Opinion of the Advocate General — ECLI:EU:C:2025:939
Date: 2025-12-04
Language of the case: Dutch

Summary C-440/25 – 1 
Case C-440/25 * [Erbil] i 
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: 
4 July 2025 
Referring court: 
Rechtbank Den Haag, zittingsplaats Zwolle (Netherlands) 
Date of the decision to refer: 
4 July 2025 
Applicants: 
PM, QN, RM, SM, TM, UM, VM and WM 
Defendant: 
Minister van Asiel en Migratie 
  
Subject matter of the main proceedings 
Action before the rechtbank Den Haag (District Court, The Hague, Netherlands) 
against decisions by the Minister van Asiel en Migratie (Minister for Asylum and 
Migration, ‘the Minister’) to reject asylum applications. 
Subject matter and legal basis of the request 
Request under Article 267 TFEU for interpretation of: 
– Article 46(3) of Directive 2013/32/EU, whether or not read in conjunction with 
Article 47 of the Charter and the case-law of the Court of Justice. The question 
is whether only the Minister may rule substantively on the credibility of an 
asylum account, which is in line with the case-law of the Afdeling 
bestuursrechtspraak van de Raad van State (Administrative Jurisdiction 
 
* Language of the case: Dutch. 
i The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-440/25 
 
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Division of the Council of State, Netherlands), or whether, according to that 
Article 46 (or any other provision of EU law), the court, too, has the power to 
do so and may substitute its ruling for that of the Minister. 
– Article 2(d) of Directive 2011/95/EU. The question is how the concept of 
‘well-founded fear’ of persecution should be interpreted and what criteria 
should be applied in that regard. 
Questions referred for a preliminary ruling 
1. Can the court derive from Article 46(3) of Directive 2013/32/EU, whether or 
not read in conjunction with Article 47 of the Charter of Fundamental Rights of 
the EU, or from any other provision or principle of EU law, the power to make its 
own ruling on the credibility of an asylum account, superseding the ruling made 
by the Minister? 
2. Can the court derive from any of the abovementioned provisions the power 
to make a substantive and final ruling on the application for international 
protection on the basis of those parts of the asylum account which the Minister 
deems credible and, if the answer to question 1 is in the affirmative, those parts of 
the asylum account which the court also deems credible? In that regard, may the 
court substitute its own ruling on the plausibility of the fear of persecution or the 
real risk of serious harm for that of the Minister, especially if, against the 
background of publicly accessible country information, the court considers itself 
sufficiently informed to make such a ruling? 
3. Can national case-law constrain the powers referred to in questions 1 and 2, 
for example on the basis of procedural autonomy, to the effect that those powers 
are still vested exclusively in the Minister? 
4. May the court take into account information which was put forward on 
appeal, but which was not yet available at the administrative stage, in the ruling on 
the question whether it has enough information to make a substantive ruling? Is it 
relevant in that regard whether the parties have been able to express their views 
fully on the facts in writing or at the hearing? 
5. Should ‘well-founded fear’ as referred to in Article 2(d) of Directive 
2011/95/EU be understood as meaning that there is a reasonable likelihood that 
the asylum seeker will be persecuted upon return? Should that reasonable 
likelihood be determined on the basis of the criterion of a ‘rational and reasonable 
person’, whereby the decisive factor is whether, from the perspective of a rational 
and reasonable person in the position of the asylum seeker, a return to the country 
of origin appears unreasonable after weighing up all the known circumstances? If 
not, what criteria should be applied? 
