Case registered before the CJEU under C-930/26
The applicant, an unaccompanied minor born and raised in Yemen with both parents, fled Yemen accompanied by his mother and lived in Egypt for a month prior to entering the EU alone and requesting international protection in the Netherlands. The applicant's parents are currently divorced, his father, a Yemeni national, lives in Yemen and his mother lives in Egypt and holds Egyptian nationality. Thus, the applicant holds both Egyptian and Yemeni nationalities.
The applicant was an unaccompanied minor both at the time of lodging his application for international protection on 21 May 2023 when he was 16 years, 2 months and 9 days old and at the time when his application was rejected as unfounded on 6 March 2025, when he was 17 years, 11 months and 22 days old. The negative decision comprised a return decision designating Egypt and Yemen as countries of destination, and a 4-week period for voluntary return. Since the rejection of the asylum application rendered the applicant's stay illegal in the Netherlands, the Minister was under an obligation to issue a return decision.
The applicant lodged an appeal against the return decision before the District Court of the Hague seated in Roermond, claiming that he could not return to Yemen due to fears of being recruited by the Houthis or murdered like his brother, if he refused. In support of his asylum application, the applicant claimed that his father, a journalist and political activist, was a renowned person in Yemen. When his father was pressured by the Houthis to express positive views about them in TV broadcasts, he refused to do so, and the applicant's brother was killed by the Houthis. The rest of the family fled to Egypt, but the father remained in Yemen due to lack of sufficient funds to enable the whole family to leave Yemen.
Regarding his return to Egypt, the applicant contested the possibility of returning there since his mother was ill, without income and living in unsanitary conditions (leaking roof, presence of rats). The applicant further asserted that he had been financially supporting both his parents, sending them money he earned from his part-time job and from a successful claim for damages due to the delayed processing of his asylum application.
From the outset, the court affirmed that a return to Yemen was excluded, since the court had already ruled in July 2025 that no return decision can be issued with Yemen as a country of return because the level of indiscriminate violence is so high that there are serious reasons to believe that, by virtue of their mere presence in the country, a returning national would face a real risk of a serious and individual threat to life or person. Consequently, the court decided that it would conduct a full and ex nunc assessment of the applicant's need for protection and if necessary, further examine whether Yemen could be designated as a country of return pursuant to Article 5 of the Return Directive.
Then, the court further looked into whether the minister could designate Egypt as a country of return for an unaccompanied minor solely by assuming that the parent's residence in the country of return was sufficient to presume proper care or whether the authorities should conduct further investigations in certain circumstances. In addition, the court cast doubt on whether the best interests of the child are duly considered when the assessment for designating a country of return is based merely on general assumptions as to what those interests constitute, being limited to whether they prevent a return and without considering whether it would be in the best interests of the child not to return.
Against this background, the District Court of the Hague, seated in Roermond (referring court), decided to stay the proceedings and to seek guidance from the CJEU on whether the examination of the adequacy and availability of care for the unaccompanied minor in the country of return can be essentially limited to a determination of whether one of the parents resides in that country and that he or she has or can establish contact with this parent, who previously provided care for him or her. The second question relates substantially to the modalities for determining the best interests of the child, specifically whether such determination can be based on a general assumption of the parents' duty to care for their minors, or whether there is requirement is to conduct an independent assessment by experts in the field.
Regarding the relevance of the questions for the circumstances in the present case, the court investigated the different applicable scenarios according to the Dutch legislation and policy. It held that, if it were to annul the return decision, the Minister would be able to issue a new return decision when the applicant reached the age of majority in 2025, thus without being required to assess whether adequate reception facilities exist in Egypt and without an assessment of the best interests of the child. Moreover, unaccompanied minors who cannot be returned to their country of origin due to lack of adequate reception facilities are entitled to the issuance of a residence permit, effective from 21 May 2023 when the applicant lodged his application for international protection in the Netherlands. Given that, the minister would have to decide whether to limit that residence permit to the period when the applicant was a minor and in such a case, to take into account the best interests of the child. In addition, the court held that the questions would remain relevant for the current proceedings even if the minister were to partly withdraw the return decision by removing Egypt as a country of return because the court will have to assess the lawfulness of the return to Yemen.
