe that, although not legally binding at that time, the Court of Justice took the opportunity to make reference to Article 7 of the Charter, according to which everyone has the right to respect for his or her family life. ( 29 )

66. Where an unaccompanied minor has no family, or no family member can be found in his or her country of origin, Article 10(2) of Directive 2008/115 provides for some alternatives, namely that the minor be returned to ‘a nominated guardian’ or to ‘adequate reception facilities’. It is obvious that those alternatives are ultimately aimed at guaranteeing the protection of the unaccompanied minor by addressing the possible absence of family ties. Responsibility for safeguarding the welfare of the child, which would usually fall to the family, is thus assumed by representatives specifically appointed by law and specialised social institutions.

67. In the second place, it should be noted that the national authorities are required to intervene as early as the first stage of the asylum procedure, namely when the ‘application for international protection is made’, the logical consequence of which is to give rise, almost simultaneously, to the obligation to investigate whether there are adequate reception conditions in the State of return.

68. There are a number of indications in the Court’s case-law which support an interpretation in favour of assessing the reception conditions in the country of origin at the earliest opportunity on the basis of the relevant investigations. As stated by the Court in its judgment in Boudjlida, ( 30 ) an illegally staying third-country national has the ‘right … to express, before the adoption of a return decision concerning him, his point of view on the legality of his stay, on the possible application of Articles 5 and 6(2) to (5) of that directive and on the detailed arrangements for his return’. ( 31 ) According to the Court, Member States must take due account of the best interests of the child and of family life when they implement Directive 2008/115, ( 32 ) which, given the scope of that directive, also covers the stages prior to removal, including the issuing of a return decision. It follows that, ‘when the competent national authority is contemplating the adoption of a return decision, [it] must necessarily observe the obligations imposed by Article 5 of Directive 2008/115 and hear the person concerned on that subject’. ( 33 ) In that regard, ‘the person concerned must cooperate with the competent national authority when he is heard in order to provide the authority with all the relevant information on his personal and family situation and, in particular, information which might justify a return decision not being issued’. ( 34 ) It is clear from that judgment that considerations concerning the best interests of the child might ultimately lead the national authority ‘[to refrain] from adopting a return decision’. ( 35 ) The Court therefore seems to start from the premiss that the assessment of the best interests of the child must be made even before a return decision is issued. In so far as the existence of adequate reception conditions in the country of origin has a decisive influence on that assessment, it must be regarded as one of the factors to be taken into account by the national authorities when they are deciding whether or not to order the return of the minor.

69. That being said, I share the Commission’s view that the obligation laid down in Article 5(a) of Directive 2008/115 implies that, when issuing a return decision, the national authorities must take into account a series of factors ( 36 ) such as the age of the minor, his or her specific vulnerabilities, both as an unaccompanied minor and as a victim of human trafficking, whether (s)he is in a foster home when the return decision is issued, his or her social environment and state of mental health, whether any of his or her family members are present in the country of return and, more generally, whether adequate reception facilities are available in the country of return. ( 37 ) The competent authorities must assess those factors as they present themselves when they are considering whether or not to issue a return decision. Only by carrying out an overall assessment based on those factors will it be possible to determine what are the best interests of the child and to take a decision which complies with the requirements of Directive 2008/115.

70. I am certain that interpreting Article 10(2) of Directive 2008/115 as meaning that Member States are required to carry out such an assessment at every relevant stage of the procedure, and not solely when carrying out the removal, is in the best interests of the minor, especially since those interests may change depending on circumstances. ( 38 ) By way of example, it should be noted that where an investigation carried out prior to a decision concerning a right of residence reveals that there are adequate conditions for return, this will usually justify the issuing of a return decision. However, those conditions may change significantly, and possibly deteriorate, over time, thus preventing the enforcement of that decision. In order to mitigate any deterioration in reception conditions, it is essential for the procedure to be sufficiently flexible, enabling the competent authorities to carry out the necessary assessment at critical points. That being said, I would like to draw attention to the fact that it was the Court itself which recalled, in the Gnandi case, ( 39 ) that ‘Member States are required to allow the person 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 his situation under Directive 2008/115, and in particular under Article 5 thereof’. ( 40 ) I infer from that judgment that the Court is aware that only a flexible approach to the procedure, allowing assessments to be carried out at each relevant stage, will ensure that the best interests of the child are duly taken into account.