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Provisions of European Union law and case-law of the Court of Justice relied 
on 
Article 47 of the Charter of Fundamental Rights 
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: Article 2(d) 
Directive 2013/32/EU of the European Parliament and of the Council of 26 June 
2013 on common procedures for granting and withdrawing international 
protection: Article 4 and Article 46(3), 
Judgments of the Court of Justice of 11 June 2024, Staatssecretaris van Justitie en 
Veiligheid (Women identifying with the value of gender equality; ‘the judgment in 
K and L’, C-646/21; of 29 July 2019, Torubarov, C-556/17; of 8 February 2024, 
Bundesrepublik Deutschland (Admissibility of a subsequent application), 
C-216/22; of 4 October 2018, Fathi, C-56/17; of 25 January 2018, F., C-473/16; 
of 29 June 2023, International Protection Appeals Tribunal and Others (Attack in 
Pakistan), C-756/21; of 1 December 2022, Bundesrepublik Deutschland (Access 
to the asylum file), C-564/21; of 29 February 2024, Staatssecretaris van Justitie en 
Veiligheid (Mutual trust in the event of transfer), C-392/22; of 5 March 2020, 
OPR-Finance, C-679/18; of 8 November 2016, Ognyanov, C-554/14, and of 
5 September 2012, Y and Z, C-71/11 and C-99/11, paragraph 61 
Opinion of 30 April 2019 of Advocate General Bobek in Case C-556/17, 
Torubarov 
Case C-198/25 (Quetta), pending before the Court of Justice 
Provisions of national law and national case-law relied on 
Article 29 of the Vreemdelingenwet 2000 (Law on foreign nationals) 2000, on the 
basis of which a temporary residence permit may be granted to a foreign national 
who is a convention refugee [paragraph 1(a)] and to his or her family members 
(paragraph 2). 
Article 31(6) of the Law on foreign nationals 2000, pursuant to which a person 
seeking international protection is deemed credible and is given the benefit of the 
doubt, despite the possible lack of evidence for some of his or her statements, if 
the conditions laid down therein are met. 
Vreemdelingencirculaire 2000 (Circular on foreign nationals) 2000, paragraph 
C2/3.2.5.2.1 (policy amendment following the judgment of the Court of Justice in 
K and L) 
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Administrative Jurisdiction Division of the Council of State, 30 May 2022, 
NL:RVS:2022:1513; 30 January 2019, NL:RVS:2019:280; 13 April 2016, 
NL:RVS:2016:890; 13 April 2016, NL:RVS:2016:891, and 8 November 2022, 
NL:RBDHA:2022:3346 and 6 April 2017, NL:RBDHA:2017:3880 (see 
paragraph 13 below) 
District Court, The Hague, sitting in Haarlem, 3 April 2018, 
NL:RBDHA:2018:4563 (criterion of reasonable likelihood; see paragraphs 15, 16 
and 22 below) 
Oberverwaltungsgericht Niedersachsen (Higher Administrative Court, Lower 
Saxony, Germany), 17 August 2018, 2 LA 1584/17, with reference to case-law of 
the Bundesverwaltungsgericht (Federal Administrative Court, Germany) 
concerning the criterion of a reasonable and rational person in the place of the 
asylum seeker (see paragraphs 16 and 38 below) 
Qosaj v. Barr, No. 17-3116 (2d. Cir. Sept. 18, 2019) (criterion ‘whether “a 
reasonable person in the same circumstances would have such a fear”’) (see 
paragraph 16 below) 
Succinct presentation of the facts and procedure in the main proceedings 
1 A family originating from the Kurdish Autonomous Region (‘the KAR’) in Iraq, 
consisting of a mother, a father and their three daughters (‘the applicants’), 
applied for asylum in the Netherlands. As grounds for asylum, they cited problems 
with their neighbour and fear of blood feuds and forced marriage of their 
daughters, fear of circumcision of their daughters and their daughters’ 
identification with the fundamental value of equality between women and men. 
2 According to the Minister, the family’s statements are not credible. He therefore 
declared the applicants’ asylum applications manifestly unfounded. 
3 The applicants brought an action against those decisions with the District Court, 
The Hague (‘the District Court’). 
4 Following the judgment of the Court in the K and L case, the District Court 
reopened the investigation and heard the applicants again. In additional decisions, 
the Minister confirmed the rejection of the asylum applications, albeit with 
additional grounds regarding the applicants’ identification with the fundamental 
value of equality between men and women, female circumcision and forced 
marriage. 
