1 The claimant challenges a deportation warning issued together with the rejection of his asylum application.

2 The claimant, who was born in December 2018 in the Federal Republic of Germany, is a national of the Federal Republic of Nigeria, as are his parents. In March 2017 and March 2018, the Federal Office for Migration and Refugees (Bundesamt für Migration und Flüchtlinge, hereinafter Federal Office) had determined that the claimant's father and a sister, who was born in 2014, were subject to a deportation ban pursuant to section 60 (5) of the Residence Act (AufenthG, Aufenthaltsgesetz) in conjunction with article 3 of the European Convention on Human Rights (ECHR) and based this on the fact that it would not be possible for the child's father to fulfil his maintenance obligations towards his parents, his wife and his children in Nigeria through simple work. The claimant's father and aforementioned sister were then granted residence permits pursuant to section 25 (3) AufenthG for the first time in February 2018 and April 2018, respectively. The asylum applications by the claimant's mother and another sister born in 2016 were rejected as manifestly unfounded in March 2017. The action pending before the Administrative Court (Verwaltungsgericht) in this respect was suspended with regard to the proceedings at issue. An application to order the suspensive effect of the action against the decision remained unsuccessful. Their stay has been tolerated since then.

3 By notice of 13 June 2019, the Federal Office refused to grant the claimant refugee status (no. 1), to recognise him as entitled to asylum (no. 2) and to grant him subsidiary protection status (no. 3), found that no deportation bans existed pursuant to section 60 (5) and (7) first sentence AufenthG (no. 4), threatened to deport him primarily to Nigeria (no. 5) and limited the (at that time still) legally prescribed ban on entry and residence under section 11 (1) AufenthG, old version, to a period of 30 months from the date of deportation (no. 6).

4 In its judgment of 7 June 2021, the Administrative Court annulled no. 5 and 6 of the notice of 13 June 2019, dismissing the action with regard to all other aspects. The deportation warning was unlawful. Due to the national deportation ban established with regard to the claimant's father and one of his sisters pursuant to section 60 (5) AufenthG, a domestically related deportation ban existed with regard to them based on article 6 of the Basic Law (GG, Grundgesetz) and article 8 ECHR. The claimant, due to his age, could not be expected to be separated from his father.

5 As grounds for its leapfrog appeal (Sprungrevision), the defendant essentially argues that circumstances relating to the child's best interests, which are to be taken into account pursuant to article 5 first half-sentence (a) of Directive 2008/115/EC, and family life, which is to be taken into account pursuant to article 5 first half-sentence (b) of Directive 2008/115/EC, were in principle not to be asserted in the proceedings concerning the Federal Office's deportation warning, but in separate proceedings before the foreigners authority responsible for enforcing the deportation. This division of competences was covered by the scope left to the national legislature to design proceedings for legal protection.

6 The legal dispute is to be suspended. In accordance with article 267 of the Treaty on the Functioning of the European Union (TFEU), a preliminary ruling by the Court of Justice of the European Union (CJEU, hereinafter Court of Justice) is to be obtained on the question raised in the operative part of the decision. The question concerns the interpretation of article 5 of 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 (OJ L 348 p. 98).

7 1. In national law, the legal assessment of the deportation warning is based on the Asylum Act (AsylG, Asylgesetz) in the version promulgated on 2 September 2008 (Federal Law Gazette (BGBl, Bundesgesetzblatt) I p. 1798), last amended by article 9 of the Act of 9 July 2021 for the Further Development of the Central Register of Foreign Nationals (Gesetz vom 9 July 2021 zur Weiterentwicklung des Ausländerzentralregisters) (BGBl I p. 2467 <2504>), as well as under the Act on the Residence, Economic Activity and Integration of Foreign Nationals in the Federal Territory (Residence Act) in the version promulgated on 25 February 2008 (BGBl I p. 162), last amended by article 3 of the Act of 9 July 2021 for the Further Development of the Central Register of Foreign Nationals (BGBl I p. 2467 <2502>).

