Case registered before the CJEU under C-182/26 [Hardeker]

A third country national was transferred to the Netherlands on 27 February 2026 for processing of his asylum application, following several requests for transfer under the Dublin III Regulation between France, Germany, Austria and the Netherlands. He was detained the same day, but he later withdrew his asylum application. At the detention interview he declared to have two nationalities, Moroccan from his mother and Algerian from his father. He lacked identity documents, but he claimed during the interview on the imposition of a detention measure pending return to originate from Libya without being able to prove it, allegedly due to the war in Libya. The Minister for Asylum and Migration adopted a return decision against the applicant on 3 February 2026, withholding a period for voluntary return and indicating Algeria, Morocco and Libya as countries of return. He was further subject to a detention measure for enforcement of the return decision and a one-year entry ban. The applicant did not appeal against the return decision but appealed only against the detention measure, arguing that the minister failed to conduct an assessment on refoulement, both when adopting the return decision and the detention measure, rendering the latter unlawful. In support of his argument, the applicant cited the Council of State judgment of 12 February 2026, which was rendered following up the CJEU ruling in GB [Adrar] v The Minister for Asylum and Migration (de Minister van Asiel en Migratie) (C-313/25 PPU, 4 September 2025).

The minister counterargued that the lawfulness of the return decision was out of question since no appeal has been lodged. The applicant also alleged that the return decision was unclear on which of the countries he should return to. The minister explained that a refoulement assessment is conducted for one or more countries once there is clarity about the country of return, for example when the authorities of one country agreed to issue a laissez-passer. At that moment, the Dutch authorities can conduct a refoulement assessment.

In the context of the present case, the District Court of The Hague, seated in Haarlem, held that determining the moment when a refoulement assessment must be conducted, in situations where it is unclear to which country the applicant should be removed because of the applicant's own actions, whether at the moment the return decision is adopted, when the detention measure is imposed, or when the country of return is identified, required guidance from the CJEU. The court found that, even in the absence of an appeal against the return decision, it was obliged ex officio to examine whether there was a return decision as basis for the detention measure. It recalled that such test is paramount to determine whether a return decision meets the legal requirements specific for it and the general requirements for each decision. Citing the CJEU judgment in FMS (C-924/19 and C-925/19, 14 May 2020), it reiterated that a 'return decision' constitutes an administrative or judicial decision or act establishing or declaring that a third-country national is illegally staying and imposing or stating an obligation to return, either to the country of origin, a country of transit or another third country to which they voluntarily decide to return and to which they are admitted as stipulated in Article 3(3) of the Return Directive. Moreover, in the FMS judgment, the CJEU clarified that Article 5 of the Return Directive mandates a national authority which intends to issue a return decision to ensure compliance with the principle of non-refoulement.

Against this background, the court of the Hague derived from the FMS judgment two main requirements when imposing an obligation to return: 1) a country of destination must be determined in accordance with Article 3(3) of the Return Directive and 2) a refoulement assessment must be made for that country. For this purpose, the court questioned whether, in the event of an appeal submitted against a detention measure imposed for the purpose of removal, and when that measure is based on a return decision, the court must also examine whether a (correct) refoulement assessment has been conducted in the return decision, even if that return decision is not subject to review. In the specific circumstances of this case, when several countries are listed in the return decision and the applicant does not cooperate with the authorities in determining his nationality, the next question is whether the refoulement assessment must already be made at the time the return decision is adopted, or it may be done at a later stage.

The court held that, since three countries were indicated in the return decision, the minister fulfilled this part as required by a national ruling of 8 May 2024, which was based on the FMS judgment. In that case, the Council of State ruled that a return decision is valid if a country of return is indicated, irrespective of whether the applicant has made his nationality or identity plausible. As a result, according to this ruling which was adopted prior to the Adrar judgement, if a refoulement assessment cannot be conducted at the time of issuance of a return decision, then it can be omitted for as long as it is needed to determine the nationality and origin of the foreign national.

In the present case, the referring court held that it would have been unrealistic to make a complete refoulement assessment when plausible information was lacking on the applicant's nationality and origin. However, the court affirmed that a less complete refoulement assessment can be carried out, as for example by verifying the general security situation in one or more countries of origin, considering also specific groups of applicants. However, it held that, in circumstances as those in the present case, such assessment can be conducted at a later stage, for example during the periodic review of the detention measure. Referencing the CJEU case law in M. and others (C-673/19, 24 February 2021), X v Staatssecretaris van Justitie en Veiligheid, (C-69/21, 22 November 2022),  Ararat (C-156/23, 17 October 2024) and Adrar (C-313/25 PPU, 4 September 2025), the referring court reiterated that the principle of non-refoulement must be taken into account in the assessment at all stages of the procedure, from the time when a return decision is adopted to the moment when the enforcement of that decision is reviewed by the court. It also recalled that, in the context of the case, more information can be gathered by national authorities, during the detention period, in order to determine the nationality and origin of the applicant, and consequently the correct country of return.

Against this background, the court decided to stay the proceedings and to submit the following questions before the CJEU for a preliminary ruling:

           1. In a situation such as this, in which three possible countries of return are specified in the return decision and it was not (yet) clear at the time of the adoption of that decision to which country the foreign national would return, must a refoulement assessment be carried out at the time of the adoption of the return decision? Is the court ruling on the detention entitled to assess this of its own motion as a specific requirement of the return decision, even if no remedy against that return decision has been sought from that court?

a. If so, must the refoulement assessment cover all possible countries of return specified in the return decision? Must the refoulement assessment be carried out as if the foreign national were a national of, or originated from, the specified countries of return, or is it sufficient to base the assessment solely on the general situation in the countries concerned, whether or not in conjunction with what is known about the foreign national, such as his religion or population group? Is a distinction to be drawn between the assessment to be made by the administrative body in that situation and the assessment to be made by the court, and if so, how?

b. What role does the fact that the foreign national cooperates or does not cooperate in determining a country of return play in that regard?

          2. In a situation such as this, in which three possible countries of return are specified in the return decision and it was not (yet) clear at the time of detention to which country the foreign national is required to return, must a refoulement assessment be carried out when the detention order is imposed, given that the purpose of the detention is to facilitate the return of that foreign national, including by keeping him available for the purpose of determining his nationality or origin, and thus the country to which he is required to return? If so, must the refoulement assessment cover all possible countries of return specified in the return decision?

a. What role does the fact that the foreign national cooperates or does not cooperate in determining a country of return play in that regard?

          3. If the answer to the first and second questions is in the negative, is it permissible in a situation such as this to postpone the conduct of a refoulement assessment until it is clear to which country the foreign national is required to return, for example, because his nationality has been confirmed by the authorities of that country or the foreign national himself has provided evidence of his nationality?

The referring court indicated also the Dutch context to justify the urgency of the request. Specifically, in the Dutch system, the return decision and the obligation to return are the basis for the removal procedure, since no removal decision is taken separately from the return decision. In the present case, the return decision did not include any substantive assessment of whether the principle of non-refoulement precludes removal. Consequently, if the return decision cannot be enforced because of the principle of non-refoulement, then the removal cannot be grounds for detention, and such detention for the purpose of removal is thereby not justified. If it appears that the detention measure is unlawful, the court is obliged to release the applicant immediately.

Therefore, the CJEU clarifications have a direct impact on the outcome of the main proceedings and may lead to the referring court's obligation to release the applicant. The national proceedings have been suspended pending the outcome of the CJEU, but the applicant is kept in detention while the national authorities are working on his removal from the Netherlands.