On 30 September 2020, the CJEU answered the preliminary request for an interpretation of Articles 5 and 13 of the Return Directive (2008/115/EC) made in the proceedings between LM and the Public Centre for Social Welfare (CPAS). The case concerned the CPAS’ decision to withdraw a third country national’s social assistance.
LM, a third country national, whose adult daughter is seriously ill and thus dependent on him, lodged an appeal against a return decision made against him and another one, on behalf of his daughter, against the return decision made against her.
In essence, the referring court asked the CJEU whether Articles 5, 13 and 14 of the Return Directive, read in light of Articles 7, 19(2), 21 and 47 of the Charter, must be interpreted as precluding national legislation that does not provide for the basic needs of a third country national where they have lodged an appeal against an order for return made against them and where that person has an adult child suffering from a serious illness that is dependent on their presence, and where an appeal has been lodged on behalf of that adult child against a return decision which could expose them to a serious risk of grave and irreversible deterioration of health.
The CJEU assessed whether LM in this case, was entitled to an appeal with a suspensive effect by reason of the circumstances of his dependent and seriously ill adult daughter. The CJEU stated that an appeal against a return decision must have automatic suspensive effect where the enforcement of that decision may, inter alia, expose that third country national to a real risk of inhuman and degrading treatment or a grave and irreversible deterioration in his or her state of health. The purpose of a remedy with automatic suspensive effect is to enable the person to remain temporarily in the territory of the Member State until the arguments relied upon in their appeal can be examined by a competent authority. The third country national parent in these circumstances may not be directly exposed to this kind of harm in the event of the enforcement of a return decision, but if the adult child suffering the serious illness is entirely dependent on this parent, an enforcement of a return decision against the parent could risk preventing the dependent child suffering the serious illness from staying in the Member State. Therefore, to ensure the effectiveness of the protection of the suspension on the return decision, the parent must also be entitled to an appeal with automatic suspensive effect. The CJEU decided that the fact that the child concerned in this case was an adult is immaterial when it can be established that dependence on the parent continues to exist. The CJEU concluded that LM, in these circumstances, must benefit from the safeguards of Article 14 of the Return Directive and compliance with these principles, presupposes that provision is made for basic needs. The CJEU clarified that the obligation only applies where the person lacks the means to meet their needs and leaves it to the Member State to decide the form in which the provision for basic needs is made.
The CJEU concluded that Articles 5 and 13 of the Return Directive, read in light of Article 7, 19(2), 21 and 47 of the Charter must be interpreted as precluding national legislation that does not provide for, insofar as possible, the basic needs of a third country national where that person has made an appeal against a return decision and where that person has a seriously ill, dependent adult child who requires that parent’s presence and where an appeal has been lodged on behalf of that adult child against a return decision which could expose them to a serious risk of grave and irreversible deterioration of health.
CJEU: Provision of basic needs for third country nationals with seriously ill, dependent child pending an appeal with automatic suspensive effect
