Opinion of the Advocate General — ECLI:EU:C:2023:581
Date: 2023-07-13
Language of the case: Dutch
Subject matter: Asylum policy;Principles, objectives and tasks of the Treaties;Area of freedom, security and justice;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - inadmissible
Origin: Netherlands

Summary  C-646/21 – 1 
Case C-646/21 
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:  
25 October 2021 
Referring court:  
Rechtbank Den Haag, zittingsplaats’s-Hertogenbosch (Netherlands) 
Date of the decision to refer:  
22 October 2021 
Appellants:  
K 
L 
Respondent:  
Staatssecretaris van Justitie en Veiligheid 
  
Subject matter of the main proceedings 
The main proceedings concern a dispute between K and L (‘the appellants’), on 
the one side, and the Staatssecretaris van Justitie en Veiligheid (State Secretary for 
Justice and Security; ‘the respondent’), on the other side, concerning the refusal of 
the latter to grant the appellants’ applications for international protection. The 
appellants argue that, due to their long stay in the Netherlands, they have adopted 
western norms, values and actual conduct and therefore require protection. 
Subject matter and legal basis of the request 
This application pursuant to Article 267 TFEU concerns, first of all, the 
interpretation of Article 10 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 for subsidiary 
protection, and for the content of the protection granted (‘the Qualification 
EN NL
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-646/21 
 
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Directive’). More specifically, it concerns the question of when can third-country 
nationals be regarded as ‘members of a particular social group’ within the 
meaning of Article 10(1)(d) of the Qualification Directive. Second, the referring 
court questions the manner in which – and at what stage of the procedure – the 
best interests of the child must be determined and weighed up. In that regard, the 
referring court also questions the compatibility with EU law of a national practice 
whereby, in subsequent applications for international protection, as opposed to 
initial asylum procedures, it is not assessed whether residence should be granted 
on ordinary grounds. 
Questions referred for a preliminary ruling 
1. Must Article 10(1)(d) of the Qualification Directive be interpreted as 
meaning that western norms, values and actual conduct which third-country 
nationals adopt while staying in the territory of the Member State and 
participating fully in society for a significant part of the phase of their lives in 
which they form their identity are to be regarded as a common background that 
cannot be changed or characteristics that are so fundamental to identity that a 
person should not be forced to renounce them?  
2. If the answer to the first question is in the affirmative, are third-country 
nationals who, irrespective of the reasons, have adopted comparable western 
norms and values through actual residence in the Member State during the phase 
of their lives in which they form their identity to be regarded as ‘members of a 
particular social group’ within the meaning of Article 10(1)(d) of the Qualification 
Directive? Is the question of whether there is a ‘particular social group that has a 
distinct identity in the relevant country’ to be assessed from the perspective of the 
Member State or must this, read in conjunction with Article 10(2) of the 
Qualification Directive, be interpreted as meaning that decisive weight is given to 
the ability of the foreign national to demonstrate that he or she is regarded in the 
country of origin as belonging to a particular social group or, at any rate, that this 
is attributed to him or her? Is the requirement that Westernisation can lead to 
refugee status only if it stems from religious or political motives compatible with 
Article 10 of the Qualification Directive, read in conjunction with the prohibition 
on refoulement and the right to asylum?  
3. Is a national legal practice whereby a decision-maker, when assessing an 
application for international protection, weighs up the best interests of the child 
without first concretely determining (in each procedure) the best interests of the 
child compatible with EU law and, in particular, with Article 24(2) of the Charter 
of Fundamental Rights of the European Union (‘the Charter’), read in conjunction 
with Article 51(1) of the Charter? Is the answer to this question different if the 
Member State has to assess a request for the grant of residence on ordinary 
grounds and the best interests of the child must be taken into account in deciding 
on that request?  
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4. Having regard to Article 24(2) of the Charter, in which manner and at what 
stage of the assessment of an application for international protection must the best 
interests of the child, and, more specifically, the harm suffered by a minor as a 
result of his or her long residence in a Member State, be taken into account and 
weighed up? Is it relevant in that regard whether that actual residence was lawful? 
