The request for a preliminary ruling was submitted in the context of asylum applications lodged in the Netherlands by eight Iraqi nationals, members of the same family consisting in two parents and six children, several being girls. They cited three main grounds to substantiate their request for international protection: (i)  issues with a neighbour, fear of a vendetta and the daughters being forced into marriage; (ii) fear of circumcision of the daughters; and (iii) the daughters identifying with the fundamental value of equality between women and men, as well as the fear of being persecuted upon return to Iraq. The Minister for Asylum and Migration rejected the applications by decision of 11 September 2023, as manifestly unfounded.

Upon appeal, the District Court of The Hague, seated in Zwolle, held a hearing on 26 March 2024 and then reopened the investigations following the CJEU ruling in K and L v State Secretary for Justice and Security (C-646/21, 11 June 2024). The minister also reconfirmed the rejection of the applications by supplementary decisions of 25 February 2025. The appeals covered both negative decisions.

The District Court of the Hague (referring court) considered that it had sufficient information to assess the credibility of certain elements of the applicants' account, namely the daughters identifying with the fundamental value of equality between women and men, and to carry out, by its own motion, an assessment of certain grounds, namely the issues with the neighbour, the fear of a vendetta, and the fear of the daughters being forced into marriage and certain grounds invoked in support of their claims. However, the referring court specified that, according to national case law of the Council of State, when a court rules on the legality of a decision rejecting an application for international on account that the grounds underscoring it were insufficient, then it does not have the mandate to conduct an assessment on its own motion and should simply annul the contested decision and then refer the case back to the minister for re-examination.

Therefore, the referring court questioned the compatibility of this case law with the recast Asylum Procedures Directive (APD), emphasising that the concept of "well-founded fear" is not defined by the recast Qualification Directive (QD) and that, at national level, no standard for assessing such fear has been established. It added that, if the assessment of a well-founded fear of persecution would be based on a mathematical calculation of probabilities, then it would have had to refer the case back to the minister to do such a calculation, based on the information in the file and the country-of-origin information (COI).

From the outset, the CJEU asserted that, even in the absence of formal reference to the Qualification Regulation (QR) and the Asylum Procedure Regulation (APR), the referring court has envisaged to ask the CJEU to include those regulations in the answers given to those questions, forward-looking that the national court will have to apply them when re-examining the case in the main proceedings. This is because the procedure provided under Article 267 of the Treaty on the Functioning of the European Union (TFEU) laid down the framework for cooperation between national courts and the CJEU and the latter can consider necessary to refer to such EU law not expressly mentioned in the questions and cited the judgment in Alace and Canpelli (C‑758/24 and C‑759/24, 1 August 2025).

On the substance, it held that the four questions must be examined together and in essence the referring court sought guidance on: (i) whether Article 46(3) of the recast APD, read in the light of Article 47 of the EU Charter, is to be interpreted as conferring on a first-instance court or tribunal, seized with an action against a decision rejecting an application for international protection the power to issue a binding ruling on the credibility of the account underscoring that application, on the plausibility of the applicant's fear of persecution or the real risk of that applicant suffering serious harm upon return to his or her country of origin, as well as on the merits of that application, based on evidence submitted during the appeal procedure, and (ii) whether, where applicable, the Member States may limit that power so that only the determining authority as defined in Article 2(f) of that directive has the power to assess applications for international protection and to decide on the merits of those applications.

The court distinguished, based on the general scheme of the recast APD, that there are two stages for the examination of the application for international protection. First, a determining authority (an administrative or quasi-judicial body), equipped with specific resources and specialised staff, establishes the factual circumstances which may constitute evidence that supports that application. Drawing from Alheto (C-585/16, 25 July 2018) and Addis (C-517/17, 16 July 2020), in the court's view, this constitutes a ‘vital stage of the common procedures' provided under the directive. In the second stage, a court or a tribunal will carry out a legal appraisal of that evidence, to decide, in view of the specific circumstances in a given case, whether the substantive requirements for international protection are met. Whereas the credibility assessment and the assessment of the plausibility of the fear of persecution or of the real risk of suffering serious harm form part of that first stage and the assessment of the facts, the factual assessment does not fall outside the remit of the second stage. Article 46(1) of the recast APD provides for the right to an effective remedy, which is in essence a ‘full and ex nunc examination', covering both facts and points of law. The court clarified that the scope of this right for a full and ex nunc examination means that Member States are required, pursuant to Article 46(3) of the recast APD, to design their national law in such a way that the appeals procedure includes an examination, by a court or tribunal, of all the facts and points of law necessary to carry out an up-to-date assessment of the respective case.

