Provisional text
JUDGMENT OF THE COURT (Eighth Chamber)
26 March 2026 (*)
( Reference for a preliminary ruling – Area of freedom, security and justice – Common standards and procedures in Member States for returning illegally staying third-country nationals – Directive 2008/115/EC – Revocation of subsidiary protection status – Public order – Principle of non-refoulement – Possibility of adopting a return decision )
In Case C‑202/25 [Tadmur], (i)
REQUEST for a preliminary ruling under Article 267 TFEU from the rechtbank Den Haag, zittingsplaats Roermond (District Court, The Hague, sitting in Roermond, Netherlands), made by decision of 12 March 2025, received at the Court on the same day, in the proceedings
HG
v
Minister van Asiel en Migratie,
THE COURT (Eighth Chamber),
composed of O. Spineanu-Matei, President of the Chamber, C. Lycourgos (Rapporteur), President of the Third Chamber, acting as Judge of the Eighth Chamber, and N. Piçarra, Judge,
Advocate General: A. Rantos,
Registrar: A. Calot Escobar,
having regard to the written procedure,
after considering the observations submitted on behalf of:
–        HG, by J.P. van Mulken, advocaat,
–        the Netherlands Government, by E.M.M. Besselink and J. Langer, acting as Agents,
–        the Danish Government, by M.P. Brøchner Jespersen, C.A.-S. Maertens and J. Sandvik Loft, acting as Agents,
–        the Swiss Government, by R. Adam and L. Lanzrein, acting as Agents,
–        the European Commission, by F. Blanc, M. Debieuvre, A. Katsimerou and F. van Schaik, acting as Agents,
having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
makes the following
Judgment
1        This request for a preliminary ruling concerns the interpretation of Articles 3, 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 (OJ 2008 L 348, p. 98) and of 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 (OJ 2011 L 337, p. 9).
2        The request has been made in proceedings between HG, a third-country national, and the minister van Asiel en Migratie (Minister for Asylum and Migration, Netherlands) (‘the Minister’) concerning the lawfulness of a decision revoking the subsidiary protection status granted to HG and ordering him to leave the territory of the Netherlands.
Legal framework
Directive 2008/115
3        Article 2 of Directive 2008/115 provides:
‘1.      This Directive applies to third-country nationals staying illegally on the territory of a Member State.
2.      Member States may decide not to apply this Directive to third-country nationals who:
(a)      are subject to a refusal of entry …, or who are apprehended or intercepted by the competent authorities in connection with the irregular crossing by land, sea or air of the external border of a Member State and who have not subsequently obtained an authorisation or a right to stay in that Member State;
(b)      are subject to return as a criminal law sanction or as a consequence of a criminal law sanction, according to national law, or who are the subject of extradition procedures.
3.      This Directive shall not apply to persons enjoying the Community right of free movement …’
4        Article 3 of that directive provides:
‘For the purpose of this Directive the following definitions shall apply:
…
(3)      “return” means the process of a third-country national going back – whether in voluntary compliance with an obligation to return, or enforced – to:
–        his or her country of origin, or
–        a country of transit in accordance with Community or bilateral readmission agreements or other arrangements, or
–        another third country, to which the third-country national concerned voluntarily decides to return and in which he or she will be accepted;
(4)      “return decision” means an administrative or judicial decision or act, stating or declaring the stay of a third-country national to be illegal and imposing or stating an obligation to return;
…’
5        Article 4(3) of that directive states:
‘This Directive shall be without prejudice to the right of the Member States to adopt or maintain provisions that are more favourable to persons to whom it applies provided that such provisions are compatible with this Directive.’
6        Article 5 of that directive is worded as follows:
‘When implementing this Directive, Member States shall take due account of:
(a)      the best interests of the child;
(b)      family life;
(c)      the state of health of the third-country national concerned,
and respect the principle of non-refoulement.’