71. In the event that circumstances deteriorate, it seems to me to be reasonable to suspend the effects of the return decision or to postpone its enforcement in order to avoid a situation in which the fundamental rights of the unaccompanied minor may be breached. Conversely, the absence of adequate conditions for the return of the minor may mean that no return decision is issued at all, at least until adequate reception facilities have been found. Nevertheless, another possible scenario is that, if it is in the best interests of the minor to return to his or her country of origin, and if there is no obstacle to this, then the minor must be removed. I shall discuss the various possibilities that may present themselves during the course of an asylum procedure in my analysis of the third question.

72. On the basis of that analysis, the answer to the first question referred for a preliminary ruling should be that Article 10(2) of Directive 2008/115, read in conjunction with Article 5(a) of that directive and in the light of Article 24 of the Charter, must be interpreted as meaning that, before imposing an obligation to return on an unaccompanied minor, the Member State authorities must satisfy themselves that adequate reception facilities are available for the unaccompanied minor in question in the State of return.

C. The second question referred for a preliminary ruling

73. By its second question, the referring court asks the Court whether a Member State is permitted to make a distinction based on the age of an unaccompanied minor when granting residence on its territory if it is established that that minor does not qualify for refugee status or subsidiary protection.

74. In that regard, it must be noted at the outset that, according to the Court’s settled case-law, the need for uniform application of EU law and the principle of equality require that the terms of a provision of EU law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Union. ( 41 ) That said, since EU law on asylum and immigration itself defines the concept of ‘minor’, this, in my view, excludes any reference to national law.

75. Indeed, it should be noted that Article 2(d) of Directive 2013/33 defines a minor as a third-country national or stateless person below the age of 18 years. Directive 2013/33 does not therefore make any distinction between minors on the basis of their age. The same is true of Directive 2008/115, which the referring court has asked the Court to interpret. Furthermore, it may be observed that, according to recital 21 of Directive 2008/115, ‘Member States should implement this Directive without discrimination on the basis of … age’. ( 42 ) That requirement gives specific expression in secondary legislation to the prohibition of all discrimination on the basis of age laid down in Article 21 of the Charter, which, as the Court pointed out in the judgment in Kücükdeveci, with reference to Article 6(1) TEU, has the same legal value as the Treaties. ( 43 )

76. Given the fairly clear legal framework, it seems almost inconceivable to me that an administrative practice whereby one category of minors, defined according to age, is treated less favourably than another could be regarded as compliant with EU law, ( 44 ) unless it can be justified on objective grounds. It is necessary to examine the administrative practice at issue, in particular the way in which it operates and the underlying reasons for it, on the basis of the information in the case file.

77. As regards the administrative practice at issue, it should be noted that the alleged failure by the national authorities to fulfil their obligation to carry out the necessary checks for the purpose of determining whether there are adequate reception facilities in the country of origin constitutes less favourable treatment of unaccompanied minors aged 15 and over, inasmuch as no effort is made to ensure that these minors grow up in an environment which guarantees their safety on their return. That circumstance may have a negative impact on their personal development. In order to understand the consequences of such a failure, it should be borne in mind that the task given to the national authorities is one which unaccompanied minors will scarcely be able to carry out on account of their vulnerability, as is rightly stated by the referring court.

78. Unaccompanied minors under the age of 15 may receive support from the competent authorities to trace their families or at least look for adequate reception facilities, which thus contributes to their integration in the country of origin. Conversely, minors aged 15 or over must expect to be obliged to return without receiving such support. Even though the administrative practice at issue does not provide for the immediate return of individuals aged 15 or over, in so far as their residence in Member State territory is tolerated until they reach the age of majority, such individuals are arguably in a less favourable position, given that, on their return to the country of origin, they will not have a sponsor or any reception facilities to offer them a genuine chance of integration.

79. As regards the reasons for such a difference in treatment, I would observe that, according to the information provided by the Netherlands Government, the distinction is based on the fact that an asylum procedure in the Netherlands normally lasts for three years. The Netherlands Government states that special residence rules were adopted in the Netherlands in order to avoid minors having to face more than three years of uncertainty regarding their residence status, and to give them prospects for the future. In accordance with those special rules, a right of legal residence is to be granted to asylum seekers who, at the end of that three-year period, are still minors. Therefore, only children under the age of 15 can be considered for such a right of residence. That gives rise to the condition that the minor in question must be under the age of 15 when the first application for residence is submitted.

80. As explained by the Netherlands Government, the national authorities assess the situation of the minor with regard to those special residence rules once it has been decided that he or she is not eligible for a permit for persons granted asylum. In exceptional circumstances, and on the basis of the best interests of the child, an unaccompanied minor may, at that time, be considered for a residence permit, in order to avoid staying illegally. Therefore, it should already be clear that, at that point, the unaccompanied minor cannot have a return decision issued against him or her for three years. The ordinary rules continue to apply to unaccompanied minors over the age of 15 at the time of their first application for residence. Nevertheless, according to the Netherlands Government, the latter may be considered for another status, giving them a right of residence which is applicable to illegally staying third-country nationals who, through no fault of their own, are unable to leave the Netherlands.

