Provisional text
OPINION OF ADVOCATE GENERAL
ĆAPETA
delivered on 19 March 2026 (1)
Joined Cases C‑7/25 [Ramodi] and C‑8/25 [Karkik] (i)
K (C‑7/25)
P (C‑8/25)
v
Minister van Asiel en Migratie
(Requests for a preliminary ruling from the rechtbank Den Haag, zittingsplaats Roermond (District Court, The Hague, sitting in Roermond, Netherlands))
( Reference for a preliminary ruling – Asylum policy – Directive 2011/95/EU – Assessment of the relevant elements of an application for international protection – Obligation to substantiate elements of an application with authentic documents or other objectively verifiable evidence – Procedures for granting and withdrawing international protection – Directive 2013/32/EU – Article 46(3) – Full and ex nunc examination of the factual and legal grounds, including an examination of the need for international protection – Principle of non-refoulement – Elements of the file brought to the attention of the court of first instance hearing an appeal )
I.      Introduction
1.        The rechtbank Den Haag, zittingsplaats Roermond (District Court, The Hague, sitting in Roermond, Netherlands), which is the referring court, submitted two questions to the Court of Justice for a preliminary ruling.
2.        Both questions arise in the context of two separate sets of
proceedings. In those proceedings asylum applicants seek judicial review of the decisions of the competent administrative body rejecting their applications for international protection as unfounded.
3.        By its second question, on which the Court has asked that I focus in the present Opinion, the referring court wishes to know whether, in such proceedings seeking judicial review, it is obliged by EU law to carry out, if necessary and of its own motion, a full and ex nunc examination of both the facts and the law, on the basis of the elements of the file brought to its attention, as supplemented or clarified following adversarial proceedings, even where national law would restrict its examination only to the facts and legal grounds expressly set out in the act giving rise to the judicial review.
4.        The referring court requests the interpretation of Article 46 of the Asylum Procedures Directive, (2) read in conjunction with Article 4, Article 18 and Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
II.    The facts in the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court
5.        The referring court lodged two separate requests for a preliminary ruling with the Court of Justice. Although each request arises in the context of different factual situations, both raise the same preliminary questions. I will, therefore, first present the facts of each case before explaining the legal issues they raise.
Case C‑7/25
6.        K, the applicant in the main proceedings, is an Iraqi national who alleges that a powerful and well-known member of an armed group in her place of residence assaulted both her and her husband after she and her daughter repeatedly rejected his multiple requests for that daughter’s hand in marriage. The applicant reported that incident to the court in her country of origin, however, according to the applicant, the court took no action in relation thereto. She and her husband left Iraq in 2022, while their daughter remains in hiding in that country.
7.        On 1 February 2022, both the applicant and her husband applied for international protection from the Kingdom of the Netherlands, but, following the death of her husband, the proceedings on his behalf were closed. In her application for international protection, the applicant substantiated the reasons for her flight with statements, and submitted an original passport, a copy of the complaint she filed with the court in Iraq and a copy of a recent medical report. The applicant also argued that, due to the fact that she is now a widow, she must be considered a single woman in the context of her return to Iraq, which is why she falls under the specific protection policy for single women from Iraq established by the Minister van Asiel en Migratie (Minister for Asylum and Migration, Netherlands), who is the defendant in the main proceedings (‘the defendant’). (3)
8.        The defendant rejected the applicant’s application for international protection as unfounded on the ground that her statements regarding the
issues with the man who asked for her daughter’s hand in marriage in Iraq were not credible. In that respect, the defendant
found, first, that the applicant had failed to substantiate her statements with objective documents fully justifying her need for asylum and,
second,
that she did not meet the conditions set out in Article 31(6)(c) and (d) of the Vreemdelingenwet 2000 (Law on Foreign Nationals of 2000), which corresponds to Article 4(5)(c) and (d) of the Qualification Directive. (4)
9.        The defendant considered that although the applicant’s identity, nationality and origin were all credible, those grounds alone were not sufficient for granting international protection to the applicant.
10.      In its decision of 15 July 2024, the defendant rejected the applicant’s application for international protection as unfounded. That decision included a return decision designating Iraq as the country of destination and set a deadline of four weeks for voluntary departure from the Netherlands.
