The case concerned a Syrian family including their youngest daughter who was born in the Netherlands in 2019, whose asylum application was rejected as inadmissible by the State Secretary for Justice and Security on 8 February 2022 on the grounds that they were granted international protection by the Bulgarian authorities on 9 March 2017. The applicants appealed against this decision before the Court of the Hague and stated that according to recent amendments of the Bulgarian legislation (Article 42(5) of the Law on Asylum and Refugees, LAR), already granted international protection could be withdrawn on the grounds that applicants did not renew their residence documents within 30 days of expiry.

Furthermore, the applicants argued that there was a risk of a violation of Article 3 ECHR and Article 4 of the EU Charter upon return to Bulgaria due to the general situation. They also stated that the State Secretary for Justice and Security had failed to consider the best interests of the minor children in its decision and that it had wrongly adopted an inadmissibility decision with regards to the youngest daughter who was born in the Netherlands.

By intermediate decision of 8 July 2022 and of 22 July 2022, the Court of the Hague ordered to clarify with the Bulgarian authorities the questions on Article 42(5) LAR and whether the international protection for the applicants had been withdrawn. By judgment of 26 October 2022, the Court of The Hague upheld the applicants' appeal. The State Secretary for Justice and Security lodged an appeal against this decision before the Council of State. The State Secretary for Justice and Security argued that it derives from the replies of the Bulgarian authorities that the failure to renew a residence permit on time would only lead to a procedure in which all facts and circumstances on the possibility of a withdrawal will be taken into account, but not to the automatic termination of international protection. In this context, the State Secretary also referred to the EASO Asylum Report 2021.

The Council of State upheld the argument of the State Secretary for Justice and Security and ruled that the Bulgarian State Agency for Refugees had emphasised in its response that the failure to renew the residence permits in time did not automatically lead to the termination of international protection, but merely to the initiation of a procedure in which all facts and circumstances were taken into account before a decision on withdrawal was taken. According to the Council of State’s considerations, withdrawal proceedings were only initiated if an applicant had not renewed the residence permit for at least three years after expiry. The court decided that the applicants failed to make it plausible that their international protection had been terminated because they did not renew their resident permits in Bulgaria.

The Council of State further referred to the judgement of the CJEU, Bashar Ibrahim et.al. v Bundesrepublik Deutschland, Joined Cases C‑297/17, C‑318/17, C‑319/17 and C‑438/17, ECLI:EU:C:2019:219, 19 March 2019, and ruled that it was for the applicants to rebut the principle of mutual trust between Member States. In the present case, the applicants had not sufficiently substantiated that their basic needs such as housing, food and washing would not be met if they returned to Bulgaria. Thus, the applicants did not prove that they would therefore be at risk of a violation of Article 3 ECHR and Article 4 of the EU Charter. The Council of State held further that the State Secretary for Justice and Security had sufficiently taken into account the best interests of the children in its decisions. With regard to the inadmissibility decision of the youngest daughter, the Council of State decided that the State Secretary for Justice and Security had wrongly declared the asylum application inadmissible because she did not enjoy international protection in Bulgaria because she was born in the Netherlands.

Based on the above, the Council of State overruled the interim judgements and the final judgement of the Court of the Hague and upheld the appeal. It has also decided that the State Secretary for Justice and Security had to reassess the responsible Member State for the youngest daughter's asylum application and had to take this assessment into account when examining the applications of the other family members.