81. I share the referring court’s doubts concerning compliance with the requirement in Article 10(2) of Directive 2008/115 of a national administrative practice which relies on a simple presumption relating to the supposed maximum duration of an asylum procedure in order to make a distinction between the members of a group of individuals based on their age, despite the fact that those individuals are all in the same situation. The individuals appear to be treated differently even though there are no reasonable grounds for making such a distinction, other than to simplify the work of the national authorities. The aim of that distinction appears to be, essentially, to resolve, in a predictable manner, the residence status of unaccompanied minors for the purposes of Netherlands law, favouring children under the age of 15 over older children. As stated by the referring court, a right of residence is granted to that category of minors if they are unable to return to their country of origin or if they are unable to leave Netherlands territory. While they are minors, those individuals acquire rights of residence; they are not returned and cannot be deported if the investigation referred to in Article 10(2) of Directive 2008/115 has not been carried out or has not yielded any results. Conversely, as regards unaccompanied minors over the age of 15, the administrative practice at issue seems rather to encourage the national authorities to waive the need to carry out investigations, and even allows them not to carry out the removal of those minors until they have reached the age of majority. It seems to me that the age limit of 15 years was established deliberately by the national authorities as a supposedly clear and reliable criterion for determining exactly how to proceed in each individual case.

82. However, apart from the fact that such an approach has no basis in Directive 2008/115, I am certain that serious risks arise in the context of the proper application of that approach, and these will be examined below.

83. In the first place, that approach has the effect of weakening the protection that Member States are required to give to unaccompanied minors under international and EU law. In so far as the national authorities choose not to fulfil their obligations under Article 10(2) of Directive 2008/115 in favour of increasing the predictability of their administrative practice, their actions run counter to the objective defined in the Treaties, which is to safeguard the welfare of the child. If the national authorities do not themselves investigate whether there are adequate reception conditions in the State of return, this means that they are ultimately imposing that responsibility on unaccompanied minors, which is contrary to the abovementioned provision.

84. In the second place, such an approach fails to fulfil the objective of establishing ‘an effective removal and repatriation policy’ based on common standards, as set out in recitals 2 and 4 of Directive 2008/115. Articles 6 and 8 of that directive provide that the Member States are to issue a return decision ‘to any third-country national staying illegally on their territory’ and to take ‘all necessary measures to enforce the return decision’. ( 45 ) As I shall explain in more detail in my analysis of the third question referred for a preliminary ruling, a national policy of so-called ‘tolerance’ of illegally staying third-country nationals, based on an administrative practice on the part of the national authorities which is lenient and even indicative of a level of indifference, risks jeopardising the proper functioning of EU asylum and immigration law. It has the effect of creating a ‘grey area’ of illegality, allowing the prolonged stay of migrant minors on the territory of the Member State even if a return decision has been issued. Such an approach seems to me to be detrimental to legal certainty and contrary to the objective pursued by Directive 2008/115, which is to ensure that the residence status of migrants is clarified as soon as possible by means of an administrative or judicial decision or act, within the meaning of Article 3.4 of that directive, and, where appropriate, that specific enforcement measures are taken without delay by the national authorities. Such an approach must therefore be considered not to comply with the requirements under EU law in so far as it hinders the effective application of Directive 2008/115.

85. It follows that an administrative practice such as that at issue, which treats unaccompanied minors differently depending on their age, in particular as regards the obligation on authorities to satisfy themselves that, in principle, there are adequate reception facilities in the country of origin, is not justified on objective grounds. It therefore constitutes discrimination prohibited by EU law.

86. In the light of the foregoing considerations, I propose that the answer to the second question referred for a preliminary ruling should be that Article 6(1) of Directive 2008/115, read in the light of Article 21 of the Charter, must be interpreted as meaning that Member States are not permitted to make a distinction based on the age of an unaccompanied minor when granting residence on their territory if it is established that that minor does not qualify for refugee status or subsidiary protection.

D. The third question referred for a preliminary ruling

87. The third question comprises two questions which I shall examine separately. By Question 3(a), the referring court asks, in essence, whether it is permissible for a Member State to issue a return decision against an unaccompanied minor without then taking removal measures. By Question 3(b), the referring court seeks to establish whether a Member State which does not undertake any concrete removal measures is required to suspend the obligation to return and, therefore, to grant residence to an unaccompanied minor who has not voluntarily complied with the obligation to return.