11.      On 19 July 2024, the applicant lodged an appeal against that decision with the referring court, where she submitted, inter alia, that the manner in which the defendant assessed the credibility of her reasons for seeking asylum was incompatible with Article 4(5) of the Qualification Directive.
12.      On 18 December 2024, the referring court held an appeal hearing – together with
the appeal hearing
in the proceedings which gave rise to the reference in Case C‑8/25 – and, on 7 January 2025, it informed the applicant that it deemed it necessary to make a request to the Court of Justice
for a preliminary ruling.
Case C‑8/25
13.      P, the applicant in the main proceedings, is an Iraqi national who was allegedly caught having intimate relations with another man. After being reported to the Iraqi authorities, the applicant fears that he could face a prison sentence because of his sexual orientation. It is on that basis that the applicant justifies his application for international protection in the Netherlands, which he lodged on 6 July 2023.
14.      Although the defendant deemed the applicant’s identity, nationality and origin to be credible, despite the applicant’s
failure to provide documents to support his personal information, it did not consider that
such information constitutes sufficient grounds for granting the applicant international protection.
15.      In its decision of 5 July 2024, the defendant rejected the applicant’s application for international protection as unfounded on the ground that the applicant was unable to provide documentary evidence confirming that he was arrested by the Iraqi authorities because of his sexual orientation. In that respect, the defendant considered that the applicant did not satisfy the conditions
laid down in Article 31(6)(c) of the Law on Foreign Nationals of 2000, which corresponds to Article 4(5)(c) of the Qualification Directive. The decision to reject P’s application included a return decision designating Iraq as the country of destination and set a deadline of four weeks for voluntary departure from the Netherlands.
16.      In his
subsequent appeal to the referring court, dated 10 July 2024, the applicant submitted, inter alia, that the manner in which the credibility of his reasons for seeking asylum was assessed was incompatible with Article 4(5) of the Qualification Directive.
17.      On 18 December 2024, the referring court held the appeal hearing – together with the appeal hearing
in the proceedings which gave rise to the reference in Case C‑7/25 – and, on 7 January 2025, it informed the applicant that it deemed it necessary to make a request to the Court of Justice
for a preliminary ruling.
18.      It is my understanding that at the
joint hearing
the referring court discovered
additional elements, not raised in either appeal,
which it considered relevant for deciding on the applications for international protection.
Common issues arising before the referring court
19.      Two legal issues common to both cases surfaced before the referring court.
20.      The first issue concerns the manner in which the defendant
examined and assessed the need for international protection of
both K and P (together, ‘the applicants’), and whether that assessment was in conformity with EU law and the case-law of the Court.
21.      In that respect, the referring court considers that the national law at issue, more precisely, Article 31(6) of the Law on Foreign Nationals of 2000, is at odds with the very provision that it purports to implement, namely
Article 4(5) of the Qualification Directive. That has been exacerbated by a new policy
for assessing requests for international protection, which, as explained by the referring court, entered into force on 1 July 2024. According to that policy, any assessment of an application for international protection consists of (i) determining the grounds for asylum;
(ii) determining whether those grounds are fully supported by authentic and/or objectively verifiable documents and/or objective public sources; and (iii) if that is not the case, determining whether the applicant fulfils all the conditions set out in Article 31(6) of the Law on Foreign Nationals of 2000, which corresponds to those outlined in Article 4(5)(c) and (d) of the Qualification Directive.
22.      According to the referring court, such an application of Article 4(5) of the Qualification Directive enables the defendant to reject an application for international protection as unfounded when the applicant (i) cannot fully substantiate the reasons for seeking asylum with authentic, objectively verifiable documents or reliable public sources and (ii) has not lodged the application as soon as possible, and where the defendant does not consider that delay excusable.
23.      However, the referring court submits that
it is clear from the wording of Article 4(5) of the Qualification Directive, viewed in the light of the other paragraphs of Article 4 thereof,
Article 10(3)(b) of the Asylum Procedures Directive and Articles 4 and 18 of the Charter, that
the defendant, in situations such as those in the two cases at issue in the main proceedings, would be required to cooperate with the applicant in establishing the facts.
