Ms. Alheto, a Palestinian national*, left the Gaza Strip and travelled to Egypt, then by boat to Jordan. On 7 August 2014, the Bulgarian consulate in Jordan issued her a tourist visa for Bulgaria, valid until 1 September 2014. She entered Bulgaria on 10 August 2014, and eighteen days later, her visa was extended to 17 November 2014. Before her visa expired, Ms. Alheto applied for international protection, claiming that returning to the Gaza Strip would expose her to a serious threat to her life because she risked torture and persecution due to her activities informing women of their rights and the situation of indiscriminate violence. Her request was rejected. On appeal, the Administrative Court of Sofia concluded that the Bulgarian authorities should have examined the application based on Article 12(1)(4) of the Law on Asylum and Refugees (Zakon za ubezhichteto i bezhanitsite, ZUB) and that these articles failed to correctly transpose Article 12(1)(a) of Directive 2011/95 (recast Qualification Directive, QD). The court also questioned whether, under the full and ex nunc examination required by Article 46(3) of Directive 2013/32 (recast Asylum Procedures Directive, APD), factors not considered in the rejection could be included in the review, such as whether the application could be inadmissible because the applicant is sufficiently protected in Jordan as a person registered with UNRWA. The court also doubted whether, after annulling the decision, it may or must adopt a decision on the merits. Against this context, the Administrative Court of Sofia referred six questions to the Court of Justice of the European Union (CJEU) for preliminary ruling.

The first question concerned whether Article 12(1)(a) of the recast QD read with Article 10(2) of the recast APD must be interpreted to mean that the processing of an application for international protection lodged by a person registered with UNRWA requires an examination as to whether that person benefits from effective protection or assistance from that agency.

Following the observations of Advocate General Mengozzi, the CJEU highlighted that Article 12(1)(a) of the recast QD is lex specialis and the national provisions transposing it must be applied to an application of international protection to a person registered with UNRWA, provided that application has not been rejected previously on other exclusion or inadmissibility grounds. The court emphasized that such interpretation was supported by the purpose of the recast QD, which as adopted on the basis of Article 78(2)(a) TFEU sought to establish a uniform asylum system. Thus, according to the court, it is essential that all the authorities that are empowered in the European Union to deal with applications for international protection apply, when the applicant is a person registered with UNRWA, the provisions transposing the rules set out in Article 12(1)(a) of the recast QD.

The second question concerned whether the second sentence of Article 12(1)(a) of the recast QD must be interpreted to preclude national legislation that does not lay down or incorrectly transposes the ground for no longer applying the ground for exclusion from refugee status contained in that provision.

The CJEU held that both Article 12(1)(a) of the recast QD and the article of its predecessor precluded a national law failing to transpose or incorrectly transposing the provisions into national law. In relation to this, the court ruled that Article 12(1)(a) recast QD and its predecessor satisfied the criteria to have direct effect, since they set out a rule whose content is unconditional and sufficiently precise to be relied on by an individual and applied by a court, even if the applicant has not expressly referred to them. The court noted that such conclusion was supported by the fact that those provisions referred to an applicant receiving ‘ipso facto’ the benefits of the directive.

The third question concerned whether Article 46(3) of the recast APD read with Article 47 of the EU Charter, must be interpreted to mean that a court or tribunal of a Member State seized at first instance of an appeal against a decision on an application for international protection may take into account matters of fact or of law, such as the applicability of Article 12(1)(a) of the recast QD to the applicant’s circumstances, which were not examined by the body that made the decision.

The CJEU ruled that, under the wording of Article 46(3) recast APD, Member States are required to order their national law so that appeals include an examination by the court or tribunal of all facts and points of law necessary to make an up-to-date assessment of the case. The CJEU also held that the expression ‘ex nunc’ indicates an obligation for the court or tribunal to assess, if needed, new evidence that has come to light after the decision under appeal. This allows an exhaustive examination of the application without referring the case back to the determining authority and aligns with the recast APD's purpose to deal expeditiously with applications for international protection. The court ruled that the adjective ‘full’ in Article 46(3) recast APD confirms that a court must examine both the evidence the determining authority considered or could have considered and any that arises after the decision by that authority. In addition, the CJEU held that the requirement for a full and ex nunc examination implies that a court seised of the appeal must interview the applicant, unless it considers it can carry out the examination solely on the basis of the case file, including, where applicable, the report or transcript of the personal interview before that authority. Where new evidence arises after the appealed decision, such a court must offer concerned applicants the opportunity to express their views when that evidence could affect them negatively. The court noted that the words ‘where applicable’ indicate that the review may not require a substantive examination and may concern the admissibility of the application for international protection, where national law allows, pursuant to Article 33(2) of the recast APD. Based on these considerations the CJEU concluded that Article 12(1)(a) of the recast QD constituted a relevant point of law which was for the Administrative Court of Sofia to examine in its capacity as a court or tribunal of first instance, including any evidence arising after the adoption of the contested decision.

