A Venezuelan national applied for international protection. His request was declared inadmissible by the Minister for Asylum and Migration (formerly the State Secretary for Justice and Security) on 6 December 2022 on the basis of Article 30a(1)(c) of the Vw 2000, which transposed Article 33(2) and (c) of the recast Asylum Procedures Directive (APD). Ecuador, where he had previously resided for 6 years, was considered to be a safe third country for the applicant. The minister also issued a return decision, designating Ecuador as the country of return. However, the applicant declared that he did not want to return to Ecuador. As the minister declared the asylum application inadmissible, the substance of his asylum request was not assessed, and therefore it was not established whether the applicant would face a risk of refoulement if returned to Venezuela, his country of origin.

The District Court of the Hague, seated in Zwolle, declared his appeal unfounded on 31 May 2023, as it considered that the word ‘voluntary' in Article 3(3) of the Return Directive should be interpreted as meaning that a third country national will leave the territory of a Member State of his or her own accord within the prescribed period, without addressing the question of whether the concerned person wants to return to the third country.  

On further appeal before the Council of State, the applicant argued that that the court gave an incorrect interpretation to the word ‘voluntary', as he asserted that in this context it refers to the choice of destination of the third-country national concerned. Therefore, he argued that because he does not want to return to Ecuador, the minister should not have issued a return decision designating Ecuador as the country of return. In response, the minister referred to Article 38 of the APD which regulates procedures for return to a safe third country, noting that the interpretation given by the applicant would render this article an empty provision, and runs counter to the general purpose of the Return Directive, which is to pursue an effective removal and return policy.

The Council of State considered in its provisional opinion that the word 'voluntary' under the third indent should be given a different meaning than 'voluntary departure', as referred to in Article 3 (8) and Article 7 of the Return Directive. This is because it relied on the Return Handbook which, although being a recommendation, mentions that a 'decision to return voluntarily' is not the same as voluntary departure and that the first refers in this context to the returnee's choice of destination. As such, a voluntary choice can be made in preparation for a removal operation, for example when a returnee opts to be removed to another third country than the country of transit or origin. According to Section 1.3 of the Return Handbook, Member States may only carry out return operations to a third country in the circumstances exhaustively listed in one of the three indents of Article 3(3) of the Return Directive. Consequently, a removal is prevented in the absence of the returnee's consent to be retuned to a third country that is neither the country of origin nor the country of transit, according to the Return Handbook. The Council of State also asserted that this voluntary choice is apparent from the various other language versions of the Return Directive, for example in English, French and German.

However, it found that such interpretation would be in conflict with the purpose of the Return Directive to effectively implement removal, undermining it. This is because such interpretation would have the effect that the mere fact of not consenting with the return to a third country other than the country of origin or a country of transit, would prevent the Minister from issuing a return decision to that country.

The council stayed the proceedings and referred the following question to the CJEU for a preliminary ruling:

“Is the word "voluntary" in the third indent of Article 3(3) of Directive 2008/115/EC, read in the light of the objective of that directive to implement an effective removal and return policy and in conjunction with Article 33(2)(c) and Article 38 of Directive 2013/32/EU, to be interpreted as referring to the choice of destination of the third-country national?”