24.      The referring court, therefore, is uncertain whether the relevant EU law requires the determining authority, when assessing the facts and circumstances underlying the application for international protection, to cooperate with the applicant and to take into account every piece of evidence and elements in support of that application.
25.      The second issue is whether a
national court or tribunal’s obligation to provide an effective remedy also entails
the obligation to verify, if necessary
of its own motion,
and in cooperation with the applicant that the defendant
has gathered, examined and included in its assessment of the application for international protection all relevant elements
of the file brought to its attention, as supplemented or clarified following adversarial proceedings, including an examination, if necessary of its own motion, of the need for international protection in accordance with the Qualification Directive.
26.      As explained by the referring court, in the Netherlands, on the basis of Article 8:69 of the Algemene wet bestuursrecht (General Law on administrative law), the review of an administrative decision is to be limited to the issues raised in the grounds of
appeal.
27.      For that reason, as explained by the referring court, it is prevented from conducting a full and ex
nunc review of the legality of the defendant’s decision, including whether the principle of non-refoulement has been respected,
as it is unable to take into account any elements which the asylum applicant did not expressly invoke in his or her appeal against the rejection decision.
28.      In the referring court’s view, a national legal practice in which a judicial authority’s review of a decision rejecting an application for international protection is limited to
examining the merits
of that decision in the light of only the facts and arguments expressly invoked by the applicant in the appeal procedure is difficult to reconcile with the interpretation of EU law given by the Court and, in particular, with the absolute nature of the principle of non-refoulement,
as well as the right to an effective remedy guaranteed by Article 47 of the Charter,
which was given concrete expression in Article 13(1) and (2) of the Returns Directive (5) and in Article 46(1) and (3) of the Asylum Procedures Directive.
29.      Following a review of the case-law of the Court, (6) the referring court came to the conclusion that the Court has not yet addressed those issues. In particular, it is of the view that the Court has not expressly stated whether the obligation to verify, if necessary of its own motion, that the principle of non-refoulement has been respected also applies in cases where a national court or tribunal of first instance is called upon to review the rejection of an application for international protection on the ground that it is unfounded.
30.      The referring court further argues that it is only where
a national court or tribunal is required to carry out, if necessary of its own motion, a full and ex nunc examination of both the facts and the legal grounds, including an examination of the need for international protection in accordance with the Qualification Directive, can that judicial authority fully ensure compliance with the principle of non-refoulement. Even if, during that examination of the need for international protection, it becomes clear that the applicant does not qualify for the international protection provided for in Articles 12 and
17 of the Qualification Directive, that examination conducted of its own motion may, nonetheless, lead to a finding that returning the applicant to his or her country of origin would be contrary to the principle of non-refoulement and that a return decision either cannot be imposed or, where
such a return decision has already been taken,
must be suspended and removal postponed. On the contrary, if a national court or tribunal is not required to verify, if necessary of its own motion,
whether the principle of non-refoulement has been respected, especially where a breach of that principle is apparent based on the elements of the case brought to its attention, as supplemented or clarified during the adversarial proceedings before it, judicial protection would be neither effective nor complete.
31.      In those circumstances, the rechtbank Den Haag, zittingsplaats Roermond (District Court, The Hague, sitting in Roermond)
decided to stay the two sets of proceedings and in both cases to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)      Is a national practice whereby Article 4(5) of [the Qualification Directive] is applied in such a way that the statements underlying an application for international protection are not deemed credible if the applicant cannot fully substantiate those statements by means of authentic and/or objectively verifiable documents and/or objective sources and does not meet all the conditions set out in the fifth paragraph compatible with EU law, or must Article 4(5) of [the Qualification Directive], read in conjunction with Article 4(1) to (4) of [the Qualification Directive], Article 10(3)(b) of [the Asylum Procedures Directive] and Articles 4 and 18 of the Charter …, be interpreted as requiring the determining authority, when assessing the facts and circumstances underlying the application for international protection, to cooperate with the applicant and to take into account every piece of evidence and element in support of that application when examining and assessing the need for protection and, if the applicant is able to support his or her statements sufficiently with evidence or if the applicant fulfils the aforementioned conditions, his or her statements do not require further corroboration and are therefore credible?