8 The following provisions of national law are hence the decisive legal framework for the legal dispute:

9 Article 6 GG
(1) Marriage and the family shall enjoy the special protection of the state.
(2) The care and upbringing of children is the natural right of parents and a duty primarily incumbent upon them. (...)
(...)

10 Section 34 AsylG - Deportation warning
(1) Pursuant to sections 59 and 60 (10) of the Residence Act, the Federal Office shall issue a written deportation warning if
1. the foreign national is not recognised as entitled to asylum,
2. the foreign national is not granted refugee status,
2a. the foreign national is not granted subsidiary protection,
3. the conditions of section 60 (5) and (7) of the Residence Act are not met or if deportation is permitted on an exceptional basis, regardless of compliance with the conditions stipulated in section 60 (7) first sentence of the Residence Act, and
4. the foreign national does not hold a residence title.
A hearing of the foreign national prior to issuing the deportation warning shall not be required. The foreigners authority shall remain competent in other respects for decisions pursuant to section 59 (1) fourth sentence and (6) of the Residence Act.
(2) The deportation warning is to be issued in conjunction with the decision on the asylum application. (...)

11 Section 25 AufenthG - Residence on humanitarian grounds
(...)
(5) A foreign national who is under an executable obligation to depart may be granted a temporary residence permit if departure is impossible in fact or in law and the obstacles to departure are not likely to be removed in the foreseeable future. As a general rule, the temporary residence permit is to be granted if deportation has been suspended for 18 months. A temporary residence permit may only be granted if the foreign national is prevented from departure through no fault of his or her own. Fault on the part of the foreign national applies in particular if he or she furnishes false information, deceives the authorities with regard to his or her identity or nationality or fails to meet reasonable requirements to eliminate the obstacles to departure.

12 Section 59 AufenthG - Deportation warning
(1) The foreign national is to be served with a deportation warning specifying a reasonable period of between seven and 30 days for voluntary departure. (...) When the period allowed for voluntary departure expires, the foreign national is not to be informed of the date of the deportation.
(2) The deportation warning should specify the state to which the foreign national is to be deported and should inform the foreign national that he or she may also be deported to another state which he or she is permitted to enter or which is obliged to admit him or her. (...)
(3) The existence of deportation bans and grounds for the temporary suspension of deportation does not preclude issuing the deportation warning. The state to which the foreign national may not be deported is to be specified in the deportation warning. If the administrative court establishes the existence of a deportation ban, the lawfulness of the deportation warning otherwise remains unaffected.
(4) Once the deportation warning is incontestable, the foreigners authority is not to take into account in further decisions any circumstances constituting an obstacle to deportation to the state specified in the deportation warning and which occurred before the deportation warning became incontestable; any other circumstances asserted by the foreign national constituting an obstacle to deportation, or to deportation to the specified state, may be ignored. The provisions enabling the foreign national to assert the circumstances referred to in the first sentence before a court by means of an action or in temporary relief proceedings pursuant to the Code of Administrative Court Procedure remain unaffected.
(...)

13 Section 60a AufenthG - Temporary suspension of deportation (Duldung)
(...)
(2) The deportation of a foreign national shall be suspended for as long as deportation is impossible for factual or legal reasons and no residence permit is granted. (...)
(...)
(3) Suspension of deportation shall not affect the foreign national's obligation to leave the federal territory.
(4) The foreign national must be issued a certificate confirming the suspension of deportation.
(5) The suspension of deportation lapses when the foreign national departs. The suspension is revoked when the circumstances preventing deportation cease to apply. The foreign national is deported without delay when the suspension lapses, without any renewed deportation warning specifying a deadline, unless the suspension is renewed. If deportation has been suspended for more than one year, the foreign national is to be notified at least one month in advance of the intention to deport resulting from revocation of suspension; such notification is to be repeated if the suspension has been renewed for more than one year. The fourth sentence does not apply if the foreign national brought about the obstacle to deportation by intentionally furnishing false information or by own deceit concerning his or her identity or nationality or if he or she fails to meet reasonable requirements to cooperate in eliminating obstacles to departure.

