Judgment;Summary — ECLI:EU:C:2023:688
Date: 2023-09-21
Language of the case: Dutch
Court formation: Third Chamber
Subject matter: Asylum policy;Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
2 March 2022 
Referring court: 
Raad van State (Netherlands) 
Date of the decision to refer: 
16 February 2022 
Appellants: 
S 
A 
Staatssecretaris van Veiligheid en Justitie 
Respondent: 
  
Subject matter of the main proceedings 
Appeals against the decision of the rechtbank Den Haag (District Court, The 
Hague, Netherlands) declaring the appeal of foreign national S against the 
decision to reject her application for asylum to be well founded, and against the 
decision of the same court declaring the appeal of foreign national A against the 
decision to reject his application for asylum to be unfounded. The central issue in 
these cases is fear of persecution on the grounds of political opinion. 
Subject matter and legal basis of the request 
Interpretation of EU law pursuant to Article 267 TFEU. Interpretation of political 
opinion as a reason for persecution in Article 10(1)(e) of Directive 2011/95/EU of 
the European Parliament and of the Council of 13 December 2011 on standards 
for the qualification of third-country nationals or stateless persons as beneficiaries 
of international protection, for a uniform status for refugees or for persons eligible 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-151/22 
 
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for subsidiary protection, and for the content of the protection granted (OJ 2011 
L 337, p. 9; ‘the Qualification Directive’). 
Questions referred for a preliminary ruling 
1. Must Article 10(1)(e) of the Qualification Directive be interpreted as 
meaning that political opinion as a reason for persecution may also be invoked by 
applicants who merely claim to hold a political view, and/or to express such a 
view, without having attracted the negative interest of an actor of persecution 
during their residence in their country of origin and since their residence in the 
host country? 
2. If the answer to Question 1 is in the affirmative, and a political view is thus 
sufficient to qualify as a political opinion, what weight must be given to the 
strength of that political view, thought or belief and to the importance to the 
foreign national of the activities stemming from it in the examination and 
assessment of an asylum application, that is to say, the examination of the reality 
of that applicant’s alleged fear of persecution? 
3. If the answer to Question 1 is in the negative, is the criterion then that such a 
political opinion must be deeply rooted, and if not, what is the relevant criterion 
and how is it to be applied? 
4. If the criterion is that the political opinion must be deeply rooted, can an 
applicant who fails to demonstrate that he or she holds a deeply rooted political 
opinion be expected to refrain from expressing that political opinion upon return 
to the country of origin, so as not to arouse the negative interest of an actor of 
persecution? 
Provisions of EU law relied on 
Directive 2011/95/EU of the European Parliament and of the Council of 
13 December 2011 on standards for the qualification of third-country nationals or 
stateless persons as beneficiaries of international protection, for a uniform status 
for refugees or for persons eligible for subsidiary protection, and for the content of 
the protection granted (OJ 2011 L 337, p. 9): Article 2(d), Article 6, 
Article 10(1)(b), (d) and (e), and Article 10(2). 
Provisions of national law relied on 
Vreemdelingenwet 2000 (Law on Foreign Nationals of 2000): Article 29(1) 
Voorschrift Vreemdelingen 2000 (Regulations on Foreign Nationals of 2000): 
Article 3.37a(a) and (b), Article 3.37(1) and (2) 
STAATSSECRETARIS VAN VEILIGHEID EN JUSTITIE 
 
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Vreemdelingencirculaire 2000 (Circular on Foreign Nationals of 2000): Heading 
C2, Article 3.2 
Succinct presentation of the facts and procedure in the main proceedings 
1 Foreign national S, who comes from Sudan, arrived in the Netherlands on 
21 January 2012. In her previous asylum applications and also in the present, 
fourth, asylum application, she has not argued that she already had a political 
opinion in Sudan and had been engaged in political activities. Nor has she argued 
that, even before her departure from Sudan, she had already attracted the negative 
interest of the Sudanese authorities and had left Sudan for that reason. The basis 
of her fourth asylum application is that she cannot return to Sudan because she 
will be persecuted by the authorities there for the political opinion she now 
expresses in the Netherlands, for example, by engaging in activities for the Umma 
Party, a Sudanese political party which coordinated the Sudanese revolution in 
2019, and for the Darfur Vereniging Nederland (DVN), an organisation which 
champions the cause of the Darfur region. In addition, she submits, she has taken 
part in demonstrations in the Netherlands against the Sudanese Government and 
has expressed criticism of the Sudanese Government on Facebook and Twitter. 
