GB, an Algerian national, applied for international protection in the Netherlands on 11 September 2025. On 7 October 2024, the Minister for Asylum and Migration rejected his application because GB did not appear at the interview to examine the grounds for this application. On 26 March 2025, GB applied again for international protection in the Netherlands, which had the effect of suspending the enforcement of the return decision. After hearing GB on the grounds for his request, the Minister informed him on 7 April 2025 of the intention to reject the request as manifestly unfounded. On 9 April 2025, GB withdrew the same request. The suspension of the return decision therefore ended in that same day. On 10 April 2025, GB was detained based on Article 15 of the Return Directive to prepare his return or carry out his removal to Algeria. Before being detained, GB stated that he feared return to Algeria due to a risk of being subjected to inhuman or degrading treatment and that he had a child in France that he wished to take care of. On 16 April 2025, GB lodged an appeal against his detention before the District Court of The Hague seated in Roermond.

That national court referred a question to the CJEU for a preliminary ruling, seeking to ascertain whether, under EU law, when reviewing compliance with the conditions for lawful detention, it must assess whether the principle of non-refoulement and the other interests referred to in Article 5 of the Return Directive, in particular family life (Article 7 of the EU Charter) and the best interests of the child (Article 24(2) of the EU Charter), preclude the applicant’s removal to Algeria in accordance with the return decision, considering that such principle and interests have not been appreciated with regards to GB’s removal, at no point in the proceedings.

In its reasoning, the CJEU recalled the primary objective of the Return Directive, which is to implement an effective policy of removal and repatriation that fully respects the fundamental rights and dignity of the persons concerned. Therefore, when implementing the Directive, including when adopting detention measures with a view to preparing the removal of an illegally staying third-country national, Member States are required to respect the fundamental rights of that national as recognised in the EU Charter. The court noted that any detention of a third-country national under the Return Directive in the context of return proceedings following an irregular stay constitutes a serious interference with the right to liberty of the person concerned, as enshrined in Article 6 of the EU Charter. It added that when ordered for the purpose of removal, the detention of an illegally staying third-country national is intended solely to ensure the effectiveness of the return procedure and does not pursue any punitive purpose. Moreover, the court noted that Article 15(1) of the Return Directive provides that, unless other sufficient but less coercive measures can be applied effectively in a particular case, Member States may only detain a third-country national who is subject to return procedures in order to prepare the return and/or carry out the removal, in particular where there is a risk of absconding or where the third-country national concerned avoids or prevents the preparation of the return or removal procedure. Any detention must be as short as possible and must only be maintained for as long as the removal procedure is ongoing and is being carried out with all due diligence. Where it appears that the conditions for lawful detention laid down in Article 15 of the Return Directive have not been or are no longer met, the person concerned must be imperatively released. The court further noted that the third-country national concerned must be released immediately when it appears that there is no longer any reasonable prospect of removal.

On the principle of non-refoulement, the court noted that the competent national authority must take in consideration this principle at all stages of the procedure, from the moment a return decision is adopted until the moment of judicial review of the enforcement of that decision. Therefore, when the competent national authority order, review, or extend a detention measure for the purpose of removing an illegally staying third-country national, it must verify that the principle of non-refoulement does not preclude the removal of that person. The court noted that where there are substantial grounds for believing that an illegally staying third-country national will face a genuine risk, in the country of destination, of being subjected to treatment prohibited by those provisions of the Charter, that national cannot be removed while such a risk persists.

The court further noted that the competent judicial authority must take into account all the elements, in particular the facts, brought to its knowledge, as supplemented or clarified in the context of procedural measures that it deems necessary to adopt on the basis of its national law, and, on the basis of those elements, raise, where appropriate, the failure to comply with a legality requirement arising from EU law, even if that failure has not been raised by the person concerned. A national rule or practice under which the full examination of the principle of non-refoulement may be carried out only in the context of a procedure for international protection would be contrary to Articles 5 and 15 of the Return Directive, read in conjunction with Article 19(2) of the Charter. That directive applies to any third-country national staying illegally, irrespective of the reasons for that situation Moreover, the applicant cannot be required to lodge an application for international protection in order to be ensured full compliance with the principle of non-refoulement referred to in Article 5 of the Return Directive, read in conjunction with Article 19(2) of the Charter.

On respect for private and family life and the best interests of the child, the court noted that Article 5 of the Return Directive requires Member States to take due account of the best interests of the child, family life and the state of health of the third-country national concerned. In line with the principle of non-refoulement, these interests must be duly taken into account at all stages of the return procedure, including when adopting a return decision, an entry ban or a removal measure, or when detaining a person for the purpose of removal. The court recalled however that contrary to Article 4 of the Charter, which prohibits torture and inhuman or degrading treatment or punishment, the rights enshrined in Articles 7 and 24 of the Charter (respect to private and family life, and rights of the child) are not absolute, and may therefore be subject to restrictions under the conditions set out in Article 52(1) of the Charter. The court further recalled that an illegally staying third-country national is under a duty of sincere cooperation, in accordance with which he or she must inform the competent national authority as soon as possible of all the relevant developments concerning his or her family life.

The CJEU concluded that a judicial authority called upon to review the lawfulness of the detention of an illegally staying third-country national, with a view to his or her removal pursuant to a final return decision, is required to examine, if necessary of its own motion, whether the principle of non-refoulement precludes that removal. Articles 5 and 15 of the Return Directive, read in conjunction with Articles 6, 7, 24(2) and 47 of the Charter, must be interpreted as meaning that a national court called upon to review the lawfulness of the detention of an illegally staying third-country national with a view to removal in accordance with a final return decision is required to examine, where appropriate, of its own motion, whether the best interests of the child and family life, referred to in Article 5(a) and (b) respectively of that directive, preclude such removal.