7        Article 6(1) of Directive 2008/115 provides:
‘Member States shall issue a return decision to any third-country national staying illegally on their territory, without prejudice to the exceptions referred to in paragraphs 2 to 5.’
8        Article 8(1) of that directive provides:
‘Member States shall take all necessary measures to enforce the return decision if no period for voluntary departure has been granted … or if the obligation to return has not been complied with within the period for voluntary departure granted …’
9        Under Article 9(1)(a) of that directive:
‘Member States shall postpone removal:
(a)      when it would violate the principle of non-refoulement …’
10      Article 11 of that directive lays down the rules applicable to the imposition of an entry ban.
11      Article 14(1) of Directive 2008/115 establishes safeguards pending return.
Directive 2011/95
12      Article 17(1)(b) and (d) of Directive 2011/95 provides:
‘A third-country national or a stateless person is excluded from being eligible for subsidiary protection where there are serious reasons for considering that:
…
(b)      he or she has committed a serious crime;
…
(d)      he or she constitutes a danger to the community or to the security of the Member State in which he or she is present.’
13      Article 19(3)(a) of that directive states:
‘Member States shall revoke, end or refuse to renew the subsidiary protection status of a third-country national or a stateless person, if:
(a)      he or she, after having been granted subsidiary protection status, should have been or is excluded from being eligible for subsidiary protection in accordance with Article 17(1) and (2)’.
The dispute in the main proceedings and the question referred for a preliminary ruling
14      HG arrived in the Netherlands on 7 January 2016 and on 23 March 2017 he was granted subsidiary protection status by the Netherlands authorities and a temporary residence permit valid until 7 January 2021. By decision of 5 January 2021, the period of validity of that residence permit was extended to 7 January 2026.
15      On 1 February 2022, HG was sentenced by the rechtbank Limburg (District Court, Limburg, Netherlands) to a term of imprisonment of four years, one of which was suspended, for offences committed on 21 and 27 June 2021 and classified as attempted murder, conspiracy to commit violence against persons and making threats against the life of another.
16      By decision of 23 May 2024, the Minister considered that HG constituted a threat to public order and consequently revoked HG’s subsidiary protection status with effect from 27 June 2021. In that decision, the Minister also considered that HG could not be granted a right to stay in the Netherlands on any other basis and stipulated that, in order to ensure compliance with the principle of non-refoulement, no return decision or ban on entry would be issued against him on the basis of Directive 2008/115. In addition, by his decision of 23 May 2024, the Minister imposed on HG, under Netherlands law, an obligation to leave the territory of the Netherlands.
17      HG was not granted a postponement of his obligation to leave and was made the subject of an alert, for a period of 10 years, in the Netherlands law enforcement information systems and then in the Schengen Information System (SIS).
18      On 18 June 2024, HG challenged the decision of 23 May 2024 before the rechtbank Den Haag, zittingsplaats Roermond (District Court, The Hague, sitting in Roermond, Netherlands), which is the referring court.
19      That court considers, in the context of a provisional assessment, that HG’s pleas in law directed against the decision revoking subsidiary protection status cannot succeed. However, it has doubts as to the consequences to be drawn from that revocation, in so far as it implies that HG is staying illegally in the Netherlands, whereas he cannot be removed to his country of origin without infringing the principle of non-refoulement.
20      The referring court notes that the Court of Justice held, in the judgment of 6 July 2023, Bundesamt für Fremdenwesen und Asyl (Refugee who has committed a serious crime)
(C‑663/21, EU:C:2023:540), that a return decision cannot be adopted where it is established that removal of the third-country national concerned to the intended country of destination is, by virtue of the principle of non-refoulement, precluded for an indefinite period.
21      It considers, however, that such third-country nationals could be obliged to leave the territory of the European Union, by verifying themselves whether they may be admitted to a third country other than their country of origin, since their retention on that territory constitutes a sufficient threat to public order to justify the revocation of the international protection which they enjoyed. Excluding the adoption of a return decision in the situation in the main proceedings would have the consequence of subjecting HG to an intermediate status, in that he is staying illegally on the territory of a Member State, without, however, being obliged to leave that territory.