From the outset, the referring court reviewed the applicable legal framework, including national law, the UN Convention in the Rights of the Child, Article 3, the Treaty on the European Union, Article 3, the Charter Fundamental Rights of the European Union (EU Charter), the recast Reception Conditions Directive 2013 as well as the Return Directive. First, it noted that the definition of unaccompanied minor as defined by Article 2(2) of Directive 2013/33 must be applied to the return procedures as stated by the CJEU in TQ (C-441/19, 14 January 2021), and further enshrined in Article 2(4) of Directive 2024/1346.
Referring court's assessment on the first question:
Given that the applicant contested the assessment of the minister, citing a formal assessment based on the parents' duty to care for the minor, without questioning their actual ability to do so in view of their own difficulties related to poor housing, their medical condition and lack of financial resources, the court addressed further questions to the applicant during the oral hearing. It emerged, based on his own statements and on the documents submitted afterwards, that his parents can secure a minimum livelihood based primarily on his financial support as he transfers them money from his living allowance. The applicant explained that he had to take care of his mother in view of her illness and the unsanitary living conditions in her house. Against this background, the court questioned whether the minister correctly assumed that adequate care would be available in Egypt.
Relying on the CJEU judgment in TQ, the referring court reiterated that, in order to satisfy the requirements of the Return Directive when subjecting an unaccompanied minor to a return decision, a thorough assessment is required of the minor's situation to determine the best interests of the child. This determination must consider several aspects, including, but not limited to age, sex, particular vulnerability, physical and mental health, residence in a foster family, educational level and social environment of that minor. Importantly, the court stressed that the first step when adopting a return decision is to verify whether adequate reception conditions are available in the country of return.
The absence of adequate reception facilities would render the return decision incompatible with the requirements of Article 5(a) of the Return Directive and Article 24(2) of the EU Charter to protect the best interests of the child. This is because the lack of adequate facilities would place the unaccompanied minor in a situation of uncertainty about their legal status, access to education, ties with a foster family or the possibility to remain in the respective Member State.
Moreover, the referring court affirmed that a distinction must be made between the authorities' obligations by virtue of Article 10(2) of the Return Directive and the obligation to protect the best interests of the child at all stages of the procedure. While the right enshrined under Article 24(2) of the EU Charter does not have an absolute nature, in view of the clarifications brought by the CJEU in TQ, it must be understood as imposing an absolute prohibition on adopting a return decision against an unaccompanied minor if no adequate reception facilities are accessible and available for that unaccompanied minor in the country of return. Relatedly, the CJEU clarified in TQ that the general duty of care incumbent on any parent is insufficient as a standalone basis to establish that an unaccompanied minor is provided with adequate care. In this sense, the court underlined that the definition of an unaccompanied minor pursuant to Article 3(9) of the Return Directive refers to them as ‘vulnerable persons' and held that, on this basis, the assessment must be conducted with regard to the actual ability of a parent to provide adequate care for the minor's specific needs.
Against this background, the referring court asked the CJEU to clarify whether the minister should have assessed whether the applicant's mother would be able to meet his specific needs in view of his minority, given that it has been also established that the mother had the duty and the right to care for her minor son.
The court further sought guidance on the interplay between Articles 5 and 10(2) of the Return Directive, with a view to clarifying whether an assessment of the best interests of the child prior to issuing a return decision is still needed when it has been determined that the unaccompanied minor would not have access to adequate reception facilities upon return. Relatedly, if Article 10(2) of the Return Directive is to be interpreted as entailing an absolute prohibition of return when adequate facilities are not available nor accessible, then the referring court questioned how to establish the existence of an adequate reception facility. In this regard, it held that, pursuant to Article 10(2) of the Return Directive, adequate care and accommodation are presumed when there is either a family member, a designated guardian or adequate facilities in the country of return.
Drawing on TQ, the referring court held that, if the minister was required to conduct a general and thorough examination of the adequacy and availability of care in Egypt, then, based on the circumstances in the present case, the contested decision should be annulled because it would find that the minister's assessment was insufficient and incomplete with regard to his mother's willingness and ability to care for his special needs as a minor.
