Case registered before the CJEU under case C-646/21

On 23 July 2021, the court referred preliminary questions to the Court of Justice about westernization, rooting and the best interests of the child in the assessment of eligibility for international protection of Afghan nationals.

The present case has been suspended pending outcome in the referral made on 23 July 2021 in the case registered as C-456/21. Following withdrawal of the case and removal from the CJEU list on 13 October 2021, this case was reopened, and the District Court of the Hague decided to refer questions to the CJEU.

In fact, the applicants, together with their father, mother and aunt, left Iraq on 29 September 29, 2015, arrived in the Netherlands on 7 November 2015 and their international protection applications were rejected on 17 February 2017. The negative decisions were confirmed by the Council of State.

On 4 April 2019 the applicants (children), their parents and aunt submitted subsequent applications and the children argued that due to long-stay in the Netherlands, they have adopted the norms, values and behaviour of this MS, thus they are westernised and in need of protection in order not to be forced to give up their freedom of choice in all aspects of life. They claimed to be part of a “social group” as referred to in Article 10 of the Qualification Directive and to be rooted in the Netherlands as a result of long de facto residence and claimed that a removal would lead to development damage. Moreover, the applicants further argued that due to the instable legal situation over their stay in the Netherlands, they suffered harm and submitted a Best Interest of the Child (BIC) Assessment report “Risk of harm in deportation of long-term resident children – A multidisciplinary scientific basis” and a report from Defense for Children to substantiate their residence applications.

The District Court of the Hague decided to stay the proceedings and to refer the following questions to the CJEU:

I Is Article 10(1)(d) of the Qualification Directive to be interpreted as meaning that Western norms, values ​​and practices adopted by third-country nationals while they remain on the territory of the Member State for a significant part of the life stage in which they form their identity and fully participate in society should be regarded as a common background that cannot be changed, or are such fundamental characteristics of an identity that those involved cannot be required to give it up?

II If the first question is answered in the affirmative, third-country nationals who - for whatever reason - have adopted comparable Western norms and values ​​through actual residence in the Member State during their identity-forming stage of life should be regarded as “members of a specific social group” in the sense of Article 10(1)(d) of the Qualification Directive? Should the question of whether there is a “specific social group that has its own identity in the country concerned” be assessed from the perspective of the Member State, or should this be read in conjunction with Article 10(2), Qualifications Directive be interpreted as meaning that decisive weight is due to the fact that the foreign national can demonstrate that he is regarded in the country of origin as being part of a specific social group, or at least that this is ascribed? Is the requirement that Westernization can only lead to refugee if it stems from religious or political motives compatible with Article 10 of the Qualification Directive, read in conjunction with the prohibition of refoulement and the right to asylum?

III Is a national legal practice in which a decision authority when assessing an application for international protection to the interests of the child weighs without the interests of the child first (each procedure) concretely (have) set compatible with EU law and more in particular with Article 24(2) of the Charter of Fundamental Rights of the European Union (Charter), read in conjunction with Article 51(1) of the Charter? Would the answer to this question be different if the Member State had to assess an application for a residence permit on regular grounds and the best interests of the child had to be taken into account in the decision on that application?

IV In what way and at what stage of the assessment of an application for international protection, having regard to Article 24(2) of the Charter, must the best interests of the child and, in particular, damage suffered by a minor as a result of long-term de facto stay in a Member State are considered and weighed? Is it relevant here whether this actual residence was lawful residence? When weighing the best interests of the child in the above assessment, is it relevant whether the Member State has taken a decision on the application for international protection within the Union law deadlines,

V Is a national legal practice that distinguishes between first and subsequent applications for international protection, in the sense that regular motives are disregarded in subsequent applications for international protection, having regard to Article 7 of the Charter read in conjunction with Article 24, second member, of the Charter, compatible with EU law?