Judgment;Summary — ECLI:EU:C:2026:257
Date: 2026-03-26
Language of the case: Dutch
Court formation: Eighth Chamber
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary C-202/25 – 1 
Case C-202/25 [Tadmur] 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: 
12 March 2025 
Referring court: 
Rechtbank Den Haag, zittingsplaats Roermond (Netherlands) 
Date of the decision to refer: 
12 March 2025 
Applicant: 
HG 
Defendant: 
Minister van Asiel en Migratie 
  
Subject matter of the main proceedings 
The foreign national HG (‘the applicant’) has brought an action before the 
referring court, the rechtbank Den Haag, zittingsplaats Roermond (District Court, 
The Hague, sitting in Roermond, Netherlands; ‘the District Court’), against the 
decision of the Minister van Asiel en Migratie (Minister for Asylum and 
Migration, Netherlands; ‘the defendant’) to revoke his subsidiary protection status 
on the ground that he poses a risk to public policy. The decision also provides that 
the applicant is not to be granted a residence permit under national law and cannot 
derive any rights under EU law. It is further stipulated that no return decision and 
entry ban is issued under Directive 2008/115, but that the applicant is subject to a 
departure obligation under national immigration law. 
 
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 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-202/25 
 
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Subject matter and legal basis of the request 
This request under Article 267 TFEU concerns whether and why a risk of 
refoulement to the country of origin precludes the imposition of a return decision. 
In that regard, the referring court is uncertain whether, where the foreign national 
cannot be removed, he can nevertheless be expected to comply with a return 
decision by voluntarily and independently leaving the territory of the European 
Union, where appropriate to another third country. 
Question referred for a preliminary ruling 
Is Article 6 of Directive 2008/115, in conjunction with Articles 3, 5, 8 and 9(1)(a) 
of Directive 2008/115, and in conjunction with Articles 17 and 19(2) and (3)(a) of 
Directive 2011/95, to be interpreted as meaning that, subject to the exceptions set 
out in Article 6(2) to (5) of Directive 2008/115, the Member State is obliged to 
issue a return decision in respect of a third-country national staying illegally on its 
territory who is excluded from subsidiary protection, and that if removal to the 
country of destination is contrary to the principle of non-refoulement, the Member 
State is obliged, at the same time as issuing a return decision, to confirm in 
writing that the removal of that third-country national has been postponed? 
Provisions of European Union law relied on 
Articles 17 and 19 of Directive 2011/95/EU of the European Parliament and of the 
Council of 13 December 2011 on standards for the qualification of third-country 
nationals or stateless persons as beneficiaries of international protection, for a 
uniform status for refugees or for persons eligible for subsidiary protection, and 
for the content of the protection granted (‘Directive 2011/95’) 
Articles 3, 5, 6, 8, 9 and 14 of 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 (‘Directive 
2008/115’) 
Article 3 of Regulation (EU) 2018/1861 of the European Parliament and of the 
Council of 28 November 2018 on the establishment, operation and use of the 
Schengen Information System (SIS) in the field of border checks, and amending 
the Convention implementing the Schengen Agreement, and amending and 
repealing Regulation (EC) No 1987/2006 (‘Regulation 2018/1861’) 
Succinct presentation of the facts and procedure in the main proceedings 
1 The applicant was granted subsidiary protection with effect from 7 January 2016 
on account of his origin from Syria. On 1 February 2022, the applicant was 
sentenced to four years’ imprisonment for attempted murder, conspiracy to 
TADMUR 
 
