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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

On 4 July 2026, the Court of Justice of the European Union delivered its judgment in Case C‑440/25 (Ebilum), following a request for a preliminary ruling by the District Court of The Hague, sitting in Zwolle (rechtbank Den Haag, zittingsplaats Zwolle). The case concerned the interpretation of Article 46(3) of Directive 2013/32/EU (the recast ‘Asylum Procedures Directive’ (rAPD) and Article 2(d) of Directive 2011/95/EU regarding the scope of judicial review in asylum appeals and the meaning of “well-founded fear of persecution’’.

The Court reiterated that Article 46(3) require Member States to ensure that a first-instance court or tribunal before which a decision relating to an application for international protection is contested, carries out a full and ex nunc examination of both facts and points of law. This requires an up-to-date assessment of the case based on all relevant factual and legal elements, including evidence arising after the adoption of the decision under appeal, insofar as the parties are given the opportunity to submit observations in accordance with the principle of audi alteram partem and Article 47 of the EU Charter. Such an examination must allow the court to assess the application exhaustively at judicial level, without any need to refer the case back to the determining authority.  It further held that the judicial review required under Article 46(3) entails a full factual and legal reassessment of the applicant’s international protection needs. This includes, where necessary, the assessment of facts and credibility and the possibility for the court or tribunal to reach its own findings on the merits of the application.

The Court recalled that while Article 46(3) rAPD only concerns the judicial appeal stage and not what happens after any annulment, where a court has carried out a full assessment and found that international protection must be granted, the administrative authority is bound to comply when the case is referred back, unless new circumstances require assessment. If the administration subsequently adopts a contrary decision without such new elements, the court must be able to replace that decision with its own ruling and disapply any national rules preventing it from doing so, thereby ensuring the effectiveness of EU law. It also clarified that Member States may provide for additional appeal or cassation levels beyond the first-instance judicial remedy required by Article 46(3), but such review cannot alter the characteristics of the full and ex nunc examination required at first instance.

Finally, the Court interpreted Article 2(d) of Directive 2011/95 as meaning that a “well-founded fear of being persecuted” exists where there is a reasonable likelihood that the applicant will be persecuted upon return to his or her country of origin. It held that the competent authorities must carry out an individual, specific and objective assessment of the applicant’s personal situation, the facts and circumstances relating to the application, and the facts and circumstances relating to the situation in the country of origin. That assessment must include the general context of the country of origin, cannot rely solely on the applicant’s subjective fear of being persecuted but must be based on both subjective and objective elements.

On 4 June 2026, the Court of Justice of the European Union delivered its judgment in Case C‑198/25  (Quotal), originating from a request for a preliminary ruling by the District Court of The Hague, sitting in Zwolle (rechtbank Den Haag, zittingsplaats Zwolle). The case concerned the interpretation of Article 46(3) of Directive 2013/32/EU (the recast ‘Asylum Procedures Directive’ (rAPD)), read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union on whether a first-instance court hearing an appeal against a rejection of an application for international protection is able to fully reassess the merits of the application, or whether that assessment may be reserved to the determining authority.

The Court recalled that Article 46(3) of Directive 2013/32 requires Member States to ensure that a first-instance court or tribunal before which a decision relating to an application for international protection is contested, carries out a full and ex nunc examination of both facts and points of law. The review must allow an up-to-date assessment of the case, taking into account all necessary factual and legal elements, including any evidence arising after the adoption of the decision under appeal. The Court clarified that such an examination allows the application to be dealt exhaustively at judicial level, without the need to refer the case back to the determining authority.

It further held that Article 46(3) confers on the first-instance court or tribunal, where it has all necessary elements of fact and law, the power to give a binding ruling on whether the applicant satisfies the conditions for international protection. Under EU law Member States may not restrict the scope of that judicial review. 

Finally, the Court held that national courts must set aside any national legislative provisions that prevent EU rules from producing their full effect. It therefore clarified that Article 46(3) requires a system of judicial protection in which first-instance courts or tribunals are empowered to carry out a full and up-to-date factual reassessment of the application for international protection and, where they have all necessary elements, to give a binding ruling on the merits of the claim, including the grant of international protection, thereby ensuring the effectiveness of EU law.

On 26 May 2026, the Third Section of the European Court of Human Rights (ECtHR) delivered its judgment in J.B. v. Greece (Application no. 54796/16). The case concerns the potential return of the applicant from Greece to Türkiye under the EU-Türkiye Statement of 18 March 2016.