1. Question 3(a)

88. As regards Question 3(a), it should be recalled first of all that the objective of Directive 2008/115, as set out in recitals 2 and 4 thereof, is to establish an effective removal and repatriation policy. Article 1 of that directive sets out the ‘common standards and procedures’ to be applied by each Member State for returning illegally staying third-country nationals. ( 46 )

89. Next, it should be noted that Article 6(1) of Directive 2008/115 provides, in principle, that Member States are required to issue ‘a return decision to any third-country national staying illegally on their territory’. ( 47 ) Indeed, according to the Court’s settled case-law, ‘once it has been established that the stay is illegal, the national authorities must, pursuant to Article 6(1) of that directive and without prejudice to the exceptions laid down by Article 6(2) to (5) thereof, adopt a return decision’. ( 48 )

90. As is apparent from the wording of Article 9(1) of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection, ( 49 ) the right to remain laid down in that provision ends upon the adoption of a first-instance decision, by the determining authority, rejecting the application for international protection. In the absence of a right to stay or a residence permit granted on another legal basis (such as Article 6(4) of Directive 2008/115), which would enable the applicant whose application has been rejected to fulfil the conditions for entry, stay or residence in the Member State concerned, the consequence of that rejection decision, once adopted, is that the applicant no longer fulfils those conditions and, accordingly, that person’s stay becomes illegal. ( 50 )

91. Furthermore, the Court has stated that, where a return decision has been issued against a third-country national, but that third-country national has not complied with the obligation to return, whether within the period for voluntary departure or if no period has been granted to that effect, Article 8(1) of Directive 2008/115 requires Member States, ‘in order to ensure the effectiveness of return procedures’, to ‘take all measures necessary to carry out the removal’ of the person concerned, namely, pursuant to Article 3.5 of that directive, the physical transportation of the person concerned out of that Member State. ( 51 )

92. Moreover, the Court has stated that, as follows both from the ‘duty of sincere cooperation’ of the Member States and from the ‘requirements of effectiveness’ referred to, in particular, in recital 4 of Directive 2008/115, 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 of the third-country national, must be fulfilled ‘as soon as possible’. ( 52 ) According to more recent case-law, Member States are even entitled to carry out a removal ‘without delay’ as soon as the relevant conditions are satisfied. ( 53 )

93. In that context, it should also be borne in mind that, under Article 8(4) of Directive 2008/115, Member States may – as a last resort – use ‘coercive measures to carry out the removal’ of a third-country national who resists removal, ( 54 ) provided that those measures are proportionate and do not exceed reasonable force. ( 55 )

94. Lastly, it should be noted that the Court has reminded Member States that they must not apply rules which are liable to jeopardise the achievement of the objectives pursued by a directive and, therefore, deprive it of its effectiveness. ( 56 ) That is why the Court held that Directive 2008/115 precludes any national legislation the effect of which is to ‘thwart the application of the common standards and procedures’ established by that directive by, for example, delaying or otherwise impeding return. ( 57 )

95. Given that the Court has stressed the obligation to take all necessary measures to enforce the return decision, recalling both the requirement of effectiveness and the duty of sincere cooperation, it seems clear to me that a Member State cannot simply wait until the minor reaches the age of majority before carrying out the removal.

96. As I have already explained in my observations concerning the second question referred for a preliminary ruling, ( 58 ) I consider that an administrative practice whereby a Member State avoids the obligation to check whether there are adequate reception facilities in the unaccompanied minor’s country of origin, opting instead to tolerate that unaccompanied minor’s illegal stay until he or she reaches the age of majority, despite the adoption of a return decision, leads to the creation of a grey area of illegality, at least for an extended period of time. Such an approach seems to me to be detrimental to legal certainty and incompatible with the objective pursued by Directive 2008/115, which is to ensure that the residence status of migrants is clarified as soon as possible by means of an administrative or judicial decision, within the meaning of Article 3.4 of that directive, and, where appropriate, that enforcement measures are taken without undue delay by the national authorities.

97. That said, I consider that there may nevertheless be some circumstances in which suspending, or at least postponing, the enforcement of the return decision would be justified, since, under Article 5(a) of Directive 2008/115, Member States must ‘take due account of the best interests of the [minor]’ when implementing that directive. However, it would appear to me that suspending or postponing the enforcement of the return decision is justified only if the situation in the State of return changes after the return decision has been issued, with the result that the Member State is no longer able to guarantee that the minor would be returned to a member of his or her family, a nominated guardian or adequate reception facilities, in accordance with Article 10(2) of Directive 2008/115. I shall address that aspect in the analysis of Question 3(b).

