S, a Pakistani national, requested international protection in the Netherlands, claiming that he had been tortured in Pakistan. By decision of 20 December 2023, the Minister rejected the application considering the application largely credible.

S appealed against that decision before the District Court of The Hague, sitting in Zwolle, the referring court, which held by interim judgment of 13 August 2024, that that decision was not adequately reasoned and notified the Minister to remedy the lack of reasoning.

On 8 October 2024 the Minister adopted a complementary decision, which the referring court also considered inadequate. That court considered that the statements made by S were credible and he should be granted international protection. However, according to national case-law of the Council of State, it does not have the power to itself rule on the credibility of S's asylum account or on the assessment of the conditions for granting international protection.

The District Court of The Hague, seated in Zwolle, stayed the proceedings and referred questions to the CJEU for a preliminary ruling. The referring court explained that it has doubts as to whether the national case-law of the Council of State is in line with the recast Asylum Procedures Directive. According to that settled case-law, when a negative decision of the Minister does not contain an adequate reasoning regarding credibility, the court must limit itself to annulling that decision and referring the case back to the Minister for further examination.

Furthermore, the referring court asked the CJEU if it could make reference to the Qualification Regulation (QR) and to the Asylum Procedures Regulation (APR).

The CJEU considered that since the APR will apply to applications lodged from 12 June 2026, it did not need to take into consideration the APR or the QR for the case at hand.

The CJEU considered that it had to answer the following: “whether Article 46(3) of Directive 2013/32, read in the light of Article 47 of the Charter, is to be interpreted as conferring 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 (ii) whether, where applicable, the Member States may place constraints on that power so that only the determining authority as defined in Article 2(f) of that directive (‘the determining authority') has the power to assess applications for international protection and to decide on the merits of those applications.”

The CJEU noted that the assessment of credibility and plausibility of the fear of persecution or real risk of suffering serious harm are part of the first stage, before the administrative authority. However, it highlighted that the factual assessment is within the remit of a first-instance court or tribunal examining an appeal against a negative asylum decision. The court added that the right to an effective remedy must provide a full and ex nunc examination of both facts and points of law so that the examination can be exhaustive without a need to refer the case back to the determining authority (see Alheto, C‑585/16). Furthermore, the CJEU noted that a court examining an appeal may take into account evidence which has been submitted in the course of the appeal procedure, but which was not yet available at the administrative stage, as this would prevent delays in the procedure. Also, the court must provide the possibility to the applicant to express their views on new evidence which was not considered at the administrative stage when that evidence could affect them negatively and to the determining authority to submit observations.

Thus, the court held that a national first-instance court examining an appeal against a negative asylum decision of the determining authority must “(i) have the power to carry out its own assessment of the facts and (ii) take into account new evidence which has come to light following the adoption of the decision under appeal, while ensuring that the parties have the opportunity to submit their observations regarding that evidence.”

The court then highlighted that definition of the scope and the rigorousness of the examination by the first-instance court does not fall within the procedural autonomy of the Member States and therefore, Member States may not limit this power of a court and may not argue that the determining authority would be best placed and equipped to examine the merits of applications for international protection.

Furthermore, if the court annuls the decision of the administrative authority following an exhaustive and up-to-date examination of the application, finds that that applicant must be granted protection and refers the case back to the determining authority, then the administrative authority must grant international protection, subject to any new matters of fact or law requiring a new up-to-date assessment.

In addition, if the same administrative authority adopts a decision contrary to the judgment, without new facts arising that would justify a departure from the court's judgment, the court must substitute its own decision disapplying any national legislation prohibiting that would prohibit it from doing so (Torubarov, C‑556/17).

The court further observed that when national courts apply domestic law, they must interpret it in the light of the wording and the purpose of EU law in order to achieve the result sought, ensure that EU law is fully effective and comply with the third paragraph of Article 288 TFEU. This includes changing their national established case-law, where necessary. Thus, validly consider that it is impossible for it to interpret a provision of national law in conformity with EU law merely because previous national case law has interpreted legislation in a manner which is contrary to EU law.

Thus, the CJEU concluded that Article 46(3) of the recast APD, read in the light of Article 47 of the Charter, must be interpreted as meaning that a first-instance court has the power to give a binding ruling on the credibility and plausibility of the applicant's fear of persecution or the real risk of suffering serious harm upon return, as well as on the merits, taking into consideration evidence submitted in the course of the appeal procedure, and Member States may not place constraints on that power.