An Afghan national sought administrative review to backdate his temporary asylum residence permit to 2016, the date of his first application. His first asylum request, based on threats to his family, was rejected. In 2020, he filed a subsequent application citing his homosexuality, which was deemed credible, and he was granted asylum from that date. The District Court of the Hague, seated in Utrecht, ruled in his favor, arguing that refugee status is declaratory and that he was eligible as a refugee in 2016 despite not disclosing his sexual orientation earlier due to cultural and psychological barriers.

The Minister appealed the decision of the District Court before the Council of State, arguing that that the applicant invoked his sexual orientation for the first time in the second procedure, and thus, the effective date of the asylum residence permit can only take effect from the start of the second procedure. The Minister highlighted that a distinction must be made regarding the qualification for international protection and the question of the effective date with which the permit must be granted.

The Council of State firstly addressed the District Court's argument regarding the declaratory nature of the recognition of refugee status, deduced from recital 21 of the recast Qualification Directive. The Council referred to the CJEU's interpretation that a refugee has the right to be recognised as such from the date on which he applies for that status, even before a formal decision has been taken. Thus, a person may be a refugee and have that status even without a residence permit. The court referred to the following CJEU judgments: Bundesrepublik Deutschland v XC, joined by Landkreis Cloppenburg (C-279/20, 1 August 2022, para 46), A. and S. (Eritrea) v Secretary of State for Security and Justice (C‑550/16, 12 April 2018, para 53 and 54), M v. Ministerstvo vnitra (C‑391/16) (CZ), and X (C‑77/17), X (C‑78/17) v. Commissaire général aux réfugiés et aux apatrides (FR) (C-391/16, C-77/17 and C-78/17, 14 May 2019, para 90 and 91) and HT v Land Baden-Württemberg (C-373/13, 24 June 2015, para 95).

The Council overturned the ruling of the District Court, emphasizing the distinction between the concept of a residence permit and refugee status and concluding that the effective date may thus also vary. The court found that the declaratory nature of refugee status does not preclude linking the permit's effective date to a subsequent application raising the successful asylum grounds. Consequently, the Minister's decision to set the permit's start date at 2020 was upheld.