A Chinese applicant who was residing in Ukraine with his Ukrainian wife and child before 24 February 2022, travelled to the Netherlands on 7 March 2022 and applied for asylum on 13 April 2022. The Minister for Asylum initiated the processing of the asylum application and conducted the personal interview for his asylum application on 19 September 2023, at a registration center in Ter Apel. The same day, the Minister informed the applicant that the asylum application would not be processed because he was eligible for temporary protection, thus he was granted temporary protection in view of the fact that he is a family member of a Ukrainian national.
Under the Dutch system, there is a procedure for administrative deadline violations, namely if the Minister fails to take a decision on an asylum application in time, the applicant can put the Minister in default. Then, the Ministry has two weeks to adopt a decision. If such a decision is not made within the deadline, an applicant can appeal before a court against the failure to take a decision. In case such an appeal is well-founded, the administrative court will determine that the Minister must still take a decision within a certain period and can order the payment of an additional penalty payment for each day that the Minister fails to comply with the ruling.
By letter of 16 January 2024, the applicant put the Minister in default for failing to take a timely decision on his asylum application of 13 April 2022 and the Minister failed to take a decision within two weeks. Upon appeal, the first instance court considered that pursuant to Article 31(5) of the recast Asylum Procedures Directive (APD), the examination procedure must in all cases be completed no later than 21 months after the asylum application has been submitted, thus the Minister should have taken a decision in January 2024. Since this did not happen, the court therefore ordered the Minister to adopt a decision within 8 weeks of its ruling and also ordered a penalty of EUR 100, with a maximum of EUR 7,500. The Minister submitted an onward appeal before the Council of State arguing that the lower court misinterpreted the interplay between the Temporary Protection Directive (TPD) and the recast APD. The Minister claimed that pursuant to Article 17(2) of the TPD, the processing of an asylum application can be completed after the temporary protection status has ended, this being in line with the objective of the Temporary Protection Directive.
The Council of State first gave an overview of the background on the implementation and application of the TPD in the Netherlands as well as its transposition in the national law. It noted that by 29 November 2024, a total of 123,030 persons from Ukraine were registered in the Netherlands as temporarily protected persons within the meaning of the Temporary Protection Directive, out of which 4,960 have another nationality (and were granted status because they are in possession of a permanent Ukrainian residence permit, had been granted international protection there or are a family member of a Ukrainian). In order to qualify for temporary protection, a person who claims to be eligible must report to a municipality, be registered in the Municipal Personal Records and have an appointment with the Immigration and Naturalisation Service in Amsterdam for assessment of eligibility. The displaced person then receives proof of temporary protection status and the decision period for the asylum application is suspended for the duration of the temporary protection and the Minister does not have to decide on it until the status ends. However, in the case of the applicant this procedure was not followed because the person submitted an asylum application at the central registration location in Ter Apel but the Minister deemed this circumstance as irrelevant because the obligation to respect he decision period for that asylum application applies to everyone who has temporary protection does not depend on where and when that asylum application was submitted.
The Council of State assessed the provisions of Article 17 of the TPD and reiterated its findings in the judgment in Applicant v State Secretary for Justice and Security (Staatssecretaris van Justitie en Veiligheid) (17 January 2024), according to which Article 5 of the TPD recognises the need to be able to offer immediate and temporary protection in the Member States, in particular when there is also a risk that the asylum systems of the Member States will not be able to cope properly with the influx. The council considered that this was also confirmed by the CJEU in the case of P (C‑244/24, Kaduna), AI, ZY, BG (C‑290/24, Abkez) v State Secretary for Justice and Security (Staatssecretaris van Justitie en Veiligheid), (C-244/24 and C-290/24, 19 December 2024), and emphasized the exceptional nature of the TPD. Thus, the council considered that Article 17(2) of the TPD allows for suspension of the decision period for the processing of an asylum application. The fact that the examination of an asylum application can be completed after the expiry of temporary protection applies in the event that the asylum application has been lodged by a temporary protection beneficiary. As such, the council found that in that specific case the standards from the recast APD on decision periods do not apply in full, given the exceptional situation that applies at that time, as deriving from the TPD status and applies only for the validity of such status. The council considered thus that at the time when temporary protection ends, the standards from the recast APD must be observed again.
By referring to the judgment in Kaduna and others, the council mentioned that in paragraph 127 the CJEU stated that a displaced person enjoying temporary protection must also have the opportunity to obtain international protection during the period of temporary protection, but that it follows from paragraph 128 that an asylum application lodged by a person enjoying temporary protection must in any event be concluded after the expiry of temporary protection, in strict compliance with the time limits set out in the recast APD. The Council of State affirmed that the latter consideration provides a starting point for the view that the second paragraph of Article 17 of the TPD may be read as meaning that the time limit for deciding on an asylum application may be suspended in the event that an asylum application was lodged before or during the period of temporary protection.
The Council of State decided to stay the proceedings and to address questions to the CJEU for a preliminary ruling as follows:
- Should the second paragraph of Article 17 of the Temporary Protection Directive be interpreted as meaning that it gives Member States the power to suspend the examination of an application for international protection from a person enjoying temporary protection during the period of temporary protection?
- Should the decision-making periods in Article 31 of the recast Asylum Procedures Directive be interpreted as meaning that, in the event that an application for international protection is lodged before or during the period of temporary protection by a beneficiary of temporary protection under Directive 2001/55/EC, those periods only begin or continue to run after the end of the period of temporary protection?