The applicant, a man claiming Eritrean nationality, submitted his first asylum application in the Netherlands in May 2016. That application was rejected on the basis that he had failed to establish his identity and nationality, and a return decision was issued. Subsequent applications in 2017 and 2019 were declared inadmissible. He submitted a fourth application on 9 May 2023, which the Minister for Asylum and Migration rejected as manifestly unfounded by decision of 7 October 2025. The applicant appealed this decision before the District Court of the Hague, seated in Haarlem.

The court found that the applicant failed to establish his Eritrean nationality as plausible. His birth certificate had been found non-authentic by the Documents Office in 2019. As the applicant had not appealed this decision, the court found that it had acquired formal legal force. The remaining evidence, including a DNA test, UNHCR registration of the alleged mother, family identity documents, an uncle's statement, and knowledge of Tigre, was found to be insufficient, both individually and in combination, as none of it directly evidenced the applicant's own nationality. Finally, it considered that the benefit of the doubt under Article 4(5) of the recast Qualification Directive (QD) was not applicable given the applicant's overall lack of credibility.

Turning to the return decision, the court noted that it indicated Eritrea as the country of destination and the minister did not assess the risk of refoulement. The applicant argued that this is contrary to the principle of non-refoulement.

The court referred to the CJEU ruling in FMS and Others (C‑924/19 PPU and C‑925/19 PPU, 14 May 2020) which interpreted the Return Directive. The CJEU established that a return decision must indicate a country of destination, which must be either the country of origin, a country of transit, or another third country to which the applicant voluntarily decides to return to and can be admitted. The CJEU affirmed that the principle of non-refoulement must be taken into account throughout the return procedure, from the time of the adoption of the return decision until its implementation is reviewed by the court. The district court noted that by naming Eritrea as the country of destination, the minister implemented previous case law of the Dutch Council of State, Applicant v State Secretary for Justice and Security (Staatssecretaris van Justitie en Veiligheid) (8 May 2024) which ruled that a lawful return decision must include a country of return, even in cases in which the applicant has not made his nationality and origin plausible. According to the council's reasoning, the minister is not obliged in such situations to assess the risk of refoulement more thoroughly than the assessment undertaken in the asylum procedure. It held that a further assessment of the risk of not possible at the time of taking a return decision and may be omitted provided that no additional information is known as concerns the applicant's nationality and origin.

The district court considered that this leads to a seemingly contradictory situation, where the minister must name at least one country of destination, yet cannot make a refoulement assessment. It observed that the risk of refoulement seems to be realistically examined only against the background of an established nationality and origin. It also remarked that in such cases where these elements are not found to be plausible, the applicant's personal fear of persecution or serious harm are not assessed in the asylum procedure. Furthermore, the court found that it is not determined to which extent blame can be attributed to the applicant for making an assessment of a possible risk of refoulement difficult or impossible. It held that in practice, in the absence of an assessment of the risk of non-refoulement, a country of destination may be named where it is certain that a situation of indiscriminate violence reaching the threshold of a risk of serious harm established by mere presence, within the meaning of Article 15(c) of the recast QD exists. It highlighted that no assessment was made of whether the applicant belongs to any risk groups in Eritrea and questioned to what extent the court must carry out a refoulement assessment ex officio.

The court acknowledged that a refoulement assessment omitted at the stage of the return decision could in principle be conducted at a later stage, for instance when it is established with greater certainty that the individual will in fact be removed to the named country.

The court stayed the proceedings and referred the following questions to the CJEU:

- In a situation such as the present one, at the time of the adoption of a return decision, must a refoulement assessment be carried out on the basis of the country of destination indicated in the return decision, even if it is not established that the foreign national is a national of or comes from that country and will also return to that country?

- If the answer to the first question is in the affirmative, must a refoulement assessment be made in that case as if the nationality and origin were established, or is it sufficient to carry out an assessment based solely on the general situation in the country of destination, whether or not in combination with what is known about the foreign national? Is it possible to distinguish between the assessment that the administrative body and the court must make in that situation and, if so, in what way?