The applicants submitted a first asylum application on 3 October 2018, and by decision of 31 January 2019 the State Secretary decided not to process the applications as Spain was responsible to process the application on basis of a claim of an agreement between Spain and Netherlands on 9 January 2019. By letter of 13 January 2022 the applicants were informed that their asylum claim will be processed by the Dutch authorities because of a wrong reporting which led to the expiry of the transfer period. Consequently, the responsibility for the processing of the application. The State Secretary rejected a second asylum application submitted on 22 January 2020, but the court overturned it and granted asylum by judgement of 20 September 2022 with effect from 23 December 2019.

The applicants contested the judgement and claimed that they should be granted residence permit for asylum with effect from 3 October 2018. The court noted that the legal issue at stake is about the commencement date to grant asylum and whether the unused expiry of the Dublin transfer period means that the applicants must submit a new application.

The court stated that the rationale and purport of the Dublin Regulation is that the responsibility for handling the request already submitted, which rested on the other Member State during the transfer period, shifts back to the Member State where the request has already been submitted. Under national law, the judicial determination of a transfer decision is the end of a procedure. However, in circumstances such as in this case, the Dublin procedure only ends after the final determination of the responsible Member State, precisely that the Netherlands becomes the responsible member state. If the actual transfer does not take place, the transfer decision is, as it were, an intermediate phase and loses its effect and legal consequences because the transfer can no longer take place. Because the Dublin procedure continues until it is definitively established which Member State is responsible for the application, it results that, due to the end of the national procedure requiring a new application to be submitted, a request to submit a new application is not in accordance with the scope of the Dublin procedure.

In addition, the date of the granting of the application, and thus the granting of the status, determines the moment from when those claims exist and the interest in bringing proceedings also lies therein. The fact that the application after expiry of the Dublin transfer is treated as if it were a first application does not deprive the interest in bringing proceedings.

The court concluded that the interpretation of Union law, the interpretation of national law and its inclusion in the policy by the State Secretary undermines the rights of the applicant whose protection need has been established. The court ruled that stipulating that a new application must be submitted after the transfer period has expired and that rights to the granting of the application for international protection can only be enjoyed from that date cannot be considered to be in accordance with the EU law.

Consequently, the State Secretary wrongly granted the permit with effect from 23 December 2019 because it wrongly instructed the applicants to submit a subsequent application after the transfer period had expired on 9 July 2019, and wrongly refused this date of submission of the new application as the effective date of the permit. 

The court noted that the applicants have filed an application for international protection on 3 October 2018. After a substantive assessment, the State Secretary has determined that the applicants need protection and should therefore have determined the starting date of the residence permit on the date of the application, in accordance with Article 44(2) of the Aliens Act 2000 and the relevant established case law. 

The court concluded that the applicants were not obliged to submit a new application, and that the State Secretary should have determined the date of the first application, 3 October 2018, as the commencement date of the residence permit.

The court referred to the judgment the CJEU in the case Serin Alheto (Palestine) v Deputy Chairman of the State Agency for Refugees (BG, Zamestnik-predsedatel na Darzhavna agentsia za bezhantsite), C‑585/16, 25 July 2018 and Alekszij Torubarov v Immigration and Asylum Office (Bevándorlási és Menekültügyi Hivatal), C–556/17, 29 July 2019.