The Court of Justice of the European Union delivered its judgment in Case C‑156/23 on 17 October 2024. 

The case concerned two sisters and their parents, all third-country nationals residing in the Netherlands, who submitted an application for international protection which was the subject of a rejection decision that became final, together with a return decision. That latter decision was adopted following an assessment, by the competent administrative authority, in accordance with the principle of non-refoulement, of the possible risk of torture or inhuman or degrading treatment or punishment to which the applicants in the main proceedings would be exposed in the event of enforcement of that decision and removal to the third country. A few years later, the applicants submitted an application for a residence permit provided for under a national scheme applicable to long-term resident children. That application was rejected by a decision which became final following the dismissal of their appeal against that decision. A few years later, the applicants submitted a new application for a residence permit on the basis of another national scheme applicable to long-term resident children. The application was rejected; the court found that the stay of the applicants was illegal and that the initial return decision had to be enforced. The applicants lodged an appeal against that decision before the referring court which wondered inter alia whether the authority is required to review that return decision in the light of the principle of non-refoulement, by carrying out an updated assessment of the risk of the addressee of that decision being exposed to torture or inhuman or degrading treatment or punishment in the event of removal to the third country.

The Court of Justice of the European Union ruled that Article 5 of Directive 2008/115/EC ("non-refoulement), read in conjunction with Article 19(2) of the Charter of Fundamental Rights of the European Union, must be interpreted as requiring an administrative authority which rejects an application for a residence permit based on national law and, consequently, finds that the third-country national concerned is staying illegally on the territory of the Member State in question, to ensure compliance with the principle of non-refoulement, by reviewing, in the light of that principle, the return decision previously adopted against that national in the context of a procedure for international protection, the suspension of which came to an end following such a rejection.

The Court also noted that Article 13(1) and (2) of Directive 2008/115 ("remedies"), read in conjunction with Article 5 of that directive and with Article 19(2) and Article 47 of the Charter of Fundamental Rights, must be interpreted as requiring a national court which is requested to review the legality of an act whereby the competent national authority has rejected an application for a residence permit provided for by national law, and, in so doing, has brought to an end the suspension of the enforcement of a return decision previously adopted in the context of a procedure for international protection, to raise of its own motion any infringement of the principle of non-refoulement resulting from the enforcement of the latter decision, on the basis of the material in the file brought to its attention, as supplemented or clarified following adversarial proceedings.

For further details, please read the judgment here.