The case concerned the separation, in the event of return, of a minor third-country national from the parents and the best interests of the child. G.S., a minor born in Germany, national of Nigeria, was issued with a decision refusing international protection and a notice of intention to deport by the German Federal Office for Migration and Refugees (BAMF). Earlier, the applicant’s father and one of the sisters were issued with decisions by BAMF, which stated that they could not be removed to Nigeria as the father, if removed to that country, would not be able to fulfil his maintenance obligations towards his own parents, his wife and his children. They were granted residence permits on humanitarian grounds. The applications for asylum made by the mother and another sister were refused as manifestly unfounded, and their presence in Germany was tolerated. On appeal before an administrative court, most of the claims of the applicant were dismissed and annulled the notice of intention to deport as his removal would be contrary to the right to respect for family life. On second appeal lodged by the state before the Federal Administrative Court, the state argued that the grounds precluding removal, relating to the best interests of the child and respect for family life under Article 5(a) and (b) of the Return Directive must not be taken into account in the procedure leading to the issuance of a notice of intention to deport, but may be taken into account only in the context of a separate subsequent procedure for the enforcement of the removal, which falls within the competence of other authorities than BAMF, namely the regional foreign nationals authorities.

The Federal Administrative Court stayed the proceedings and to referred the following question to the CJEU for a preliminary ruling:

“Must [Article 5(a) and (b) of Directive 2008/115] be interpreted as precluding, without exception, the lawfulness of a return decision adopted in respect of a minor third-country national, accompanied by a refusal of his or her application for international protection and setting him or her a time limit for voluntary departure of 30 days from the date on which the decision becomes final, where, for legal reasons, neither parent can be returned to a country referred to in Article 3(3) of [that directive] in the foreseeable future and the minor cannot therefore reasonably be expected to leave the Member State either, on account of his or her family life which is worthy of protection ([Article 7 and Article 24(2)] of the [Charter], Article 8 of the [European Convention for the Protection of Human Rights and Fundamental Freedoms]), or is it sufficient that, on the basis of a national statutory provision, the child’s best interests and family life within the meaning of [Article 5(a) and (b) of Directive 2008/115] are to be taken into account, following the adoption of the return decision, by virtue of a suspension of the removal?”

The CJEU held that Article 5(a) and (b) of the Return Directive is to be interpreted as requiring that the best interests of the child and the family life of that child be protected in proceedings leading to the adoption of a return decision in respect of a minor and it is not sufficient for that minor to be able effectively to rely on those two protected interests in subsequent proceedings relating to the enforcement of the return decision in order to obtain a suspension of that enforcement.

The court recalled that the fundamental rights of the child are among the right to be protected in the context of a return procedure and Article 5(a) of the Return Directive and Article 24(2) of the EU Charter require that the best interests of the child be protected at all stages of the procedure while Article 5(b) of the Return Directive requires the Member States to take due account of family life.

It further added that Article 5 of the Return Directive precludes a Member State from adopting a return decision without taking into account the relevant elements of the family life which the person concerned has put forward in order to oppose the adoption of such a decision and before issuing a return decision in respect of a 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.

Thus, the court held that Article 5(a) and (b) of the Return Directive requires that “the best interests of the child and the family life of that child be protected in proceedings leading to the adoption of a return decision in respect of a minor, and that it is not sufficient for that minor to be able to rely on those two protected interests in subsequent proceedings relating to the enforcement of that return decision in order to obtain a suspension of that enforcement, if appropriate.”