A Turkish national lodged an asylum application on 10 April 2022. The Minister of Asylum and Migration failed to issue a decision within the statutory six-month period under Article 42(1) of the Dutch Aliens Act (Vw 2000) and the applicant appealed to the District Court of The Hague, seated in Amsterdam against the failure to decide on time. The minister argued that the appeal was premature, on the basis that the period for making the decision was extended lawfully by nine months through the Amending Decree WBV 2022/22, adopted on 21 September 2022, citing a significant increase in asylum applications from the second half of 2021 onwards.

On 6 January 2023, the district court rejected the minister's position and found the appeal admissible and well-founded, holding that no situation had arisen justifying an extension under Article 42(4)(b) of the Vw 2000. The court held that the recast Asylum Procedure Directive (recast APD) does not allow for an extension of the decision period where there is a more gradual increase in the number of asylum applications, as it considered to be the case, and that the minister should therefore have taken a decision on the asylum application within six months.

The minister appealed to the Council of State, arguing that the district court had misinterpreted Article 42(4)(b) of the Vw 2000 and Article 31(3)(b) of the recast APD. The minister argued that in order to ensure careful and proper processing of asylum applications, the decision period could also be extended in the event of a more gradual increase in the number of applications in combination with other circumstances. The minister further argued that the unexpectedly increased influx of asylum applications from the second half of 2021, which in combination with existing backlogs caused an increasing workload, meant that in practice there was no available capacity to carefully assess asylum applications within six months.

The council, by order for reference of 8 November 2023, referred questions to the CJEU concerning the interpretation of Article 31(3)(b) of the recast APD. The CJEU answered those questions in its judgment in State Secretary for Justice and Security (Staatssecretaris van Justitie en Veiligheid) v X [Zimir] (C-662/23, 8 May 2025). It held that an extension of the decision period under Article 31(3)(b) of the recast APD is only permissible when three cumulative and interrelated conditions are satisfied. First, the applications must have been submitted simultaneously, which is to be understood as within a short period of time. Second, the number of applications must be large, meaning significantly higher than the usual and foreseeable pattern in the Member State concerned, as established through a comparative analysis of current and historical statistical data. Third, the practical difficulty in completing the procedure within six months must result exclusively from that sudden and significant increase in applications, and not from other circumstances such as pre-existing backlogs or a lack of staff in the determining authority. The CJEU further emphasised the obligation under Article 4(1) of the recast APD for Member States to ensure that the determining authority maintains adequate resources to handle normal and foreseeable fluctuations in the volume of applications, and that a gradual increase over a longer period must be addressed through timely capacity measures rather than by extending decision deadlines.

Following the delivery of the Zimir judgment, the minister abandoned his earlier argument that a gradual increase in the number of asylum applications could justify an extension, as well as his position that pre-existing backlogs in the processing of applications could be taken into account in that assessment. He maintained nonetheless that the unexpectedly higher influx of asylum applications from the second half of 2021, which continued into 2022, was in itself sufficient to justify the extension.

The council began by clarifying two preliminary matters relevant to the scope of the assessment. First, it held that family reunification applications, which the minister had included in his overall figures, fall within the scope of the Family Reunification Directive rather than the recast APD and must therefore be disregarded entirely for the purposes of determining whether the conditions for extension were met. Second, it clarified that only the staff capacity of the IND as actually deployed for the processing of asylum applications was relevant to the capacity assessment.

The council then concluded that the minister had not demonstrated that any of the three cumulative conditions were met at the time WBV 2022/22 was adopted. As regards the first two conditions, the council found that the influx data for 2021 and 2022 did not support the existence of a significant increase within a short period of time. The figures showed a fluctuating but broadly gradual upward trend, and the total influx for 2022 did not deviate substantially from earlier forecasts. In this regard, the council referred to the Letter to Parliament of 1 July 2022, which indicated that based on the Multi-Year Production Forecast of September 2021, a total asylum influx of 34,370 had been estimated for 2022, a figure which did not differ markedly from the actual influx recorded for that year. The council further observed that while the influx increased from the second half of 2021 compared to the first half of that year, and while the total figures for 2022 were higher than those for 2021, this reflected a fluctuating pattern that continued into the first half of 2022, rather than a simultaneous large increase within the meaning of the recast APD. The period to which the minister attributed the increase spanned approximately fourteen months, which the council considered indicative of a gradual rather than sudden rise, and which in any event exceeded the timeframe that could reasonably be characterised as a short period within the meaning of the Directive.

As regards the third condition, the council found that the minister's own justification for WBV 2022/22 had expressly relied on pre-existing backlogs and accumulated processing deficits as contributing factors to the decision to extend the deadline. This was reflected in both the explanatory notes to WBV 2022/22 and the Letter to Parliament of 26 August 2022, which described the extension as a response not only to the increased influx but also to the significant number of first asylum applications on which decisions had already been taken outside the six-month period, and to the resulting increasing workload when considered in combination with available staff capacity. The council noted that while the minister had by the time of the second hearing abandoned his earlier position that existing backlogs could legitimately be taken into account, those backlogs had nonetheless been instrumental in the adoption of WBV 2022/22. The minister had furthermore failed to clarify whether and to what extent, absent the pre-existing backlogs, any shortage of staff capacity would have resulted from the increase in applications alone, or whether that shortage was itself partly a product of the gradually rising influx over preceding years and the growing backlog of unprocessed cases. The minister had also not substantiated how many staff would be required to manage a usual and foreseeable influx while simultaneously reducing the existing backlog. The council acknowledged the problems within the implementation practice by the IND, and stated that it wished to assume that efforts had been made to expand decision-making capacity within available funding, and that the influx of nationals from Ukraine and Afghanistan, as well as disruptions to Dublin transfers resulting from the pandemic, had contributed to an increasing workload. However, it held that these difficulties could not lawfully be borne by applicants for international protection through an extension of the decision period where the strict conditions of Article 31(3)(b) of the recast APD were not satisfied.

The council confirmed the judgment of the district court and held WBV 2022/22 to be non-binding in its entirety. As a consequence, the six-month statutory decision period under Article 42(1) of the Vw 2000 applied without extension to all asylum applications falling within the scope of that decree. In the present case, the applicant had signed the M35-H form on 10 April 2022, thereby initiating the decision period, and had served a notice of default on the minister on 13 October 2022, at which point more than six months had already elapsed. Following a further two-week period, the applicant lodged his appeal against the failure to decide in time. The council confirmed that the notice of default was not premature and that the district court had correctly declared the appeal admissible and well-founded. The council further noted that the minister had, on 14 April 2023, issued the residence permit applied for, and that the applicant had confirmed his agreement with that decision.

In light of the above, the council declared the appeal unfounded.