The case is registered before the CJEU under C-656/23.

The case concerned an applicant who presented himself to the Ter Apel Application Center on 10 October 2021 to submit an application for international protection and the registration of this request took place the same day. From that moment, the asylum seeker enjoyed lawful residence in the Netherlands, was provided with reception conditions and is no longer exposed to the risk of being deported to his or her country of origin (‘risk of refoulement’).

On 20 October 2021, the State Secretary via IND gave the applicant the opportunity to submit the application for international protection by signing form M35-H. By decision of 26 August 2022, the State Secretary granted international protection on the basis of Article 29, first paragraph, opening words and (a) of the Aliens Act 2000 and the residence permit was issued with effect from 20 October 2021, valid until 20 October 2026.

The applicant appealed on grounds that the effective date of the residence permit granted to him should be 10 October 2021, the date when he presented himself to the authorities to request international protection and not 20 October 2021 when the application was received.

The applicant claimed that the fact that the State Secretary provided him with the opportunity to sign an M35-H form on 20 October 2021 did not mean that the date of the application changed from 10 October to 20 October 2021. The applicant considered that the granting of a residence permit from the point at which procedural requirements set by the State Secretary for lodging of the application are met undermines the declaratory nature of refugee status. The applicant referred to the CJEU judgments  A. and S. v Secretary of State for Security and Justice (Staatssecretaris van Veiligheid en Justitie), Case C‑550/16, 12 April 2018 and Bundesrepublik Deutschland v XC, joined by Landkreis Cloppenburg, C-279/20, 1 August 2022 to state that a refugee has the right to be recognised as such from the date of his or her application for refugee status, with the result that an application for asylum exists as soon as the asylum seeker has expressed his or her desire for asylum – and runs counter to Article 13 of the Qualification Directive.

The Court of the Hague seated in Haarlem stayed the proceedings and referred the following questions to the CJEU:

1. Is Article 6 of Directive 2013/32/EU (Asylum Procedures Directive) relevant for the purpose of answering the question as to the effective date on which a residence permit is to be deemed to have been granted?

2.If so, must Article 6 of the Procedures Directive be interpreted as meaning that the effective date of the residence permit is determined by the date on which the application for international protection:

– is made (first subparagraph of Article 6(1) of the Procedures Directive);

or – is registered (first subparagraph of Article 6(1) and Article 6(5) of the Procedures Directive);

or – is (formally) lodged (Article 6(2), (3) and (4) of the Procedures Directive)?

3. If the effective date of the residence permit is not determined by the date on which the application is made, how can this be reconciled with Article 13 of the Qualification Directive, read in conjunction with recital 21 thereof, having regard to the declaratory nature of refugee status therein?