Is it relevant, when weighing up the best interests of the child in the above 
assessment, whether the Member State took a decision on the application for 
international protection within the time limits laid down in EU law, whether a 
previously imposed obligation to return was not complied with and whether the 
Member State did not effect removal after a return decision had been issued, as a 
result of which the minor’s actual residence in the Member State was able to 
continue?  
5. Is a national legal practice whereby a distinction is made between initial and 
subsequent applications for international protection, in the sense that ordinary 
grounds are disregarded in the case of subsequent applications for international 
protection, compatible with EU law, having regard to Article 7 of the Charter, 
read in conjunction with Article 24(2) thereof?  
Provisions of EU law relied on 
– Articles 6 and 10 and Article 15(b) of the Qualification Directive. 
– Article 7, Article 24(2) and Article 51(1) of the Charter. 
Succinct presentation of the facts and procedure in the main proceedings 
1 The appellants, together with their father, mother and aunt, left Iraq on 
29 September 2015 and reported to the authorities in the Netherlands on 
7 November 2015. Appellant 1 was nearly 12 years old on arrival in the 
Netherlands. Appellant 2 was 10 years and 1 month old at the time of entry. At the 
time of the hearing, the appellants had been continuously resident in the 
Netherlands for 5 years and 7.5 months and were therefore both still minors. 
2 On 7 November 2015, the appellants and the other family members lodged asylum 
applications. Those applications were definitively dismissed by judgments of the 
Afdeling bestuursrechtspraak van de Raad van State (Chamber for Contentious 
Administrative Proceedings of the Council of State; ‘the Afdeling’) of 31 July 
2018. Then, on 4 April 2019, the appellants lodged subsequent asylum 
applications. The respondent rejected those subsequent applications as manifestly 
unfounded by separate decisions of 21 December 2020. Then, on 28 December 
2020, the appellants lodged an appeal against those decisions with the referring 
court.  
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The essential arguments of the parties in the main proceedings 
3 The appellants argue, inter alia, that, due to their long stay in the Netherlands in 
this phase of their lives, they have taken over and adopted the norms, values and 
actual conduct of their Dutch peers. They argue that they are ‘westernised’ and 
require protection because they cannot renounce those Dutch norms, values and 
conduct after their return to Iraq. In the Netherlands, they have noticed the 
freedom that they, as girls, can have to make their own choices about the 
organisation of their lives and the shaping of their future, regardless of religious 
and social expectations. The appellants have indicated, inter alia, that they want to 
decide for themselves, just as they have always done in the Netherlands, whether 
they wish to associate with boys, whether they wish to participate in sport, 
whether they wish to study, whether and whom they wish to marry and whether 
they wish to work outside the home. They also want to decide for themselves what 
their political and religious views are and whether and how they wish to express 
those views. The appellants argue that they form part of a ‘social group’ as 
referred to in Article 10 of the Qualification Directive. In addition, the appellants 
argue that their actual long-term residence in the Netherlands has rooted them in 
Dutch society and that having to leave will lead to developmental harm. They 
have also suffered developmental harm because, during this long actual residence, 
they were always in a state of uncertainty as to whether residence would be 
granted. In support of their residence applications, the appellants submitted a Best 
Interests of the Child (BIC) assessment, a report entitled ‘Risk of harm in the 
event of expulsion of long-term resident children – A multidisciplinary scientific 
analysis’ and a report by Defence for Children.  
4 The respondent takes the position that, if women with a western lifestyle 
developed in the Netherlands cannot live in the country of origin in a comparable 
manner to that in the Netherlands, and if women’s rights in the country of origin 
are not assured in the same manner as in the Netherlands, this does not have to 
lead to protection or the grant of residence on ordinary grounds. According to the 
respondent, the appellants do not meet the conditions set by the Afdeling for 
Westernisation that is worthy of protection.  
Succinct presentation of the reasoning in the request for a preliminary ruling 
5 In these proceedings, the Rechtbank (District Court) is faced with several legal 
questions which, in its opinion, require a more thorough interpretation of EU law 
from the Court of Justice.  
Should Westernisation lead to protection and the granting of residence by a 
Member State? 