14 Section 123 of the Code of Administrative Court Procedure (VwGO, Verwaltungsgerichtsordnung)
(1) On request, the court may, even prior to bringing an action, make an interim order in relation to the subject-matter of the dispute if the risk exists that the putting into effect of a right of the claimant could be prevented or considerably impeded by means of an alteration of the existing status. Interim orders shall also be admissible to settle an interim status in relation to a contentious legal relationship if this regulation appears necessary, above all with regard to ongoing legal relationships, in order to avert major disadvantages or prevent an imminent threat of violence or for other reasons.
(...)

15 2. The question referred for a preliminary ruling is relevant for the decision and requires clarification by the Court of Justice.

16 2.1 The question referred for a preliminary ruling is relevant for the decision.

17 National law does not in principle preclude the lawfulness of a return decision issued against a minor third-country national together with the rejection of their application for international protection and setting him or her a time period for departure of 30 days after the incontestable completion of the asylum procedure, even if for legal reasons no parent of the minor is to be returned to a country designated in article 3 no. 3 of Directive 2008/115/EC for a foreseeable period of time, so that the minor cannot be expected to leave the Member State in light of articles 7 and 24 (2) of the Charter of Fundamental Rights of the European Union (CFR) and article 8 ECHR. The child's best interests and family life within the meaning of article 5 first half-sentence (a) and (b) of Directive 2008/115/EC are rather the subject of a decision on the suspension of the third-country national's deportation to be taken in the procedure before the foreigners authorities after the return decision under asylum law has been issued.

18 a) In German asylum law and law on foreign nationals, the deportation warning to be issued on the basis of section 34 (1) first sentence AsylG and section 59 AufenthG constitutes a return decision within the meaning of article 3 no. 4, article 6 and article 7 (1) first subparagraph of Directive 2008/115/EC (see Federal Administrative Court (BVerwG, Bundesverwaltungsgericht), judgment of 16 February 2022 - 1 C 6.21 - (...) para. 41, 45 and 56 with further references).

19 In order to accelerate and simplify the enforcement of the obligation to depart, the deportation warning is issued irrespective of whether concrete indications have become apparent to the foreigners authority that the foreign national may not voluntarily comply with his or her obligation to depart (BVerwG, judgment of 4 October 1988 - 1 C 1.88 - (...) para. 33). The purpose of accelerating and simplifying the enforcement of the obligation to depart is also served by the provision in section 34 (1) first sentence in conjunction with section 59 (1) first sentence and (3) first sentence AufenthG according to which the existence of bans on deportation and grounds for the temporary suspension of deportation does not preclude issuing the deportation warning (...). The purpose of the deportation warning is to induce the foreign national to depart voluntarily, without this necessarily resulting in deportation after the time limit has expired (...). Domestically related obstacles to enforcement, including those circumstances as a result of which the deportation of a foreign national is legally not possible with a view to a separation of family members that is not compatible with article 6 (1) in conjunction with (2) GG, article 8 (1) ECHR, article 7 and article 24 (2) CFR, are not to be taken into account when issuing the deportation warning - which is the responsibility of the Federal Office in asylum procedures - and thus not when issuing the return decision, but when deciding on a temporary suspension of deportation (Duldung) - which is to be made by the foreigners authority ex officio, i.e., even without a corresponding application by the foreign national (see, for example, BVerwG, judgment of 4 July 2019 - 1 C 45.18 - BVerwGE 166, 113 para. 21 and decision of 10 October 2012 - 10 B 39.12 - (...) para. 4). A possible claim to the granting of a residence permit resulting from the legal residence of family members does not prevent the issuance of the deportation warning, but must be asserted separately vis-à-vis the foreigners authority.

