Opinion of the Advocate General — ECLI:EU:C:2026:37
Date: 2026-01-22
Language of the case: Dutch

Summary C-877/24 – 1 
Case C-877/24 [Shamsi] 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: 
18 December 2024 
Referring court: 
Raad van State (the Netherlands) 
Date of the decision to refer: 
18 December 2024 
Applicants: 
X 
Minister van Asiel en Migratie, formerly Staatssecretaris van 
Justitie en Veiligheid 
  
Subject matter of the main proceedings 
An appeal was brought before the Bestuursrechtspraak van de Raad van State 
(Administrative Law Division of the Council of State) (‘the Division’) in, first, the 
case between foreign national X and the Minister for Asylum and Migration (‘the 
Minister’), and, second, the case between foreign national Y and the Minister. 
Both foreign nationals are staying in the Netherlands illegally and have been 
sentenced to long-term or life imprisonment for serious violent crimes. In the 
main proceedings, they oppose the return decisions issued against them by the 
Minister. 
Subject matter and legal basis of the request 
This request under Article 267 TFEU concerns, firstly, the question of whether a 
return decision can be issued against a foreign national who, although it has been 
established that he or she is staying illegally in the Netherlands, cannot voluntarily 
fulfil his or her return obligation due to the enforcement of a long-term or lifelong 
 
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-877/24 
 
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prison sentence and cannot be physically removed from the Netherlands and the 
EU for a long period of time. If not, the question arises as to whether a residence 
permit should be issued to such a foreign national for the duration of his or her 
criminal detention. There is also the issue of whether the issue of a return decision 
is subject to the principle of proportionality. 
Questions referred for a preliminary ruling 
Question 1 
Does Directive 2008/115/EC, in particular Articles 6, 8 and 9 thereof, preclude the 
issue of a return decision against a foreign national who, due to the enforcement 
of a long-term or lifelong prison sentence, cannot fulfil his or her return obligation 
for a long period of time and, as a result, cannot be removed from the territory of 
the European Union? 
Question 2 
If the answer to the first question is yes, is the Member State then obliged to grant 
a foreign national an independent residence permit or some other form of 
permission to stay during the stay in long-term or lifelong detention, whether or 
not under Article 6(4) of Directive 2008/115/EC? 
Question 3 
Is there scope under Article 6(1) of Directive 2008/115/EC for a proportionality 
assessment in the individual case, beyond the exceptions referred to in 
paragraphs 2 to 5 and the principles and interests listed in Article 5 of that 
directive? 
Provisions of European Union law relied on 
Recitals 11 and 24 and Articles 5, 6, 8 and 9 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 (‘the Return Directive’). 
Succinct presentation of the facts and procedure in the main proceedings 
1 X holds Azerbaijani nationality. On 19 January 2015, he was irrevocably 
sentenced in the Netherlands to life imprisonment for multiple murder and 
manslaughter. As a result, the Minister revoked his regular residence permit for an 
indefinite period with retroactive effect to 12 May 2011. In that decision, the 
Minister also ordered him to leave the EU immediately and issued an entry ban 
against him. X’s objection to this decision was declared unfounded, after which he 
SHAMSI 
 
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appealed to the rechtbank (District Court). This appeal was dismissed, after which 
X appealed to the Division. 
2 Y holds Afghan nationality. He previously applied for asylum in Germany. This 
application was finally rejected, preventing Y from staying in Germany. On 
31 August 2018 he entered the Netherlands, where on 16 November 2020 he was 
irrevocably sentenced to 25 years in prison for two counts of attempted murder 
with terrorist intent. He has never had a right of residence in the Netherlands. For 
that reason, by decision of 25 April 2023, the Minister determined that Y was not 
lawfully staying in the Netherlands, ordered him to leave the EU immediately and 
issued an entry ban against him. Y brought an action against that decision before 
the rechtbank. This appeal was allowed, after which the Minister appealed to the 
referring court. 
The essential arguments of the parties in the main proceedings 
3 On appeal, the foreign nationals argue that the Minister was not entitled to issue a 
return decision against them. They point out that the purpose of the Return 
Directive is to create an effective return policy to counter illegal immigration. In 
that context, they argue that Article 6(1) of the Return Directive obliges a Member 
State to make a choice between initiating a return procedure or granting a right of 
residence. This is to avoid ‘grey areas’ – in other words, situations where, due to 
circumstances, a return decision has not been or may not be issued against a 
foreign national and that foreign national does not have a residence status at the 
same time – and to improve legal certainty for those concerned. They refer to the 
judgment of the Court of 3 June 2021, Westerwaldkreis (C-546/19, 
EU:C:2021:432, paragraph 59). That choice must also be made by the Minister 
when it comes to foreigners in lifelong or long-term criminal detention. 
4 According to the foreign nationals, the Netherlands opted in their case to enforce 
prison sentences, thus giving more weight to the interest of fighting crime than 
countering illegal residence. As a result, according to the foreign nationals, a 
return decision could not be issued against them. It also means that the Minister is 
unable to comply with the obligation arising from paragraphs 79 to 81 of the 
judgment of 14 January 2021, TQ (Return of an unaccompanied minor) 
(C-441/19, EU:C:2021:9; ‘the TQ judgment’) to physically remove them from the 
EU as soon as possible. According to the foreign nationals, because he was not 
allowed to issue a return decision, the Minister should have ensured that they were 
staying in the Netherlands lawfully for the duration of their criminal detention. At 
the same time, the foreign nationals point to the possibility for the Minister to 
grant them a right of residence or a form of permission to stay as referred to in 
Article 6(4) of the Return Directive. In that context, they refer to the judgment of 
the Court of 20 October 2022, Centre public d’action sociale de Liège 
(Withdrawal or suspension of a return decision) (C-825/21, EU:C:2022:810, 
paragraphs 43-44). 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-877/24 
 
