LH is an Afghan national who fled his country after he received death threats from the Taliban on several occasions because he worked as a driver for the director of an Afghan administration. LH applied for international protection in the Netherlands on 8 December 2015. The State Secretary considered that the death threats were not credible so by decision of 8 June 2017, the State Secretary rejected LH’s application, which remained final when his appeal was also rejected by the Council of State on 23 March 2018. LH submitted a subsequent request on 26 September 2018. He submitted new documents, including proof that his house in Afghanistan had been set on fire, fingerprints of witnesses, a statement from his employer and a copy of his employment contract.

The State Secretary dismissed the application as inadmissible noting that the applicant was unable to establish the authenticity of the documents so they could not be regarded as new elements or findings. LH appealed and explained how he obtained the documents, why he was unable to produce them earlier. He noted that he could not obtain an expert report to prove the authenticity and argued that it was unreasonable to place the burden of proof on him when the determining authority was better placed to carry out the necessary investigations by contacting the Afghan authorities who issued the documents. The referring court noted that the State Secretary did not conclude that the documents were not authentic but simply that it considered itself unable to confirm their authenticity.

The referring court asked the CJEU to interpret the concept of ‘new elements or findings’ within the meaning of Article 40(2) of the recast Asylum Procedures Directive.

The CJEU held that Article 40(2) of the recast Asylum Procedures Directive, read in conjunction with Article 4(2) of the recast Qualification Directive, must be interpreted as "precluding national legislation under which any document submitted by an applicant for international protection in support of a subsequent application is automatically considered not to constitute a ‘new element or finding’, within the meaning of that provision, when the authenticity of that document cannot be established or its source objectively verified."

In addition, the CJEU held that Article 40 of the recast Asylum Procedures Directive read in conjunction with Article 4(1) and (2) of the recast Qualification Directive, must be interpreted as meaning, "first, that the assessment of the evidence submitted in support of an application for international protection cannot vary according to whether the application is a first application or a subsequent application and, second, that a Member State is required to cooperate with an applicant for the purpose of assessing the relevant elements of his or her subsequent application, when that applicant submits, in support of that application, documents the authenticity of which cannot be established."