20 b) If it is impossible to enforce the obligation to depart by means of administrative coercion due to domestically related deportation bans, the deportation of the foreign national is to be suspended ex officio pursuant to section 60a (2) first sentence AufenthG (...) as long as the reasons causing the legal impossibility of deportation persist and the foreign national is not granted a residence permit - for example, pursuant to section 25 (5) AufenthG. Suspension of deportation is a beneficial administrative act for the foreign national (thus already decided by BVerwG, decision of 16 August 1980 - 1 B 809.80 - (...) para. 18). Its issuance does not affect the executability of the obligation to depart, nor does it change the course or expiry of the time limit for voluntary departure. The foreign national continues to reside unlawfully in the federal territory, but is not liable to prosecution if he or she does not leave the scope of application of the deportation's suspension that is spatially limited by law. It is incumbent on him or her to demonstrate to the foreigners authority the existence of facts justifying the legal impossibility of deportation. The foreigners authority is obliged to investigate these facts, regardless of whether they arose before or after the deportation warning was issued, and to issue the foreign national with a certificate of suspension of deportation if a domestically related deportation ban exists. The duration of the suspension of deportation is determined by the type of underlying reason and its expected duration (...). When the suspension of deportation ends and cannot be extended because the underlying reason no longer exists, the foreign national will be deported without renewed warning and setting of a time limit (section 60a (5) third sentence AufenthG).

21 c) If the foreigners authority does not consider grounds for suspension of deportation to exist, it is, however, not obliged to notify the foreign national of the refusal of the suspension of deportation prior to deportation in the form of a written decision accompanied by information on available legal remedies (article 12 (1) of Directive 2008/115/EC). This is because the return decision within the meaning of article 6, article 12 (1) of Directive 2008/115/EC ordered in Germany is not the refusal of suspension of deportation pursuant to section 60a AufenthG, but the deportation warning pursuant to section 59 AufenthG. The foreign national against whom a deportation warning has been issued must therefore expect to be deported at any time after the time period for voluntary departure has expired; the specific date of deportation may not be announced to him or her (section 59 (1) eighth sentence AufenthG). Effective legal protection is nevertheless guaranteed because the foreign national has the possibility at any time to claim domestically related deportation bans before the administrative court by applying for interim measures in the form of an interim order pursuant to section 123 VwGO and thus provisionally prevent the execution of deportation (BVerwG, judgment of 20 February 2020 - 1 C 1.19 - BVerwGE 167, 366 para. 24). A recognised legal interest in bringing proceedings and the urgency for such an application (so-called need for an interim order) typically exist after expiry of the time period for departure (Federal Constitutional Court (BVerfG, Bundesverfassungsgericht), decision of 8 November 2017 - 2 BvR 809/17 - (...) para. 15). If the foreign national can credibly substantiate that he or she is entitled to suspension of deportation pursuant to section 60a (2) first sentence AufenthG, the administrative court will oblige the foreigners authority to suspend execution of the deportation on a provisional basis until a decision in the main proceedings has been reached (regarding the obligation to issue an order for suspending deportation).

22 2.2 The referring Court considers it necessary to clarify whether the national legal situation described above is sufficiently consistent with the requirement under article 5 first half-sentence (a) and (b) of Directive 2008/115/EC to adequately consider the child's best interests and family life in the return procedure.

23 a) The Court of Justice has emphasised on several occasions that family life and the child's best interests must be taken into account before issuing a return decision: The purpose of article 5 of Directive 2008/115/EC is, inter alia, to safeguard the fundamental rights of minor third-country nationals enshrined in article 24 CFR within the framework of the return procedure introduced by the Directive. In light of this purpose, the provision of the Directive cannot be interpreted restrictively (CJEU, judgment of 11 March 2021 - C-112/20 [ECLI:EU:C:2021:197], M. A. - para. 35).

