Transposition of article 9 (2) of Directive 2008/115/EC (2013)

This Ad Hoc Query concerns implementation of the Return Directive.


Ad-Hoc Query on transposition of article 9 (2) of Directive 2008/115/EC (pdf, 608 kB)


In accordance with 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 (the Return Directive), article 9 (2), "Member States may postpone removal for an appropriate period taking into account the specific circumstances of the individual case. Member States shall in particular take into account: (a) the third-country national’s physical state or mental capacity (…)"

The Directorate of Immigration of the Ministry of Foreign Affairs of Luxembourg has requested information on the transposition of this article, asking the following:


a) Which is the competent authority and which is the procedure to determine the “third-country national’s physical state or mental capacity”?

b) Is the TCN systematically/repeatedly subject to medical examination to determine whether there are any medical reasons which would prevent the removal? Can the competent authority in charge of the medical examination have access to MEDCOI (Medical Country of Origin Information)?

2) Does the fact that there is appropriate and accessible treatment in the country of origin be taken into consideration?

3) How serious must be the “physical state or mental capacity” to postpone the removal of the TCN? Are the mental disorders and/or posttraumatic stress taken into consideration for the postponement?

4) Are existing illnesses which are treated in the country of origin taken into consideration?

5) Please explain what entails the postponement of removal? For how long it is granted? Which are the rights granted to the beneficiary of the postponement of removal? After how long an authorization of stay/residence permit can be granted? Which are the rights granted to the beneficiary of such an authorization of stay/residence permit?

6) Can you provide statistics for 2011 and 2012 in regards to postponement of removal (granted and rejected) by country of origin and pathology if available.

20 countries, not including Norway, responded to the query.

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