The fourth question concerned whether Article 46(3) of the recast APD read with Articles 18, 19 and 47 of the EU Charter, meant that the requirement for a full and ex nunc examination both of facts and of points of law also covered inadmissibility grounds of Article 33(2) recast APD and, if so, whether, in the event of an examination of such a ground of inadmissibility even though that ground had not been examined by the determining authority, the file must be referred back to that authority for it to conduct the admissibility interview provided for in Article 34 of that directive.

The court reiterated its previous conclusion that a full and ex nunc examination of the appeal may concern the admissibility of an application for international protection. It added that in such an examination, the court must rigorously assess whether all cumulative conditions for inadmissibility are met, inviting the determining authority to produce relevant documentation or evidence where appropriate. Focusing on the concepts of ‘first country of asylum’ and ‘safe third country’, the referring court sought to apply, the CJEU held that the court must examine both and ensure the applicant can express her views in person on the applicability of the inadmissibility ground to her situation before deciding. The court clarified that the right to be heard before a decision on admissibility during appeal proceedings derives from Article 47 of the EU Charter and entails a hearing if necessary. Thus, the CJEU held that the court or tribunal hearing the appeal must decide whether a hearing is necessary to examine the inadmissibility ground and consider the report of the determining authority if the ground was also examined by that authority, or call the applicant for a hearing if it was not previously examined and the court considers the ground should have been examined or should be examined due to new evidence.

The fifth question concerned whether the first paragraph of Article 35 of the recast APD must be interpreted to mean that a person registered with UNRWA must, if he is a beneficiary of effective protection or assistance from that agency in a third country that is not the same as the territory in which he habitually resides but which falls within the area of operations of that agency, be considered as enjoying sufficient protection in that third country, within the meaning of that provision.

The CJEU held that In this respect the CJEU held that if a person who has left the UNRWA area and applied for international protection in the EU receives effective protection or assistance from UNRWA, allowing them to stay safely and in dignified conditions without risk of refoulement to their area of habitual residence for as long as they cannot return there safely, that person cannot be regarded by the determining authority as having been forced, due to circumstances beyond their control, to leave UNRWA’s area of operations. In such a case, the CJEU held that such a person must be excluded from international protection in the EU in line with Article 12(1)(a) of the recast QD. The CJEU concluded that it was for the referring court to assess whether that was Ms Alheto’s case.
Regarding whether Jordan could be considered a first country of asylum and thus to provide sufficient protection to Ms Alheto, the court noted that a Palestinian registered with UNRWA who has left his place of habitual residence in the Gaza Strip for Jordan, before travelling to a Member State and filing an application for international protection, must be regarded as enjoying sufficient protection if: 
-    The person is guaranteed to be able to be readmitted there, 
-    The person benefits there from effective protection or assistance from UNRWA, which is recognised, or regulated, by that third country and, 
-    The competent authorities of the Member State in which the application for international protection was lodged are certain that he will be able to stay in that third country in safety under dignified living conditions for as long as necessary in view of the risks in the Gaza Strip.

The sixth question concerned whether Article 46(3) of the recast APD read with Article 47 of the EU Charter, must be interpreted to mean that the court or tribunal seised at first instance of an appeal against a decision concerning an application for international protection must, in the event that it annuls that decision, rule itself on that application by granting or rejecting it.

The CJEU concluded that the purpose of the recast APD is not to set a common standard as regards the power to adopt a new decision on an application for international protection after the annulment of the initial decision. However, because the recast APD aims to ensure the fastest possible processing of such applications, to make Article 46(3) effective, and to guarantee an effective remedy under Article 47 of the Charter, each Member State bound by the directive must arrange its national law so that, after annulment of the initial decision and if the file is referred back to the determining authority a new decision is quickly adopted and complies with the assessment in the judgment annulling the initial decision.

Palestine (*) - This designation shall not be construed as recognition of a State of Palestine and is without prejudice to the individual positions of the Member States on this issue.