Opinion of the Advocate General — ECLI:EU:C:2025:625
Date: 2025-08-01
Language of the case: Dutch

Summary  C-313/25 PPU – 1 
Case C-313/25 PPU [Adrar] i 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
6 May 2025 
Referring Court: 
Rechtbank Den Haag, zittingsplaats Roermond (Netherlands) 
Date of the decision to refer: 
6 May 2025 
Appellant: 
GB 
Respondent: 
Minister van Asiel en Migratie 
  
Subject matter of the main proceedings 
Appeal against a detention measure for the purpose of the removal of a foreign 
national in respect of whom a return decision has been taken. 
Subject matter and legal basis of the request 
Request under Article 267 TFEU for the interpretation of Article 5, Article 13(1) 
and (2) and Article 15 of Directive 2008/115, read in conjunction with Articles 6 
and 7, Article 19(2), Article 24(2) and Article 47 of the Charter of Fundamental 
Rights of the European Union.  
 
i The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings. 
EN 
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Questions referred for a preliminary ruling 
I Are Articles 5, 13(1) and (2), and 15 of Directive 2008/115, read in 
conjunction with Articles 6, 19(2) and 47 of the Charter of Fundamental Rights of 
the European Union, to be interpreted as meaning that  a judicial authority, when 
reviewing compliance with the conditions governing the lawfulness of the 
detention of a third-country national which derive from EU law, is required to 
satisfy itself, if necessary of its own motion, that the principle of non-refoulement 
does not preclude the enforcement of the return decision previously adopted and 
for the purposes of its enforcement the third-country national was detained?  
II Are Articles 5, 13(1) and (2), and 15 of Directive 2008/115, read in 
conjunction with Articles 6, 7, 24(2) and 47 of the Charter of Fundamental Rights 
of the European Union, to be interpreted as meaning that a judicial authority, 
when reviewing compliance with the conditions governing the lawfulness of the 
detention of a third-country national which derive from EU law, is required to 
satisfy itself, if necessary of its own motion, that the interests referred to in 
Article 5 of Directive 2008/115 do not preclude the enforcement of the return 
decision previously adopted and for the purposes of its enforcement the third-
country national was detained? 
Provisions of European Union law relied on 
Charter of Fundamental Rights of the European Union: Articles 4, 6, 7, 19, 24, 47 
(‘the Charter’) 
Directive 2008/115/EC of the European Parliament and of the Council of 
16 December 2008 on common standards and procedures in Member States for 
returning illegally staying third-country nationals: recitals 2, 22, 23, 24; Articles 1, 
3, 5, 6, 8, 9, 13, 15 
Regulation (EU) No 604/2013 of the European Parliament and of the Council of 
26 June 2013 establishing the criteria and mechanisms for determining the 
Member State responsible for examining an application for international 
protection lodged in one of the Member States by a third-country national or a 
stateless person  
Directive 2013/32/EU of the European Parliament and of the Council of 26 June 
2013 on common procedures for granting and withdrawing international 
protection 
Directive 2013/33/EU of the European Parliament and of the Council of 26 June 
2013 laying down standards for the reception of applicants for international 
protection: Article 8 
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Court of Justice case-law relied on 
Judgment of 14 May 2020, Országos Idegenrendészeti Főigazgatóság Dél-alföldi 
Regionális Igazgatóság, C-924/19 PPU and C-925/19 PPU, EU:C:2020:367 
Judgment of 14 January 2021, TQ (Return of an unaccompanied minor), 
C-441/19, EU:C:2021:9 
Judgment of 3 June 2021, Westerwaldkreis, C-546/19, EU:C:2021:432 
Judgment of 22 February 2022, Commissaris-generaal voor de Vluchtelingen en 
de Staatlozen (Family unity – Protection already granted), C-483/20, 
EU:C:2022:103  
Judgment of 8 November 2022, Staatssecretaris van Justitie en Veiligheid (Ex 
officio review of the detention), C-704/20 and C-39/21, EU:C:2022:858 
Judgment of 22 November 2022, Staatssecretaris van Justitie en Veiligheid 
(Removal – Medicinal cannabis), C-69/21, EU:C:2022:913 
Judgment of 6 July 2023, Bundesamt für Fremdenwesen und Asyl (Refugee who 
