The request for preliminary ruling was made in proceedings concerning a Syrian applicant whose subsidiary protection status was revoked on grounds of threat to national security and for whom no return decision was issued because the return was prevented by the principle of non-refoulement. The minister ordered him to leave the Netherlands, but no return decision was issued. In the appeal proceedings, the District Court of The Hague seated in Roermond sought before the CJEU interpretation of Article 6, in conjunction with Articles 3, 5 and 6 of the Return Directive and raised the question of whether, when the principle of non-refoulement precludes removal, a written confirmation is required that the removal of the third-country national is postponed. The referring court referenced the CJEU judgment in Bundesamt für Fremdenwesen und Asyl v AA (C‑663/21, 6 July 2023) in which 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.

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. It argued that the applicant could be obliged to leave the EU territory by checking for admission to a third country other than the country of origin, because the non-adoption of a return decision for a person whose presence on the EU territory constitutes a threat to public security and who is illegally residing, would have the consequence of allowing an intermediate status.

The CJEU recalled that in the case Bundesamt für Fremdenwesen und Asyl v AA, it found that a third-country national whose refugee status has been revoked must be regarded as staying illegally, unless that person is allowed to remain in the Member State on another basis. However, the strict requirements of Article 5 of the Return Directive regarding the conduct of return remain applicable in cases involving a third-country national in a situation such as the present case. This means that Member States are obligated to verify compliance with the principle of non-refoulement at all stages of the return procedure. Therefore, a return decision cannot be adopted in cases where there are serious reasons to believe that removal to the country of destination would result in a breach of the principle of non-refoulement.

The court further clarified that the interpretation adopted in the case Bundesamt für Fremdenwesen und Asyl v AA applied in a case in which the national authorities had already expressly excluded the removal of the third-country national concerned to his or her country of origin on basis of the principle of non-refoulement. Therefore, the obligation to take into account the principle of non-refoulement at the stage of adopting a return decision is different from the obligation, laid down in Article 9(1)(a) of the Return Directive, to postpone removal for reasons related to a potential breach of the principle of non-refoulement. Consequently, the court found that Article 8 is not relevant since it lays down the rules related to removal.

Moreover, the court emphasised that a national authority cannot, in a situation such as the one in the present case, adopt a return decision without designating the country of destination when return to the country of origin is precluded. Recalling its findings in the judgments FMS and Others (C‑924/19 PPU and C‑925/19 PPU, 14 May 2020) and M. and Others (C-673/19, 24 February 2021), the court highlighted that it would be legally impossible to issue a return decision without identifying and specifying the country of destination. When removal is precluded based on the principle of non-refoulement, the authorities cannot adopt a return decision based on national provisions and are precluded from ordering the third country national to leave, without authorising his or her removal or designating a country of destination.

Any third-country national staying illegally on the territory of a Member State falls within the scope of the Return Directive and must be subject to the procedures and standards laid down in that directive. Therefore, a decision which requires the third-country national to travel either to the territory of a third country or to another Member State falls within the scope of the Return Directive. It affirmed that the concept of ‘return' must be interpreted as covering not only a forced displacement, but also a displacement to a third country in voluntary compliance with an obligation to return, provided that a country of destination is designated.

In line with Article 4(3) of the Return Directive, Member States are allowed to adopt national provisions which grant more favourable conditions only if those provisions are compatible with the provisions of the Return Directive.  

With regard to exclusion and its consequences, the court affirmed that, despite the absolute nature of the prohibition of exposing a person to torture, inhuman or degrading treatment as enshrined in Articles 4 and 19 (2) of the EU Charter of fundamental rights, the revocation of subsidiary protection is not devoid of effects since it has the direct consequence of no longer having access to all the rights and benefits provided under Chapter VII of the recast Qualification Directive (QD). The court recalled that, based on Article 3(3) of the QD, return can also be implemented to a country of transit based on readmission agreements or to another third country provide that the person decides and agrees to voluntarily return there.

In conclusion, the CJEU ruled that ‘Article 5 of the Return Directive, read in conjunction with Articles 3 and 6 of that directive and with Article 17(1) and Article 19(3)(a) of the recast QD must be interpreted as precluding the adoption of a return decision in respect of a third-country national whose subsidiary protection status has been revoked, where it is established that the removal of that third-country national to the intended country of destination is precluded by virtue of the principle of non-refoulement.'