(2)      Is Article 46(3) of [the Asylum Procedures Directive], read in conjunction with Articles 4, 18, and 47 of the Charter …, to be interpreted as meaning that a national court of first instance called upon to review the lawfulness of declaring an application for international protection unfounded is obliged to carry out of its own motion, if necessary, a full and ex nunc examination of both the factual and legal grounds, including an examination of the need for international protection in accordance with [the Qualification Directive] on the basis of the elements of the file brought to its attention, as supplemented or clarified following adversarial proceedings?’
32.      The referring court has asked the Court of Justice
to join Cases C‑7/25 and C‑8/25
pursuant to Article 54 of the Rules of Procedure of the Court of Justice. In response to that request, the decision to join proceedings was taken by the President of the Court on 26 February 2025.
33.      The referring court also requested that the present cases be determined pursuant to the expedited procedure provided for in Article 105(1) of the Rules of Procedure.
On 27 March 2025, the President of the Court, after hearing the Judge-Rapporteur and the Advocate General, rejected that request.
34.      The parties in both
cases at issue in the
main proceedings, the Netherlands Government and the European Commission submitted written observations to the Court.
35.      The Court decided to give a ruling without a hearing, pursuant to Article 76(2) of its Rules of Procedure.
III. Analysis
36.      At the request of the Court, my Opinion in the present case focuses solely on the second question referred.
37.      By that question, the referring court in essence wishes to know whether, in a procedure in which it is called upon to review a decision rejecting an application for international protection as unfounded, it is obliged under EU law, principally under Article 46(3) of the Asylum Procedures Directive, read in the light of Article 47 of the Charter, to take into consideration the law and the facts of which that court has become aware on the basis of the elements of the file brought to its attention, as supplemented or clarified following adversarial proceedings, even if not all of those elements were part of the original ground of appeal giving rise to the review. It also asks whether in such circumstances the judge is obliged to carry out, if necessary of its own motion, an examination of the need for international protection in accordance with the Qualification Directive and of a possible breach of the principle of non-refoulement.
38.      It follows from the order for reference that the referring court considers that it is prevented from performing such a full and ex nunc review by Article 8:69 of the General Law on administrative law and the relevant national case-law. That provision, according to the explanation of the referring court, provides that an administrative decision is to be reviewed in the light of the grounds of
appeal. It reads: ‘1. The court seised shall adjudicate on the basis of the appeal, the documents produced, the preliminary investigation and the investigation of the case at the hearing. 2. The court shall supplement the pleas in law of its own motion. 3. The court may supplement the facts of its own motion.’ (7) That legislation is accompanied by an explanatory memorandum, further limiting the powers of an administrative judge. (8)
39.      The question referred is motivated by the opinion of the referring court that national law which restrains the powers of an administrative judge in such a manner is not in conformity with EU law.
40.      The question referred may be divided in two parts, which I will analyse separately. I will first argue (in Section A) that, when reviewing the legality of a decision rejecting an application for international protection as unfounded, a national court is required by EU law to take into consideration all elements of the file brought to its attention as supplemented or clarified following adversarial proceedings, even if some elements were not included in the grounds of appeal raised by the applicant. In
Section B, I will explain that a national court is also required to examine, if necessary of its own motion, the applicant’s need for international protection when reviewing the legality of a decision which rejected an application for international protection as unfounded.
A.      The scope of judicial review
41.      What elements
must a national court consider when reviewing an appeal against a decision rejecting an application for international protection as unfounded? Is it limited only to reviewing the issues raised in the appeal, or must it also take into account any other elements that appear in the file brought to its attention?
