Registered before the CJEU under C-440/25 

An Iraqi family, with three adult daughters requested asylum in the Netherlands and, in support of the daughters' application, argued their claim on the fundamental value of equality between women and men. The Ministry of Asylum and Migration rejected the application by decision of 11 September 2023 and for the appeal submitted by the applicants, the court held a hearing on 26 March 2024 and reopened it on 30 April 2024 due to the CJEU judgment in the case of K and L v State Secretary for Justice and Security (C-646/21, 11 June 2024). Based on the CJEU judgment, the Minister supplemented its negative decisions on 25 February 2025 and added more reasoning regarding the claimants' alleged identification with the fundamental value of equality between men and women, female genital mutilation/cutting (FGM/C), and arranged marriages. Subsequently, the applicant submitted additional arguments for the appeal. The Court of the Hague seated in Zwolle scheduled a new hearing for 13 June 2025. The Minister and the applicants submitted additional documents, and the Minister unsuccessfully requested a referral of the case to be heard by a multi-member chamber. After the court requested from the Minister the transcripts of the supplementary hearings, on 12 June in the afternoon the Minister notified the court that it withdrew the negative decisions. The court held the hearing on 13 June 2025 where the Minister argued that the case is the first one to fall under the new Administrative Jurisdiction Act 2024/23 following the CJEU judgment in K and L, and that it wished to reconsider the case. The applicants opposed the Minister proposal, explaining that the procedure was very lengthy for them and an assessment was needed on the merits.

First, the Court of the Hague considered that the Minister abused its power when it decided to revoke the contested decisions. It noted that the supplementary decision of 25 February 2025 was based on the new policy of the Minister formulated following the K and L judgment. The court annulled the contested decisions of 11 September 2023 and the supplementary ones of 25 February 2025, and it found that the withdrawal decision was contrary to Article 46 of the recast APD interpreted considering Article 31 and recital 18 of the preamble of the same directive.

Then the court assessed the contested decisions in view of the merits of the case. While the Minister found that the identity, nationality and origin of the applicants were credible, it found implausible the allegations concerning: problems with neighbours and fear of blood revenge and forced marriage of the daughters, the daughters' fear of FGM/C and the daughters' identification with the fundamental value of equality between women and men.

On the actual identification with the fundamental value of equality between women and men, the Court of the Hague seated in Zwolle found that the Minister's policy was contrary to the findings in the CJEU judgment K and L, because that policy requires that the identification must be fundamental to the identity or moral integrity of the person, and also it requires that the identification must be so fundamental that she cannot be required to give it up. The court affirmed that according to the CJEU judgment, the concept of "fundamental" refers to the fundamental nature of the right to equality, but not to the applicant's identification with that value. As such, it is sufficient that the person demonstrates that she wishes to enjoy the benefit of that equality in daily life and, in short, can make the life choices that define her identity (such as free choice regarding a partner, living situation, and work). Based on the facts of the case, the court noted that the three daughters' statements and behaviours demonstrate their independence, sense of self -worth and strong unwillingness to give up their freedoms. The court considered that their statements were internally consistent and also corroborated with external sources, including parents and teachers. The court affirmed that the Minister's findings stating that the daughters' actual identification with the fundamental value of equality between women and men is implausible, cannot be upheld. However, because the court was not allowed to make its own assessment on credibility of an asylum statement, it decided to submit preliminary questions to the CJEU.

On the well-founded fear of persecution in case of return to Iraq, the court took into consideration EUAA COI reports on Iraq and other country of origin information when affirming that the daughters had a well-founded fear of persecution without having a possibility to move elsewhere or to escape their tribe/family upon return. However, because the court had no power to make its own assessment and since the CJEU did not rule on the interpretation of the ‘well-founded fear of persecution', it decided to add it to the preliminary questions.

The Court of the Hague, seated in Zwolle, was questioning whether it can issue a substantive assessment on the applicant's asylum application since according to established case law, when it deems a negative decision on credibility as insufficiently reasoned, it annulled the decision and referred it back to the Minister. The court considered that the CJEU jurisprudence provides that, when a court considers that it has all the necessary factual and legal background, it has the power, after a full and ex nunc examination to issue a biding decision on eligibility for international protection.

The court decided to stay the proceedings and to refer the following questions before the CJEU for a preliminary ruling:

1. Can the court derive from Article 46(3) of Directive 2013/32/EU, whether or not read in conjunction with Article 47 of the Charter of Fundamental Rights of the EU, or from any other provision or principle of EU law, the power to make its own ruling on the credibility of an asylum account, superseding the ruling made by the Minister?

2. Can the court derive from any of the abovementioned provisions the power to make a substantive and final ruling on the application for international protection on the basis of those parts of the asylum account which the Minister deems credible and, if the answer to question 1 is in the affirmative, those parts of the asylum account which the court also deems credible? In that regard, may the court substitute its own ruling on the plausibility of the fear of persecution or the real risk of serious harm for that of the Minister, especially if, against the background of publicly accessible country information, the court considers itself sufficiently informed to make such a ruling?

3. Can national case-law constrain the powers referred to in questions 1 and 2, for example on the basis of procedural autonomy, to the effect that those powers are still vested exclusively in the Minister?

4. May the court take into account information, which was put forward on appeal, but which was not yet available at the administrative stage, in the ruling on the question whether it has enough information to make a substantive ruling? Is it relevant in that regard whether the parties have been able to express their views fully on the facts in writing or at the hearing?

5. Should ‘well-founded fear' as referred to in Article 2(d) of Directive 2011/95/EU be understood as meaning that there is a reasonable likelihood that the asylum seeker will be persecuted upon return? Should that reasonable likelihood be determined on the basis of the criterion of a ‘rational and reasonable person', whereby the decisive factor is whether, from the perspective of a rational and reasonable person in the position of the asylum seeker, a return to the country of origin appears unreasonable after weighing up all the known circumstances? If not, what criteria should be applied?