On the second question:
The referring court asked about the modality for determining the best interests of a child in the return procedure, specifically whether the examination can be based on general assumptions or whether it should be established by experts in the field, by considering several aspects, including basic safety, well-being, social development, access to health care, education and the prospect of certainty regarding the future of the unaccompanied minor.
The court reiterated, based on the CJEU judgment in KL (C-646/21, 11 June 2024), that Article 24(2) of the EU Charter requires the competent national authority to first establish the best interests of the minor in the context of an individual assessment, prior to deciding on an application for international protection. Thus, it contended that the interests of a minor must be first assessed through an individual assessment in any procedure where acts or omissions of public or private actors may have consequences for that minor. While in KL the CJEU built on TQ when clarifying the authorities' obligation to first assess the best interests of the child, the CJEU also affirmed that, in the absence of detailed provisions in the recast Asylum Procedure Directive (APD) and recast Qualification Directive (QD), Member States must provide for national rules detailing such assessment, the time(s) when it must be carried out and its form, pursuant to Article 24(2) of the EU Charter. However, since this interpretation is related to the recast APD and recast QD, the referring court asked whether, in the context of issuing a return decision, Member States would have less procedural autonomy for determining the best interests of the child, which is mandatory under the Return Directive since it contains more details on the timing for such assessment, the prohibition of return in the absence of such an assessment and the obligation to determine if adequate care is available in the country of return. The court also cited the CJEU judgment in Adrar (C-313/25 PPU, 4 September 2025) where it clarified that a detention judge must determine, if necessary ex officio, if the best interests of the child preclude removal and its enforcement.
Against this background, the referring court asserted that a proper and effective examination of the best interests of the child requires a certain level of expertise in related areas, such as, for example on social, mental, and physical development of children, the need to be accompanied by adults due to the vulnerability inherent to their age, educational skills and training opportunities, and the development of their personality and talents. Given this, the referring court expressed the view that the determination of the best interests of the child must be carried out independently, to avoid any bias on the part of immigration authorities deciding on a right to residence.
Turning to the circumstances of the present case, the referring court held that the minister contended himself with determining the best interests of the child solely based on assumptions supporting a return and omitted to assess whether it would be in the best interests of the child not to return to Egypt or Yemen, thus appearing contrary to the CJEU findings in KL.
In conclusion, with the second question, the referring court sought clarification on whether an examination regarding the compatibility of a return decision with the best interests of the child must be limited solely to the return context and based on general assumptions, without taking into account the specific situation of the applicant, both in the Member State and in the country of return. In addition, the court requested clarity on whether the determination of the best interest of the child must be conducted in an independent and expert manner. The court affirmed that the absence of an independent and expert assessment would undermine the protection granted under Article 24(2) of the EU Charter and Article 5 of the Return Directive. In this regard, the court pointed to whether Member States, when establishing national policies in the exercise of their procedural autonomy, must give primary consideration to the monitoring carried out by the UN Committee on the Rights of the Child on the Convention on the Rights of the Child.
In support of the above, the referring court also cited the UNHCR Guidelines om determining the best interests of the child and the EUAA ‘Practical guide on the best interests of the child in the framework of international protection', March 2026, which both underline the importance of an independent and multidisciplinary approach. Similarly, it illustrated that the Pact on Migration and Asylum highlights the importance of the best interests of the child and that, for example, Article 25 of the Asylum Procedure Regulation codified the possibility of having a multidisciplinary approach for age assessment.
Therefore, the questions referred to the CJEU for a preliminary ruling are:
- Must Article 6(1) of Directive 2008/115, read in conjunction with Articles 5(a) and 10(2) of that Directive and Article 24(2) of the EU Charter, be interpreted as meaning that, when examining whether adequate care is available in the country of return, a Member State cannot limit itself to establishing that one of the parents resides in the third country to which the obligation of return applies and that the unaccompanied minor has or can establish contact with that parent who previously cared for the unaccompanied minor?
- Must Article 6(1) of the Return Directive, read in conjunction with Articles 5(a) and 10(2) of that Directive and Article 24(2) of the EU Charter, be interpreted as requiring the competent national authority, before issuing a return decision against an unaccompanied minor, to determine the best interests of that unaccompanied minor in an independent and expert manner within the framework of an individual assessment and as far as possible in accordance with the General Comments of the UN Committee on the Rights of the Child?