Case registered before the CJEU under C-202/25 [Tadmur]

A Syrian applicant arrived in the Netherlands as a minor and was granted subsidiary protection on 7 January 2016. By decision of 1 February 2022, the applicant was sentenced to four years’ imprisonment for attempted murder, conspiracy to commit violence against persons and making threats against the life of another person. Due to this conviction, the Minister for Asylum considered that the applicant constituted a threat to public order and has therefore revoked his subsidiary protection status and residence permit, pursuant to Article 17 (1)(b) of the recast Qualification Directive (QD).

The Minister did not issue a return order because it assumed that there would be a risk of breaching Article 3 of the ECHR in case of return to Syria and referenced the CJEU judgment in Bundesamt für Fremdenwesen und Asyl v AA, (C‑663/21, 6 July 2023) where the CJEU found that Article 5 of the return Directive must be interpreted as meaning that no return decision may be imposed if removal to the country of destination cannot take place due to the refoulement principle.

Although no return decision or entry ban was adopted against the applicant, however, based on the Aliens Act, the Minister ordered the applicant to leave the Netherlands and since the return is postponed, the applicant has an intermediate status with no obligation to leave the EU, resulting into a significant deprivation of effect of the exclusion grounds for which the status was revoked.

In the appeal against the decision on revocation of the subsidiary protection status, the District Court of the Hague, seated in Roermond, stayed the proceedings and referred a question to the CJEU on interpretation of the Return Directive and the recast Qualification Directive. The court asked whether, in view of the rationale of the grounds for exclusion and the significant consequences of interpreting Article 5 of the Return Directive as an independent rule, the Minister should issue a return decision against the applicant.

The question reads as follows:

• Is Article 6 of Directive 2008/115, in conjunction with Articles 3, 5, 8 and 9(1)(a) of Directive 2008/115, and in conjunction with Articles 17 and 19(2) and (3)(a) of Directive 2011/95, to be interpreted as meaning that, subject to the exceptions set out in Article 6(2) to (5) of Directive 2008/115, the Member State is obliged to issue a return decision in respect of a third-country national staying illegally on its territory who is excluded from subsidiary protection, and that if removal to the country of destination is contrary to the principle of non-refoulement, the Member State is obliged, at the same time as issuing a return decision, to confirm in writing that the removal of that third-country national has been postponed?