On 3 August 2021, the State Secretary for Justice and Security rejected the asylum application of an applicant on the grounds that he had failed to prove his identity, nationality and origin, and he was issued with a return decision. Upon appeal, the District Court of the Hague annulled this decision, as the State Secretary failed to indicate a country of return in the return decision. The State Secretary issued a new return decision on 15 December 2021. An appeal against this new decision was once more upheld on 2 March 2022 as the State Secretary failed for a second time to name a country of return. The State Secretary appealed the ruling of the District Court to the Council of State.

In its consideration of the case, the Council of State referred to the CJEU judgments of FMS and Others v Országos Idegenrendeszeti Főigazgatóság Dél-alföldi Regionális Igazgatóság and Országos Idegenrendeszeti Főigazgatóság (Case C-924/19 C-925/19), and M. and others v State Secretary for Justice and Security (Staatssecretaris van Justitie en Veiligheid) (Case C-673/19).

According to the rulings of the CJEU, one or more countries of return must be mentioned in every return decision, with no exceptions to this rule. The court stated that in accordance with article 5 of the Return Directive, to protect the best interests of the applicant, it must be clear which is the country of return so that the individual will be able to exercise effective legal remedies against the decision, and to apply for an appropriate residence permit.

The court also considered that according to the aforementioned CJEU judgments, a detention measure cannot be based on a return decision which does not mention a country of return. In this regard, with reference to national legislation, the court stated that the State Secretary may supplement an earlier return decision where no country of return was indicated at a later date with a supplementary decision that includes this information.

In light of the above, the court ruled that the district court was right to consider that the State Secretary is obliged to name one or more countries of return, even in the case where the applicant has not proved his nationality and origin. Hereto, the court referred to Article 3(3) of the Return Directive, which stipulates that a country of return may be a country of origin, a country of transit, or a country to which the applicant concerned decides to return to voluntarily and to which he or she is admitted.

The court ruled further that, contrary to the instructions of the district court in the contested judgment, the State Secretary does not have to carry out an active investigation after the asylum procedure and before a return decision is taken, in order to determine the country of return. The court noted that the State Secretary can work effectively to determine a country of return during the return procedure, triggered by the return decision. According to the court, the State Secretary may also name countries of return with which an applicant has stated that he or she has a connection. In addition, the court highlighted that the fact that the applicant's nationality and origin are not found to be credible in the asylum procedure, does not prevent those same countries mentioned in the asylum application to be included in the return decision. The reason for this, according to the court, is that the purposes of the asylum procedure and the return decision are different. However, the State Secretary cannot remove the individual concerned to a country not mentioned in the return decision.

In its assessment of the case, the court examined the consequences for legal protection in this situation. It argued that the State Secretary does not need to examine the grounds of asylum for countries put forward by the applicant, if during the asylum procedure it was decided that the applicant does not plausibly have that nationality and origin. The court noted that the applicant failed to act in a sufficiently cooperative manner with the State Secretary, and therefore, the State Secretary is not in a position to make a more thorough assessment of the risk of non-refoulement described in Article 5 of the Return Directive. In this regard, with reference to national legislation, the court considered that the risk of non-refoulement can only be realistically examined against the background of an established nationality and origin of an applicant. Nevertheless, the court emphasized that this does not preclude the applicant from obtaining effective legal protection in the context of the return procedure if he has not substantiated his nationality or origin during the asylum procedure. The court elaborated that the applicant may submit a new asylum application or request a review of the previous decision, if during the return procedure he is able to prove his nationality or origin, or if a country of return named in the return decision recognizes him as a national. An applicant may also object to an actual deportation on the basis of Article 72 (3) of the Aliens Act 2000, if he is deported to a country whose grounds for asylum have not yet been assessed on the grounds that the State Secretary considered the nationality and origin from that country to be implausible.

On the basis of the above, the court concluded that the appeal is unfounded.