42.      Answering those questions requires that Article 46 of the Asylum Procedures Directive be interpreted in the light of the principle of effective judicial protection, as codified in Article 47 of the Charter. (9)
43.      The relevant parts of Article 46(1) and (3) of the Asylum Procedures Directive read as follows:
‘1.      Member States shall ensure that applicants have the right to an effective remedy before a court or tribunal, against the following:
(a)      a decision taken on their application for international protection, including a decision:
(i)      considering an application to be unfounded in relation to refugee status and/or subsidiary protection status;
…
3.      In order to comply with paragraph 1, Member States shall ensure that an effective remedy provides for a full and ex nunc examination of both facts and points of law, including, where applicable, an examination of the international protection needs pursuant to [the Qualification Directive], at least in appeals procedures before a court or tribunal of first instance.’ (10)
44.      In my view, the very wording of Article 46 of the Asylum Procedures Directive clearly postulates, first, that an applicant whose request for asylum was rejected as unfounded has the right for such a decision to be reviewed by a court or tribunal. Second, paragraph 3 of that provision requires the reviewing court or tribunal, at least at first instance where courts are generally empowered to assess facts, to examine the entire file,
that is, every argument and piece of evidence that has been made available to it, rather than only those elements expressly raised by the applicant in the appeal notice.
The words ‘including … examination of the international protection needs’ cannot be read in any way other than as empowering the national judge to re-examine, if necessary, the decision on the merits, whether or not such a review is sought by the appeal as introduced by the applicant. The reference to a ‘full … examination of both facts and points of law’ indicates that the judge must take into consideration all relevant facts and legal aspects of the case, not only those that were brought to his or her attention in the appeal notice. The phrase ‘ex nunc examination’ means that the judge can take into consideration new arguments of law as well as facts that were not taken into account in the administrative procedure leading to the decision.
45.      That reading is in line with the case-law of the Court. In Alheto, the Court explained that ‘ex nunc’ means that the court or tribunal must make an assessment that takes into account, should the need arise, new evidence which has come to light after the adoption of the decision under appeal. Such an assessment makes it possible to deal with the application for international protection exhaustively without there being any need to refer the case back to the determining authority. Therefore, a national court has the power to take into consideration new evidence on which that authority has not taken a decision in line with the Asylum Procedures Directive. Moreover, the Court has held that the adjective ‘full’ confirms that the court or tribunal is required to examine both the evidence which the determining authority took into account or could have taken into account and that which has arisen following the adoption of the decision by that authority. (11)
46.      The necessity to assess facts beyond the formal appeal may indeed arise during the proceedings. For example, while the appeal is being heard, it may be
that new evidence comes to light or that the judge becomes aware of a piece of evidence which the determining authority ought to have
considered
but failed to take into account when deciding whether to grant international protection to the applicant. In such cases, the national court or tribunal
hearing the appeal must be able to exercise its discretion to determine whether the evidence can be considered as relevant for its review of the decision on the asylum application.
47.      Such an interpretation of Article 46(3) of the Asylum Procedures Directive ensures that, in the event that the file is referred back to the determining authority, a new decision can be adopted within a short period of time to avoid the risk that evidence requiring a new up-to-date assessment might arise. (12)
48.      Moreover, such an interpretation is in line with the fact that, where a third-country national fulfils the conditions for granting international protection laid down in Chapters II and III or Chapters II and V of the Qualification Directive, Member States must, subject to the grounds for exclusion provided for by that directive, grant him or her international protection status, without having any discretion in that respect. (13)
49.      The applicants in both cases at issue in the
main proceedings and the Commission support such
an interpretation of Article 46(3) of the Asylum Procedures Directive, whereas the Netherlands Government disputes it.
50.      Based on paragraph 93 of the Court’s judgment in Ministerstvo vnitra České republiky, Odbor azylové a migrační politiky, which provides that ‘the designation of that third country as a safe country of origin is one of the elements on file brought to the attention of the referring court and which it is called upon to hear and determine in the action against that decision’, (14) the Netherlands Government concluded that a national court must examine only the evidence brought to its attention by the applicant in his or her appeal.
51.      In my understanding of that judgment, the Court, in paragraph 93 thereof, merely clarified that the designation of the Republic of Moldova as a safe country of origin was one of the elements that was brought to the attention of the referring court while reviewing the decision of the competent authority. In paragraph 94 of that judgment, the Court clarified that such an element constitutes a point of law which the referring court must consider as part of the full and ex nunc examination required by Article 46(3) of the Asylum Procedures Directive, even if the applicant in the main proceedings in that case had not expressly relied on that element in his appeal. Consequently, my reading of those paragraphs is that the Court merely stated that a national court must have regard to any issue the applicant brought to its attention, even if that happens during the procedure, and not in the appeal.