5 During the proceedings pending before the District Court, the Minister withdrew 
the decisions and the additional decisions (‘the withdrawal decisions’) on the 
grounds that he needed more time to examine the consequences of the K and L 
judgment and the legislation adopted in response to that judgment. 
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6 The applicants do not wish to wait for the new decisions and ask that the District 
Court examine and assess the substance of their action, as the lengthy proceedings 
are causing them considerable stress and having an impact on their mental health 
(particularly as regards the three daughters). 
The essential arguments of the parties in the main proceedings 
7 According to the applicants, the daughters genuinely identify with the 
fundamental value of equality between women and men, particularly with regard 
to choices of clothing, partner and education, and assert their independence, which 
will not be accepted in Iraq. They will be considered deviant there and therefore 
fear persecution upon returning to Iraq. In that regard, they also point to the 
influence of the tribe from which they originate and within which, for example, it 
is customary for women to be married off and, in the event of marital problems, 
even run the risk of being murdered. 
8 According to the Minister, the daughters have not demonstrated that they 
genuinely identify with the fundamental value of equality between women and 
men. Furthermore, according to country information, it is not impossible to 
address adequately issues such as work, housing and choice of partner in Iraq, and 
in that respect the daughters are not necessarily different from other women in 
Iraq. The fact that the daughters’ opportunities in Iraq are more limited is not a 
reason to assume that they have a well-founded fear of persecution. Their parents 
are very open-minded and give them complete freedom. They are also opposed to 
forced marriage and female circumcision, so their daughters have nothing to fear 
in that respect either. The Minister does not consider the problems with the tribe 
raised by the applicants to be credible. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
9 The District Court rules in advance that the withdrawal decisions are null and void 
because the Minister abused his power to withdraw or revise decisions and was 
guilty of improper interference in the District Court proceedings. Furthermore, 
those decisions are contrary to Article 47 of the Charter (principle of equality of 
arms) and Article 46 of Directive 2013/32/EU, interpreted in the light of 
Article 31(2) and recital 18 of that directive (rapid examination of asylum 
applications and right to an effective remedy). Since the K and L judgment was 
handed down on 11 June 2024, the Minister had more than a year to consider the 
consequences of that case-law for national decision-making practice. 
10 As a result of the invalidity of the withdrawal decisions, the District Court finds 
that the applicants have an interest in a substantive assessment of the decisions 
and additional decisions. 
11 According to the District Court, the policy formulated by the Minister in response 
to the judgment in K and L in paragraph C2/3.2.5.2.1 of the Circular on foreign 
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nationals 2000, in so far as it requires that the identification must be fundamental 
to the identity or moral integrity and in so far as it requires that the identification 
is so fundamental that the person in question cannot be required to disclose it, is 
contrary to the considerations in the K and L judgment and that policy must be 
disregarded. In this case, the Minister’s reasoning in the decisions that the actual 
identification of the daughters with the fundamental value of equality between 
women and men is not credible cannot be upheld. 
12 The District Court considers that it has sufficient information to form its own 
opinion on the credibility of the daughters’ asylum account and considers their 
asylum account to be credible. The daughters resided in the Netherlands during a 
phase of life in which a person forms his or her identity (puberty and adolescence) 
and, according to their statements, which are confirmed by the evidence they have 
submitted, including statements from their school, they have indeed come to 
identify with the fundamental value of equality between women and men. They 
also want to enjoy these freedoms in everyday life, and express this through the 
freedom they take in, among other things, their study choices, relationship 
choices, friendship choices and clothing choices. 
13 The District Court wonders whether it is permitted itself to rule substantively on 
the asylum application. According to settled case-law of the Administrative 
Jurisdiction Division of the Council of State (‘the Division’), the court, if it finds 
that the Minister has failed to give sufficient reasons for his rejection, may only 
annul the decision and refer the case back for a fresh assessment. It is not allowed, 
in the light of the file and the available country information, itself to rule on the 
credibility of the asylum account or on the seriousness of its elements. 
