The proceedings were suspended and the case is registered under C-431/24 [Multan].

The case concerned a Christian from Pakistan, for whom a Fatwa has been issued against him. The applicant submitted a subsequent asylum application, and the Ministry had issued an individual official report in order to assess this subsequent application. The issue raised in the case was the access of the applicant to classified information and the respect for his procedural rights in the procedure on asylum and interplay with the return procedure.

In the appeal, the Court of the Hague seated in Roermond referred to the CJEU judgment of 22 September 2022 in the case GM v Országos Idegenrendeszeti Főigazgatóság, Alkotmányvédelmi Hivatal, Terrorelhárítási Központ (C-159/21) to state that the Dutch procedure in Article 8:29 of the General Administrative Law Act (Awb) is not compatible with EU law because the applicant's defence rights were not fully guaranteed if the confidentiality or restriction of access to information is deemed justified. Furthermore, the Procedural Rules for Administrative Law Courts 2024 stipulate that the case is to be heard by an administrative judge other than the one who took the decision on return, while it follows from the recast APD that the judge who assesses the decision on the asylum application takes cognizance of all documents.

The court decided to submit questions submitted before the CJEU on whether the applicant must also be given access to data on the manner in which the Ministry of Foreign Affairs conducted the investigation in the country of origin and whether the court must have such data at its disposal on the basis of the recast APD.

The Court of the Hague seated in Roermond pointed out that throughout the entire procedure there is no (cognisable) assessment of whether the investigation conducted by the Ministry of Foreign Affairs has consequences for the risk of refoulement and that this is also not subject to judicial review. The Ministry of Foreign Affairs does not have the same expertise as the State Secretary to be able to assess the risk of refoulement. The assessment of the underlying unvarnished documents that takes place in the REK check* and in the confidentiality procedure laid down in Article 8:29 Awb do not relate to the assessment of the risk of refoulement.

The applicant may not be able to fully substantiate his application for international protection since he does not have access to the investigation report as provided under Article 23(1)(b) of the recast APD. If the judicial authority that has jurisdiction in the main proceedings to rule on the lawfulness of the decision on international protection but it does not have access to the investigation report, then the question also arises on whether that judicial authority is fully able to guarantee the respect for the principle of non-refoulement and if it is fully able to offer an effective remedy and to carry out a full and ex nunc assessment of the risk of refoulement as required by the recast APD.

If the CJEU were to interpret Article 23(1) of the recast APD as meaning that the underlying undisclosed documents cannot be regarded as the information in the applicant's file on the basis of which the decision on his application for international protection was taken, the court will not derive access to those documents from that provision. The question then arises whether Article 5 of Directive 2008/115 requires the national court to take cognisance of those underlying undisclosed documents. In the main proceedings, the court must also review the lawfulness of the return decision and the obligation to respect the principle of non-refoulement when implementing Directive 2008/115, which also applies to the judicial authority and requires an independent assessment of all the relevant facts and circumstances. The prohibition of refoulement under the EU law is absolute and must be respected at all stages of the procedure, while an effective remedy is also required at the judicial stage.

The Court of the Hague seated in Roermond considered that the procedure provided in Article 8:29 Awb is not compatible with the recast APD and submitted two preliminary questions to the CJEU as follows:

1. Should Article 23(1) of Directive 2013/32, read in conjunction with Article 46(1) of Directive 2013/32, and having regard to Articles 4 and 47 of the EU Charter, be interpreted as meaning that the (access to the) information in the applicant's file on the basis of which a decision has been or will be made also includes (access to) information on the manner in which that information was gathered and obtained?

2. Does Article 5 of Directive 2008/115, read in conjunction with Article 13(1) of Directive 2008/115, and having regard to Articles 4, 19(2) and 47 of the EU Charter, require the judicial authority reviewing the lawfulness of a return decision to ascertain how the information referred to in Article 23(1) of the recast APD was gathered and obtained?

* (REK check by the Research and Expertise Country and Language Team (TOELT), part of the Service Providers Directorate of the Immigration and Naturalization Service (IND).