98. In the light of the foregoing, I do not consider it to be permissible for Member States to issue a return decision against an unaccompanied minor without then taking any removal measures.

2. Question 3(b)

99. By Question 3(b), the referring court asks, in essence, whether a Member State which does not undertake any concrete removal measures is required to suspend the obligation to return and, therefore, grant residence to an unaccompanied minor who has not voluntarily complied with the obligation to return.

(a) General rule requiring Member States to take all necessary measures to enforce the return decision

100. As already stated, Article 8(1) of Directive 2008/115 provides, as a general rule, that ‘Member States shall take all necessary measures to enforce the return decision’. The wording of that provision and the Court’s interpretation of it, which is recalled in the present Opinion, are so clear that, to my mind, they leave no room for reasonable doubt. From that perspective, it is inconceivable that the Member States could be allowed to opt not to take concrete removal measures, otherwise they would fail to fulfil their obligations under EU law.

101. For the sake of completeness, it should be noted in this context that there may be several reasons why some Member States do not always immediately remove illegally staying third-country nationals from their territory. These include, in particular, the various difficulties associated with removal procedures, such as the lack of necessary staff, lack of cooperation from the asylum seekers or their countries of origin when it comes to establishing their identity, obtaining travel documents ( 59 ) or establishing whether there are adequate reception facilities, as well as the difficulties inherent in conducting research in distant countries. It is therefore clear that some of the abovementioned factors are beyond the exclusive control of the Member States. Consequently, I do not think it is justified to presume that any delay in the enforcement of a return decision is necessarily due to passivity on the part of the Member States.

102. As the Commission rightly observes in its written observations, EU law provides, in exceptional circumstances, for alternatives to removal, depending on the situation. These alternatives, which are set out below, have the advantage of contributing to legal certainty and offering prospects to unaccompanied minors, and therefore differ significantly from the administrative practice examined in this Opinion in terms of compatibility with EU law.

(b) Obligation to suspend the enforcement of a return decision if there are no adequate reception facilities in the country of origin

103. Pursuant to Article 10(2) of Directive 2008/115, read in conjunction with Article 5(a) of that directive and Article 24 of the Charter, Member States are required to suspend the enforcement of a return decision if there are no adequate reception facilities in the country of origin. As was concluded in the analysis of the first question, it is necessary to take due account of the best interests of the child at every relevant stage of the procedure. ( 60 ) Moreover, as I have stated, it is clear from the case-law of the Court that considerations concerning the best interests of the child may lead the national authorities to‘refrain’ from adopting a return decision. ( 61 ) In my view, that conclusion applies all the more to the decision to take enforcement measures, given that removal, defined in Article 3.5 of Directive 2008/115 as the physical transportation out of the Member State, constitutes the final stage in the procedure regulated by that act.

104. It is clear that Member States’ opportunities for influencing the situation of an individual subject to removal are very limited if the individual in question is already in his or her country of origin. It is possible for the return procedure to reach a point at which it becomes almost irreversible, for example, if the competent authorities lose contact with the individual. Accordingly, there is a higher risk of a breach of the fundamental rights of the child, particularly one who is a vulnerable person, when the procedure reaches the point at which the removal is carried out. That said, it seems to me that the EU legislature is well aware of that risk, given that the obligation in Article 10(2) of Directive 2008/115 is worded in such a way as to suggest that there is an essential condition (before removing; ‘shall be satisfied’ that he or she will be returned) that must be fulfilled by the competent authorities before they can proceed to the final stage of the procedure. In other words, failure to satisfy that condition must be understood, from a legal point of view, as an impediment to removal. It follows that, if the national authorities are not certain that there are adequate conditions in the State of return, they are prohibited from enforcing the return decision. It seems to me that, faced with such a legal impossibility, the most judicious course of action for national authorities would be to suspend the return decision.

(c) The option to grant an autonomous residence permit or other authorisation offering a right to stay

105. Article 6(4) of Directive 2008/115 allows Member States 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. Under that provision, where such a right to stay is granted, no return decision is to be issued. Where a return decision has already been issued, it is to be withdrawn or suspended for the duration of validity of the residence permit or other authorisation conferring a right to stay. It should be noted that, although the abovementioned provision gives Member States that option, it does not impose any obligation on them. ( 62 )

106. Since Article 6(1) of Directive 2008/115 obliges the Member State to choose between the option of granting a residence permit or right to stay and the option of carrying out a return procedure, it would be appropriate – as is also recommended in the Commission’s Return Handbook ( 63 ) – to establish clear rules on the legal status of unaccompanied minors, allowing them either to issue and enforce a return decision, or to grant a right of residence in accordance with national legislation. Member States should seek to ensure the availability of status-determination procedures for those unaccompanied minors who are not returned. Such an approach would be likely to reduce grey areas and improve legal certainty for all those involved. Moreover, the proposed approach represents a sustainable solution aimed at offering minors a certain degree of long-term normality and stability.

