The Bottom Line
- Decisions on shaky ground: Dutch courts must now assess the legality of return decisions and entry bans based on the facts at the time of the court hearing (ex nunc), not just when the decision was made (ex tunc). An initially legal decision can become unlawful due to later events.
- New avenue for appeals: This allows individuals, including employees, to introduce new personal circumstances (e.g., the birth of a child, new family ties) that have arisen during the appeal process, potentially overturning a removal order.
- EU law prevails: The ruling confirms that under the EU Returns Directive, a purely historical review is not an “effective remedy.” This forces authorities to consider the most current personal situation, especially regarding family life and the best interests of a child.
The Details
The case involved an Albanian national who was issued a return decision and a two-year entry ban in early 2024. By the time his appeal was heard in late 2025, he argued his personal circumstances had significantly changed, particularly regarding his family life in the Netherlands, including a partner and children. This created a critical legal question: should the court judge the decision based on the facts of 2024, or the new reality of late 2025? The Dutch government argued for a historical (ex tunc) review, asserting the decision was lawful when made.
In a significant clarification of Dutch law, the District Court of The Hague ruled that it is obligated to conduct a present-day (ex nunc) review. The court reasoned that the EU Returns Directive (2008/115) guarantees an “effective remedy” against removal decisions. A review that ignores nearly two years of life events would not be effective. Citing recent European case law, the court emphasized that fundamental rights, including family life and the best interests of a child (as per Article 5 of the Directive), must be considered at all stages of the return procedure, including the final judicial review.
Despite establishing this important legal principle, the court ultimately ruled against the individual. In a unique twist, while the appeal was pending, the individual had filed a separate application for an EU residence permit, which was rejected in a new decision just weeks before the court’s final ruling. That very recent decision had already taken his updated family situation into account. Therefore, in its ex nunc review, the court had to acknowledge that the government had just recently assessed and dismissed his current circumstances. Since no new facts had arisen since that latest rejection, the original return decision and entry ban were deemed to remain valid.
Source: Rechtbank Den Haag (District Court of The Hague)
