An Afghan national was rejected refugee status in Germany in 2017, but he was granted subsidiary protection and issued a residence permit, extended until 5 July 2021. The applicant suffered from substance addiction and was sentenced to a custodial sentence of three years and five months for attempted serious extortion.

Due to that serious crime, the Federal Office for Migration and Refugees (BAMF) revoked the applicant's subsidiary protection status by decision of 3 February 2023 and found no ban on deportation to Afghanistan. The applicant was notified of the revocation decision on 15 February 2023, which he appealed on 29 October 2024, and the proceedings were still pending at the time of the present decision.

The Bremen Senator for Home Affairs (defendant) ordered, by decision of 25 September 2023, the expulsion of the applicant on account of his criminal conviction, rejected the request for extension of his residence permit and issued a return decision to Afghanistan as well as a five-year entry ban. The applicant's appeal against this decision was rejected by the Regional Administrative Court of Bremen on 11 December 2024, and he further brought a legal action before the Higher Administrative Court of Bremen. The applicant argued that the return decision was contrary to Article 5 of the Return Directive because his removal would allegedly violate the non-refoulement principle. Citing the CJEU judgement in K, L, M, N v State Secretary for Justice and Security (Staatssecretaris van Justitie en Veiligheid),[Ararat] (C-156/23, 17 October 2024), the applicant claimed that the defendant should have, prior to adopting a return decision, conducted its own assessment of whether the return would entail a risk contrary to Article 4 of the Charter of Fundamental Rights of the European Union (EU Charter) and Article 3 of the European Convention on Human Rights (ECHR), independent of the assessment carried out in the course of the revocation proceedings. Precisely, the applicant claimed that such assessment should have been conducted in full and not only covering aspects that came to light after the decision of 3 February 2023. The defendant counter-argued that, according to German law, it is bound by the assessment carried out by BAMF on Article 3 of the ECHR and Article 4 of the EU Charter. The defendant further added that it is required, based on the same CJEU judgment, to carry out an assessment on refoulement only on circumstances that have occurred since 3 February 2023. On this aspect, the defendant invoked that there were no changes in the circumstances, neither on treatment and living conditions for dependant patients in Afghanistan nor in the health situation of the applicant.

The Higher Administrative Court of Bremen (the referring court) explained that, in the German legal system on migration, BAMF is the central authority with powers for deciding on international protection since it also has comprehensive information on the situation in countries of origin and it is best placed to assess whether Article 3 of the ECHR precludes removal of third-country nationals. For their part, the foreign departments of the federal states, districts and municipalities, many of which are small authorities, do not have the same knowledge and to the same extent as BAMF. Given that, Article 42 of the Asylum Law, jointly with Article 60(5) of the Residence Act provide that these authorities are bound by BAMF's decisions and measures on whether there are reasons to consider that removal is precluded under Article 3 of the ECHR. The same obligation to follow the BAMF's findings on refoulement lies with the court when reviewing decisions or measures adopted by foreign authorities. Nonetheless, the BAMF can re-examine and amend its decision only upon request by the applicant concerned.

In this context, the Higher Administrative Court of Bremen derived from the CJEU judgment in Ararat that the German provisions according to which the foreign national departments and the courts reviewing their decision are bound by BAMF's findings on refoulement are contrary to Article 5 of the Return Directive. This interpretation would be in line with the CJEU finding that a national rule according to which compliance with the principle of non-refoulement is carried out only in the context of a procedure for granting international protection is contrary to Article 5 of the Return Directive. Also, the referring court held that in Ararat, the CJEU established that the competent authority mandated to enforce a return decision must verify whether removal is contrary to the principle of non-refoulement and it further extended this obligation to courts reviewing actions brought against the decision of the authority enforcing a return decision. Even if the present case concerns a return decision and not the enforcement of a return decision as in the CJEU judgment cited above, the referring court highlighted that the CJEU established in Ararat that ‘Article 5 of the Return Directive... requires the competent national authority to respect the principle of non-refoulement at any stage of the return procedure'. Consequently, the referring court affirmed that, even if another authority has found no issues related to Article 3 of the ECHR when revoking international protection, the competent authority to adopt a return decision must verify whether that assessment still stands, when adopting it.

The referring court reasoned that the questions were formulated in such a way as to allow the CJEU to negatively reply and indicate that a fresh examination on refoulement is not required in a situation as the one in the main proceedings, since the applicant has the possibility of requesting a re-examination before the authority which made an assessment pursuant to Article 3 of the ECHR and Article 19(2) of the EU Charter and, if necessary, initiate legal proceedings against that authority to prevent removal. In such a case, the respective authority would have the possibility to amend its findings at its own motion.

The Higher Administrative Court of Bremen stayed the proceedings and submitted the following questions before the CJEU for a preliminary ruling:

1. Is Article 5 of the Return Directive to be interpreted as meaning that an administrative authority which adopts a return decision against a third-country national after another authority has withdrawn his or her international protection and, in that context, has found that, in the country of origin, there is no serious risk or situation contrary to Article 4 of the EU Charter is required to verify whether the threat of deportation is not precluded pursuant to Article 19(2) of the EU Charter? Similarly, is the court examining that return decision required, without taking into account the finding made when revoking international protection, to fundamentally review whether Article 4 and Article 19(2) of the EU Charter preclude removal to the country-of-origin?
2. If Question 1 is answered in the negative: In the situation described in the first question, are the administrative authority issuing the return decision and the court reviewing it required, pursuant to Article 5 of the Return Directive, to ascertain whether, after the finding, during the withdrawal of international protection, of no reasons precluding removal, any new or altered facts or other subsequent factors not considered in the aforementioned finding now result in  situation where the aforementioned provisions of the EU Charter preclude deportation to the country-of-origin?
3. If the answer to Question 2 is in the affirmative as regards matters which have not yet been considered and which do not concern new or changed facts, is it relevant that the third-country national could have raised these aspects during the proceedings before the authority which revoked international protection and did not do so?