Case registered before the CJEU under C-313/25 PPU [Adrar]
An Algerian national applied for international protection in the Netherlands on 11 September 2024, but because the applicant did not present himself for the personal interview, his application was dismissed by a decision which served also as a return order to Algeria, without having set a period for voluntary return.
The applicant was transferred from France to the Netherlands under the Dublin procedure on 26 March 2025 and on the same day he submitted a subsequent application, and he was detained pursuant to Article 8 of the recast Reception Conditions Directive as transposed into national law under Article 59b of the Asylum Law. The applicant was interviewed and on 7 April 2025 the Minister for Asylum and Migration issued a so-called “intention”, where it stated that it intended to declare the subsequent application for international protection manifestly unfounded pursuant to Article 30b (1g) of the Asylum Law. The applicant was given the opportunity to respond in writing within two weeks of receipt of this intention, but he did not submit any observation. On 9 April 2025 he withdrew his subsequent application for international protection and so the Minister did not take a decision on the subsequent application for international protection. Following the withdrawal of the application for international protection, the applicant was automatically as staying illegally and the Minister did not have to take a decision on ending the suspension of the return decision issued on 7 October 2024.
The applicant’s detention based on asylum ended but the applicant continued to be detained based on a return decision, for the purpose of being removed to Algeria. At the hearing concerning the detention, the applicant claimed that he could not return to Algeria because of an alleged risk of treatment contrary to Article 3 of the ECHR upon return, and that he also wanted to go to France to take care of his child born on 18 September 2024. The applicant invoked at the detention hearing facts according to which the return decision adopted in October 2024 was partly based on outdated data and that the applicant's claims concerned the application of Article 5 of the Return Directive and the principle of non-refoulement. The applicant has lodged an appeal exclusively against the detention measure and the District Court of the Hague, seated in Roermond, stayed the proceedings and decided to ask two questions before the CJEU for a preliminary ruling, under the accelerated procedure because the applicant was still in detention.
The primary question is whether, in order to provide an effective remedy, the court deciding on detention must also examine whether the previously determined return decision can be enforced. If the removal cannot take place, then the detention measure cannot serve the purpose of removal and is unlawful, consequently the court must release the applicant. According to the well-established case law of the court, the detention judge is prohibited from reviewing the return decision and the existence of “a return decision” is sufficient. However, the referring court is asking the CJEU whether such prohibition is compatible with EU law, namely Articles 6, 7, 24 (2) of the Return Directive, and Article 47 of the EU Charter of Fundamental Rights (EU Charter).
The referring court referenced the CJEU judgments in the cases of FMS (C-924/19, 14 May 2020), C, B and X (Joined Cases C-704/20 and C-39/21, 8 November 2022) and K, L, M, N v State Secretary for Justice and Security (Staatssecretaris van Justitie en Veiligheid) (C-156/23,17 October 2024).
The District Court asked whether the detention judge is obliged to examine whether the return decision adopted on 7 October 2024 should be further assessed in the light of the interests referred to in Article 5 of the Return Directive and the principle of non-refoulement. The referring court noted that the return decision on which the removal was based was adopted without substantive assessment and without judicial review, and that the applicant could no longer lodge an appeal against the return decision. The referring court noted also that the national procedure does not provide for a separate removal decision, and that an objection to the removal can only be lodged once the removal has been planned. Thus, the national framework does not provide for protection against unlawful detention nor for a full review under Article 5 of the Return Directive. The court noted that the EU and national law do not provide for a periodic review of the return decision and that the detention of the applicant for the purpose of removal is in line with the Return Directive but the Member States must take into account the interests referred to in Article 5 throughout the implementation of the Return Directive and the principle of non-refoulement must be respected at all stages of the return and these obligations are independent of the possibility for the third-country national to apply for an (asylum and regular) residence permit. The District Court of the Hague, seated in Roermond considered that the detention judge must ensure effective judicial protection of the individual rights derived from EU law, in view of Article 47 of the EU Charter and in order to fulfil this, the court must be able to decide on any relevant factual and legal element allowing to assess the lawfulness of the detention.
The court referred two preliminary questions to the CJEU:
- Are Articles 5, 13(1) and (2), and 15 of Directive 2008/115, read in conjunction with Articles 6, 19 (2) and 47 of the EU Charter, to be interpreted as meaning that a judicial authority, when reviewing compliance with the conditions governing the lawfulness of the detention of a third-country national which derive from EU law, is required to satisfy itself, if necessary of its own motion, that the principle of non-refoulement does not preclude the enforcement of the return decision previously adopted and for the purposes of its enforcement the third country national was detained?
- Are Articles 5, 13(1) and (2), and 15 of Directive 2008/115, read in conjunction with Articles 6, 7, 24(2) and 47 of the EU Charter, to be interpreted as meaning that a judicial authority, when reviewing compliance with the conditions governing the lawfulness of the detention of a third country national which derive from EU law, is required to satisfy itself, if necessary of its own motion, that the interests referred to in Article 5 of the Return Directive do not preclude the enforcement of the return decision previously adopted and for the purposes of its enforcement the third country national was detained?