6 The questions which the Rechtbank must answer concern the issue, first, of 
whether Westernisation can lead to refugee status or subsidiary protection. If 
Westernisation does not give rise to any claim for international protection as 
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referred to in the Qualification Directive, the question arises as to whether 
Westernisation constitutes private life which is worthy of protection or whether it 
should be assumed to be an obstacle to removal, or whether Westernisation should 
perhaps lead to the grant of residence on other, ordinary grounds. For the foreign 
national, the basis on which an application for residence is assessed is important; 
the principle of non-refoulement is absolute, whereas the assessment of whether 
residence should be granted on the basis of a private life built up in the 
Netherlands or on other ordinary grounds will involve a weighing up of various 
interests. In this weighing up of interests, weight will also have to be given to the 
scope for Member States to pursue a particular admission policy, and to the 
circumstance of whether a private life has been progressively built up during 
lawful or unlawful residence in the territory of the Member State. The extent to 
which a Member State complies with its obligation under EU law to remove 
foreign nationals who are not lawfully resident in the territory of the Member 
States may also be relevant in that regard. If, however, it must be assumed that 
Westernisation leads to grounds for persecution, there is no scope for such a 
weighing up of interests. The procedural position of the foreign national therefore 
depends on the question of the stage of the decision-making process at which the 
asylum grounds of the appellants must be assessed, and to what classification 
those grounds of the appellants lead. Also relevant to this question is that, in 
subsequent applications for international protection, as opposed to initial asylum 
procedures, national legal practice makes no assessment of whether residence 
should be granted on ordinary grounds such as private life considered worthy of 
protection.  
7 The Rechtbank is faced with the question of which factors are decisive in order to 
define as a ‘social group’, within the meaning of Article 10 of the Qualification 
Directive, foreign national minors who reside in the Netherlands for a 
considerable period of time in the phase of their lives in which they form their 
identity, when they originate from a country where girls and women do not have 
equal rights to boys and men and where they are also not enabled to make 
essential choices about the organisation and form of their existence. The Afdeling 
has previously assumed that ‘westernised women’ do not constitute a particular 
social group because it is too large and too diverse a group. However, the present 
proceedings do not concern ‘westernised women’, but rather third-country 
nationals who are actually in the territory of a Member State for a considerable 
portion of the phase of life during which an individual forms his or her own 
identity and who participate fully in society there. The Rechtbank seeks to 
ascertain from the Court whether there is a requirement that ‘members of a 
particular social group’ know each other and/or recognise each other as such and 
therefore consider themselves to be individual members of a social group and 
whether and how the decision-making authority should examine and assess this. 
This question is also relevant in the assessment of whether there is a common 
background. If third-country nationals actually reside in the Member State in the 
phase of their lives in which they form their identity, whereas the norms and 
values in that Member State, if expressed, may lead to persecution in the country 
of origin, such residence can no longer be reversed. For that reason alone, does 
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this mean that everyone who has that background belongs to a social group, even 
without their being aware that a number of other third-country nationals are in that 
position?  
8 If it appears from the answers of the Court to the aforementioned questions that 
the appellants can be regarded in principle as members of a particular social group 
on account of Westernisation, the question arises as to how the phrase ‘that group 
has a distinct identity in the relevant country, because it is perceived as being 
different by the surrounding society’ should be interpreted. The Rechtbank infers 
from the judgment of the Court of 4 October 2018 in the Ahmedbekova case 
(C-652/16, EU:C:2018:801, paragraph 89) that this requirement of a ‘distinct 
identity’ and the requirement that the members of the group display an ‘innate 
characteristic’ or have a ‘common background that cannot be changed’ or share a 
characteristic or belief ‘that is so fundamental to identity or conscience that a 
person should not be forced to renounce it’ are cumulative requirements for being 
able to refer to a ‘particular social group’. In that regard, the Rechtbank wishes to 
ascertain in particular whether the assessment of whether the appellants should be 
regarded as members of a particular social group should be made from the 
perspective of the Member State or from the perspective of the actor of 
persecution. Article 10 of the Qualification Directive stipulates that what must be 
assessed first is whether a reason for persecution exists, and only then whether the 
characteristics exist that have been attributed to such a reason for persecution. 
