The applicant is a third-country national against whom a removal order and an entry ban on the Belgian territory was issued on 24 May 2018. The contested orders were notified to him the following day. The decisions were due to the offences that he had committed on the Belgian territory and consequently to the fact that he should be considered a threat to public order. The applicant stated that he had a partner of Belgian nationality and a daughter born in Belgium and that those decisions were affecting his family right and the best interest of his child. By judgement of 21 February 2019, the Conseil du contentieux des étrangers (Council for asylum and immigration proceedings) dismissed the action brought by M.A. against those decisions.

On 15 March 2019, the applicant lodged an appeal against that judgement before the Conseil d’État (Council of State, Belgium). He submits that the Conseil du contentieux des étrangers wrongly considered that he had no interest in bringing his claim alleging infringement of Article 24 of the EU Charter of Fundamental Rights, on the ground that he did not state that he was acting on behalf of his minor child. The applicant notes that his child has Belgian nationality, she is not the person to whom the measures contested are addressed and therefore does not have locus standi, and that it is not necessary for him to act on behalf of the child for the best interest of the child to be protected. M.A. also observes that to continue family life with him, his child must leave the territory of the European Union and she would be denied  the enjoyment of her rights as a Union citizen.

The Conseil d’État decided to stay the proceedings and to refer the case to the CJEU with a question on whether Article 5 of Directive 2008/115/EC, which requires Member States, when implementing the directive, to take account of the best interests of the child, together with Article 13 of that directive and Articles 24 and 47 of the Charter, must be interpreted as requiring the best interest of the child to be taken into account even if the return decision, accompanied by an entry ban, is taken with regard to the father alone.

The Court held that it cannot be inferred that the best interest of the child must be taken into account only when the return decision is issued in respect of a minor, to the exclusion of the return decisions taken against the parents of that minor. It noted that the objective pursued by Article 5 of Directive 2008/115 is to ensure respect for a number of fundamental rights, including the fundamental rights of the child, and it follows that Article 5 cannot be interpreted restrictively. Additionally, according to Article 5(b) Member States must also take due account of family life when contemplating the adoption of a return decision. The Court also held that Article 24(2) of the Charter provides that in all actions relating to children, the child’s best interests must be a primary consideration, and that such provision is worded in broad terms and applies to decisions which are not addressed to that minor but have significant consequences for him or her.

The Court ruled that Article 5 of Directive 2008/115, read in conjunction with Article 24 of the Charter, must be interpreted as meaning that Member States are required to take due account of the best interests of the child before adopting a return decision accompanied by an entry ban, even where the person to whom that decision is addressed is not a minor but his or her father.