B.A., a Syrian national, requested international protection in Cyprus. Following his interview, the Cyprus Asylum Service accepted as credible that, between 2015 and 2018, the applicant had worked as an armed security guard at a hospital in a specific area of Syria, which allegedly cooperated with Israeli security forces. On that basis, it also accepted that the applicant had a well-founded fear of persecution by the Syrian authorities, who might consider him a traitor, and that internal protection was not available due to the general security situation in Syria. At the same time, the Asylum Service decided to exclude him from international protection under Section 5 of the Refugee Law and Article 1F(a) of the 1951 Convention, arguing that his voluntary work in an area controlled by paramilitary groups involved in war crimes gave rise to individual criminal responsibility for such crimes. 

The applicant appealed the decision before the International Protection Administrative Court (IPAC). The IPAC annulled the decision, finding an essential procedural breach, as the Asylum Service had failed to inform the applicant of its intention to examine exclusion and to give him a meaningful opportunity to respond, and substantive errors in the application of the exclusion clauses, including overly vague reasoning, failure to identify specific acts or concrete involvement, and reliance on non-reliable sources, such as Wikipedia when assessing the paramilitary context. 

The Asylum Service appealed the IPAC’s decision arguing that the court limited itself to legality review and should have decided the case on the merits; that the Asylum Service had no legal duty to notify an applicant of the intended exclusion; and that the court violated fair trial and separation of powers principles because while ruling that it would not review the decision in substance, it annulled the decision making factual findings binding on the Asylum Service, depriving it of the opportunity to re-examine them. 

The Court of Appeal held that exclusion decisions fall within Section 11(4) of Law 73(I)/2018 on the Establishment and Operation of an Administrative Court for International Protection as adverse decisions, thus the IPAC is required to carry out a dual review of legality and merits. It stressed that this merits review is an obligation and entails a full and ex nunc examination taking into account updated data including information that is subsequent to the contested decision, in line with Article 46 of the recast Asylum Procedures Directive (APD) as interpreted by the CJEU in judgments LN and SN, (C-563/22, 13 June 2024), Bundesrepublik Deutschland v XT (C-507/19, 13 January 2021) and Alheto (C-585/16, 25 July 2018). The Court of Appeal clarified on the investigative discretion that the IPAC has in the context of such a dual review: it may decide itself on the merits, including by conducting an oral hearing or by ordering the Asylum Service to conduct an additional interview during the proceedings and submit the interview record and its views. Exceptionally, where the Asylum Service violated the right to be heard and the court is unable to remedy that deficit while fully safeguarding the procedural guarantees required by EU law, the court annuls and remits the case for reconsideration to the administration (following the considerations in CJEU Milkiyas Addis v Bundesrepublik Deutschland, C-517/17,16 July 2020). 

Based on this, the Court of Appeal concluded that the IPAC had erred when annulling and remitting the case on the premise that the lack of a prior hearing on exclusion could not be remedied within the judicial procedure. The Court of Appeal set aside the judgment and remitted the case to the IPAC to exercise its jurisdiction correctly, selecting among the available procedural options and determining the application on the merits in accordance with the provided guidance.