The case concerned a preliminary request for an interpretation of Articles 5, 13 and 14 of the Return Directive made in the proceedings against a decision of the Public Centre for Social Welfare (Seraing, Belgium) (hereinafter CPAS’) to withdraw a third country national’s social assistance.

In 2013, LM's applications for leave to remain in Belgium on medical grounds for himself and his daughter R, who was then a minor, on the ground that R was suffering from several serious illnesses were declared admissible on 6 March 2013 and LM further received social assistance, the cost being borne by the CPAS. In 2016, all four applications for leave to remain were rejected and a return order has been issued against him and his daughter. LM brought an action for annulment and suspension of that decision rejecting his applications and ordering him to leave the territory before the Conseil du contentieux des étrangers. According to Belgium's legislation, only appeals against removal orders have automatic suspensive effects and not those against return decisions. Social assistance was withdrawn when R. became an adult in April 2017 and LM lodged appeal against those decisions. The appellate court (cour du travail de Liège) assessed that the deterioration in the state of R’s health if returned to the country of origin would amount to inhuman and degrading treatment, and that the presence of her father remained as essential as when she was a minor. The court referred the case to CJUE and asked for interpretation of Articles 5, 13 and 14 of the Return Directive, read in light of Articles 7, 19(2), 21 and 47 of the Charter.

First, CJEU held that, in order to ensure that the requirements arising from Article 47 of the Charter and the principle of non-refoulement are complied with in respect of the third-country national concerned, an appeal against a return decision must have automatic suspensive effect, since the enforcement of that decision may, inter alia, expose that national to a real risk of being subjected to treatment contrary to Article 19(2) of the Charter (exposure to a serious risk of grave and irreversible deterioration in his or her state of health). The Member States must, pursuant to Article 14(1)(a), (b) and (d) of that directive, ensure that, as far as possible, family unity with family members present in their territory is maintained, emergency health care and essential treatment of illness are provided and the special needs of vulnerable persons are taken into account. However, the obligation only applies for a Member State where the person lacks the means to meet their needs.

The CJUE further ruled that Articles 5, 13 and 14 of the Return Directive, read in the light of Article 7, Article 19(2) and Articles 21 and 47 of the Charter, must be interpreted as precluding national legislation which does not provide, as far as possible, for the basic needs of a third-country national to be met where:

–        that national has appealed against a return decision made in respect of him or her;

–        the adult child of that third-country national is suffering from a serious illness;

–        the presence of that third-country national with that adult child is essential;

–       an appeal was brought on behalf of that adult child against a return decision taken against him or her, the enforcement of which may expose that adult child to a serious risk of grave and irreversible deterioration in his or her state of health, and

–        that third-country national does not have the means to meet his or her needs himself or herself.