TQ v Staatssecretaris van Justitie en Veiligheid.
Date: 2021-01-14
A third-country national in that situation falls, under Article 2(1) of Directive 2008/115, and without prejudice to paragraph 2 of that article, within the scope of the directive. He or she is therefore, in principle, subject to the common standards and procedures laid down by the directive for the purpose of his or her removal, as long as his or her stay has not, as the case may be, been regularised (see, to that effect, judgment of  19 March 2019, Arib and Others, C‑444/17, EU:C:2019:220, paragraph 39).
As the Court has held, pursuant to Article 5 of Directive 2008/115, entitled ‘Non-refoulement, best interests of the child, family life and state of health’, when the Member States implement that directive, they must, first, take due account of the best interests of the child, family life and the state of health of the third-country national concerned and, second, respect the principle of non-refoulement (judgments of  11 December 2014, Boudjlida, C‑249/13, EU:C:2014:2431, paragraph 48, and of  8 May 2018, K.A. and Others (Family reunification in Belgium), C‑82/16, EU:C:2018:308, paragraph 102).
It should be recalled that the objective pursued by Directive 2008/115 is the establishment of an effective removal and repatriation policy that fully respects the fundamental rights and dignity of the persons concerned (judgment of 14 May 2020, Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság, C‑924/19 PPU and C‑925/19 PPU, EU:C:2020:367, paragraph 121 and the case-law cited).
In that situation, Article 6(1) of that directive provides for an obligation for Member States to issue a return decision against any third-country national staying illegally on their territory (judgment of 23 April 2015, Zaizoune, C‑38/14, EU:C:2015:260, paragraph 31).
As was specified in paragraph 41 of this judgment,  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 (judgment of 23 April 2015, Zaizoune, C‑38/14, EU:C:2015:260, paragraph 32).
According to the case-law of the Court, 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 is 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, point 5, of that directive, the physical transportation of the person concerned out of that Member State (judgment of  23 April 2015, Zaizoune, C‑38/14, EU:C:2015:260, paragraph 33).
It must be recalled, moreover, that, as follows both from the duty of sincere cooperation on the Member States and 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 (judgment of  23 April 2015, Zaizoune, C‑38/14, EU:C:2015:260, paragraph 34).