24 The child's best interests and family life must be duly taken into account at all stages of the procedure (CJEU, judgment of 14 January 2021 - C-441/19 [ECLI:EU:C:2021:9], TQ - para. 54). The competent national authority must therefore take due account of the child's best interests and family life even if it is contemplating the adoption of a return decision (CJEU, judgments of 11 December 2014 - C-249/13 [ECLI:EU:C:2014:2431], Khaled Boudjlida - para. 49 and of 11 March 2021 - C-112/20, M. A. - para. 41). Article 5 first half-sentence (a) and (b) of Directive 2008/115/EC precludes a Member State from adopting a return decision without taking into account the relevant details of the child's best interests and family life which the third-country national claims in order to oppose the adoption of such a decision (CJEU, judgment of 8 May 2018 - C-82/16 [ECLI:EU:C:2018:308], K. A. et al. - para. 104). Article 6 (1) in conjunction with article 5 first half-sentence (a) and (b) of Directive 2008/115/EC in conjunction with article 24 (2) CFR hence require the Member State, before issuing a return decision, to carry out an assessment of the situation of a minor affected by the decision (CJEU, judgment of 14 January 2021 - C-441/19, TQ - para. 60). In this context, the third-country national must in principle be given the opportunity to effectively submit his or her point of view on the subject of the unlawfulness of his or her stay and reasons which might, under national law, justify that authority refraining from adopting a return decision (CJEU, judgment of 11 December 2014 - C-249/13, Khaled Boudjlida - para. 55 and 63). The Member State must also ensure that the third-country national can claim any change in circumstances, even after the adoption of the return decision, which may have a significant bearing on the assessment of his or her situation in light of Directive 2008/115/EC and, in particular, its article 5 first half-sentence (a) and (b) (CJEU, judgment of 19 June 2018 - C-181/16 [ECLI:EU:C:2018:465], Sadikan Gnandi - para. 64 and 67).

25 Pursuant to article 13 (1) and (2) of Directive 2008/115/EC, a third-country national must have an effective legal remedy against a return decision issued against him or her. However, such remedy does not necessarily have suspensive effect (CJEU, judgments of 30 September 2020 - C-233/19 [ECLI:EU:C:2020:757], B. - para. 44 and - C-402/19 [ECLI:EU:C:2020:759], LM - para. 33 and decision of 5 May 2021 - C-641/20 [ECLI:EU:C:2021:374], VT - para. 22). By virtue of law, however, an appeal against a return decision must have suspensive effect in the event that the enforcement of that decision may actually expose the third-country national to a real risk of serious harm to protected legal interests (see CJEU, judgment of 30 September 2020 - C-233/19, B. - para. 46 and 66). The obligation to ensure that in such a case a third-country national has a remedy by virtue of law with suspensive effect against the return decision concerning him or her is intended to ensure that that decision will not be enforced before the arguments relied on in support of such remedy are examined by a competent authority (CJEU, judgment of 30 September 2020 - C-402/19, LM - para. 38 with reference to CJEU, judgment of 18 December 2014 - C-562/13 [ECLI:EU:C:2014:2453], Moussa Abdida - para. 49 et seq.). Its purpose is to enable the person concerned to stay temporarily in the territory of the Member State which has adopted a return decision against him or her (CJEU, judgment of 30 September 2020 - C-402/19, LM - para. 39). Therefore, to allow the enforcement of such a return decision before the arguments based on the third-country national's situation had been examined by a competent authority would risk depriving that third-country national, in practice, of the protection to be granted to him or her under articles 5 and 13 of Directive 2008/115/EC in conjunction with articles 19 (2) and 47 CFR (CJEU, judgment of 30 September 2020 - C-402/19, LM - para. 41). In this respect, it is primarily up to the national legislature to take the measures necessary to safeguard the interests worthy of protection. The national legislature has some leeway in this respect (CJEU, judgment of 30 September 2020 - C-233/19, B. - para. 48 et seq.; see, in a different context, also BVerwG, judgment of 20 February 2020 - 1 C 1.19 - BVerwGE 167, 366 para. 13). When a national court concludes that national legislation does not offer a third-country national, who as a result of the enforcement of the return decision might be exposed to a risk of treatment contrary to article 19 (2) CFR, a remedy against the return decision governed by precise, clear and foreseeable rules and leading to the suspension of that decision by virtue of law, it is for that court to hold that the action brought by the third-country national for the purpose of the annulment and suspension of the return decision adopted in respect of that third-country national has suspensive effect, if necessary refusing to apply the national legislation precluding that appeal from having such effect (CJEU, judgment of 30 September 2020 - C-233/19 B. - para. 57 and decision of 5 May 2021 - C-641/20, VT - para. 28).