107. It follows from the foregoing analysis that Member States are required to suspend the enforcement of a return decision where there are no adequate reception facilities in the country of origin. They may 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.

108. In the light of the foregoing considerations, I propose that the answer to the third question referred for a preliminary ruling should be that Article 8(1) of Directive 2008/115 must be interpreted as meaning that a Member State which has issued a return decision against an unaccompanied minor must, after the period for voluntary departure has expired, take all the removal measures necessary for the enforcement of the decision, and may not simply wait until the unaccompanied minor reaches the age of majority. A suspension or postponement of the enforcement of the return decision by the Member State will be justified only if the situation in the State of return changes after the return decision has been issued, with the result that the Member State is no longer able to guarantee that the minor would be returned to a member of his or her family, a nominated guardian or adequate reception facilities, in accordance with Article 10(2) of Directive 2008/115. Under Article 6(4) of Directive 2008/115, Member States may 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.

VI. Conclusion

109. In the light of all the foregoing considerations, I propose that the Court answer the questions referred for a preliminary ruling by the Rechtbank Den Haag, zittingsplaats ’s‑Hertogenbosch (District Court, The Hague, sitting in ’s‑Hertogenbosch, Netherlands) as follows: (1) Article 10(2) 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 conjunction with Article 5(a) of that directive and in the light of Article 24 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that, before imposing an obligation to return on an unaccompanied minor, the Member State authorities must satisfy themselves that adequate reception facilities are available for the unaccompanied minor in question in the State of return. (2) Article 6(1) of Directive 2008/115, read in the light of Article 21 of the Charter of Fundamental Rights, must be interpreted as meaning that Member States are not permitted to make a distinction based on the age of an unaccompanied minor when granting residence on their territory if it is established that that minor does not qualify for refugee status or subsidiary protection. (3) Article 8(1) of Directive 2008/115 must be interpreted as meaning that a Member State which has issued a return decision against an unaccompanied minor must, after the period for voluntary departure has expired, take all the removal measures necessary for the enforcement of the decision, and may not simply wait until the unaccompanied minor reaches the age of majority. A suspension or postponement of the enforcement of the return decision by the Member State will be justified only if the situation in the State of return changes after the return decision has been issued, with the result that the Member State is no longer able to guarantee that the minor would be returned to a member of his or her family, a nominated guardian or adequate reception facilities, in accordance with Article 10(2) of Directive 2008/115. Under Article 6(4) of that directive, Member States may 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.

( 1 ) Original language: French.

( 2 ) OJ 2008 L 348, p. 98.

( 3 ) OJ 2011 L 337, p. 9.

( 4 ) OJ 2013 L 180, p. 96.

( 5 ) See ‘Unaccompanied Minors in the Migration Process’, European Border and Coast Guard Agency (Frontex), Warsaw, 2010, p. 3, and ‘VEGA Handbook: Children at airports’, European Border and Coast Guard Agency (Frontex), Warsaw, 2017, p. 7.

( 6 ) See ‘Returning unaccompanied children: fundamental rights considerations’, European Union Agency for Fundamental Rights (FRA), 2019, p. 3.

( 7 ) See ‘Guidance on reception conditions for unaccompanied children: operational standards and indicators’, European Asylum Support Office (EASO), 2018, p. 7.

( 8 ) For a brief overview of the relevant legal acts, see Requejo Isidro, M., ‘The protection of unaccompanied minors asylum-seekers: between competent state and responsible state’, in Cuadernos de derecho transnacional, Part 9, No 2, October 2017, p. 485 et seq.

( 9 ) Namely, the European Asylum Support Office (EASO), the European Border and Coast Guard Agency (Frontex) and the European Union Agency for Fundamental Rights (FRA).

( 10 ) Judgments of 26 September 2018, Baumgartner (C‑513/17, EU:C:2018:772, paragraph 23), and of 20 December 2017, Vaditrans (C‑102/16, EU:C:2017:1012, paragraph 20).

( 11 ) See point 46 of this Opinion.

( 12 ) Emphasis added. See also judgments of 5 June 2014, Mahdi (C‑146/14 PPU, EU:C:2014:1320, paragraph 38), and of 28 April 2011, El Dridi (C‑61/11 PPU, EU:C:2011:268, paragraph 31).

