The applicant is an Afghan national who was refused international protection under Article 1(F) of the 1951 Refugee Convention in 2008. Subsequent applications introduced by the applicant in 2012, 2016 and 2019 were also rejected on the same grounds. The applicant was also issued a 10-year entry ban in 2012. Appeals before District Court of the Hague against the decisions issued in 2016 and 2019 were declared unfounded and dismissed by the court.

The applicant appealed the District Court of the Hague’s judgment of 11 December 2020 before the Council of State on two grounds. The first point concerned two analyses of the official report from 2002 and documents referenced therein, which the applicant claimed should have been accepted as new evidence. The applicant rejected the courts assertion that the analyses were not considered new, as they were based on the report, which was taken into consideration previously, as he claimed that this assertion failed to consider the fact that the two analyses demonstrated that the conclusions reached in the original report were unsubstantiated. The applicant also rejected the court’s assertion that the analyses were inadmissible pursuant to Article 40(4) of the Asylum Procedures Directive on the ground that the applicant could have introduced them sooner.

In relation to the first point the Council of State confirmed that the analyses should be viewed as separate evidence and taken into consideration accordingly. Regarding the second point, the Council of State highlighted that Article 40(4) of the Asylum Procedures Directive is only applicable if a member state has transposed it into national law which is not the case in the Netherlands. The Council of State thus declared the appeal to be well-founded, annulled the judgment of the District Court of the Hague of 11 December 2020 and ordered the Secretary of State to reassess the applicant’s request to examine his application and lift the 2012 travel ban.