The case concerned an applicant of Venezuelan (born in Venezuela) and Syrian nationality who had lived in Syria until 2016 and who applied for asylum in the Netherlands on 29 October 2020. By decision of 28 January 2021, the State Secretary rejected the asylum application on the ground that there was an alternative protection in Venezuela pursuant to Article 31(4)(e) of the Aliens Act 2000. On 22 October 2021, the applicant lodged a subsequent asylum application and stated that Venezuelan authorities were not issuing the necessary travel documents and therefore she could not return there. The State Secretary rejected the subsequent asylum application. By judgment of 6 July 2022, the District Court of the Hague upheld the applicant’s appeal and stated that for the assessment of an alternative protection pursuant to Article 31(4)(e) of the Aliens Act 2000 it was required that the applicant was actually able to obtain protection from the country of nationality, including the possibility to travel there. The State Secretary appealed against this judgment.

The Council of State referred to CJEU, LW v Bundesrepublik Deutschland, C-91/20, ECLI:EU:C:2021:898, 9 November 2021 and concluded that for assessing an alternative protection it was only relevant whether a foreign national was a treaty refugee in relation to that country or whether there was a well-founded fear of a real risk of serious harm upon return. Therefore, the actual possibility to travel to the country and to be granted entry to that country was not relevant for the purposes of Article 31(4)(e) of the Aliens Act 2000.

Based on the above, the Council of State decided that the possibilities of departure to Venezuela played no role on the applicability  of an alternative protection in Venezuela and that the applicant failed to sufficiently substantiate that she would be exposed to a real risk of persecution in Venezuela or that a return there would amount to a violation of Article 3 ECHR.