The applicant left Syria in April 2015 due to the armed conflict and alleged risks of persecution on account of his ethnic and religious background. He travelled to Türkiye, where he remained for approximately one year under temporary protection. In May 2016 he arrived in Greece, where he was arrested on grounds of unlawful entry. He applied for international protection claiming that he faced a risk of ill-treatment in Türkiye due to his Armenian origin and his Christian faith. His application for international protection was declared inadmissible on the basis that Türkiye constituted a “first country of asylum” or a “safe third country”, a decision upheld on appeal by the domestic authorities. The applicant complained before the ECtHR about deficiencies on the examination of his asylum application by the Greek authorities, as well as the risk he entailed if returned to Türkiye, including the chain refoulement to Syria, and about the conditions of his detention in Greece.

In regard to the complaint under Article 3 of the European Convention on Human Rights concerning the risk of ill-treatment upon removal, the Court found that since the applicant had in the meantime obtained refugee status in France, the risk of ill-treatment if returned to Türkiye and subsequently to Syria has ceased to exist. Therefore, it considered unjustified to continue the examination of that complaint.

In relation to Article 13 in conjunction with Article 3, the Court found that the applicant’s asylum claim had been examined through a multi-layered procedure before the asylum authorities and domestic courts, during which he was interviewed with interpretation, able to present his individual circumstances and challenge the application of the ‘’safe third country’’ concept. It also held that the authorities assessed both his personal situation and relevant country information concerning Türkiye through reports, statistics and objective material, including the alleged risk of onward refoulement to Syria and the assurances provided within the framework of the EU-Türkiye Statement. Therefore, the Court concluded that the Greek authorities could reasonably rely on those assurances and supporting material and that the applicant had been afforded effective safeguards against arbitrary removal contrary to Article 3, finding no violation of Article 13 in conjunction with Article 3.

Finally, regarding to the complaint under Article 3 ECHR concerning the conditions of detention pending removal, the Court reiterated that Greek police stations are facilities designed only for short periods of confinement and that detention therein for periods ranging from one to three months have consistently been found contrary to Article 3, particularly in view of deficiencies such as overcrowding, poor sanitary conditions and lack of outdoor exercise. Since the applicant had been detained in Mytilene police station for one month and nineteen days, the Court found that the conditions of his detention amounted to degrading treatment contrary to Article 3

On 9 February 2026, the Swiss Federal Administrative Court (FAC) delivered the judgment no. D-4601/2025 clarifying the scope of the principle of subsidiarity in the context of temporary protection for persons from Ukraine. The case concerned the refusal by the State Secretariat for Migration (SEM) to grant temporary protection in Switzerland to a Ukrainian national who had previously benefited from temporary protection in Italy.

The applicant had obtained temporary protection in Italy in March 2022, which remained valid until March 2023, and thereafter she returned to Ukraine. In April 2025, she entered Switzerland and applied for temporary protection. The SEM rejected her application and ordered her removal, considering that she could rely on protection previously granted in Italy. The applicant challenged this decision, arguing that her Italian protection status had expired and that Switzerland should have sought assurances of readmission from Italy before refusing protection. The Federal Administrative Court (FAC) dismissed the appeal and confirmed that, under the principle of subsidiarity, temporary protection in Switzerland may be refused where the applicant already has, or can reasonably obtain, a valid protection status in an EU/EFTA Member State. It clarified that no formal readmission agreement or prior assurance from the other State is required in such circumstances.

The Court found that Italy constituted a valid alternative protection country, as it had granted the applicant temporary protection equivalent to the Swiss “S” status and remains obliged under EU law to continue providing such protection to Ukrainian nationals. The expiry of the applicant’s previous Italian status, resulting from her voluntary departure, did not alter this assessment, as she could lawfully return and reobtain protection in Italy. Accordingly, the Court held that the existence of a valid alternative protection status excludes entitlement to Swiss temporary protection, without the need for prior confirmation of readmission, provided that the person concerned can lawfully return to the third State. The judgment was final and not subject to appeal before the Swiss Federal Supreme Court.
 

