The request for a preliminary ruling was submitted in the context of an appeal lodged by a Pakistani national against the negative decision on his asylum application issued by the Minister for Asylum and Migration. Although the Minister considered the applicant's account to be largely credible, it found that he had not been treated as an apostate and that, even if he had been subjected to serious harm in the past, there were no reasons to believe that he would face persecution or a real risk of serious harm upon return.

In an interim judgment of 13 August 2024, the District Court of The Hague (referring court), sitting in Zwolle, found the Minister's reasoning inadequate. In particular, the District Court held that the decision failed to explain sufficiently why the problems the applicant claimed to have experienced with the authorities on account of his religious beliefs were considered not credible and why the situations he had faced in his neighbourhood, although deemed credible, were not regarded as sufficient to classify him as an apostate.

The District Court stayed the proceedings and referred several questions before the Court of Justice of the European Union (CJEU or the court) for interpretation of Article 46 (3) of the recast Asylum Procedures Directive (APD) and Article 47 of the EU Charter with regard to whether the court may itself rule on the substance of the asylum application. The referring court explained that, in view of settled case law of the Dutch Council of State, a court may only annul a decision and refer the case back for re-assessment when it finds that the Minister insufficiently reasoned a negative decision, thus the court is not allowed to rule itself on the credibility of the asylum claim, in view of the available country of origin information (COI) and the administrative file. The referring court casted doubt on whether that national case-law is compatible with the recast Asylum Procedures Directive (APD).

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.

Referencing Alace and Canpelli (C‑758/24 and C‑759/24, 1 August 2025), the court reiterated that a first-instance court or tribunal ruling on an action against a decision rejecting an application for international protection has the power to assess the facts and to carry out its own exhaustive and up-to-date assessment of the facts being disputed before it. This includes both the evidence which the determining authority took into account or should have taken into account, and the evidence which was newly submitted in appeal and was not available during the administrative procedure.

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 into account 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 pointed to the fact that the processing of an application for international protection would be significantly delayed if a first-instance court or tribunal seized with an appeal against a negative decision were required to refer the case back to the determining authority in order for such evidence to be taken into consideration by that authority for the purpose of taking a decision on the applicant's need for international protection.

Citing Ministerstvo vnitra České republiky, Odbor azylové a migrační politiky (C‑406/22, 4 October 2024), the court clarified that the power of such a court or tribunal to consider new evidence on which that authority has not taken a decision is consistent with the scope of the recast APD, particularly as recital 18 thereof mentions that applications for international protection are dealt with ‘as soon as possible …, without prejudice to an adequate and complete examination being carried out'.

Moreover, the court further affirmed, referencing Alheto (C-585/16, 25 July 2018) that the court or the tribunal are required pursuant to Article 47 of the EU Charter to offer the applicant for international protection and the determining authority the possibility of expressing their views regarding that new evidence, also since that evidence could affect them negatively.

Drawing from Torubarov (C‑556/17, 29 July 2019), it further ruled that Article 46(3) of the recast APD provides the first-instance court or tribunal, when it has all necessary elements of fact and law, the power to give a binding ruling, following a full and ex nunc examination of those elements, on whether the applicant satisfies the conditions for international protection as enshrined under the recast Qualification Directive. Consequently, it emphasised that the definition of the scope and rigorousness of that examination does not fall within the procedural autonomy of the Member States, thus the latter may not restrict the scope of that judicial review.  

The court further asserted that national courts must interpret any national legislative provisions in light of the wording and scope of the applicable directive with the aim of achieving the result sought by that directive and ultimately to ensure that EU rules are effectively implemented. Consequently, 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. 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.

Given the abovementioned, the CJEU ruled 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.'