14 The District Court doubts whether that national case-law is in accordance with 
Directives 2011/95/EU and 2013/32/EU. Indeed, it follows from the Court’s case-
law that, where the court considers that it has available to it all the elements of 
fact and law necessary in that regard, it has the power to give a binding ruling 
following a full and ex nunc examination as to whether the asylum seeker satisfies 
the conditions of Directive 2001/95/EU to be granted international protection. The 
court’s decision in that regard is binding on the Minister. The District Court’s 
doubts in that regard are the reason for the first four questions referred for a 
preliminary ruling, which correspond to the questions referred for a preliminary 
ruling in Case C-198/25 (Quetta), pending before the Court of Justice. 
15 With regard to the question of whether, on account of the abovementioned 
identification, there is a ‘well-founded fear’ of persecution within the meaning of 
Article 2, introductory sentence and point (d) of Directive 2011/95/EU, which 
contains the definition of the term ‘refugee’, the District Court finds that the term 
‘well-founded fear’ is not defined in that directive. Previously, this concept was 
interpreted by the Minister as ‘reasonable likelihood’, a criterion that was also 
accepted in case-law, but the policy in that regard has since been withdrawn and 
has not been replaced by new policy. 
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16 In the case-law of other countries, this concept has been further defined in a 
manner similar to the criterion of ‘reasonable likelihood’ previously applied by 
the Minister. The Federal Administrative Court, for example, applies the criterion 
of a reasonable and rational person who is in the position of the asylum seeker. 
The same criterion is used in United States case-law when interpreting ‘well-
founded fear’ (for example, Qosaj v. Barr, No. 17-3116: ‘whether a reasonable 
person in the same circumstances would have such a fear’). 
17 Acts that are sufficiently serious to be considered equivalent to a violation of 
fundamental human rights from which no derogation is permitted under 
Article 15(2) of the ECHR may be regarded as acts of persecution of which there 
is a well-founded fear (judgment of 5 September 2012, Y, C-71/11 and C-99/11, 
paragraph 61). 
18 According to the District Court, it follows from Article 4 of Directive 2011/95/EU 
that the question of whether there is a well-founded fear of persecution must be 
assessed on the basis of the applicants’ asylum account, considered in conjunction 
with other evidence submitted, against the background of the situation in the 
country of origin. 
19 Based on reports from the European Union Agency for Asylum (EUAA) and 
Amnesty International, it can be concluded that, despite positive developments in 
women’s rights, the KAR still has deep-rooted tribal and patriarchal traditions, in 
which gender-based attitudes play an important role and deviating behaviour is 
exposed to serious crimes, such as abuse, domestic violence and murder. 
20 The District Court finds that, in the present case, the Minister has failed to 
sufficiently substantiate why the daughters, if they genuinely identify with the 
fundamental value of equality between women and men, do not have a well-
founded fear of persecution upon return to the KAR. The Minister fails to 
recognise the aforementioned tribal and patriarchal traditions in the KAR and 
cannot assume that the fact that the father has broken with the tribe means that the 
tribe has also broken with the father or would not want to see the applicants upon 
their return. 
21 In that regard, the District Court also considers that it has sufficient information to 
form its own opinion on the applicants’ well-founded fear of persecution. 
22 If the criterion previously applied by the Minister of a reasonable likelihood of 
persecution is taken as a basis, and certainly if the criterion of a rational and 
reasonable person formulated by the Federal Administrative Court and also in 
United States case-law is applied, it is the opinion of the District Court that the 
daughters’ fear of persecution is well founded. 
23 Moving to another location in Iraq is also not feasible because tribal traditions still 
apply elsewhere in Iraq and because the tribe will follow the daughters. 
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24 Since the Court of Justice has not yet ruled on the interpretation of ‘well-founded 
fear’, the District Court will also refer the criterion to be applied to the Court of 
Justice for a preliminary ruling. 
25 The answers to the questions will determine whether the District Court will give a 
substantive ruling on the asylum status of the daughters or whether it will have to 
annul the decisions and refer the case back to the Minister so that he can conduct a 
further assessment of the relevant aspects (credibility or seriousness). 