has committed a serious crime), C-663/21, EU:C:2023:540 
Judgment of 11 June 2024, Staatssecretaris van Justitie en Veiligheid (Women 
who identify with the value of equality between men and women), C-646/21, 
EU:C:2024:487 
Judgment of 12 September 2024, Changu, C-352/23, EU:C:2024:748 
Judgment of 17 October 2024, Ararat, C-156/23, EU:C:2024:892 (‘the Ararat 
judgment’) 
Judgment of 19 December 2024, Kaduna, C-244/24 and C-290/24, 
[EU:C:2024:1038] 
Provisions of national law relied on 
Vreemdelingenwet 2000 (Law of 2000 on Foreign Nationals) (‘the Vw’): 
Articles 30b, 39, 45, 59, 59b, 72 
Algemene wet bestuursrecht (General Law on Administrative Law): Article 8:69 
Succinct presentation of the facts and procedure in the main proceedings 
1 The appellant has Algerian nationality. On 11 September 2024, he lodged an 
application for international protection in the Netherlands. The appellant did not 
appear at the hearing on his asylum grounds. The respondent, the minister van 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-313/25 PPU 
 
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Asiel en Migratie (Minister for Asylum and Migration), therefore did not consider 
this application on 7 October 2024 and determined that the appellant should return 
to Algeria. This decision also qualifies as a return decision within the meaning of 
Article 3(4) of Directive 2008/115. 
2 The appellant did not lodge an appeal against this return decision, so that it 
became final without its lawfulness being reviewed by a judicial authority. The 
appellant left the Netherlands in September 2024. 
3 On 18 September 2024, a child of the appellant was born in France. The appellant 
no longer has a relationship with the child’s mother, but maintains contact with 
her on account of their child. The child’s mother has a temporary residence permit 
in France. According to the appellant, he was in the process of recognising the 
child and regularising his stay in France. 
4 On 26 March 2025, the appellant was transferred to the Netherlands by the French 
authorities under Regulation 604/2013. On the same day, the appellant lodged a 
further application for international protection in the Netherlands. On that day, the 
respondent placed the appellant in detention pursuant to Article 8 of Directive 
2013/33 (transposed in Article 59b Vw). The return decision adopted on 
7 October 2024 was suspended during the procedure in which the subsequent 
application for international protection was assessed. 
5 On 7 April 2025, the respondent indicated that it intended to declare the 
subsequent application for international protection referred to in the previous 
paragraph manifestly unfounded under Article 30b(1)(g) Vw (which refers to 
Article 32(2) of Directive 2013/32).  
6 On 9 April 2025, even before the respondent had formally decided on the 
subsequent application for international protection, the appellant again withdrew 
this application. The suspension of the return decision of 7 October 2024 therefore 
ended by operation of law. 
7 On 10 April 2025, the respondent lifted the detention measure imposed on 
26 March 2025 and imposed a new detention measure on the appellant under 
Article 15 of Directive 2008/115 [transposed in Article 59(1)(a) Vw] with a view 
to removal from the Netherlands. In the absence of travel documents, the appellant 
could not be removed immediately. 
8 On 16 April 2025, the appellant lodged an appeal with the referring court against 
the new detention measure. 
The essential arguments of the parties in the main proceedings 
9 The appellant claims that the detention measure is unlawful as this situation arose 
because the respondent accepted the French authorities’ claim request. In fact, the 
appellant left the Netherlands in September 2024 and did not return of his own 
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accord. He states that he is unable to return to Algeria because he fears that, on his 
return, he will be subjected to inhuman or degrading treatment or punishment 
within the meaning of Article 4 of the Charter. 
10 The appellant states that his interest in being able to stay in France with his child 
should be assessed in the dispute over the lawfulness of his detention and that the 
application for international protection was not withdrawn in order to avoid the 
assessment of the risk of refoulement. 
