Full AO1 walk-through

[Kim P. Nyberg]

It has to be said that Belgium is still struggling to understand these rules on the protection of the child’s best interests. In any case, we must now take a closer look at a case in which the Belgian courts take the view that the best interests of the child only come into play if the child is the defendant in a case such as this, where the father has been ordered to leave the country and has also been issued with an entry ban. There is no mention of what led to him being ordered to leave the country with a re-entry ban on top of that, but one must assume that he has been charged with or convicted of serious offences.

He has a Belgian spouse and the couple have a minor child together. The child is a Belgian national. The Belgian court specialising in immigration law takes the view that it is HE who is the accused, not the child. That the court is only required to take the child’s best interests into account if the case specifically concerned the child and the child was in the dock, charged alongside his father. As long as that is not the case, there is no need to take the child’s best interests into account.

The Court does not agree with this view. One need only read the responses in paragraphs 27, 31, 32 and 36 in isolation. The Belgian argument is completely dismantled. On the one hand, the child’s best interests must be taken into account BEFORE a decision on removal is made, not afterwards; on the other hand, taking the child’s best interests into account is an OBLIGATION, not an optional matter, in all cases where there is even the slightest hint of children being involved in one way or another, and, thirdly, one cannot construct a narrative suggesting that the child’s best interests are only relevant if the child is personally the subject of a deportation order.

Directive 2008/115, referred to in the judgement, applies in Denmark as it forms part of the Schengen cooperation. The Directive is known as the ‘Return Directive’ and deals with how Member States are to conduct themselves in cases concerning the removal of undesirable persons.

Paragraph 27 of the judgment states explicitly that the mere fact that the parent who is a national of the country is capable of caring for the child alone may form part of the overall assessment of the case, but it cannot stand on its own. Despite this admonition, Denmark relied on precisely that single point to justify the removal of numerous fathers and mothers of minor children with dual Danish citizenship right up until October 2022. This was the sole focus, and nothing else was taken into account.

The Court’s ruling had no impact on Danish practice.

Link to the judgment in Case C-112/20, M.A. v. Etat Belge:

https://eur-lex.europa.eu/legal-content ... 2020CJ0112

Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals:

https://eur-lex.europa.eu/legal-content ... 32008L0115

The Charter of Fundamental Rights of the European Union – SECTION III – EQUALITY – Article 24 – Rights of the child:

https://eur-lex.europa.eu/legal-content ... :12007P024