CJEU – C-112/20 Belgian State (Retour du parent d’un mineur), 11 March 2021

The Court did not look into M.A.’s request on whether he was required to bring action on behalf of his child in order to ensure that the best interests of the child are taken into account, considering that this is a question of locus standi and is not the subject of the present reference. [20-23]

The Court first started by noting that, while M.A.’s stay in Belgium was illegal, his daughter is a minor of Belgian nationality. In such a case, M.A. could be entitled to permission to reside in Belgium on the basis of Article 20 TFEU, if the absence of a residence permit the daughter would have to follow the father outside the EU such as in the case C-836/18. The Court reiterated its principles on the assessment of such cases but decided that the present reference did not include a question on the validity of M.A.’s stay. [25-28]

Assessing the case on the premiss that M.A.’s stay is illegal, the Court noted that the RD is applicable, including Article 5 (a) on the consideration of best interests of the child in that Directive’s implementation. This article “constitutes a general rule binding on Member States as soon as they implement that directive”, including where action to return is taken against a person who is the father of a minor residing legally in the EU. The Court has previously held that the best interests of the child cannot be excluded where return decisions are issued against the parents of a minor. [29-33]

To exclude adult-related decisions from best interests of the child considerations would also contravene the objective of Article 5 and the Directive itself, which is to ensure returns are conducted in compliance with fundamental human rights. This guarantee, in combination with the broadly defined Article 24 CFREU and Article 3 (1) of the Convention on the Rights of the Child, should apply to cases that “indirectly” affect children and not only where direct consequences are expected. Lastly, where the EU legislature wanted considerations to only relate to the person against whom action is taken, it has indicated so, such as in Article 5 (c) RD. Consequently, EU law should not be interpreted as precluding the consideration of the child’s best interests if action is taken only with regard to an adult parent’s return. [34-42]