The case concerns a request for preliminary ruling submitted by the District Court of the Hague seated in Roermond before the Court of Justice of the European Union (CJEU) in the context of a negative decision on asylum and a return decision, which were based on confidential information issued by the Ministry of Foreign Affairs. The referring court sought clarification on whether, to comply with the recast Asylum Procedures Directive (recast APD), the applicant and the judicial authority must be given access to data on the manner in which the Ministry of Foreign Affairs conducted the investigation in the country of origin.

W, a Christian from Pakistan, was rejected asylum in Netherlands in 2014. After a fatwa was issued against him, his sister and father, calling all faithful to kill him, he submitted a subsequent application alleging a risk of persecution upon return. Upon request by the State Secretary, the Ministry of Foreign Affairs issued an individual official report on basis of an investigation carried out in the country of origin of the applicant. The report was made available to the State Secretary jointly with a validity review conducted by ‘REK-check’*. The State Secretary rejected the subsequent application as manifestly unfounded and issued a return decision without deadline for voluntary return. The negative decision was based on the expert report and its supporting documents (undated investigation report by the Dutch Embassy in Pakistan). According to the case law of the Council of State, the State Secretary is entitled to rely on the accuracy of an individual official report as long as it provides information in an impartial, objective and transparent manner, unless specific evidence casts possible doubt on the accuracy of that information.

In the appeal before the District Court of the Hague seated in Roermond, the applicant claimed an infringement of EU law principle of respect for the right of defence because he was not provided with full access to the supporting documents.

At the request of the District Court of the Hague, the Ministry of Foreign Affairs submitted the unredacted supporting documents but made an application on the basis the Dutch procedure in Article 8:29 of the General Administrative Law Act (Awb) to allow non-discloser of the individual report and its supporting documents on grounds that there were serious reasons for limiting access to the referring court and only for certain parts of those documents. In these separate proceedings, a different chamber of the District Court ruled that the restrictive disclosure was justified as requested by the Ministry of Foreign Affairs.

By contrast, the referring court considered that Article 8:29 of the Awb was contrary to Article 23 (1) of the recast Asylum Procedures Directive (APD) which stipulates that the court having jurisdiction and the applicant for international protection should gain access to the information on which the negative decision was made by the means provided for in points (a) and (b) of the second subparagraph of Article 23(1) of that directive. The referring court expressed doubts on the way the official report was drawn, and on how the investigation was conducted by the Ministry of Foreign Affairs. The court affirmed that such information was necessary to clarify the way the investigation was conducted by the national authorities since it may, in itself, give rise to a risk of infringement of the principle of non-refoulement. The referring court also emphasised that, in the context of the present case, the actors of persecution were not the authorities of the country of origin, but a spiritual leader and his disciples, and the assurances that there was no contact with those authorities during the investigation in the country of origin was not an automatic guarantee that that investigation was correctly conducted.

The referring court asked whether Article 23(1) of the recast APD, read in conjunction with Article 46 of that directive and in the light of Article 47 of the EU Charter, must be interpreted as meaning that, in the context of an appeal challenging the lawfulness of a negative decision on an application for international protection and the return decision, information on the way an investigation was conducted in the country of origin of that third-country national for the purpose of determining the merits of that application is covered by the concept of ‘information in the applicant’s file upon the basis of which a decision is or will be made’. In the affirmative, it would result that the applicant for international protection and the court having jurisdiction must be able to access that information by the means provided for in points (a) and (b) of the second subparagraph of Article 23(1) of that directive.

The CJEU reiterated the absolute nature of the principle of non-refoulement as enshrined under Articles 4 and 18 of the EU Charter and as interpreted in the judgements K, L, M, N v State Secretary for Justice and Security (Staatssecretaris van Justitie en Veiligheid),[Ararat], (C-156/23, 17 October 2024) and Bundesamt für Fremdenwesen und Asyl v AA, (C‑663/21, 6 July 2023).

Recalling its findings in BU v Federal Republic of Germany (C‑564/21, 1 December 2022), the CJEU underlined that Article 23(1) of the recast APD establishes the right of access to the file in proceedings concerning applications for international protection by stipulating that the legal adviser, assisting or representing an applicant, must have access to the information in the applicant’s file on the basis of which a decision is or will be taken. Also, according to Article 30 of the recast APD if an investigation is conducted in the country of origin of the applicant, Member States ‘shall not… disclose information regarding individual applications for international protection, or the fact that an application has been made, to the alleged actor(s) of persecution or serious harm’. Consequently, an applicant must be able to assert that his rights have been protected from such disclosure by consulting the relevant information related to and supporting the investigation conducted in their country of origin. The national court examining a judicial review must be equally able to check Member States’s compliance with their obligations under Article 30(a) of the recast APD.

It further clarified that the concept of ‘information in the applicant’s file on the basis of which a decision is or will be made’ includes information such as the supporting documents and the investigation report at issue in the main proceedings as long as they are relevant for the purpose of ensuring that applicants can exercise their rights of defence against the negative decision on international protection and that national courts can review compliance with Article 30 of the recast APD and the principle of non-refoulement.

The court affirmed that access to the file by the applicant and by the competent court to review in appeal are two separate and cumulative requirements, underlying that the court’s power to have access to the file cannot replace the applicant’s or his or her adviser’s right to have access to the file.

Exceptionally, such access to the file and disclosure of information can be restricted in very specific cases, for reasons of safeguarding ‘national security, the security of the organisations or person(s) providing the information or the security of the person(s) to whom the information relates or where the investigative interests relating to the examination of applications for international protection by the competent authorities of the Member States or the international relations of the Member States would be compromised’. Reinforcing its findings in GM v Országos Idegenrendeszeti Főigazgatóság, Alkotmányvédelmi Hivatal, Terrorelhárítási Központ, (C-159/21, 22 September 2022), the CJEU emphasised that, in such cases, Member States must provide procedures to guarantee the right of defence and the right to an effective remedy in compliance with Article 23 (1) of the recast APD. Different options are available for Member States, including to allow access to that information to a legal adviser or other counsellor representing the applicant and who has undergone a security check. The court held that, even if the second subparagraph of Article 23 (1) of the recast APD allows Member States not to grant direct access to all information in the file, for reasons of national security, that provision cannot be interpreted as allowing competent authorities to place an applicant in a situation where neither him or her nor their representative would be able to effectively gain knowledge of the substance of decisive elements in the file, without breaching the right to an effective remedy.

The CJEU concluded that Article 23(1) of the recast APD, read in conjunction with Article 46 of that directive and jointly with Article 47 of the EU Charter, must be interpreted as meaning that, in the context of a judicial review before a national court on the lawfulness of a decision rejecting an application for international protection and that of a return decision taken against the third-country national who lodged that application, information relating to the manner in which an investigation was conducted by the authorities of the host Member State in the country of origin of that third-country national for the purpose of determining the merits of the application is covered by the concept of ‘information in the applicant’s file upon the basis of which a decision is or will be made’, provided that it is likely to be relevant to the assessment, by that court, of whether the principle of non-refoulement has been complied with. Consequently, both the applicant for international protection and the court having jurisdiction must be able to access that information by the means provided for in points (a) and (b) of the second subparagraph of Article 23(1) of that directive.

*(REK check by the Research and Expertise Country and Language Team (TOELT), part of the Service Providers Directorate of the Immigration and Naturalization Service (IND).