11 The respondent is of the view that the detention measure is lawful because the 
return decision of 7 October 2024 has become final, the appellant is staying 
illegally on the territory of the Netherlands and all the lawfulness requirements of 
the measure have been met. 
12 The respondent further argues that the case-law of the Afdeling 
bestuursrechtspraak (Administrative Jurisdiction Division; ‘the Afdeling’) of the 
Raad van State (Council of State) should be followed, according to which a court 
may not of its own motion assess the lawfulness of any decision other than the 
decision against which an appeal has been lodged. The appellant has chosen to 
withdraw his subsequent application for international protection, so that the 
respondent does not need to further assess the previously adopted return decision. 
The interpretation of Directive 2008/115 proposed by the Rechtbank (District 
Court) detracts from the useful effect of this Directive because it could result in 
abuse of the requirement that the respondent would then always have to consider 
whether the principle of refoulement precludes the enforcement of return 
decisions that have become final. According to the respondent, the court 
adjudicating on the detention is rightly prohibited from considering the previously 
adopted return decision when assessing the lawfulness of the detention measure 
seeking the removal of the appellant. 
13 According to the respondent, the requirement to respect the principle of non-
refoulement applies only when assessing an application for international 
protection. It is of the view that it is not required to assess whether the return 
decision can be enforced because the appellant can apply for a residence permit 
under national law if he believes he qualifies for it because of his family or private 
life. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
14 The District Court was asked to review whether the conditions governing the 
lawfulness of the appellant’s detention, derived from EU law, had been complied 
with. The detention measure was imposed in order to enforce the previously 
adopted return decision and thus to remove the appellant to Algeria. If the removal 
has to be postponed because it is contrary to the principle of non-refoulement or if 
the removal cannot take place because the interests set out in Article 5 of 
Directive 2008/115 prevent the enforcement of the previously adopted return 
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decision, the detention for the purpose of this removal is not justified and the 
District Court is obliged to release the appellant.  
15 In essence, this order for reference concerns the question of whether a court, when 
reviewing compliance with the conditions governing the detention aimed at the 
removal of a third-country national which derive from EU law, is required to 
ascertain whether the return decision underlying it can be enforced and, therefore, 
whether the interests referred to in Article 5 of Directive 2008/115 or the principle 
of non-refoulement preclude removal. The District Court is of the view that such a 
requirement follows from EU law and the Court of Justice’s previous 
interpretation thereof if there has been a change in essential circumstances that 
must be taken into account when implementing Directive 2008/115. The District 
Court gives the following reasons for its proposed interpretation of EU law.  
16 The detention of the appellant with a view to his removal implements Directive 
2008/115. Article 5 of this Directive provides that, when implementing this 
Directive, the Member States must take due account of, inter alia, the best 
interests of the child and family life and must respect the principle of non-
refoulement. The District Court infers from Directive 2008/115 and from the 
Ararat judgment that the obligations deriving from Article 5 of Directive 
2008/115 do not apply only when a return decision is adopted, but that the 
authorities, including the judicial authorities, must take due account of the 
interests referred to in Article 5 of Directive 2008/115 and must respect the 
principle of non-refoulement throughout the entire period in which Directive 
2008/115 is implemented. In paragraph 35 of the Ararat judgment, the Court 
considered, inter alia, that Article 5 of Directive 2008/115 is a general rule which 
the Member States must take into account when implementing that Directive and 
that it may not be interpreted restrictively. The obligation to respect the principle 
of non-refoulement is an independent obligation which must be separate from the 
assessment carried out at the time of the adoption of that return decision 
(paragraph 38 of the Ararat judgment). In addition, in the judgments of 
14 January 2021, TQ (Return of an unaccompanied minor), C-441/19, 
EU:C:2021:9, and 22 February 2022, Commissaris-generaal voor de 
Vluchtelingen en de Staatlozen (Family Unity – Protection already granted), 
C-483/20, EU:C:2022:103, the Court held that the best interests of the child and 
the right to private life may preclude the imposition of a return decision.  
