CJEU Case C-441/19 | TQ v Staatssecretaris van Justitie en Veiligheid

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Publication Date 2019-2021
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Information Guide concerning Case C-441/19 from the Court of Justice of the European Union (CJEU), which relates to return decisions issued against unaccompanied minors seeking asylum.

Further information:

In June 2017, an unaccompanied minor who was then 15 years and four months old, applied in the Netherlands for a fixed-term residence permit on grounds of asylum. The application stated that he was born in 2002 in Guinea and had decided to come to Europe following the death of an aunt he lived with in Sierra Leone. He also claimed to have subject to human trafficking and sexual exploitation, resulting in serious psychological damage. In March 2018, the Dutch Secretary for Justice and Security (Staatssecretaris van Justitie en Veiligheid) decided ex officio that the minor was not eligible for such residence permit, arguing that he did not qualify for refugee status or subsidiary protection. In accordance with national law, that decision constitutes a return decision.

In April 2018, the minor brought an appeal against the decision before the referring court, claiming his lack of knowledge of his parents' whereabouts, his inability to recognise them upon return and lack of awareness of any other family members. The referring court clarified that Dutch legislation draws a distinction based on the age of the unaccompanied minor. A pre-decision investigation as to whether there are adequate reception facilities in the country of return only takes place for minors under the age of 15, which are given an ordinary residence permit in the absence of such facilities. No such investigation is conducted for those aged 15 or more - Dutch authorities appear to wait until they turn 18 years old before they implement the return decision. In the meantime, their residence is irregular yet tolerated by the authorities.

The referring court decided to submit a request for preliminary ruling before the CJEU on whether such distinction based on age is compatible with EU law. On 14 January 2021, the Court decided that a Member State must verify that adequate reception facilities are available for the unaccompanied minor in the return country before issuing a return decision. In addition, it is argued that should reception facilities no longer be guaranteed at the stage of removal, the Member States will not be able to enforce the return decision. The Court states that unaccompanied minors cannot be solely distinguished on the basis of the criterion of their age for the purpose of ascertaining whether there are such facilities.

Related Link(s)
Commentary and Analysis
ECRE: News, 22/01/2021: C-441/19: CJEU delivers judgment concerning return decisions and the investigation into adequate reception facilities for unaccompanied minors in the State of return https://www.ecre.org/c-441-19-cjeu-delivers-judgment-concerning-return-decisions-and-the-investigation-into-adequate-reception-facilities-for-unaccompanied-minors-in-the-state-of-return/

Deutsche Welle, 14/01/2021: Top EU court: Minors can't be deported with no home to go to https://p.dw.com/p/3nuAN
Anadolu Agency, 15/01/2021: EU court lays out conditions for deportation of minors https://www.aa.com.tr/en/europe/eu-court-lays-out-conditions-for-deportation-of-minors/2111090

CJEU CURIA: Case C-441/19 | Staatssecretaris van Justitie en Veiligheid (Retour d’un mineur non accompagné) http://curia.europa.eu/juris/documents.jsf?num=C-441/19
CJEU: Press Release No. 5/21, 14/01/2021: Judgment in Case C-441/19 TQ v Staatssecretaris van Justitie en Veiligheid https://curia.europa.eu/jcms/upload/docs/application/pdf/2021-01/cp210005en.pdf

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