26 If, in particular, the answer to the fifth question indicates that a more 
mathematical probability calculation must be made, the District Court will have to 
refer that part of the case back to the Minister so that he can make such a 
calculation. Based on the case file information and country information currently 
available, the District Court has insufficient information to perform such a 
mathematical (numerical) probability calculation. 
Suggested responses 
27 The District Court is of the opinion that the first, second and fourth questions 
should be answered in the affirmative, and the third question in the negative. 
28 The examination of an asylum application by a determining authority, which has 
specific resources and specialised staff, is a vital stage of the Directive 
2013/32/EU procedure. The applicant’s right to obtain a full and ex nunc 
examination before a court or tribunal, laid down in Article 46(3) of that directive, 
cannot be interpreted to the effect of diminishing the obligation on the part of that 
applicant to cooperate with that authority (judgment of 4 October 2018, 
Ahmedbekova, C-652/16, paragraph 96). This means that the Minister must first 
be able to carry out his own examination, even if new elements of fact have been 
submitted. Access to justice, after all, is not intended to circumvent the 
administrative phase by raising an asylum ground only on appeal (judgment of 
4 October 2018, Ahmedbekova, C-652/16, paragraphs 96 to 100). In this case, 
those conditions are met, meaning the Minister had plenty of time to conduct his 
own examination. 
29 Where the court considers that it has available to it the necessary information, it 
has the power to rule on the merits of an asylum account (judgment of 29 July 
2019, Torubarov, C-556/17, paragraph 65) and to rule on the facts of the asylum 
claim on the merits [judgment of 8 February 2024, Bundesrepublik Deutschland 
(Admissibility of a subsequent application), C-216/22, paragraph 58]. 
30 The District Court must be able to rule on the credibility of an asylum claim. The 
asylum claim is, after all, an element of fact (Article 4(2) of Directive 
2011/95/EU), so it must be able to conduct an exhaustive examination of it (see, 
also, judgment of 29 July 2019, Torubarov, C-556/17, paragraph 65). The case-
law of the Division, from which it follows that only the Minister may assess the 
credibility of an asylum account that may be reviewed by the court (only) 
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somewhat cautiously (see the abovementioned Division rulings), or that the court 
cannot rule independently on the seriousness of credible elements of the asylum 
account, is, according to the referring court, therefore contrary to the case-law of 
the Court cited above. 
31 This position is also supported by Article 4(5) of Directive 2011/95/EU, according 
to which the person seeking international protection is to be given the benefit of 
the doubt, even if some of his or her statements are not corroborated, provided that 
the conditions laid down in that provision are met. His or her statements must, 
among other things, be coherent and plausible (judgments of 4 October 2018, 
Fathi, C-56/17, paragraph 87, and of 25 January 2018, F., C-473/16, 
paragraph 33). 
32 Mandatory criteria have thus been introduced. If these are met, an asylum account 
must in any case be considered credible. The Minister then has no discretion. 
Where those criteria are not met, the applicant must cooperate in order to 
substantiate his or her statements [see also judgment of 29 June 2023, 
International Protection Appeals Tribunal and Others (Attack in Pakistan), 
C-756/21, paragraphs 90, 94, 47 and 48]. 
33 Given that, under Article 47 of the Charter and Article 46(3) of Directive 
2013/32/EU, the court must be able to carry out an examination of all factual and 
legal elements (see, also, judgment of 1 December, BU, C-564/21), it should also 
be able to rule independently on the question of whether the asylum account meets 
the criteria [see judgment of 29 February 2024, Staatssecretaris van Justitie en 
Veiligheid (Mutual trust in the event of transfer), C-392/22, paragraphs 77 and 
78], especially since it might be expected to be aware of country information that 
serves as background to that account. 
34 Therefore, where the Minister has deemed the asylum account not credible or has 
considered certain parts of it to be insufficiently compelling, the court should be 
able, if it considers that it has available to it sufficient information, to rule on the 
merits of that account and its compelling nature. 