( 13 ) Emphasis added.

( 14 ) See ‘Returning unaccompanied children: fundamental rights considerations’, op. cit., pp. 7 and 23, according to which Article 10(2) must be harmoniously interpreted with Article 5 and recital 22 of Directive 2008/115, in that the competent authorities must give primary consideration to the best interests of the child throughout the whole return process. According to the FRA agency, this overarching principle must guide all actions leading to the removal of an unaccompanied minor.

( 15 ) See point 68 of this Opinion.

( 16 ) Lemke, S., Europäisches Unionsrecht (von der Groeben, Schwarze, Hatje), 7th edition., Baden-Baden 2015, Article 24(11), p. 664, considers that the fundamental right referred to in Article 24(1) of the Charter would be compromised if the authorities subject to the obligations laid down in that provision do not take an active role, and do not offer such protection and care as are necessary for the well-being of the child.

( 17 ) Adopted by the United Nations General Assembly on 20 November 1989 (United Nations Treaty Series, Volume 1577, p. 43).

( 18 ) Emphasis added.

( 19 ) Emphasis added.

( 20 ) As I stated in point 35 of my Opinion in Transportes Aéreos Portugueses (C‑74/19, EU:C:2020:135), certain legislative parallels between, on the one hand, international law and, on the other, EU law, may be understood to reveal a common legal conviction.

( 21 ) See, as regards the importance of the rights of the child in general for the case-law of the Court, judgment of 14 February 2008, Dynamic Medien (C‑244/06, EU:C:2008:85, paragraph 39).

( 22 ) Judgment of 27 June 2006, Parliament v Council (C‑540/03, ‘the judgment in Parliament v Council’, EU:C:2006:429, paragraphs 10, 37 and 57).

( 23 ) OJ 2003 L 251, p. 12.

( 24 ) Emphasis added.

( 25 ) The document ‘Returning unaccompanied children: fundamental rights considerations’, op. cit., p. 23, and Commission Recommendation (EU) 2017/2338 of 16 November 2017 establishing a common ‘Return Handbook’ to be used by Member States’ competent authorities when carrying out return-related tasks (OJ 2017 L 339, p. 83; ‘the Return Handbook’) recommend that the return to family members should be the preferred option, unless this is manifestly not in the child’s best interests.

( 26 ) Judgment in Parliament v Council (paragraph 69); see, as regards the importance of family reunification for the welfare of migrant children, Opinion of Advocate General Hogan in B.M.M. and B.S. (Family reunification – minor child) (C‑133/19, EU:C:2020:222, points 1, 2 and 43).

( 27 ) Judgment in Parliament v Council (paragraph 52 et seq. and the case-law cited).

( 28 ) ECtHR, 12 October 2006, Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, CE:ECHR:2006:0126DEC001317803.

( 29 ) Judgment in Parliament v Council (paragraph 58).

( 30 ) Judgment of 11 December 2014, Boudjlida (C‑249/13, EU:C:2014:2431).

( 31 ) Judgment of 11 December 2014, Boudjlida (C‑249/13, EU:C:2014:2431, paragraph 68). Emphasis added.

( 32 ) Judgment of 11 December 2014, Boudjlida (C‑249/13, EU:C:2014:2431, paragraph 48).

( 33 ) Judgment of 11 December 2014, Boudjlida (C‑249/13, EU:C:2014:2431, paragraph 49). Emphasis added.

( 34 ) Judgment of 11 December 2014, Boudjlida (C‑249/13, EU:C:2014:2431, paragraph 50). Emphasis added.

( 35 ) Judgment of 11 December 2014, Boudjlida (C‑249/13, EU:C:2014:2431, paragraph 55). Emphasis added.

( 36 ) In order to determine the best interests of the child, it is necessary to carry out an individual assessment based on a multidisciplinary approach and involving the minor’s appointed guardian or the competent child-protection service. A number of international entities, such as the United Nations High Commissioner for Refugees, the UN Committee on the Rights of the Child and the United Nations Children’s Fund, have adopted interpretative and operational guidance. Several documents published by European agencies, and cited in this Opinion, provide a useful overview of the factors which the national authorities need to consider when carrying out such an assessment.

( 37 ) See the Return Handbook, pp. 121 and 122.

( 38 ) This interpretation is, moreover, in line with the recommendation of the European Union Agency for Fundamental Rights that Member States should periodically re-assess the child’s best interests in light of the developments of the individual case (see ‘Returning unaccompanied children: fundamental rights considerations’, op. cit., p. 12).