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commit violence against persons and making threats against the life of another 
person. 
2 The defendant considers the applicant a threat to public policy and has therefore 
revoked his subsidiary protection status and residence permit. However, the 
defendant assumes that the applicant is at real risk of suffering serious harm if he 
returns to Syria and has therefore not imposed a return decision on him under 
Directive 2008/115 on account of the principle of non-refoulement. The defendant 
has nevertheless imposed a departure obligation on the applicant under national 
immigration law and expects the applicant to endeavour to fulfil that obligation 
and to leave the Netherlands. 
The essential arguments of the parties in the main proceedings 
3 The District Court considers that the grounds relied on by the applicant against the 
revocation of subsidiary protection status cannot succeed. This means that the 
District Court will have to assess the grounds relating to the legal consequences of 
that revocation. In that regard, the applicant has argued, inter alia, that the purpose 
of the revocation, namely to protect public policy and national security, will not 
be achieved because he cannot return to his country of origin and the defendant 
has not ascertained whether the applicant could depart for another third country. 
The applicant has also argued that not granting permission to stay means that – if 
he does not comply with the departure obligation – he will be staying illegally in 
the territory of the Netherlands, with the result that he has no future prospects. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
4 In its judgment of 6 July 2023, Bundesamt für Fremdenwesen und Asyl (Refugee 
who has committed a serious crime) (C-663/21, EU:C:2023:540; ‘the judgment in 
Case C-663/21’), the Court held that Article 5 of Directive 2008/115 must be 
interpreted as precluding the adoption of a return decision in respect of a third-
country national where it is established that removal of that third-country national 
to the intended country of destination is, by reason of the principle of non-
refoulement, precluded for an indefinite period. The present reference concerns 
the question of why a risk of refoulement to the country of origin precludes the 
imposition of a return decision, given that the EU legislature has not expressly 
identified that situation as an exception to the Member States’ obligation to 
impose a return decision on third-country nationals staying illegally on their 
territory, but rather provided that removal must be postponed only if it is contrary 
to the principle of non-refoulement. The District Court takes the view that this is 
confirmed by the judgment of 3 June 2021, Westerwaldkreis (C-546/19, 
EU:C:2021:432), in which the Court explicitly held that the circumstance that 
illegally staying third-country nationals cannot be removed because the principle 
of non-refoulement precludes this does not justify the failure to adopt a return 
decision in such a situation, but that it is apparent from Article 9(1)(a) of Directive 
2008/115 only that the removal is postponed, pursuant to that return decision. On 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-202/25 
 
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the other hand, the Court has also held that if the interests at stake, as set out in 
Article 5 of Directive 2008/115, 1 preclude not only removal to the country of 
origin but also the voluntary or independent departure of the third-country 
national, a return decision cannot be adopted. In that regard, the District Court 
refers to the judgments of 14 January 2021, TQ (Return of an unaccompanied 
minor) (C-441/19, EU:C:2021:9), and 22 November 2022, Staatssecretaris van 
Justitie en Veiligheid (Removal – Medicinal cannabis) (C-69/21, EU:C:2022:913), 
in which the best interests of the child and the state of health of the foreign 
national concerned, respectively, precluded both removal and voluntary departure. 
In the main proceedings, however, only the principle of non-refoulement 
precludes removal to the country of origin, and that principle does not prevent the 
foreign national from departing voluntarily and independently to another third 
country. 
5 The removal of an illegally staying third-country national entails the enforcement 
of an obligation to return and is only to be carried out if the third-country national 
does not depart voluntarily. Without a more detailed interpretation of EU law, it is 
difficult to understand why the illegally staying third-country national would not 
be obliged to leave the territory of the European Union voluntarily and 
independently, or at least attempt to do so, merely because removal – which is 
only relevant later – must be postponed by the authorities. In that regard, the 
applicant has raised the question of whether, where the principle of non-
refoulement precludes removal to the country of origin, the authorities are obliged 
to ascertain whether the person concerned will be admitted to other third 
countries. The District Court will not be able to answer this question until the 
Court has clarified whether the obligation to postpone removal means that no 
obligation to return can be imposed on the illegally staying third-country national 
under EU law. 
6 A return decision entails the determination of unlawful stay. If a return decision 
cannot be issued against an illegally staying third-country national, an 
intermediate status arises. In that situation, it is not clear to either the third-country 
national or the Member State concerned what the legal status of that national is 
and what his or her obligations are once the conditions for stay and/or admission 
are no longer satisfied. However, the Court has specified in several judgments that 
such intermediate status is not compatible with the purpose and general scheme of 
Directive 2008/115. 
7 The District Court also raises the question of the relationship between the 
interpretation of Article 5 of Directive 2008/115 adopted by the Court in the 
judgment in Case C-663/21 and the rationale of the grounds for exclusion laid 
down in Directive 2011/95. Indeed, in that directive, the EU legislature stipulated 
that, due to the seriousness of certain conduct and the threat it poses, a third-
country national may be excluded from obtaining subsidiary protection and a 
 