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5 Finally, with reference to recital 24 of the Return Directive, the foreign nationals 
argue that the application of Article 6(1) of that directive is subject to respect for 
fundamental rights and EU principles, including the principle of proportionality. 
Issuing a return decision to foreign nationals in lifelong or long-term detention 
violates that principle. Indeed, a return decision is not an appropriate remedy in 
those cases, as it is impossible for the foreign nationals concerned to leave. Nor is 
it necessary, because detention provides another effective means of protecting 
society from illegal immigration. 
6 The Minister takes the view that he was right to issue a return decision in both 
cases. He refers in that regard to the TQ judgment and the judgments of 
24 February 2021, M and Others (Transfer to a Member State) (C-673/19, 
EU:C:2021:127), 7 June 2016, Affum (C-47/15, EU:C:2016:408; ‘the Affum 
judgment’), 22 November 2022, Staatssecretaris van Justitie en Veiligheid 
(Removal – Medicinal cannabis) (C-69/21, EU: C:2022:913), and 6 July 2023, 
Bundesamt für Fremdenwesen und Asyl (Refugee who has committed a serious 
crime) (C-663/21, EU:C:2023:540). The foreign nationals are in fact staying in the 
Netherlands illegally. In this situation, under Article 6(1) of the Return Directive, 
the minister is obliged to issue a return decision. In doing so, he points out that 
Articles 5 and 6(2) to (6) of the Return Directive provide a conclusive system of 
exceptions to that obligation. This does not include the enforcement of a lifelong 
or long-term prison sentence. According to him, the judgments delivered by the 
Court to date deal with the exceptions in Article 5 of the Return Directive. The 
Minister further argues that he is not obliged to grant a right of residence to the 
foreign nationals under Article 6(4) of the Return Directive. 
7 The Minister acknowledges that it follows from the case-law of the Court on 
Article 8(1) of the Return Directive that he must physically remove a foreign 
national as soon as possible if the latter does not leave voluntarily. However, the 
directive does not attach any consequences to failure to comply with that 
obligation. The minister therefore sees Article 8(1) of the Return Directive as a 
best-efforts obligation, the interpretation of which depends on the concrete facts 
and circumstances of the individual case. In that context, he points out that even 
for foreign nationals sentenced to long-term or life imprisonment, the necessary 
measures are taken to remove them as soon as possible. On this point, the minister 
explained that in the case of short-term prison sentences, he usually starts 
preparing for the physical removal of an illegally staying detained foreign national 
12 months before his or her release. According to the Minister, issuing a return 
decision at an early stage also ensures that any litigation relating to that decision is 
concluded as soon as removal is imminent. 
8 Finally, when issuing a return decision, the Minister sees no scope for applying 
the principle of proportionality. The Return Directive itself in fact defines the 
cases in which an exception can be made to the obligation laid down in 
Article 6(1). 
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Succinct presentation of the reasoning in the request for a preliminary ruling 
9 With regard to the first question for a preliminary ruling, the Division 
provisionally considers that the Minister was right to issue a return decision 
against the foreign nationals. According to Article 6(1) of the Return Directive, he 
is obliged to do so, and the exceptions listed in paragraphs 2 to 5 of that article – 
as well as the interests and principles listed in Article 5 of the Return Directive – 
do not apply. The Division infers from paragraph 65 of the Affum judgment that 
the Return Directive does not preclude the issue of a return decision against 
foreign nationals who cannot be removed for a long period of time due to the 
enforcement of their long-term or life sentence. 
10 With regard to the second question for a preliminary ruling, the Division 
provisionally considers that the Minister is not obliged to grant the foreign 
nationals a right of residence if he cannot issue a return decision against them. The 
Division finds support for this in the considerations in paragraph 67 of the 
judgment of 12 September 2024, Changu (C-352/23, EU:C:2024:748). In the 
provisional opinion of the Division, these considerations are formulated in such a 
general way that they also apply to foreign nationals who cannot be removed for a 
long period due to the enforcement of a long-term or life sentence. 
11 With regard to the third question for a preliminary ruling, the provisional view of 
the Division is that the Minister has no scope to apply the principle of 
proportionality when issuing a return decision. Here, the Division relies on the 
judgment of 23 May 2019, Bilali (C-720/17, EU:C:2019:448), which also 
involves a mandatory provision. In addition, the Division finds support in the 
judgment of 21 March 2024, CBR (Hemianopia) (C-703/22, EU:C:2024:261). 
While that judgment does not deal with the Return Directive, the Court explained 
in it the criteria for assessing whether the principle of proportionality applies. For 
that purpose, the Court considers, inter alia, whether a directive provides for 
minimum standards and whether there are mandatory provisions whereby the EU 
legislator has already weighed up certain rights and interests. In that context, it 
seems important that it follows from recital 11 of the Return Directive that that 
directive provides for minimum safeguards. In imposing the obligation to issue a 
return decision in cases of illegal residence in Article 6(1) of the Return Directive, 
the EU legislator already seems to have made the aforementioned consideration. 
After all, Article 6 regulates in which specific cases an exception to that obligation 
is allowed. Furthermore, Article 5 sets out the specific interests and principles to 
be taken into account when implementing the Return Directive. 
12 However, the Division considers that it cannot answer these questions with 
certainty on the basis of the Return Directive and the case-law of the Court. For 
that reason, it submits to the Court the questions for a preliminary ruling set out 
above.