This wording of the provision assumes that the assessment is first made from the 
perspective of the Member State and that, if this does not lead to the determination 
of a reason for persecution, the applicant can still demonstrate that an actor 
attributes the characteristics of a reason for persecution to him or her. In the case 
of the persecuted group classified as a ‘particular social group’, a complicating 
factor is that the individuals which constitute a group will not always make 
themselves known as a group in the country of origin precisely because of the fear 
of persecution. It is clear from country information what the prevailing norms and 
values in Iraq are. The appellants argue that they cannot comply with these. 
Should refugee status be granted on the basis of those facts and circumstances, 
despite the fact that it has not yet been established, which reason for persecution 
applies?  
9 From the judgments of the Court of 5 September 2021, Y and Z (C-71/11 and 
C-99/11, EU:C:2012:518, paragraphs 78 to 80) and 7 November 2013, X, Y and Z 
(C-199/12, EU:C:2013:720, paragraphs 74 and 75), the Rechtbank infers that, if 
there is a reason for persecution, appellants for international protection do not 
have to adjust their behaviour in order to avoid actual persecution. The Rechtbank 
wishes to ascertain whether, if there is no reason for persecution and therefore no 
reason for granting refugee status on the basis of Westernisation, the persons 
concerned can be expected to bring their norms, values and the actual behaviour to 
which these give rise into line with the prevailing norms, values and actual 
behaviour in the country of origin after their return there and whether there can 
still be grounds for granting subsidiary protection. The Rechtbank asks the Court 
to clarify whether the appellants can be expected to try to avoid persecution by 
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concealing their norms and values and therefore to exercise restraint, and whether 
those requirements are more onerous when it comes to avoiding persecution on 
the basis of attributed reasons for persecution. From the perspective of the 
Member State, if westernised individuals such as the appellants are not regarded 
as a social group, there will be no reasons for persecution. Do the appellants then 
nevertheless qualify for refugee status because of attributed political or religious 
views which deviate from the prevailing norm? Or must Article 10 of the 
Qualification Directive be interpreted as meaning that they do not qualify for 
refugee status, but perhaps only for subsidiary protection?  
The best interests of the child 
10 The other major question that the Rechtbank will have to answer is how the best 
interests of the child should be taken into account and weighed up in these asylum 
proceedings. The Court considered in paragraph [45] of its judgment of 
14 January 2021 in TQ (C-441/19, EU:C:2021:9; ‘the TQ judgment’) that 
Article 24(2) of the Charter provides that, in all actions relating to children, 
whether taken by public authorities or private institutions, the child’s best interests 
must be a primary consideration. That obligation implies that the decision-making 
authority must also determine those best interests; otherwise Article 24(2) of the 
Charter would be deprived of its effectiveness. Furthermore, the facts and 
circumstances put forward by the appellants call for an assessment of whether the 
harm sustained in the territory of the Member States as a result of the passage of 
time must give rise to protection. The appellants have substantiated the 
seriousness and extent of this harm with a multidisciplinary scientific report. In 
this context, the Rechtbank should assess whether and how that harm, which does 
not stem from asylum grounds but does serve to substantiate the best interests of 
the child in a procedure initiated by an application for international protection, 
should be taken into account and weighed up. The best interests of the child as 
described in these procedures relate mainly to the harm caused by actual long 
residence in the Netherlands. The questions that arise here are whether a Member 
State must be considered capable of weighing up the best interests of the child if 
the decision-making authority does not first determine what those best interests of 
the child are and whether, if a subsequent application for protection is lodged, less 
or no weight should be accorded to the best interests of the child if those best 
interests of the child could lead only to a decision to grant residence on ordinary 
grounds. In that regard, the question also arises whether the western norms and 
values adopted by the appellants form part of private life as protected and 
guaranteed by Article 7 of the Charter. If there is no question of refugee status, 
and in order to prevent a situation as referred to in Article 15(b) of the 
Qualification Directive, may the appellants be expected to conceal their identity as 
formed in the Netherlands? Or can Westernisation serve to underpin private life 
which, after a weighing up of interests, might possibly lead to the granting of 
residence on ordinary grounds?  