17 Because the appellant did not appear at the hearing, the return decision of 
7 October 2024 was adopted without any substantive assessment of whether the 
principle of non-refoulement precluded removal and whether the interests set out 
in Article 5 of Directive 2008/115 precluded the imposition of a return decision. 
The appellant did not appeal against the return decision, so it was not reviewed by 
a court. However, after this return decision became final, facts and circumstances 
became known that relate to these interests and the principle of non-refoulement 
and were not known at the time the return decision was adopted. The District 
Court finds of its own motion that the appellant in essence relies on these changed 
circumstances and the principle of non-refoulement. 
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18 In taking the decision to place the appellant in detention, the respondent did not 
ascertain whether there were indications arising from the statements made by the 
appellant that Article 5 of Directive 2008/115 and, in particular, the principle of 
non-refoulement could preclude the implementation of this previously adopted 
return decision. Nor did the respondent take a separate decision to assess whether 
the return decision of 7 October 2024 could be enforced.  
19 It is the settled case-law of the Court that Article 47 of the Charter requires the 
Member States to ensure effective judicial protection of individual rights derived 
from EU law. For third-country nationals subject to a return decision, that law is 
given concrete form in Article 13 of Directive 2008/115, the purpose of which is 
to ensure that such third-country nationals have an effective remedy to appeal 
against or seek review of such a return decision. In paragraph 49 of the Ararat 
judgment, the Court explained that the procedural provisions of that article must 
ensure that a third-country national against whom a return decision has been 
adopted is not removed under conditions contrary to Article 5 of that Directive. In 
addition, Article 15 of Directive 2008/115 provides for the judicial review of 
detention. According to the Court, such a measure can ensure the lawfulness of 
the detention only if the District Court is in a position to rule on all matters of fact 
and of law relevant to the review of that lawfulness, including the facts, evidence 
and observations submitted to it by the person concerned [paragraph 87 of the 
judgment of 8 November 2022, Staatssecretaris van Justitie en Veiligheid (Ex 
officio review of detention), C-704/20 and C-39/21, EU:C:2022:858].  
20 The Dutch procedure for the enforcement of a return decision does not provide for 
further decisions to be taken by the respondent or other avenues of appeal through 
which the appellant can force an updated assessment of the return decision. 
Neither the Union legislature nor the Dutch legislature has provided for the 
periodic review of a return decision. Thus, under Directive 2008/115 and Dutch 
law, the respondent is not obliged to re-examine a previously adopted return 
decision in the light of the interests listed in Article 5 of Directive 2008/115 and in 
the light of the principle of non-refoulement before enforcing that return decision. 
Directive 2008/115 also does not provide for an independent remedy against the 
enforcement of a return decision. Thus, the return decision in the present case has 
not been revised or reviewed after its adoption.  
21 Furthermore, the Netherlands did not make use of the possibility provided for in 
Article 8(3) of Directive 2008/115 of adopting, in addition to the return decision, a 
separate decision ordering removal. 
22 Under Dutch law, if the appellant wishes to force a reconsideration of the return 
decision at the stage of its enforcement, he has only one (indirect) option: he can 
object to a planned actual removal if the situation at the time of the actual removal 
differs to such an extent from that which existed at the time of the decision from 
which the power to remove derives, that the lawfulness of the planned actual 
removal can no longer be simply assumed. In that case, he must put forward new 
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facts and circumstances as compared to those that he put forward or could have 
put forward against the decision from which the power of removal derives. 
23 The assessment to be carried out by the respondent if an objection is lodged 
against the actual removal is limited in scope and does not involve a new 
examination of the previously adopted return decision. In particular, the 
procedure – apart from new facts and circumstances – assesses the manner in 
which the return decision is to be enforced. The starting point is the validity of a 
return decision that has become final, so the procedure does not guarantee that the 
obligations laid down in Article 5 of Directive 2008/115 have been met. In 
addition, the procedure can only be initiated once the actual removal has been 
planned. This objection cannot therefore prevent a foreign national being placed in 
detention while the conditions governing the lawfulness of the detention derived 
from EU law have not been met.  