52.      Moreover, the Netherlands Government claims that the existence of the obligation on a national court or tribunal to examine
the factual and legal grounds, if necessary of its own motion, can be accepted in cases concerning detention, (15) because, in such cases, EU law expressly requires judicial review of the lawfulness of detention ordered by an administrative authority. (16) That is, however, not the case in
proceedings concerning applications for asylum since the Asylum Procedures Directive does not impose mandatory judicial review. Thus, the applicant may choose either to accept a decision rejecting
his or her application or to appeal that decision but to exclude certain pleas in law which he or she believes not to be sufficient grounds for challenging the decision and which are therefore unlikely to lead to its annulment.
53.      In that respect, in my view, the Netherlands Government is correct in saying that the Asylum Procedures Directive does not establish a mandatory judicial review for asylum decisions. Therefore, if the applicant does not appeal against the decision rejecting his or her application for international protection as unfounded, a national court or tribunal is not required to review the legality of the decision made by the determining authority.
54.      However, if the applicant appeals against
that decision, a national court or tribunal must act
of its own motion, if necessary, and consider all elements that have been brought to its attention – whether they are supplemented or clarified during
the adversarial procedure – even if those elements are not expressly raised in the appeal. That does not mean that that court must actively, ex officio, search for any additional elements in the case. It does, however, mean that the court cannot ignore such elements if they come to the judges’ attention during the proceedings. Finally, the right of defence requires that both parties be given the opportunity to give their point of view on the relevance of any new element.
B.      The national court’s examination, if necessary of its own motion, of the need for international protection
55.      I will now turn to the second part of the second question, which seeks to clarify whether a national court of first instance called upon to review the lawfulness of a decision
rejecting an application for international protection as unfounded is obliged to carry out,
if necessary of its own motion, an examination of the applicant’s need for international protection in accordance with the Qualification Directive.
56.      In the explanation of the reasons for its second question, the referring court also questioned whether, when assessing the legality of a rejection decision, it is necessary for the court to examine of its own motion the principle of non-refoulement. The referring court did not explain why it raised that question in parallel with the question regarding an assessment of its own motion of the need for international protection. However, seeing as the rejection decisions at issue in the main proceedings in both Case C‑7/25 and Case C‑8/25 also contained return decisions, this may explain the need of the referring court to clarify whether, on the basis of EU law, it is required to assess of its own motion a potential breach of the principle of non-refoulment when conducting its judicial review of the decisions rejecting the applications for asylum
as unfounded.
57.      The need for international protection has to be assessed in the light of the conditions provided in Chapters II and III or Chapters II and V of the Qualification Directive, which include, inter alia, the obligation to examine whether there is a serious risk that the person seeking international protection would be subject to the death penalty, torture or other inhuman or degrading treatment or punishment in his or her country of origin, which is prohibited under Article 4 of the Charter. (17)
58.      If that is the case, Member States must respect the principle of non-refoulement, which is guaranteed as a fundamental right, in Article 18 of the Charter, read in conjunction with Article 33 of the Geneva Convention, (18) and in Article 19(2) of the Charter. (19) However, it should be borne in mind that the risks justifying the prohibition of the return of a person to his or her country of origin are not sufficient alone for granting asylum to that person.
59.      In order to justify the claim that a national court must assess a potential breach of the principle of non-refoulement of its own motion, the applicants in the main proceedings and the Commission relied in their written observations on the judgment in Ararat. That judgment concerned the lawfulness of a decision rejecting an application for a residence permit, which, after having been rejected, resulted in a return decision – which had previously been adopted during a procedure for international protection – being activated.
60.      In
that judgment, the Court held, first, that the judicial protection guaranteed by Article 47 of the Charter and given specific expression in Article 13(1) and
(2) of the Returns Directive
‘would be neither effective nor complete if the national court were not required to raise ex officio the failure to comply with the principle of non-refoulement when the material in the file brought to its attention, as supplemented or clarified during the adversarial proceedings before it, tends to demonstrate that the return decision is based on an obsolete assessment of the risks of treatment prohibited by that principle which are faced by the third-country national concerned if he or she were to return to the third country in question …’. (20) Moreover, the Court has held that, limiting
‘the role of the national court could result in such a decision being enforced’, even though certain elements in the file indicate that the person concerned might be subjected, in that third country, to treatment which is prohibited by Article 4 of the Charter. (21)
61.      Moreover, in paragraph 51 of the same judgment, the Court specified that the national court’s obligation to ensure, where necessary of its own motion, compliance with the principle of non-refoulement applies in the same way in a procedure for international protection, even though the procedure in that case concerned an application for a residence permit.
