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The case concerned the lawfulness of a third period of detention against the applicant, for the purpose of removal within the meaning of the Return Directive. A, the applicant, was a Moroccan national who illegally entered Finland after disappearing during the asylum procedure in the Netherlands where he was also subject of an entry ban to the Schengen area.

In Finland, the applicant was detained for four consecutive periods: the first from 10 September 2022 to 23 November 2022, the second from 5 December 2022 to 15 March 2023, the third from 11 September 2023 to 18 January 2024 and the fourth, still ongoing, since 7 February 2024. The questions raised before the Supreme Administrative Court were whether the periods of detention shall be added and whether maximum detention period was reached, resulting into the lawfulness of the latest periods of detention.

The Supreme Administrative Court referred questions before the CJEU, registered as C-150/24 [Aroja], under urgent preliminary procedure, as follows:

1. (a)Must Article 15(5) and (6) of the Return Directive 2008/115/EC be interpreted as meaning that all previous periods of detention must be taken into account when calculating the maximum durations of detention referred to therein? If such an obligation does not exist in all cases, what aspects are to be taken into consideration to determine whether the duration of the previous period of detention must be taken into account when calculating the maximum durations?

(b) In particular, how is the situation to be assessed in circumstances such as those in the case in the main proceedings, where, on the one hand, the principal legal basis for detention, namely to secure the removal of an illegally staying third-country national, has remained essentially the same, but where, on the other hand, partly new factual and legal grounds have been put forward in support of the re-detention, the person concerned went, between the periods of detention, to another Member State from where he was returned to Finland, and several months also elapsed between the end of the previous period of detention and the re-detention?

2. (a)Does the second sentence of Article 15(3) of Directive 2008/115/EC preclude national legislation which makes the initiation of a judicial review of the exceeding of the maximum duration of six months subject to a request by the person detained? (b) Must the judicial review referred to in the second sentence of Article 15(3) of Directive 2008/115/EC, which concerns the decision of an administrative authority to exceed the initial maximum duration of detention of six months, be carried out before that maximum duration is reached and, if not, must it in any event be carried out without delay after the decision of that administrative authority?

3. Does the absence of a judicial review as referred to in the second sentence of Article 15(3) of Directive 2008/115/EC, where the maximum duration of detention of six months referred to in Article 15(5) is exceeded, entail an obligation to release the detained person, even if, at the time that belated judicial review is carried out, it is found that all the substantive conditions governing detention have been fulfilled and the case is then being dealt with properly from a procedural point of view? If there is no obligation relating to automatic release in such a situation, what aspects are to be taken into consideration from the point of view of EU law in order to determine the consequences of a judicial review carried out late, in particular in circumstances such as those in the main proceedings?

The applicant, an Ivorian minor represented by her mother, claimed the annulment of the negative decision issued by the French Office for the Protection of Refugees and Stateless Persons (OFPRA) on 25 May 2023 where the OFPRA rejected the minor’s application for international protection.

Firstly, the French Court of Asylum (CNDA) assessed the appeal with regard to procedural breaches. The CNDA found that the French authorities failed to conduct an interview in accordance with the provisions of the French Code on the Entry and Residence of Foreigners and the Right of Asylum (CESEDA) which provided that the national authorities must carry out an individual hearing for each asylum applicant. Since the application was submitted by a minor, the asylum legislation requires that minors are assisted and represented during the procedure before OPFRA by a legal representative, a parent or an ad-hoc administrator. The court noted that the mother of the applicant was not invited for a personal interview, the father of the applicant was also not heard by the OPFRA. As such, the CNDA found that the personal interview did not meet the legal provisions as none of the minor’s parents were called to appear for an interview.

On the merits, the case concerned the applicant’s risk to female genital mutilation practiced by her maternal grandparents in the event of a return to her country-of-origin. Within the application, it was noted that although both the maternal and paternal family members of the applicant were used to performing genital mutilation on newborns, the paternal family members opposed to the practice on the applicant.

The applicant’s mother was granted subsidiary protection by a court decision on 5 May 2017 on behalf of her own mother because she was also an accompanied minor at the time. Thus, the subsidiary protection was extended to the applicant’s mother in accordance with the provisions of Article 23 of the recast Directive 2011/95/EU on maintaining family unity.

Therefore, the case concerned the possibility to extend the international protection to one’s grandchildren under the principle of family unity.

The CNDA noted that the CESEDEA transposes the European law and provides a derived right to subsidiary protection to accompanied children of direct beneficiaries of the protection. Namely, the provisions of Article L.531-23 do not allow the granting of protection to a minor unless his parents had a personal asylum application. In the present case, the mother of the applicant did not benefit of subsidiary protection following an application for international protection personally submitted by her but based on the status granted by the OPFRA in her quality of accompanied minor, for the sole reason that her mother, thus grandmother of the applicant, was granted subsidiary protection.

However, the court annulled the decision issued by the OFPRA, on account of the procedural breach regarding the personal interview of accompanied minors. The case was referred back for re-examination.