24 Moreover, the objection to the actual removal is not an autonomous assessment 
carried out of its own motion by the administrative authority in order to take due 
account, throughout the entire implementation of Directive 2008/115, of the 
interests referred to in Article 5 of that Directive and to respect the principle of 
non-refoulement. However, the District Court deduces from the Ararat judgment 
that the respondent is obliged to fulfil its obligation under Article 5 of Directive 
2008/115 of its own motion, even in the absence of any objection raised by an 
appellant.  
25 The appellant has not lodged an appeal against the return decision of 7 October 
2024 and cannot yet object to the actual removal because no date has yet been set 
for it. The appellant also has no other legal remedy to force an assessment of his 
current situation in the light of Article 5 of Directive 2008/115 and the principle of 
non-refoulement. A review of the return decision in the light of the interests set 
out in Article 5 of Directive 2008/115 and the principle of non-refoulement can 
therefore only be carried out in the appellant’s case by the referring court in the 
context of the appeal against the detention measure. 
26 However, under national administrative procedural law and the case-law of the 
Afdeling, the court called upon to review compliance with the conditions 
governing the lawfulness of the detention of a third-country national derived from 
EU law, is prohibited from examining a previously adopted return decision, the 
enforcement of which is ensured by the detention, in order to ascertain whether 
the interests referred to in Article 5 of Directive 2008/115 and the principle of 
non-refoulement preclude the enforcement of that return decision. Indeed, 
according to the settled case-law of the Afdeling, ex officio review or assessment 
may not result in a court reviewing or assessing the lawfulness of any decision 
other than the one appealed against. This means that the court ruling on the 
detention measure may not rule on the lawfulness of the return decision. The court 
ruling on the detention must only check whether a return decision was made prior 
to or simultaneously with the detention measure. Substantive review of the return 
decision is only possible if an independent appeal has been lodged against it. 
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However, the appellant in this case can no longer appeal against the return 
decision taken against him.  
27 The District Court wonders whether this national case-law is consistent with EU 
law. Indeed, in paragraph 35 of the Ararat judgment, delivered after the adoption 
of the return decision, the Court considered, inter alia, that the principle of non-
refoulement must be observed at all stages of the return procedure and that this 
requirement also applies to the judicial authorities. Furthermore, in paragraph 37 
of that judgment, the Court considered that the Member States are required to 
allow the person concerned to rely on any change in circumstances that occurred 
after the adoption of the return decision and that may have a significant bearing on 
the assessment of the situation of the third-country national concerned under, in 
particular, Article 5 of Directive 2008/115.  
28 According to the District Court, the obligation of the national court to ensure 
respect for the principle of non-refoulement, where appropriate of its own motion, 
applies in all proceedings, whether these be proceedings concerning international 
protection or an application for a residence permit or proceedings concerning a 
detention order to enforce a return decision. The judicial protection enshrined in 
Article 47 of the Charter and Article 13 of Directive 2008/115 is neither effective 
nor complete if the national court called upon to review compliance with the 
conditions governing the lawfulness of the appellant’s detention derived from EU 
law, is not required to review whether a previously adopted return decision can be 
enforced and whether it can be upheld in the light of the interests set out in 
Article 5 of Directive 2008/115 and the principle of non-refoulement. Indeed, if 
the return decision cannot be enforced, the detention cannot serve the purpose of 
removal and is unlawful. Moreover, safeguarding fundamental rights is an 
autonomous requirement for judicial authorities and the protection of those 
fundamental rights should not depend on the exercise of particular legal remedies.  
29 A national procedure and national case-law under which, in the light of the 
principle of non-refoulement, the enforcement of the return decision can be 
examined only in the context of proceedings initiated by an appeal against a return 
decision – and which therefore prohibit the judicial authority from reviewing the 
return decision if an appeal has been lodged only against the detention – prevent 
the District Court from providing an effective remedy within the meaning of 
Article 47 of the Charter and ensuring that the appellant’s fundamental rights are 
respected. The District Court is of the view that such a system is contrary to 
Article 5 of Directive 2008/115, read in conjunction with Article 19(2) of the 
Charter, and that the questions referred for a preliminary ruling should therefore 
be answered in the affirmative.