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On 4 June 2026, Advocate General Jean Richard de la Tour delivered his opinion in Case C-182/26 PPU (Hardeker), concerning the interpretation of Directive 2008/115/EC (the ‘Return Directive’), including whether a return decision may designate more than one country of destination.

The Advocate General considered that Article 6(1) of the Return Directive requires a return decision to indicate a country of destination but does not exclude the possibility of designating several destinations. This follows from Article 3(3) of the Directive, which defines “return” broadly without establishing any hierarchy between categories of destination, meaning that more than one third country may simultaneously satisfy the conditions for removal. He added that such an approach does not, in itself, weaken fundamental rights protection, since each designation can be challenged and the principle of non-refoulement under Article 5 of the Return Directive, read with Article 19(2) of the Charter of Fundamental Rights of the European Union, must be assessed in relation to all listed countries. However, he emphasized that each designated country must be individually justified by concrete factual elements meeting the requirements of Article 3(3) of the Return Directive and remain subject to judicial review.

The Advocate General further held that a court reviewing detention cannot, of its own motion, examine whether the return decision complied with the principle of non-refoulement, nor can it treat any alleged defect in that regard as affecting the validity of the return decision serving as the legal basis for detention. He clarified that the Return Directive distinguishes return decisions (Articles 6, 12 and 13) from detention (Article 15), and that judicial review in detention proceedings is limited to verifying the existence of the “constituent elements” of a return decision, such as the identity of the person concerned, the obligation to return and the designation of a country of destination. Compliance with non-refoulement under Article 5 of the Directive and Articles 4 and 19(2) of the Charter forms part of the substantive assessment of the return decision and does not constitute one of its constituent elements for the purposes of detention control. Hence, during the detention review courts may not review the legality of the return decision itself, but they must still ensure that removal is not carried out in breach of non-refoulement.

The obligation to assess compliance with the principle of non-refoulement under Article 5 of Directive 2008/115, read in light of Article 19(2) of the Charter, must be carried out independently by both the administrative authority and the court reviewing detention on the basis of all available information. Where several countries of destination are designated, the assessment must be carried out separately for each of them. Detention is precluded where removal to all designated countries would expose the person to a real risk of prohibited treatment, but it may be maintained where at least one designated country allows removal in compliance with non-refoulement. The court reviewing detention cannot modify or annul the return decision, as its role is limited to verifying whether detention remains legally justified in light of the possibility of lawful removal.

Unofficial translation by the EWLU team