( 39 ) Judgment of 19 June 2018, Gnandi (C‑181/16, EU:C:2018:465).

( 40 ) Judgment of 19 June 2018, Gnandi (C‑181/16, EU:C:2018:465, paragraph 64). Emphasis added.

( 41 ) Judgments of 7 August 2018, Bichat and Others (C‑61/17, C‑62/17 and C‑72/17, EU:C:2018:653, paragraph 29), and of 11 April 2019, Tarola (C‑483/17, EU:C:2019:309, paragraph 36).

( 42 ) Emphasis added.

( 43 ) Judgment of 19 January 2010, Kücükdeveci (C‑555/07, EU:C:2010:21, paragraph 22).

( 44 ) As indicated by Lamont, R., ‘Article 24 of the Charter of Fundamental Rights of the European Union’, in The EU Charter of Fundamental Rights, Oxford, 2014, p. 672, Article 24, paragraph 24.23, the Charter contains, in addition to the rights of the child in Article 24, a prohibition of discrimination on the basis of age in Article 21, which, according to the author, implies that any discrimination of minors (in general) is prohibited. In my opinion, that finding does not preclude a specific category of minors defined according to age (namely minors aged 15 or over) from being able to rely on that prohibition in order to dispute the legality of a national provision (implementing EU law) which, as in the present case, has the effect of treating that category of minors, essentially, as adults, in so far as it deprives the minors in that category of the protection guaranteed by Article 24 of the Charter, given specific expression by Article 10(2) of Directive 2008/115, read in conjunction with Article 5(a) of that directive.

( 45 ) Emphasis added.

( 46 ) Judgment of 23 April 2015, Zaizoune (C‑38/14, EU:C:2015:260, paragraph 30).

( 47 ) Judgments of 23 April 2015, Zaizoune (C‑38/14, EU:C:2015:260, paragraph 31) and of 28 April 2011, El Dridi (C‑61/11 PPU, EU:C:2011:268, paragraph 35). Emphasis added.

( 48 ) Judgment of 23 April 2015, Zaizoune (C‑38/14, EU:C:2015:260, paragraph 32). Emphasis added.

( 49 ) OJ 2013 L 180, p. 60.

( 50 ) See judgment of 19 June 2018, Gnandi (C‑181/16, EU:C:2018:465, paragraph 41).

( 51 ) Judgment of 23 April 2015, Zaizoune (C‑38/14, EU:C:2015:260, paragraph 33). Emphasis added.

( 52 ) Judgment of 23 April 2015, Zaizoune (C‑38/14, EU:C:2015:260, paragraph 34).

( 53 ) Judgment of 16 January 2018, E (C‑240/17, EU:C:2018:8, paragraph 50).

( 54 ) However, it can be argued that there are legitimate reasons not to use coercive measures against a child. That is why some Member States prohibit any forced return of unaccompanied minors (see, to that effect, Dumas, P., ‘L’accès des mineurs non accompagnés à la protection dans les États membres de l’Union européenne’, Revue trimestrielle de droit européen, No 1, 2013, p. 35 et seq.).

( 55 ) Judgment of 28 April 2011, El Dridi (C‑61/11 PPU, EU:C:2011:268, paragraphs 38 and 57).

( 56 ) Judgments of 23 April 2015, Zaizoune (C‑38/14, EU:C:2015:260, paragraph 39); of 6 December 2011, Achughbabian (C‑329/11, EU:C:2011:807, paragraph 32); and of 28 April 2011, El Dridi (C‑61/11 PPU, EU:C:2011:268, paragraph 39).

( 57 ) Judgments of 23 April 2015, Zaizoune (C‑38/14, EU:C:2015:260, paragraph 40); of 6 December 2012, Sagor (C‑430/11, EU:C:2012:777, paragraph 35); and of 28 April 2011, El Dridi (C‑61/11 PPU, EU:C:2011:268, paragraph 59).

( 58 ) See point 83 et seq. of this Opinion.

( 59 ) See ‘European Centre for Returns in brief’, European Border and Coast Guard Agency (Frontex), Warsaw, 2019, pp. 2 and 5, where it is stated that the effectiveness of return procedures depends to a large extent on cooperation with the migrants’ countries of origin in identifying the persons subject to return decisions, issuing travel documents and accepting the returnees back into their country. In that context, the Member States, the Commission and Frontex work together with the countries of return.

( 60 ) See points 63 and 69 of this Opinion.

( 61 ) See point 67 of this Opinion.

( 62 ) See judgment of 5 June 2014, Mahdi (C‑146/14 PPU, EU:C:2014:1320, paragraph 88).

( 63 ) See the Return Handbook, p. 121.