11 It follows from the judgment of the Court of 18 December 2014, M’Bodj 
(C-542/13, EU:C:2014:2452; ‘the M’Bodj judgment’) that subsidiary protection 
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status can be granted only if a foreign national runs a real risk of suffering serious 
harm as referred to in Article 15 of the Qualification Directive. According to 
Article 6 of the Qualification Directive, that harm must be caused by one of the 
‘actors’ of serious harm, namely, the State, parties or organisations controlling the 
State or non-state actors against whom the State or those parties are unable or 
unwilling to provide protection. The harm suffered by the appellants is not linked 
to asylum grounds. In the present case, it could be argued that, just as in the 
situation referred to in the M’Bodj judgment, there is no actor who has caused or 
will continue to cause that harm if residence is not granted. However, in the light 
of the TQ judgment, the best interests of the child must be a primary consideration 
in all proceedings and at every stage of the proceedings. If the M’Bodj judgment 
applies also to the facts and circumstances of the present proceedings, however, 
the best interests of the child, as evidenced by the reports submitted, can be 
accorded little substance in these proceedings. It could, however, be argued that 
the length of the proceedings and the failure to remove the foreign nationals after 
the initial proceedings are partly attributable to the Member State. In view of this, 
the Rechtbank asks the Court to clarify how the M’Bodj and TQ judgments must 
be interpreted in the present situation and how those judgments relate to each 
other.  
12 The present proceedings involve subsequent asylum applications. When the 
Vreemdelingenwet (Law on foreign nationals) 2000 entered into force, national 
legal practice opted for a so-called strict watershed between asylum procedures 
and ordinary residence procedures. The term ‘watershed’ gives expression to the 
fact that, in an asylum procedure, no aspects relating to ordinary residence are 
taken into account and that, conversely, in an ordinary residence procedure, no 
asylum grounds are assessed. One of the consequences of this is that, in 
subsequent applications, there is generally no automatic assessment of whether 
residence should be granted on ordinary grounds. Consequently, if Westernisation 
does not lead to protection in the present proceedings, on the basis of national 
legal practice practically no weight can be attached to the expert reports and thus 
to the best interests of the child. However, in the TQ judgment, the Court 
explicitly stated that in all actions relating to children, the best interests of the 
child must be a primary consideration, and that Article 24(2) of the Charter, read 
in conjunction with Article 51(1) of the Charter, affirms the fundamental nature of 
the rights of the child. Also, in the judgment of 10 June 2021 in the LH case 
(C-921/19, EU:C:2021:478; ‘the LH judgment’), the Court considered, inter alia, 
that, as regards the examination of documents and compliance with the obligation 
to cooperate, such a distinction between initial and subsequent procedures for 
international protection is contrary to EU law. The Rechtbank asks the Court, in 
essence, whether, in the light of the TQ judgment, the LH judgment should be 
deemed to apply mutatis mutandis when assessing whether it is permissible to 
draw a distinction between initial and subsequent procedures for requesting 
international protection and, consequently, for the grant of residence.  
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Acte clair/acte éclairé 
13 It has not become apparent that there is an acte clair with regard to the questions 
raised by the Rechtbank, since Article 10 of the Qualification Directive does not 
provide any guidance on the definition and scope of the concepts of ‘common 
background’ and ‘fundamental characteristics of an identity’, and Article 24(2) of 
the Charter does not expressly provide that the decision-making authority must 
determine the best interests of the child in every procedure, or have them 
determined, and what weight must then be accorded to those interests. Nor is it 
apparent from EU law whether the Netherlands legal practice of maintaining a 
strict watershed between asylum procedures and procedures for ordinary residence 
is compatible with EU law. Moreover, the provisions in question have not been 
formulated so clearly that there can be no doubt as to their interpretation or scope. 
After all, the question is whether national legal practice in relation to the legal 
questions formulated by the Rechtbank is in accordance with the Qualification 
Directive and with the Charter. In addition, there is no acte éclairé with regard to 
the questions, since the Court has not formulated clear answers to them in the past, 
nor can the answers to the questions be found in the settled case-law of the Court 
in similar cases. 
Conclusion 
14 The Rechtbank considers it necessary to refer questions for a preliminary ruling in 
order to be able to give a ruling in the main proceedings and therefore submits the 
questions formulated above to the Court of Justice.