The request for a preliminary ruling was made in the context of proceedings initiated by DL, a third-country national, who appealed against a detention decision adopted to enforce a return decision. Following the withdrawal of his asylum application, by decision of 3 February 2026, the Minister for Asylum and Migration issued a return decision in which it designated three potential countries of destination: Morocco, Algeria, and Libya, chosen based on information provided by DL since the latter's nationality and origin were not established. DL did not appeal against the return decision. On 3 February 2026, DL was placed in detention, in execution of the return decision.

DL appealed his detention to the District Court of the Hague, seated in Haarlem (referring court), arguing, among other things, that the Minister had failed to consider compliance with the principle of non-refoulement when adopting the return decision or when placing him in detention. The referring court seized the CJEU with questions whether, and to what extent, the principle of non-refoulement must be examined when a final return decision designates several potential countries of destination, and whether the lack of cooperation from the third-country national in determining the country to which they should be removed affects the scope of such an obligation.

On the urgency of the request, the court found that the two cumulative conditions for an urgent procedure have been met. First, the questions concerned interpretation of matters pertaining to the area of freedom, security and justice, specifically on the interpretation of the Return Directive. Second, on urgency, it noted that the case concerned a person who is currently deprived of liberty and the continued detention depends on the court's findings in so far as the court's answers could result in his immediate release.  

On the substance, the court noted, with regard to the first two questions, that Articles 3(3), 5 and 15 of the Return Directive, read in conjunction with Articles 6, 19(2) and 47 of the Charter of Fundamental Rights of the European Union (EU Charter), do not require a judicial authority seized to review the legality of the detention of a third-country national residing illegally, with a view to his removal pursuant to a return decision, to examine of its own motion, for that purpose, whether the principle of non-refoulement was taken into account when that return decision was adopted, even if that decision has not been subject to judicial review and has thus become final.

The court clarified that the Return Directive distinguishes between, on the one hand, the adoption and judicial review of the return decision and, on the other hand, detention itself, which are governed by two different chapters and distinct adoption conditions. Consequently, this directive does not stipulate that the review of the legality of the detention measure by the competent judicial authority should also extend to the legality of the return decision.

Recalling its findings in Adrar (C-313/25 PPU, 4 September 2025), the court affirmed that Article 15(1) of Directive 2008/115 provides for the detention of a third-country national when less coercive measures cannot be effectively applied and provided that there is a “reasonable prospect of removal” within the meaning of Article 15(4) of the Return Directive, at the time of the examination of the legality of the detention.

Therefore, the court reiterated that, when a judicial authority rules on the legality of a detention measure, it must, where appropriate and of its own motion, ensure that the principle of non-refoulement does not preclude the proposed removal. This assessment must be independent and distinct from that carried out by the administrative authority, and must be made ex nunc, based on all available information, including information which was not accessible to the administrative authority.

Consequently, the judicial authority must not limit its examination to verifying that the respective administrative authority has complied with its obligation to assess this principle, but it must determine, in light of the reliable information available, whether the enforcement of execution of the return decision would expose the third-country national to a real risk of treatment contrary to Article 19(2), read in conjunction with Article 4 of the EU Charter.

Citing its ruling in Aroja (C-150/24, 5 March 2026), the court affirmed that, the mere fact that the administrative authority did not take into account the principle of non-refoulement when adopting the detention measure does not automatically entail the immediate release of the third-country national, if the judicial authority competent to review the detention measure of a third-country national in irregular stay or its extension, were to conclude, on the basis of its own autonomous and separate examination, that the principle of non-refoulement does not preclude such detention with a view to the removal of that person.

Furthermore, following a literal, contextual, and teleological interpretation, the court concluded that the Return Directive does not preclude the designation of several potential countries of destination in a return decision, in situations where the lack of cooperation from an illegally staying third-country national makes it difficult, or even impossible, to determine the country of destination to which they should be removed. Article 12(1), first subparagraph of that directive, however, requires that the inclusion of each country be accompanied by relevant factual and legal grounds, drawn from the statements of the national concerned or other available evidence, which may be subject to judicial review. By contrast, it reaffirmed its findings in Tadmur (C-202/25, 26 March 2026), according to which it would be legally impossible for the competent authority to adopt a return decision without having identified a country of destination to which a return can be carried out in compliance with the principle of non-refoulement.

The court sided also with the Advocate General opinion according to which a return decision designating several potential countries of destination cannot be considered as infringing the fundamental rights of the person concerned. The court then found that the Return Directive does not preclude the inclusion of several potential countries of destination in the return decision, specifically when the third-country national does not cooperate or make it difficult or impossible to determine the country of destination to which the person should be removed.

In addition, the court emphasised that, when interpreting an EU provision, account must be taken not only of its wording but also of its context, and objectives – see FMS (C-924/19 PPU, 14 May 2020).

The court further recalled that, before enforcing a return decision indicating several countries of destination, the competent national authority must carry out an updated assessment of whether the third-country national would be exposed to treatment prohibited by Articles 4 and 19(2) of the EU Charter. This assessment, separate from the one carried out when the return decision was adopted, must ensure that the planned removal complies with the required legal conditions, and in particular with the requirements laid down in Article 5 of the Return Directive. It affirmed that the legality of the detention depends on the existence of a reasonable prospect of removal to at least one of the countries mentioned in the return decision. Therefore, if, after its examination, the judicial authority concludes that none of the countries mentioned in the return decision allows for a removal compliant with the principle of non-refoulement, then the judicial authority is required, under Article 15(2), fourth subparagraph, and 15(4) of the same directive, to immediately release the third-country national. Moreover, referring to the judgment of Ararat (C-156/23, 17 October 2024), the court affirmed that Member States are required to allow the third-country national to take advantage of any change in circumstances which has occurred after the adoption of the return decision, which may have a significant impact on the assessment of the situation of that person, in particular, to Article 5 of the Return Directive.

Finally, the court highlighted the duty of the third-country national to cooperate with the competent national authority during the hearing in order to provide it with all relevant information on his personal and family situation and, in particular, those which may preclude a return. In line with the Advocate General findings, the court agreed that, in case of a breach of the duty to cooperate, which results in making it difficult or even impossible, to determine a single country of destination to which they should be removed, the judicial authority's assessment will be only be based on the reliable and available information at the time of its examination concerning the individual concerned and the situation in the countries of destination mentioned in the return decision. In the absence of detailed information, the assessment will necessarily be general.

To conclude, the court ruled that ‘Articles 3(3), 5 and 15 of Return Directive, read in conjunction with Articles 6, 19(2) and 47 of the Eu Charter, must be interpreted as meaning that a national court, called upon to review the legality of the detention of an illegally staying third-country national, with a view to his removal pursuant to a return decision:

– is not required, for this purpose, to examine whether the principle of non-refoulement was considered when adopting this return decision, even if this decision was not subject to judicial review;

– is required, even if, due to the lack of cooperation of that national, the said return decision mentions three potential countries of destination, to examine, where appropriate of its own motion, and independently of the question of whether or not the competent authority carried out such an examination at the time of the detention of said national, the legality of this detention in view of this principle on the basis of the data known and made available to it as well as on the basis of any other relevant element, it being understood that said principle is considered to be respected as soon as it does not oppose the removal of the same national to at least one of the potential countries of destination mentioned in that same return decision.'