Unofficial translation by the EWLU team

We would like to thank Helen Zemp for bringing this case to our attention

On 16 April 2026, the Advocate General Campos Sánchez-Bordona delivered his opinion in Case C-249/25 (Jilin) following a request for a preliminary reference by the Council of State, Netherlands (Raad van State). The case concerned the interpretation of Article 17(2) of Directive 2001/55/EC (Temporary Protection Directive (TPD)) and Article 31 of Directive 2013/32/EU (recast Asylum Procedures Directive (rAPD)). The questions involved a situation where a third-country national benefiting from temporary protection had also applied for international protection and enquired whether Member States may suspend the examination of such an application for the duration of temporary protection.

The Advocate General considered that EU law does not permit Member States to suspend automatically and indefinitely the examination of applications for international protection solely on the ground that the applicant enjoys temporary protection. Referring to the Court of Justice’s judgment in Framholm, he emphasised that the system of temporary protection is not intended to replace the system of international protection, ensuring that beneficiaries of temporary protection still have a real opportunity to obtain refugee or subsidiary protection status. An automatic suspension of the asylum procedures for the entire duration of temporary protection would be, in practice, equivalent to a refusal to examine the application.

He further noted that the TPD contains no provision allowing for such a suspension and that the preparatory documents of that directive indicate that the possibility of suspending the examination of asylum applications had been deliberately excluded for reasons of compliance with the 1951 Geneva Convention. Although Member States may, in situations involving the simultaneous lodging of a large number of applications, adjust the pace of their examination in order to preserve the functioning of their asylum systems, such flexibility cannot justify a general, automatic and indefinite suspension. He emphasized that a suspension which is not subject to any time limit and is detached from any specific impact which it may have on the operation of the asylum system in each Member State is incompatible with the Temporary Protection Directive.

Finally, the Advocate General highlighted that the rAPD allows for limited extensions of the time limit for examining applications, including in situations involving a large number of applicants, but sets a maximum overall duration of 21 months. It does not allow Member States to suspend procedures indefinitely. In addition, he stressed that such a suspension would be incompatible with Article 18 of the Charter of Fundamental Rights of the European Union, which guarantees the right to seek asylum. A prolonged delay of several years before the examination of an application would deprive its effectiveness and would not meet the requirements for lawful limitations under Article 52(1) of the Charter.
 

On 26 March 2026, the Court of Justice of the European Union (CJEU) delivered its judgment in the Case C-202/25 (Tadmur), following a request for a preliminary ruling from the District Court of The Hague, sitting in Roermond (Den Haag, zittingsplaats Roermond). The case concerned the interpretation of the Directive 2008/115/EC (the “Return Directive’’) in conjunction with the Directive 2011/95/EU (the “Qualification Directive’’), on whether a Member State is required to adopt a return decision in respect of a third-country national whose subsidiary protection status has been revoked and where removal is precluded by virtue of the principle of non-refoulement.

The Court held that Article 6(1) of Directive 2008/115 requires Member States, in principle, to issue a return decision once the unlawful stay of a third-country national has been established. However, that obligation must comply with Article 5 of the Return Directive, which requires respect for the principle of non-refoulement, as guaranteed by Article19(2) of the Charter of Fundamental Rights of the European Union. In that regard, the Court clarified that Article 5 precludes not only the removal of a third-country national, but also the adoption of a return decision where such decision is contrary to the principle of non-refoulement. That obligation applies at the stage of adopting the return decision and cannot be remedied by merely postponing removal pursuant to Article 9(1)(a) of the Return Directive.

The Court further held that a return decision necessarily entails the designation of a country of destination, within the meaning of Article 3 of Directive 2008/115, and that it is therefore legally impossible to adopt such a decision where no destination can be identified in compliance with Article 5 thereof. Consequently, Member States may not circumvent those requirements by adopting under national law a decision obliging the person concerned to leave the territory without designating a country of destination or permitting removal, since such a measure constitutes an ‘obligation to return’ within the meaning of that directive.

The Court also noted that, while the revocation of subsidiary protection under Article 19(3)(a) of Directive 2011/95/EU, read in conjunction with Article 17(1) thereof, results in the loss of the rights attached to international protection, it does not in itself justify removal in breach of the principle of non-refoulement. However, a return decision may be adopted where a lawful alternative country of destination, within the meaning of Article 3(3) of Directive 2008/115, is identified, including a country of transit or another third country to which the person may voluntarily return, provided that such return complies with Article 5 of Return Directive and with the EU Charter.

On 18 March 2026, the Migration Court of Appeal (Migrationsöverdomstolen) annulled the decisions of the Malmö Administrative Court and the Swedish Migration Agency which had rejected a refugee’s application for long-term resident status on the grounds that he had not proven his identity.