2 By decision of 30 August 2019, the Staatssecretaris (State Secretary for Justice 
and Security) rejected her asylum application on the ground that there was no 
evidence of a fundamental political opinion. In a ruling of 20 May 2020, the 
Rechtbank (District Court) upheld the appeal lodged against that decision by 
foreign national S. The District Court found that a political opinion does indeed 
exist. According to the District Court, however, it is unclear what exactly is to be 
understood by a fundamental political opinion. In any event, the District Court 
considers the strength of the opinion to be relevant. The State Secretary lodged an 
appeal against that ruling with the Afdeling bestuursrechtspraak (Administrative 
Jurisdiction Chamber) of the Raad van State (Council of State; ‘the Afdeling’), the 
referring court. Foreign national S lodged a cross appeal, arguing that the strength 
of the opinion is not relevant. 
3 Foreign national A, also from Sudan, arrived in the Netherlands on 20 July 2011. 
He became politically active in the Netherlands only after his first asylum 
application had been rejected and did not engage in any political activities prior to 
his departure from Sudan. He did not leave Sudan because of a political opinion. 
Foreign national A based his second asylum application (the present procedure) 
on, inter alia, the argument that he will be persecuted if he were to return to Sudan 
because he speaks openly and critically in the Netherlands about the political 
situation in Sudan and because he has stood up in the Netherlands for the rights of 
the Al-Gimir (a tribe in West Darfur). 
4 By decision of 18 June 2020, the State Secretary rejected the asylum application 
of foreign national A on the ground that he had also failed to demonstrate that he 
had acted on the basis of a fundamental political opinion. In a ruling of 28 August 
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2020, the District Court declared the appeal lodged by foreign national A against 
that decision to be unfounded. Foreign national A lodged an appeal against that 
ruling. 
Essential arguments of the parties to the main proceedings 
5 According to foreign national S, the District Court wrongly considered that the 
strength of the political opinion is relevant to the asylum application. She argues 
that it does not follow from the Qualification Directive that a political opinion has 
to be ‘fundamental’ in order to qualify for protection. 
6 The State Secretary argues that the District Court erred in finding that political 
opinion and religious opinion are by their nature separate grounds for persecution 
and must therefore be examined and assessed differently. According to the State 
Secretary, political opinion as a reason for persecution has to be examined and 
assessed in the same way as religious belief as a reason for persecution, with the 
result that it has to be shown that the opinion held by a foreign national is so 
determinative of his/her identity or moral integrity that he/she may not be asked to 
give it up or to conceal it after returning to his/her country of origin. 
7 Against this, foreign national S argues that political opinion as a reason for 
persecution cannot be examined and assessed in the same way as religious belief 
as a reason for persecution. She maintains that the definitions of political opinion 
and of religious belief as reasons for persecution in Article 10(1) of the 
Qualification Directive differ from each other. 
8 According to foreign national A, the District Court failed to appreciate that the 
decision was taken without due care because the State Secretary failed to examine 
and assess whether he, A, has a fundamental political opinion. He also argues that 
the District Court failed to appreciate that the State Secretary has no fixed policy 
for assessing an alleged political opinion, whereas that is in fact required in order 
to prevent any arbitrariness in the processing of asylum applications. He further 
submits that it does not follow from the Qualification Directive that a foreign 
national’s political opinion has to be fundamental in order to qualify for 
protection. 
9 Against this, the State Secretary argues that, under the Qualification Directive, he 
has to assess whether the opinion held by a foreign national is fundamental, and 
therefore so determinative of his/her identity or moral integrity that he/she may 
not be asked to give it up or to conceal it after returning to his/her country of 
origin. He refers to, inter alia, the judgment of the present Afdeling of 
21 November 2018, NL:RVS:2018:3735. 
STAATSSECRETARIS VAN VEILIGHEID EN JUSTITIE 
 
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Succinct presentation of the reasoning in the request for a preliminary ruling 
10 Both cases involve foreign nationals who, only after their arrival in the 
Netherlands, started to express a political opinion and to engage in activities that 
could potentially arouse the negative interest of an actor of persecution in the 
country of origin, but which have not yet done so. 