22      In that context, the referring court considers that the Court’s interpretation of Article 5 of Directive 2008/115 could be different if that article were read in conjunction with Articles 3, 6, 8 and 9 thereof and taking greater account of the scheme of that directive, the ratio legis of the grounds for revocation of international protection provided for in Directive 2011/95 and the purpose of the acts governing the SIS.
23      In that regard, that court states, in particular, that Article 6 of Directive 2008/115 provides for an obligation to adopt a return decision in respect of illegally staying third-country nationals, without establishing any derogation concerning those third-country nationals who cannot be removed by virtue of the principle of non-refoulement.
24      The referring court also states that the obligation to suspend removal resulting, in such a case, from Article 9(1)(a) of that directive is sufficient to ensure compliance with that principle, in particular if the competent authority confirms in writing that the removal has been postponed. The position would be different only in specific cases in which the interests expressly referred to in Article 5 of that directive preclude any enforcement of the obligation to return.
25      Furthermore, that court doubts whether it is necessary to determine a country of destination with a view to the voluntary enforcement of the obligation to return, in a situation where removal is precluded.
26      The referring court considers that an interpretation contrary to the one it envisages would have significant consequences. In particular, such an interpretation would allow the persons concerned to continue to rely on the rights provided for in the Charter of Fundamental Rights of the European Union (‘the Charter’) and Article 14(1) of Directive 2008/115, it would undermine the grounds for revocation of international protection set out in Directive 2011/95, in particular by not leading to the departure from the territory of the European Union of persons who represent a threat to public order, and it would prevent an alert relating to those persons from being entered in the SIS.
27      Furthermore, in the event that the Court of Justice affirms the referring court’s interpretation of Article 5 of Directive 2008/115, that court asks whether it falls within the procedural autonomy of the Member States to impose on third-country nationals, in a situation such as the one at issue in the main proceedings, an obligation to leave their territory on the basis of national legislation.
28      In those circumstances, the rechtbank Den Haag, zittingsplaats Roermond (District Court, The Hague, sitting in Roermond) decided to stay the proceedings and to refer the following question to the Court of Justice 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 [were] contrary to the principle of non-refoulement, the Member State [would be] 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?’
Consideration of the question referred
29      By its question, the referring court asks, in essence, whether Article 6 of Directive 2008/115, read in conjunction with Articles 3, 5, 8 and 9 thereof and with Article 17(1) and Article 19(3)(a) of Directive 2011/95, must be interpreted as precluding the adoption of a return decision in respect of a third-country national whose subsidiary protection status has been revoked, where it is established that the removal of that third-country national to the intended country of destination is precluded by virtue of the principle of non-refoulement. Furthermore, if the Court of Justice were to consider that a return decision may be adopted in such a situation, the referring court asks whether those provisions must be interpreted as requiring the Member State concerned, when it takes that decision, to confirm in writing that the removal of that third-country national has been postponed.
30      Subject to the exceptions laid down in Article 2(2) of Directive 2008/115, that directive applies to any third-country national staying illegally in the territory of a Member State. Moreover, where a third-country national falls within the scope of that directive, he or she must therefore, in principle, be subject to the common standards and procedures laid down by that directive for the purpose of his or her removal, as long as his or her stay has not, as the case may be, been regularised (judgments of 22 November 2022, Staatssecretaris van Justitie en Veiligheid (Removal
– Medicinal cannabis), C‑69/21, EU:C:2022:913, paragraph 52, and of 6 July 2023,
Bundesamt für Fremdenwesen und Asyl (Refugee who has committed a serious crime), C‑663/21, EU:C:2023:540, paragraph 45).