The applicant, already granted refugee status, a permanent residence permit, and a Swedish travel document, had applied for long-term resident status in June 2023. The Swedish Migration Agency and the Administrative Court in Malmö had both found that he had not submitted sufficient documentation to prove his identity. The applicant challenged this requirement, noting that, as a refugee, he could not return to his home country to obtain identity documents.

The Migration Court of Appeal held that Swedish law and the EU Long-Term Residents Directive 2003/109/EC do not impose a requirement of proven identity for refugees who already hold a permanent residence permit and a travel document. It clarified that Member States may grant long-term residence permits on more favourable terms than those provided for in the Directive. However, such permits do not confer a right of residence in other Member States. Therefore, the Court annulled the previous decisions and referred the case back to the Migration Agency for further consideration.

Unofficial translation by the EWLU team. We would like to thank Michael Williams for bringing this case to our attention.

On 5 March 2026, the Court of Justice of the European Union (CJEU) delivered its judgment in the Case C-458/24 (Daraa). The case arose from a request for a preliminary ruling by the Administrative Court of Sigmaringen, Germany (Verwaltungsgericht Sigmaringen) concerning the interpretation of the Dublin III Regulation and Directive 2013/32 in a situation where the Member State responsible for examining an asylum application unilaterally suspends transfers.

The Court held that the second and third subparagraphs of Article 3(2) of the Dublin Regulation should be interpreted as meaning that a unilateral suspension by the Member State responsible of take-charge or take-back procedures does not require the determining Member State to continue applying the Charter III criteria, nor to assume responsibility itself. Article 3(2) applies only where two cumulative conditions are met: (i) the existence of systemic flaws in the asylum procedure or reception conditions and (ii) a resulting risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights of the European Union. A unilateral suspension does not, in itself, satisfy those conditions and cannot be treated as evidence of such flaws. Consequently, no additional or implicit condition relating to the willingness of the responsible Member State may be inferred from that provision.

As regards Article 29(1) and (2) of the Dublin Regulation, the Court held that the six-month time limit for carrying out a transfer continues to apply irrespective of the reasons preventing the transfer. Under Article 29(2), where the transfer is not carried out within that period, responsibility automatically passes to the requesting Member State. That transfer of responsibility is unconditional and does not depend on the conduct of the Member State initially responsible, including situations where the failure to transfer results from that State’s unilateral suspension of cooperation. The Regulation does not provide for suspension or interruption of that time limit, and extensions are limited to the situations expressly provided for in Article 29(2). The Court further clarified that, during the running of the transfer period, the Member State initially designated as responsible remains bound by its obligations under the Regulation, and Member States must cooperate to carry out the transfer. However, a failure by one Member State to comply with its obligations cannot justify non-compliance by another; remedies lie in infringement proceedings under Articles 258 and 259 TFEU.

Finally, the Court interpreted Article 33(1) and (2) of Directive 2013/32 as precluding a Member State from rejecting an application for international protection as inadmissible on the ground that the Member State responsible is unwilling to take charge or take back the applicant. The grounds for inadmissibility listed in Article 33(2) are exhaustive and must be interpreted strictly, and such a situation is not included among them.

On 10 February 2026, the Fifth Section of the European Court of Human Rights (ECtHR) communicated the application of C.I. v. Cyprus (Application no. 12347/25). The case concerns the alleged unlawfulness of the applicant’s detention pending deportation and the risk of death or ill-treatment if returned to Burundi.

The applicant, a Burundian national, lodged an asylum application in Cyprus on the grounds that he would face serious threats to his life and a real risk of ill-treatment upon return to Burundi. His claim was rejected, and he was detained as a “prohibited immigrant” on 22 February 2025. His deportation was suspended following interim measures by the Court, and he remained in detention until 15 December 2025, when he was released after successful habeas corpus proceedings. He complains under Articles 2 and 3 European Convention on Human Rights (ECHR) concerning the risk of ill-treatment upon return, under Article 13 in conjunction with Articles 2 and 3 for the lack of an effective domestic remedy, and under Article 5 §§ 1 and 4 ECHR regarding the lawfulness of his detention and access to legal aid.

The Court asked the parties to clarify, inter alia, whether the applicant had exhausted all effective domestic remedies, whether he faced a real risk of ill-treatment upon return to Burundi, and whether he had access to effective remedies to challenge his deportation and detention.