62.      Based on that paragraph of the judgment in Ararat, the applicants in the main proceedings and the Commission argued that the principle of non-refoulement must be respected at all times and at every stage of the return proceedings as well as at every stage of the proceedings reviewing the rejection of an application for international protection. According to them, the absolute nature of the principle of non-refoulement requires the national court to ensure compliance with it, without being limited to reviewing the facts and arguments expressly put forward by the applicant in his or her appeal.
63.      The Netherlands Government does not entirely agree with their position. Instead, it argues that there must be serious and proven grounds for believing that a person seeking international protection will face a real risk of being subjected to treatment prohibited by Article 4 and Article 19(2) of the Charter in his or her
country of origin. The likelihood of such a risk must be evident based on the information brought to the attention of the judge, as supplemented or clarified during the adversarial proceedings. Therefore, such review is only mandatory where there are clear factors indicating that the person concerned could be subjected to treatment,
in that third country,
that is absolutely prohibited by Article 4 of the Charter.
64.      To my mind, there is nothing in the judgment in Ararat to suggest that the appropriate threshold for triggering an ex officio assessment of the principle of non-refoulement is that the elements before the court ‘clearly’ indicate a potential breach of the rights protected under Article 4 of the Charter upon return to the country of origin. Rather, given the absolute nature of that principle, (22) I am of the view that national courts, when dealing with appeals concerning return decisions or decisions rejecting international protection, must assess whether there is a potential breach of the principle of non-refoulement as soon as the elements raised during the proceedings give rise to questions as to a potential breach.
65.      I might observe additionally that the European Court of Human Rights (ECtHR) has also held, when interpreting Article 3 of the European Convention on Human Rights, that national courts
shall assess the risk of being subjected to torture or to inhuman or degrading treatment or punishment ‘in the light of all the material placed before [them], or, if necessary, material obtained proprio motu, in particular where the applicant [or a third-party intervener] provides reasoned grounds which cast doubt on the accuracy of the information relied on by the respondent Government’. (23)
66.      In addition to the review of the principle of non-refoulement, the referring court claims that it must also be able to review the applicant’s need for international protection of its own motion if necessary.
67.      Given that a national court is required to conduct an exhaustive and up-to-date assessment of the applicant’s situation
during the appeal proceedings, for those same reasons that court must also review, if necessary of its own motion, not only the risks of refoulement, but also the applicant’s need for international protection based on the elements in the file brought to its attention or raised during the adversarial proceedings.
68.      In my view, notwithstanding what is already clear on the basis of the wording of Article 46(3) of the Asylum Procedures Directive,
such a competence must be available to a national court or tribunal hearing an appeal against a decision rejecting an application for international protection as unfounded, in order to be able to examine all the elements that are relevant for the applicant.
69.      Such an interpretation of Article 46(3) of the Asylum Procedures Directive is required by the principle of effective judicial protection, enshrined in Article 47 of the Charter. A full review of the need for international protection enables the reviewing court to take into consideration elements which, had they been considered by the determining authority, would have resulted in the grant of international protection to the applicant.
70.      For the foregoing reasons, I propose that the Court answer the second question of the referring court to the effect that the applicable EU law must be interpreted as requiring a national court of first instance, called upon to review the lawfulness of a decision rejecting an application for international protection as unfounded, to carry out of its own motion if necessary, a full and ex nunc examination of both the factual and legal grounds for that decision, on the basis of the elements of the file brought to its attention, as supplemented or clarified following adversarial proceedings, regardless of whether all of those elements were included in the grounds of
appeal by which the judicial review was initiated. Such an examination of its own motion must include an assessment of both the need for international protection in accordance with the Qualification Directive and respect for the principle of non-refoulement.
