On 15th of February 2023, the Court of Justice of the EU (CJEU) ruled in respect of C-484/22, GS. The case concerned a minor from Nigeria who lived in Germany with his parents and siblings either on the basis of a “tolerated” stay or a decision that they could not be removed. His asylum application was rejected and he was presented with a deportation decision, which he challenged on the basis of Article 5 (a) and (b) of the Return Directive relating to the best interests of the child and family life.
Referring to Article 24 of the EU Charter and the case État belge, the Court considered that fundamental rights must be respected and therefore Article 5 of the aforementioned Directive cannot be interpreted strictly. It found that Article 5 precludes a Member State (MS) from adopting a return decision without taking the relevant elements of family life into account and that a general and in-depth assessment must be carried out taking due account of the best interests of the child. In light of these considerations, the Court ruled that Article 5 (a) and (b) of the Directive must be interpreted as requiring the best interests of the child and family life of that child be protected in proceedings leading to the adoption of a return decision in respect of a minor. 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 to obtain a suspension.