An Afghan applicant requested international protection in Belgium on 7 May 2019 and the Office of the Commissioner General for Refugees and Stateless Persons (CGRS) rejected his application on 29 November 2019. The CGRS stated that although the applicant's employment with the Afghan Ministry of Defence’s Identification Department under the former government was not disputed, however the applicant worked in the civilian military branch and did not serve directly in the fight against the Taliban, but he did not present any elements to sufficiently substantiate a well-founded fear of persecution.

The applicant appealed this decision to the Council for Alien Law Litigation (CALL), which upheld the CGRS’ negative decision on 28 October 2020.

On 16 May 2022, the applicant requested international protection for a second time, which was considered inadmissible by the CGRS on 19 September 2022. The CGRS found that the first application was rejected for lack of credibility and that in the subsequent application, he did not adduce new elements or facts which could change the outcome. The CGRS assessed country of origin information, including the EASO Afghanistan Security Situation of June 2021, EASO Afghanistan Country Focus of January 2022; EUAA Afghanistan Security Situation of August 2022, to state that the situation in Afghanistan could not justify the granting of subsidiary protection and a return would not violate the principle of non-refoulement. The applicant further appealed against the inadmissible decision before the CALL.

To determine whether the conditions for admissibility of a subsequent application were met, the CALL referred to the judgment of the Court of Justice of the European Union (CJEU)  LH v. Secretary of State for Justice and Security (C-921/19, 10 June 2021). In this case, the CJEU clarified that the assessment follows a two-step process: first, a preliminary evaluation of admissibility, followed by a substantive examination. In the initial phase, relevant authorities examine whether a subsequent application presents new elements that were not considered in the prior decision. The CALL also referred to the CJEU judgment XY v. Federal Office for Immigration and Asylum (C-18/20, 9 September 2021), which held that these elements may include aspects that emerged after the conclusion of the previous application or pre-existing evidence that the applicant had not previously invoked. If new elements exist, the second phase evaluates whether they significantly increase the likelihood for the applicant to qualify for international protection.

The CALL noted that the applicant submitted a series of documents, photos, videos to substantiate that the former government employees are targeted by the Taliban, thus in support of the subsequent application. After reviewing the available country of origin information, the CALL acknowledged that the Taliban’s 2021 takeover likely resulted in a shift in power dynamics at both national and local levels. The CALL referred to the EUAA, Afghanistan – Country Focus, December 2023 and the EUAA, COI Report. Targeting of individuals, 16 August 2022, which stated that members of the former government's security forces were at risk of persecution by the Taliban, ISKP, and other armed groups. The Council noted that the guidance did not differentiate based on profile, position, or the duration of employment, indicating that any individual in this category could be at risk. The CALL reviewed country of origin information from several reports, including those from the United Nations Assistance Mission in Afghanistan (UNAMA), Human Rights Watch, and the New York Times, which highlighted the human rights violations committed by the de facto authorities against former Afghan government military and civilian personnel occurring across nearly all regions of Afghanistan. Although the CALL acknowledged that some executions of the former Afghan National Defence and Security Forces (ANDSF) members were result of private conflicts, it noted that the Taliban’s actions against military and civilian staff were widespread and continuous. The CALL also considered statements from journalists and scholars reporting that the Taliban executed many lower-ranking members immediately after the takeover, likely after warning them to cease resistance.

The CALL noted, based on the  EUAA, COI Report. Key socio-economic indicators in Afghanistan and in Kabul city, 16 August 202, that Taliban have  lists of names and photos of former employees and by corroborating information from the EUAA ‘Afghanistan targeting of individuals’, August 2022, it mentioned that persons who have worked for, were associated with, or were supportive of foreign troops present in Afghanistan, are at risk in all parts of the country, and the danger can affect them regardless of their profile, position, function, or other capacity. It then concluded that, in the present case, the applicant, a sergeant in the identification department of the Afghan Ministry of Defence, was at risk of being targeted by the Taliban on grounds of political opinion.

The CALL further observed that there were no reasonable protection or internal relocation alternatives available for the applicant in his country of origin, since the Taliban are not a protection actor, as confirmed in the EUAA “Country Guidance: Afghanistan” of December 2023. In addition, there were no elements that could lead to the exclusion of the applicant from international protection.

Considering the above, the CALL found that, in view of the applicant's individual circumstances assessed cumulatively, the documents submitted and in light of the country of origin information, the applicant submitted new elements which constituted sufficient serious indications to assume a well-founded fear of persecution upon return to Afghanistan, recognising the applicant as a refugee by finding a nexus between the feared persecution and a political belief.