26 b) Taking into account this case-law of the Court of Justice, it is doubtful whether the German legal situation, according to which a return decision is issued irrespective of possible domestically related deportation bans and they must be asserted in a separate procedure against the foreigners authority, is compatible with EU law.

27 Parts of the national jurisprudence affirm this compatibility because the requirement to give due consideration to the child's best interests and family life when issuing the return decision was sufficiently taken into account by the fact that it is regulated by law and thus already established in abstract-general terms at the time the return decision is issued that deportation will not take place if and as long as this is legally impossible with a view to a separation of family members that is incompatible with article 7 and article 24 (2) GRC as well as article 8 (1) ECHR (...). This was also assumed by the Senate most recently in February 2020. In this context, it understood article 6 (4) of Directive 2008/115/EC to mean that a return decision may also be issued if domestically related deportation bans exist because according to this provision it is sufficient to suspend the return decision "for the period of validity of the residence title or other authorisation offering a right to stay" (see BVerwG, judgment of 20 February 2020 - 1 C 1.19 - BVerwGE 167, 366 para. 24). Suspension of deportation, however, only means that deportation rather than the return decision is suspended. The return decision would become legally binding if the action were dismissed in the present proceedings. The time period for departure would then begin even though the claimant could not be reasonably expected to leave voluntarily.

28 However, recent decisions by the Court of Justice (above all the above-mentioned judgments of 14 January 2021 - C-441/19, TQ - and of 11 March 2021 - C-112/20, M. A. -) reinforce the doubts about the conformity with EU law of section 34 (1) first sentence AsylG in conjunction with section 59 (3) first sentence AufenthG. Accordingly, it seems conceivable that article 5 first half-sentence (a) and (b) of Directive 2008/115/EC mandatorily require a concrete, case-related examination of the child's best interests and family life prior to issuing a return decision. Moreover, it is implied that an illegal stay entitling to the issuance of a return decision may possibly only be assumed if it has been examined and determined beforehand that the foreign national cannot be granted a residence title (for example, in the context of subsequent immigration for the purpose of family reunification or for humanitarian reasons) (see CJEU, judgments of 14 January 2021 - C-441/19 - para. 71 and of 11 March 2021 - C-112/20 - para. 24 et seqq.). The unlawfulness of section 34 (1) first sentence AsylG in conjunction with section 59 (3) first sentence AufenthG would also have to be assumed if the asylum authority were not free to issue a return decision without taking deportation measures against the third-country national, subject to the situations covered by article 9 (1) and (2) of Directive 2008/115/EC (see CJEU, judgment of 3 June 2021 - C-546/19 [ECLI:EU:C:2021:432], BZ - para. 57 et seqq.; see also judgment of 14 January 2021 - C-441/19 - para. 69 et seqq. on unaccompanied minors).

1 By written statement of 20 February 2023, the defendant withdrew her appeal on points of law against the judgment of the Sigmaringen Administrative Court (Verwaltungsgericht) of 7 June 2021. The claimant granted his consent to the withdrawal of the appeal on points of law by letter of 9 March 2023. The appeal proceedings on points of law therefore have to be discontinued pursuant to sections 141 first sentence, 125 (1) first sentence, 92 (3) first sentence of the Code of Administrative Court Procedure (VwGO, Verwaltungsgerichtsordnung).

2 The decision on costs is founded on section 155 (2) VwGO. According to section 83b of the Asylum Act (AsylG, Asylgesetz), no court costs will be charged; the value of the matter proceeds from section 30 of the Act on the Remuneration of Attorneys (RVG, Rechtsanwaltsvergütungsgesetz).