35 That position is also supported by the fact that the Division’s case-law could lead 
to endless wrangling between the Minister and the court, because the Minister 
could repeatedly come up with new considerations regarding credibility or 
seriousness. There is then no longer an effective remedy at law, as is also 
acknowledged by Advocate General Bobek in his Opinion of 30 April 2019 in 
Case C-556/17, Torubarov (see, in particular, paragraph 102). 
36 Furthermore, according to the District Court, a hearing may be omitted if a ruling 
can already be made on the basis of the evidence already available [see judgment 
of 8 February 2024, Bundesrepublik Deutschland (Admissibility of a subsequent 
application), C-216/22, paragraph 66], and it may itself hold another session 
during the hearing, so that it need not refer the case back. 
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37 The District Court is obliged to ensure the full effect of EU law, disregarding, if 
necessary, national case-law which departs from it (judgments of 5 March 2020, 
OPR-Finance, C-679/18, and of 8 November 2016, Ognyanov, C-554/14). If the 
first and second questions are answered in the affirmative, there is no scope to 
constrain the powers of the national court. Article 47 of the Charter and 
Article 46(3) of Directive 2013/32 contain, in essence, provisions setting out the 
(minimum) threshold of legal protection, such that the Court’s interpretation of 
those provisions should also constitute the minimum threshold of the legal 
protection which the national court must provide. 
38 With regard to the criterion to be applied to the concept of ‘well-founded fear of 
persecution’ (fifth question referred for a preliminary ruling), the District Court 
considers that the criterion formulated by the Federal Administrative Court, 
namely that of a reasonable and rational person, should be applied. The criterion 
should be whether, from the perspective of a rational and reasonable person in the 
position of the asylum seeker, a return to the country of origin appears 
unreasonable after weighing up all the known circumstances. The Higher 
Administrative Court of Lower Saxony has already provided extensive reasons 
why this criterion is also in line with the case-law of the Court of Justice. 
39 Furthermore, the District Court considers it important that the concept of ‘well-
founded fear of persecution’ originates from the Refugee Convention and that 
Directive 2011/95/EU must also be interpreted in the light of that convention. In 
addition, it is established that the principle of non-refoulement, which forms part 
of that convention, has now become part of international customary law and can 
even be classified as a norm of jus cogens. Thus, for the interpretation of the 
concept of ‘well-founded fear of persecution’, the opinio juris and state practice of 
the international community are also relevant, as is the opinion of the United 
Nations High Commissioner for Refugees (UNHCR). In that context, it is 
important that there is also broad support within the international community for 
the German approach. 
40 Finally, according to the District Court, a mathematical calculation will usually be 
impossible because the vast majority of country information is qualitative in 
nature. The criterion of a rational and reasonable person as applied in German 
case-law best meets the requirement of objectifying the subjective fear of a 
foreign national as much as possible and must therefore be used as the criterion 
for determining ‘well-founded fear’. 
Request for urgent or expedited treatment 
41 The District Court requests that the urgent procedure under Article 107 of the 
Rules of Procedure of the Court be applied or that the accelerated procedure under 
Article 105 of those rules be applied on the grounds that the applicants have been 
in the asylum procedure for a long time (since 2017) and that the protracted nature 
of the procedure is now also having medical consequences, particularly for the 
daughters. As a result of severe stress and uncertainty, one of the daughters 
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suffered from being underweight, dropping out of school and hospitalisation, and 
another daughter suffered from fainting spells. 
42 Should the request for an urgent or expedited procedure be rejected, the District 
Court asks that the Court of Justice treat this referral together with its (earlier) 
referral in Case C-198/25, as four of the five questions overlap. 
43 If the request for an urgent procedure or an accelerated procedure is rejected, the 
District Court will ask the Court of Justice to take into account the new asylum 
system that will enter into force on 12 June 2026, in particular Regulation (EU) 
2024/1347, in its answers to the questions. It follows from Article 46(3) of 
Directive 2013/32/EU that the court must conduct a complete and ex nunc 
examination of both the factual and legal grounds. It assumes that the preliminary 
ruling procedure, without urgent or expedited treatment, could take a year and a 
half or longer and that, in that case, it may have to decide the case under the new 
asylum system.