11 The main question to be answered in the present cases is whether, under EU law, 
the State Secretary should investigate and assess, as a condition for granting 
international protection, whether the political opinion invoked by the foreign 
national is of a particular strength. 
12 This concerns the situation where the foreign national states that he/she has a 
well-founded fear of persecution if returned to his/her country of origin, because 
he/she has developed and expressed a political opinion and carried out political 
activities in the host country, even though this has not yet attracted any negative 
interest from the authorities in the country of origin, since they are not aware of 
that opinion and those activities. In this situation, the question arises as to whether 
the foreign national may be asked to exercise restraint after returning to his/her 
country of origin in order to avoid problems with the actor of persecution in that 
country. 
13 The case-law of the Court of Justice does not yet provide an answer to this 
question. Nor does that case-law provide an answer to the question as to what 
criterion should be used to examine and assess the strength referred to. 
14 In the view of the present Afdeling, religious belief and political opinion as 
reasons for persecution have in common that neither is based on inherent, 
immutable characteristics. The case-law of the Court of Justice on religious belief 
as a reason for persecution therefore sets out the lines along which the questions 
that arise in such cases should be answered. 
15 It follows from the judgments of the Court of Justice of 5 September 2012, 
Bundesrepublik Deutschland v Y and Z (Joined Cases C-71/11 and C-99/11, 
EU:C:2012:518) and of 4 October 2018, Bahtiyar Fathi (C-56/17, 
EU:C:2018:803) that, with regard to religious belief as a reason for persecution, 
there must be an examination and assessment of whether a foreign national 
actually holds the belief invoked by him/her, what activities that belief gives rise 
to for him/her, and whether they are necessary or particularly important for 
him/her personally. It may also be inferred from these judgments that a foreign 
national who has not yet attracted the negative interest of an actor of persecution, 
but who claims to have a religious belief, may, by virtue of that very fact, be 
covered by that concept in Article 10(1) of the Qualification Directive. However, 
he/she may claim an entitlement to international protection on the basis of that 
belief and the activities arising from it only if they are particularly important to 
him/her in order to preserve his/her religious identity: the ‘strength’ of the belief. 
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16 It would therefore seem only reasonable, by analogy with the aforementioned 
case-law, also to set requirements for the strength of a political opinion. The 
question is whether that opinion must be so strong that it is plausible that, on 
his/her return to the country of origin, a foreign national will continue to carry out 
the activities which he/she undertook on the basis of that opinion in the host 
country, thereby accepting the risk of persecution – the stricter approach – or 
whether less far-reaching criteria should apply, whereby, as in the case of 
religious belief, the political opinion is examined in order to establish whether it 
has a particular strength, what activities it gives rise to, and whether it is necessary 
or particularly important in order to preserve the identity of the foreign national 
concerned. That opinion and those activities must be characterised by a certain 
degree of continuity and permanence that implies that the opinion has become 
deeply rooted within the foreign national. 
17 The question as to whether the political opinion is deeply rooted must be the 
subject of careful examination. In doing so, the determining authority must also 
examine what activities motivated by that opinion are necessary for the foreign 
national, and what the consequences would be if the foreign national were to 
engage in those activities upon returning to his/her country of origin. The fact that 
he/she might nevertheless refrain from such activities in the country of origin 
because he/she would otherwise be exposed to the risk of persecution should not 
be held against him/her. Therefore, when assessing whether it is plausible that a 
well-founded fear of persecution upon return does exist, the possibility that a 
foreign national will exercise restraint in order to avoid persecution may not be 
taken into account if a deeply rooted political opinion exists. Conversely, 
however, the present Afdeling also assumes that if a foreign national does not 
make a plausible case that he/she has a deeply rooted political opinion, he/she may 
indeed be required to exercise restraint after his/her return to the country of origin 
and to refrain from activities that may arouse the negative interest of the 
authorities. 
18 Since the Court of Justice has not yet provided an interpretation of political 
opinion as a reason for persecution in the light of an assessment of the merits of 
the fear of persecution on the part of a foreign national who has not yet attracted 
the negative interest of the authorities in the country of origin, and as the answers 
to the questions in these cases are not ‘clair’ or ‘éclairé’, there is reason to refer 
certain questions for a preliminary ruling.