31      From that point of view, it follows from Article 6(1) of that directive that, once the unlawful nature of residence has been established, any third-country national must, without prejudice to the exceptions provided for in paragraphs 2 to 5 of that article and in strict compliance with the requirements laid down in Article 5 of that directive, be the subject of a return decision, which must identify, among the third countries referred to in point 3 of Article 3 of Directive 2008/115, the country to which the third-country national must return (judgments of 22 November 2022, Staatssecretaris van Justitie en Veiligheid (Removal
– Medicinal cannabis), C‑69/21, EU:C:2022:913, paragraph 53, and of 6 July 2023,
Bundesamt für Fremdenwesen und Asyl (Refugee who has committed a serious crime), C‑663/21, EU:C:2023:540, paragraph 46).
32      In that regard, the Court has stipulated that a third-country national whose refugee status has been revoked must be regarded as staying illegally, unless he or she has been granted leave to remain on another basis by the Member State in which he or she is present (judgment of 6 July 2023, Bundesamt für Fremdenwesen und Asyl
(Refugee who has committed a serious crime), C‑663/21, EU:C:2023:540, paragraph 47).
33      The same is true of a third-country national, such as the person in question in the main proceedings, whose subsidiary protection status has been revoked, pursuant to Article 19(3)(a) of Directive 2011/95 read in conjunction with Article 17(1) thereof, without that third-country national being granted leave to remain on other grounds by the Member State in whose territory he or she is present.
34      However, as has been recalled in paragraph 31 above, the conduct of a return procedure against such a third-country national must be conducted in strict compliance with the requirements laid down in Article 5 of Directive 2008/115.
35      Article 5 of Directive 2008/115, which is a general rule binding on the Member States as soon as they implement that directive, obliges, inter alia, the competent national authority to observe at all stages of the return procedure the principle of non-refoulement, which is guaranteed as a fundamental right in Article 18 of the Charter read in conjunction with Article 33 of the Convention relating to the Status of Refugees, signed in Geneva on 28 July 1951 (United Nations Treaty Series, Vol. 189, p. 150, No 2545 (1954)), and in Article 19(2) of the Charter. That is the case, in particular, where that authority is contemplating, after hearing the person concerned, the adoption of a return decision in relation to that person (see, to that effect, judgments of 22 November 2022, Staatssecretaris van Justitie en Veiligheid (Removal – Medicinal cannabis), C‑69/21, EU:C:2022:913, paragraph 55, and of 6 July 2023, Bundesamt für Fremdenwesen und Asyl  (Refugee who has committed a serious crime), C‑663/21, EU:C:2023:540, paragraph 49).
36      Therefore, Article 5 of Directive 2008/115 precludes a third-country national from being the subject of a return decision where that decision concerns, as the country of destination, a country in respect of which substantial grounds have been shown for believing that, if that decision is implemented, that third-country national would be exposed to a real risk of treatment contrary to Article 18 or Article 19(2) of the Charter (judgments of 22 November 2022, Staatssecretaris van Justitie en Veiligheid (Removal
– Medicinal cannabis), C‑69/21, EU:C:2022:913, paragraph 56, and of 6 July 2023, Bundesamt für Fremdenwesen und Asyl (Refugee who has committed a serious crime), C‑663/21, EU:C:2023:540, paragraph 50).
37      That is precisely the case in a situation such as the one at issue in the main proceedings, where the only potential country of destination identified by the competent authority is the country of origin of the third-country national concerned, but that authority has already found that the principle of non-refoulement precludes the return of that third-country national to his country of origin.
38      It is important, in that regard, to point out that that solution was adopted, inter alia, by the Court in the judgment of 6 July 2023, Bundesamt für Fremdenwesen und Asyl
(Refugee who has committed a serious crime) (C‑663/21, EU:C:2023:540), in a context in which the competent authority had already expressly excluded the removal of the third-country national concerned to his or her country of origin.
