The case concerned a Guinean applicant whose application for international protection was rejected by the State Secretary by decision of 23 March 2018 and a return was adopted. He was an unaccompanied minor at the time when the asylum application was submitted, and the State Secretary decided that the applicant is not eligible for a residence permit and no assessment on the reception conditions for the applicant in the country of origin was carried out.

The Court of the Hague suspended the procedure and referred question to the CJEU on compliance with the Return Directive.

The referring court explained that the Netherlands legislation draws a distinction based on the age of the unaccompanied minor.  For minors under the age of 15 on the date on which the asylum application is lodged, the State Secretary carries out an investigation as to whether there are adequate reception facilities in the country of return, provided for Article 10 of Directive 2008/115, before a decision on that application is adopted. Where no adequate reception facilities are available, those minors are being granted an ordinary residence permit. For minors aged 15 years or more on the date on which the asylum application is lodged, such an investigation is not carried out, the Netherlands authorities appearing to wait until the minors in question reach the age of 18 in order subsequently to implement the return decision. Thus, during the period between his or her application for asylum and reaching the age of majority, the residence of an unaccompanied minor aged 15 years or more is irregular but tolerated in the Netherlands.  The referring court is seeking to know whether the distinction made by the Netherlands rules between unaccompanied minors over 15 years of age and those under 15 years of age is compatible with Union law. In that regard, that court refers to the concept of the ‘best interests of the child’ referred to in Article 5(a) of Directive 2008/115 and Article 24 of the Charter.

By judgment of 14 January 2021, TQ v State Secretary for Justice and Security (Staatssecretaris van Justitie en Veiligheid, the CJEU answered the questions raised and clarified that Article 6(1) of the Return Directive, read in conjunction with Article 5(a) of that Directive and Article 24 of the EU Charter must be interpreted as meaning that, before issuing a return decision against an unaccompanied minor, the Member State concerned must carry out a general and in-depth assessment of the situation of that minor, taking due account of the best interests of the child. In this context, that Member State must ensure that adequate reception facilities are available for the unaccompanied minor in question in the State of return, without a distinction on the criterion of their age for the purpose of ascertaining whether there are adequate reception facilities in the State of return.

Moreover, the CJEU stated that Article 8(1) of Directive 2008/115 must be interpreted as precluding a Member State, after it has adopted a return decision in respect of an unaccompanied minor and has been satisfied, in accordance with Article 10(2) of that directive, that that minor will be returned to a member of his or her family, a nominated guardian or adequate reception facilities in the State of return, from refraining from subsequently removing that minor until he or she reaches the age of 18 years.

Following the TQ judgement, the Court of the Hague adopted a judgment on 15 March 2021 and ordered the State Secretary to issue the applicant a temporary residence permit because the State Secretary has not investigated, after having found that the applicant is not eligible for international protection, whether adequate reception is available for the applicant in the country of return. The court annulled the asylum decision and requested the State Secretary to grant the foreign national a residence permit from the date of his asylum application. The State Secretary appealed against this judgement, argued that the court wrongly considered that a residence permit must be issued from the date of the asylum application and that in any event the applicant reached the age of majority.

The Council of State set up the principle applicable following the TQ judgement and ruled that the State Secretary does not have to complete the investigation into adequate reception upon return during the asylum procedure. Due to the nature of the asylum procedure and the duration of the investigation, this is in fact not always possible. The State Secretary can reject the asylum application and opt for the possibility to continue the investigation into adequate reception after the asylum application has been rejected with an obligation to act expeditiously, so that the period is as short as possible in which a single person, minor third country national is in uncertainty about his residence status, thus ensuring the best interest of the child is respected. In this regard, to ensure that the State Secretary continues to act expeditiously, he must explain in the asylum decision why he makes use of the option to take the asylum decision separately from the return decision. He will have to assess the status of the investigation into adequate reception at that time and provide an estimate of how long that investigation will take, analogous to Article 42, seventh paragraph of the Aliens Act 2000. If, the third country national considers that the State Secretary acts insufficiently expeditiously during the investigation and possibly deviates from the indicative term given in the asylum decision, the applicant can appeal to the court against the lack of a decision. However, whether the State Secretary acts sufficiently expeditiously requires a case-by-case assessment.

 In any event, the State Secretary cannot suffice with the remark that the foreign national has reached the age of majority and therefore no further investigation needs to take place.

The Council of State partly confirmed the lower court decision and ruled that the court's decision will be quashed insofar as the court has determined that the State Secretary must grant the applicant a permit with effect from 30 June 2017.