1  These concern the best interests of the child, family life, the state of health of the third-country 
national concerned and respect for the principle of non-refoulement. 
TADMUR 
 
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residence permit in order to protect public policy and national security. If 
subsidiary protection status has already been granted, it must be revoked. That is 
the case in the main proceedings. The applicant was considered to pose a risk to 
public policy and, as a result, his subsidiary protection status was revoked. 
However, the objective of protecting public policy is not attained by the mere 
revocation of a residence permit and the denial of subsidiary protection. Effective 
protection of public policy will also require that the applicant actually leaves the 
territory of the Union and that the issuing of an entry ban prevents his or her 
immediate return. 
8 Furthermore, the absence of a return decision has an effect on the possibility of 
recording in the Schengen Information System, as established and developed by 
Regulations 2018/1860 and 2018/1861, the fact that the applicant poses a risk to 
public policy. Indeed, it follows from Article 3(16) and (17) of Regulation 
2018/1861 that only return decisions and entry bans based on Directive 2008/115 
may and must be the subject of an alert. Thus, if no return decision and entry ban 
may be issued, the aim of these regulations to ensure a high level of security using 
information communicated through the Schengen Information System cannot be 
attained. 
9 If the Member States cannot issue a return decision under Directive 2008/115 and 
the Member State therefore orders the third-country national excluded from 
international protection merely to leave the territory of that Member State, as the 
defendant in the main proceedings seeks to do, the question also arises whether 
this is compatible with the principle of sincere cooperation. Indeed, the applicant 
has stated that he would be in an extremely difficult situation if he is not granted a 
residence permit, but could not leave either. In that regard, the question arises 
whether the applicant may be expected to make efforts to leave the territory of the 
Union independently and thus to ascertain for himself whether he will or can 
possibly be admitted to a third country other than his country of origin, or whether 
the Member State must acquiesce in his staying in the European Union for as long 
as removal to his country of origin must be postponed. 
10 The Member State’s obligation to remove the person concerned arises only if he 
or she does not comply independently with his or her obligation to return. 
However, since the EU legislature has expressly provided that only removal must 
be postponed, it is difficult to understand why the obligation to postpone removal 
precludes the imposition of a return decision and the related obligation to return. 
An obligation for a third-country national staying illegally on the territory of the 
European Union to return may coexist with an obligation for the authorities to 
postpone removal to the country of origin. The fact that the illegal stay of the 
third-country national is established in a return decision means that there is no 
longer an intermediate status, since it creates an obligation to return and creates 
certainty as to the situation of the person concerned with regard to the right to 
stay. An illegally staying third-country national then remains, as long as he does 
not fulfil the conditions for stay or residence in the Member State, within the 
scope of Directive 2008/115 and may, as long as he or she has not been removed, 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-202/25 
 
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rely on the rights guaranteed to him by both the Charter of Fundamental Rights of 
the European Union and Article 14(1) of Directive 2008/115. 
11 The District Court is uncertain whether the Court’s interpretation of Article 5 of 
Directive 2008/115 would be different if that article were not interpreted in 
isolation, but in a more detailed manner in conjunction with the scheme of 
Directive 2008/115, the rationale of the grounds for exclusion laid down in 
Directive 2011/95 and the purpose of the Schengen Information System. In the 
light of the questions raised in the main proceedings, the District Court considers 
that a more detailed interpretation of Article 6 of Directive 2008/115, in 
conjunction with Articles 3, 5, 8 and Article 9(1)(a) of Directive 2008/115, and in 
conjunction with Article 17 and Article 19(2) and (3)(a) of Directive 2011/95, is 
necessary in order to resolve the dispute in the main proceedings.