39      The obligation to take into account the principle of non-refoulement at the stage at which the competent authority rules on the adoption of a return decision is therefore different from the obligation, laid down in Article 9(1)(a) of Directive 2008/115, to postpone removal in the event that it is in breach of the principle of non-refoulement.
40      Accordingly, Article 8 of that directive, which lays down the rules relating to removal, is not relevant to the answer to the question referred.
41      Furthermore, in the light of the questions expressed by the referring court in the statement of reasons for its request for a preliminary ruling, it should also be noted, in the first place, that the competent authority cannot, in a situation such as the one at issue in the main proceedings, adopt a return decision without designating the country of destination in order to make up for the fact that the return of the third-country national concerned to his or her country of origin is precluded.
42      It follows from the very wording of point 4 of Article 3 of Directive 2008/115 that the actual imposition or declaration of an obligation to return constitutes one of the two components of a return decision, such an obligation being inconceivable, in the light of point 3 of that article, unless a destination, which must be one of the countries referred to in point 3, is identified (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, paragraph 115).
43      It follows, in particular, that it is legally impossible for the competent authority to adopt a return decision without having identified a country of destination to which a return may be carried out in compliance with the principle of non-refoulement (see, to that effect, judgment of 24 February 2021, M and Others (Transfer to a Member State), C‑673/19, EU:C:2021:127, paragraphs 38
to 42).
44      In the second place, it should be noted that, in a situation where the obligation to comply with the principle of non-refoulement, laid down in Article 5 of Directive 2008/115, precludes the adoption of a return decision, the competent authority likewise may not adopt a decision, such as the one at issue in the main proceedings, which is based on national law and which orders the third-country national concerned to leave the territory of the Member State in question, without authorising his or her removal or designating a country of destination.
45      As has been recalled in paragraph 30 above, subject to the exceptions provided for in Article 2(2) of Directive 2008/115, any third-country national staying illegally on the territory of a Member State falls within the scope of that directive and must, in principle, be subject to the common standards and procedures which that directive lays down.
46      In that context, that directive harmonises the standards and procedures for adopting return decisions concerning third-country nationals and the enforcement of those decisions (see, to that effect, judgment of 24 February 2021, M and Others (Transfer to a Member State), C‑673/19, EU:C:2021:127, paragraphs 43 and the case-law cited), and the Member States may depart from that harmonisation only by adopting more favourable provisions under the conditions laid down in Article 4(3) of that directive.
47      It follows that the fact that a decision, such as the one at issue in the main proceedings, requires the third-country national concerned to travel either to the territory of a third country or to the territory of another Member State is not such as to exclude it from the scope of that directive.
48      Given, first, that the obligation laid down by that decision may, inter alia, be enforced by travelling to the territory of a third country and, second, that it is apparent from point 3 of Article 3 of Directive 2008/115 that the concept of ‘return’, within the meaning of that directive, covers not only forced displacement to a third country, but also displacement to a third country in voluntary compliance with an obligation, such a decision must be regarded as imposing an obligation to return, within the meaning of that directive. Therefore, if the requirements set out in paragraphs 41 to 43 above are not to be disregarded, such an obligation to return cannot be imposed without designating a country of destination.
49      Furthermore, as is apparent from paragraphs 34 to 39 above, where, at the time when a return decision is envisaged, it is found that the principle of non-refoulement precludes the removal of the third-country national concerned to a given country of destination, Article 5 of Directive 2008/115 precludes not only that removal but also the imposition on that third-country national of an obligation to return to that country of destination. Therefore, the mere fact that a decision imposing such an obligation does not allow the removal of the person concerned is not sufficient for that decision to be regarded as being compatible with Article 5 of that directive.
50      Moreover, although Article 4(3) of Directive 2008/115 states that that directive is without prejudice to the right of Member States to adopt or maintain provisions that are more favourable to persons to whom that directive applies, provided that those provisions are compatible with that directive, suffice it to state that national legislation permitting the adoption of a decision such as the one referred to in paragraph 44 above does not constitute a more favourable provision for those persons.
