The Council of State referred questions to the CJEU, in the cases of two applicants, an Afghan national and a Yemeni national, who were excluded from international protection on the grounds of Article 1F of the Geneva convention. They were issued a return order but could not be forcibly removed for an indefinite period of time because they ran a real risk of serious harm in their country of origin and removal would result in a risk of violating the principle of non-refoulement by breaching Article 3 of the ECHR and Articles 4 and 19(2) of the EU charter. The third country nationals complained about uncertainty regarding their right of residence and feared a situation of far-reaching material deprivation resulting from their uncertain legal status which limited their entitlement to state support.

The council submitted the following three questions for a preliminary ruling:

1. Must Article 6 of the Return Directive, read in conjunction with Articles 3, 5, 8 and 9(1)(a) of the Return Directive and read in conjunction with Articles 17 and 19(2) and (3)(a) of recast Qualification Directive be interpreted as meaning that the Member State, subject to the exceptions provided for in Articles 6(2) - (5) of the recast Qualification Directive, is obliged to issue a return decision against a third-country national staying illegally on its territory who has been excluded from subsidiary protection? And does this obligation include the requirement, at the same time as adopting a return decision, to confirm in writing that the removal of that third-country national is postponed if such removal would be contrary to the principle of non-refoulement (preliminary question referred by the District Court of The Hague, sitting in Roermond, on 12 March 2025, registered at the CJEU as Case C-202/25)?

2. Are Articles 1, 4 and 7 of the EU Charter and Articles 5, 6, 9 and 14 of the Return Directive, read in conjunction with the interpretation of those provisions in the CJEU judgments in Bundesamt für Fremdenwesen und Asyl v AA (C‑663/21, 6 July 2023) and K, L, M, N v State Secretary for Justice and Security (C-156/23, 17 October 2024), be interpreted as precluding the issuance of a return decision where that decision simultaneously provides for the indefinite postponement of removal because of the risk of a breach of the principle of non-refoulement?

3. If the answer to the second question is in the affirmative, the council asks the CJEU whether Articles 5, 9 and 14 of the Return Directive must be interpreted as precluding a national Legal scheme under which persons staying illegally in the Netherlands, who cannot be removed for an indefinite period of time because of a risk of breach of the principle of non-refoulement in the country of origin and who are not granted a right of residence in the Netherlands, can only claim education, medically necessary care or legal aid for a period of at least ten years, while it is uncertain whether they will be eligible for a right of residence after that period?