B.F., a Lebanese national, requested international protection in Cyprus on 4 September 2018. The applicant claimed that he had been the victim of torture by the Lebanese intelligence agencies and military services due to his political activism and involvement in the paramilitary wing of a Lebanese political party. He added that he was subjected to threats and attempted murder, so he feared that if returned to Lebanon, he would be arrested and sentenced to imprisonment or the death penalty.

By decision of 7 February 2022, the Asylum Authority rejected his request for asylum, as it considered that there was no well-founded fear of persecution or a risk of serious harm if the applicant were to be returned to Lebanon. The Asylum Authority considered that the statements made by B.F. in several interviews were inconsistent, contradictory and vague.

The applicant appealed the decision before the International Protection Administrative Court (IPAC). The court noted that the allegations made by B.F. regarding the political, religious and racial persecution to which he was allegedly subjected by the intelligence agencies in Lebanon, lacked consistency, logic or plausibility. The court also added that the vulnerability of the applicant must be taken into consideration in the individual assessment of the asylum request, since vulnerability may affect the consistency of the applicant’s statements and his/her credibility. The court observed that the Asylum Authority failed to carry out a medical or psychological examination of the applicant in respect of signs of persecution or serious harm which he claimed to have suffered, or to signs of torture or other serious acts of physical or psychological violence.

The court considered that, in the absence of a medical examination of the person concerned, it was impossible for the court to assess the applicant’s credibility, which is an integral part of the full and ex nunc examination of the application which must be carried out by the court of first instance pursuant to Article 46(3) of the recast Asylum Procedures Directive (APD).

IPAC noted that, as the Supreme Court of Cyprus confirmed in its recent case law, under national law, IPAC does not have the power to order such a medical examination, and only the Asylum Authority has the competence to require an applicant for asylum to undergo medical examinations. In these conditions, the IPAC could only ask the Asylum Authority about the reasons why such examinations have not taken place and, where appropriate, it could annul the contested decision if there was an infringement of Article 15 of the national Law on refugees.

IPAC thus decided to stay the proceedings and asked the CJEU whether Article 46(3) of the recast APD, read in the light of Article 47 of the EU Charter and Article 4(3) of the TEU, must be interpreted as meaning that, in order to satisfy the requirement of a full and ex nunc examination, a national court of first instance hearing an action against a negative asylum decision, “must have the power to order a medical examination of the applicant for international protection, where it takes the view that the use of that examination is necessary or relevant for the purposes of assessing that application, or if it is sufficient for that court to have the power to annul such a decision, on the ground that that authority has failed to refer that applicant for a medical examination, and refer the case back to that authority so that the latter might require that examination subsequently in the context of a fresh procedure.”

The CJEU first noted that paragraph 3 of Article 46 of the recast APD defines the scope of the right to an effective remedy by specifying that Member States must ensure that the court or tribunal examining an appeal carries out a full and ex nunc examination of both facts and points of law, including, where applicable, an examination of the international protection needs pursuant to the recast Qualification Directive. In addition, the characteristics of the remedy must be determined in a manner that is consistent with Article 47 of the EU Charter, which reaffirms the principle of effective judicial protection.

The court cited its previous judgment in CV v Ministerstvo vnitra České republiky, Odbor azylové a migrační politiky (C-406/22, 4 October 2024) to confirm that under Article 46(3) of the recast APD, Member States are required to organise their appeals to include an examination, by the court or tribunal, of all the facts and points of law necessary in order to make an up-to-date assessment of the case.

The court noted that the expression ‘ex nunc’ points to “the court or tribunal’s obligation to make an assessment that takes into account, should the need arise, new evidence that has come to light after the adoption of the decision which is being challenged”. Such an assessment makes it possible to examine the application for asylum exhaustively, without a need to refer the case back to the determining authority, but also as soon as possible, in accordance with Recital 18 of the recast APD.

Moreover, the court observed that the adjective ‘full’ confirms that the court or tribunal must examine both the evidence that the determining authority took into account or should have taken into account and the evidence that has arisen following the adoption of the decision by the asylum authority.

In light of its previous case law, the CJEU ruled that national legislation that does not allow a court of first instance to order a medical examination, subject to the applicant’s consent, where that court considers that such an examination is necessary or relevant in order to assess the merits of the application, does not satisfy the requirement of a full and ex nunc examination under Article 46(3) of the recast APD.

The court further added that national legislation which limits the power of the court of first instance to the option to annul the negative decision of the determining authority, on the ground that that authority should have referred the applicant for a medical examination, also does not satisfy the requirement of a full and ex nunc examination, within the meaning of Article 46(3) of the recast APD, even though that option allows for a fresh examination of that application by the asylum authority.

The court observed that such national legislation goes against the requirement that the court itself must ensure a complete examination of the application without a need to return the file to the determining authority, and also undermines the objective of an expeditious processing of applications for international protection pursued by the recast APD.

The CJEU then observed that in the recast APD, rules on medical examinations are provided only in Article 18 of that directive, which applies only in the context of the assessment made by the determining authority and not before a court or tribunal. The court added that, in the absence of EU rules on the matter and in accordance with the principles of autonomy, equivalence and effectiveness, each Member State must lay down detailed procedural rules regarding such an examination, which must not be less favourable than those governing similar domestic situations and they must not make it excessively difficult or impossible in practice for an applicant to exercise the right to an effective remedy.

The court further added that a court must be able to order a medical examination where there is concrete evidence that the health problems of the applicant might result from a traumatic event that occurred in the country of origin and, in general, it must be possible to order it where the use of such an examination is necessary or relevant in order to assess the applicant’s genuine needs for international protection. The court observed that the modalities for the use of a medical examination must comply with the fundamental rights guaranteed by the EU Charter (human dignity and the right to respect for private and family life).

Furthermore, the CJEU noted that it is not necessary for the court that ordered the medical examination to be able to approach a qualified health professional itself in order for that professional to carry out that examination and send the results to the court, where that court may also order the determining authority to arrange the medical examination and to send the results to the court within a short period of time, as in both cases, the court could obtain the relevant evidence.

The CJEU also highlighted that it is for the referring court to interpret national legislation in a manner consistent with the requirement of a full and ex nunc examination to the fullest extent possible and if this would be impossible, to set aside national legislation and apply EU law, specifically Article 46(3) of the recast APD which has direct effect.

Thus, in light of all the aspects noted above, the CJEU ruled that Article 46(3) of the recast Asylum Procedures Directive, read in the light of Article 47 of the EU Charter and Article 4(3) of the TEU, must be interpreted as meaning that, in order to satisfy the requirement of a full and ex nunc examination, a national court of first instance hearing an action against a negative asylum decision must have the power to order a medical examination of the asylum applicant, where the court considers that the use of that examination is necessary or relevant for the purposes of assessing that application.