51      In the third place, it must be pointed out that the exclusion, in a situation such as the one at issue in the main proceedings, of the adoption of a return decision designating the country of origin of the person concerned as a country of destination or not designating a country of destination is not such as to render ineffective the revocation of subsidiary protection status pursuant to Article 19 of Directive 2011/95.
52      It is true that, in accordance with EU law, the competent authority may be entitled, under Article 19 of Directive 2011/95, to revoke the subsidiary protection status granted to a third-country national, without, however, necessarily being authorised to remove that person to his or her country of origin (see, to that effect, judgment of 6 July 2023, Bundesamt für Fremdenwesen und Asyl (Refugee who has committed a serious crime), C‑663/21, EU:C:2023:540, paragraph 39).
53      Article 4 and Article 19(2) of the Charter prohibit in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the conduct of the person concerned, as well as removal to a State where there is a serious risk that a person may be subjected to such treatment. Therefore, Member States may not remove, expel or extradite a foreign national where there are substantial grounds for believing that he or she will face a genuine risk, in the country of destination, of being subjected to treatment prohibited by Article 4 and Article 19(2) of the Charter (see, to that effect, judgments of 14 May 2019, M and Others (Revocation of refugee status), C‑391/16, C‑77/17 and C‑78/17, EU:C:2019:403, paragraph 94, and of 6 July 2023, Bundesamt für Fremdenwesen und Asyl (Refugee who has committed a serious crime), C‑663/21, EU:C:2023:540, paragraph 36).
54      Nevertheless, it cannot be inferred from this that, in cases where the return of a third-country national, whose subsidiary protection status has been revoked, to his or her country of origin is excluded, the application of Article 19 of Directive 2011/95 is, in practice, ineffective.
55      In particular, even in such cases, the revocation of subsidiary protection status has the direct consequence that the third-country national concerned no longer has all the rights and benefits provided for in Chapter VII of Directive 2011/95, since they are associated with the international protection provided for by that directive.
56      In addition, it should be recalled that Directive 2008/115 allows, in accordance with point 3 of Article 3 thereof, an obligation to return not only to the country of origin of the third-country national concerned, but also, under the second and third indents of point 3 of Article 3, to a country of transit in accordance with readmission agreements or other arrangements or to another third country to which that third-country national decides to return voluntarily and in which he or she will be accepted.
57      Accordingly, the exclusion, in a situation such as the one at issue in the main proceedings, of the adoption of a return decision designating the country of origin of the person concerned as the country of destination or not designating a country of destination does not in any way preclude the competent authority from adopting a return decision designating a country of destination falling within the second or third indent of point 3 of Article 3 of Directive 2008/115 and, if necessary, from subsequently removing the third-country national concerned, thereby ensuring the departure of the third-country national concerned from the territory of the Member State in question, in full compliance with the requirements of Article 5 of that directive and the Charter.
58      Such a return decision may, moreover, be accompanied, where appropriate, by an entry ban, within the framework defined in Article 11 of that directive.
59      In the light of the foregoing, the answer to the question referred is that Article 5 of Directive 2008/115, read in conjunction with Articles 3 and 6 of that directive and with Article 17(1) and Article 19(3)(a) of Directive 2011/95, must be interpreted as precluding the adoption of a return decision in respect of a third-country national whose subsidiary protection status has been revoked, where it is established that the removal of that third-country national to the intended country of destination is precluded by virtue of the principle of non-refoulement.
Costs
60      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Eighth Chamber) hereby rules:
Article 5 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, read in conjunction with Articles 3 and 6 of that directive and with Article 17(1) and Article 19(3)(a) 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,
must be interpreted as precluding the adoption of a return decision in respect of a third-country national whose subsidiary protection status has been revoked, where it is established that the removal of that third-country national to the intended country of destination is precluded by virtue of the principle of non-refoulement.
[Signatures]
*      Language of the case: Dutch.
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.