The court clarified that the expression ‘ex nunc' refers to the judicial authority's obligation to make an assessment which covers, if needed, new evidence which has come to light after the issuance of the contested decision under appeal. Importantly, such assessment enables an exhaustive examination of an application for international protection, without the need to refer the case back to the determining authority. In addition, the adjective ‘full' provided in Article 46(3) of the recast APD means that the court or the tribunal is mandated to assess both the evidence which the determining authority took or should have considered, and which has arisen following the adoption of the decision by that authority. This means that a first-instance court or tribunal can consider new evidence which has been submitted during the appeal, but which was not available at the administrative stage, thus allowing the judicial authority to pronounce an exhaustive and up-to-date ruling on the application for international protection.

The court also highlighted that national courts bear the obligation to change their established case-law, where necessary, if it is based on an interpretation of national law that is incompatible with the objectives of a directive. The court disagreed with the Dutch Government's position according to which the review power of a court or tribunal can be exercised ‘with restraint', holding that the latter has the duty to carry out a full and ex nunc examination, which entails an exhaustive and up-to-date examination of the matters of fact and of law, as well as the international protection needs of the applicant.

Therefore, as affirmed in Barouk (C-283/24, 3 April 2025), with a view of applying EU law, competent courts must set aside national legislative provisions that might prevent EU rules which have direct effect from having full force and effect, such as Article 46(3) of the recast APD, read in conjunction with Article 47 of the EU Charter.

In view of the abovementioned, the CJEU concluded that the answer to the first four questions is that: ‘Article 46(3) of the recast APD, read in the light of Article 47 of the EU Charter, must be interpreted as meaning that, first, it confers on a first-instance court or tribunal before which an action has been brought against a decision rejecting an application for international protection the power to give a binding ruling on the credibility of the account provided in support of that application, on the plausibility of the applicant's fear of persecution or the real risk of that applicant suffering serious harm upon return to his or her country of origin, as well as on the merits of that application, taking into consideration evidence submitted in the course of the appeal procedure, and, second, the Member States may not place constraints on that power.”

Turning to the fifth question, the court noted that the referring court sought guidance on whether the expression ‘well-founded fear of being persecuted' enshrined in Article 2(d) of the recast QD refers to a situation of a reasonable likelihood that an applicant for international protection will be persecuted upon return to the country of origin, and, where applicable, what are the criteria according to which the existence of such a reasonable likelihood is to be established.

From the outset, it derived as clearly established, in particular from its case law relating to Article 4(3) to (5) of the recast QD (see S, A v State Secretary for Justice and Security, C-151/22, 21 September 2023), that the competent authorities of Member States must carry out an individual, concrete, and objective assessment of the applicant's personal situation, the facts and circumstances relating to their application, and the situation in their country of origin. This assessment must be conducted with vigilance and prudence, a requirement that stems not only from the text of the recast QD, which requires the competent authorities to take into account all relevant facts, including COI, the information submitted by the applicant, and the applicant's individual status, but also from the Geneva Convention, which constitutes the cornerstone of the refugee protection system (see AH (C‑608/22),FN (C‑609/22) v Federal Office for Immigration and Asylum, Joined Cases C-608/22 and C-609/22, 4 October 2024).

The court emphasised that, in essence, Article 2(d) of the recast QD mirrors the wording of Article 1(A)(2) of the Geneva Convention and, referring to the UNHCR guidelines, namely the ‘Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees', it held that a "well-founded fear of persecution" has both a subjective and an objective dimension. Whereas the subjective element of the fear is specified by the phrase "well-founded," the assessment of the existence of "well-founded fear of persecution" cannot be conducted solely from the subjective perspective of the applicant for international protection but must be based on an objective assessment of the situation. Hence, the court affirmed that the required standard is that of a reasonable fear, or a fear that can be established to a reasonable extent.

On the probability criterion, the court asserted that, to establish the existence of a well-founded fear of persecution, the competent national authorities cannot rely solely on the subjective viewpoint of the applicant for international protection, but must conduct an individual, concrete, and objective assessment of the applicant's personal situation, the facts and circumstances relating to their application, and the situation in their country of origin. Thus, the fear of persecution must be considered established when there is a reasonable probability that the risk of persecution invoked by the applicant will materialise if they return to their country of origin.

The court further reiterated that, pursuant to recital 10 of the recast APD, Member States must take into account relevant guidelines developed by the EASO (now EUAA). It thus cited the EUAA practical guide ‘Qualification for international protection' which indicates that the subjective fear of an applicant for international protection must be objectively substantiated, to be deemed well-founded. In addition, it referenced the EUAA ‘Practical Guide on Evidence and Risk Assessment', which specifies that a fear of persecution is to be regarded as well-founded where the likelihood of the risk of persecution occurring meets a certain threshold.

Based on the abovementioned, the CJEU concluded that ‘Article 2(d) of the recast QD must be interpreted as meaning that the expression ‘well-founded fear of being persecuted' refers to a situation where there is a reasonable likelihood that an applicant for international protection will be persecuted upon return to their country of origin, and that, in order to establish the existence of such a fear, the competent national authorities must carry out an individual, specific and objective assessment of that applicant's personal situation, of the facts and circumstances relating to his or her application, and of the facts and circumstances relating to the situation in his or her country of origin'.