71.      What are the consequences of such interpretation for the referring court?
72.      In Alheto, the Court clarified that Member States are required, by virtue of Article 46(3) of the Asylum Procedures Directive, to order their national law in such a way that the processing of the appeals includes an examination, by the court or tribunal, of all the facts and points of law necessary in order to make an up-to-date assessment of the case at hand. (24)
73.      It follows that, if the referring court considers that its national law prevents it from taking into consideration elements of fact and law which have been brought to its attention during the judicial proceedings, but were not present in the appeal notice, or prevents it from assessing of its own motion the applicant’s need for international protection, or from assessing whether there are reasons for applying the principle of non-refoulement, it must interpret that national law, and in particular Article 8:69
of the General Law on administrative law, in a manner that complies with EU law. If such an interpretation is not possible, (25) the referring court is required to set aside those national legislative provisions. (26)
IV.    Conclusion
74.      In the light of the foregoing considerations, I propose that the Court answer the second question referred for a preliminary ruling by the rechtbank Den Haag, zittingsplaats Roermond (District Court, The Hague, sitting in Roermond, Netherlands) as follows:
Article 46(3) of 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, read in conjunction with Articles 4, 18, and 47 of the Charter of Fundamental Rights of the European Union,
must be interpreted as requiring a national court of first instance, called upon to review the lawfulness of a decision rejecting an application for international protection as unfounded, to carry out of its own motion if necessary, a full and ex nunc examination of both the factual and legal grounds for that decision, on the basis of the elements of the file brought to its attention, as supplemented or clarified following adversarial proceedings, regardless of whether all of those elements were included in the grounds of
appeal by which the judicial review was initiated. Such an examination of its own motion must include an assessment of both the need for international protection in accordance with the applicable EU law and respect for the principle of non-refoulement.
1      Original language: English.
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.
2      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 (OJ 2013
L 180, p. 60) (‘the Asylum Procedures Directive’).
3      That policy is, according to the referring court, established in point 16.3.2.1 of the besluit van de Staatssecretaris van Justitie en Veiligheid van 13 juni 2024, nummer WBV 2024/12, houdende wijziging van de Vreemdelingencirculaire 2000 (Decision of the State Secretary for Justice and Security of 13 June 2024, No WBV 2024/12, amending the Circular on foreign nationals of 2000). That
decision entered into force on
1 July 2024. The defendant also established Werkinstructie WI 2024/6 Geloofwaardigheidsbeoordeling (asiel) (Work
Instruction WI 2024/6 –
Assessment of credibility (asylum)), which provides instructions on how to implement that policy.
4      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) (‘the Qualification Directive’).
5      Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (OJ 2008 L 348, p. 98) (‘the Returns Directive’).
6      The referring court recalls the judgments of 25 July 2018, Alheto (C‑585/16, ‘Alheto’,
EU:C:2018:584, paragraphs 105, 106, 109 to 116 and 118); of 4 October 2018, Fathi (C‑56/17, EU:C:2018:803, paragraph 60);
of 4 October 2024, Ministerstvo vnitra České republiky, Odbor azylové a migrační politiky (C‑406/22, ‘Ministerstvo vnitra České republiky, Odbor azylové a migrační politiky’, EU:C:2024:841, paragraphs 87 to 91, 93, 94, 97 and 98); and
of 17 October 2024, Ararat
(C‑156/23, ‘Ararat’, EU:C:2024:892, paragraphs 45 and 46 and 49 to 51).
7      The law was translated with the aid of machine translation.
8      See the explanatory memorandum to the General Law on administrative law: Tweede Kamer, vergaderjaar 1991-1992, 22 495, nr. 3 (House of Representatives), which provides: ‘With regard to the scope of the dispute on which the court must rule, we note that this is in principle determined by the scope of the appeal lodged … In view of the primary function of the administrative proceedings, namely to offer legal protection, there is no reason for the court to go beyond the scope of the claim. In addition, from the point of view of legal certainty for those involved in the decision, it would be unfortunate if the court were able to go beyond the limits of the dispute brought before it. It follows from the above that, in the first instance, those parts of the decision that are not contested must be disregarded by the court. It should be noted, however, that the court cannot simply rely on the arguments set out in the notice of appeal. The absence of certain statements in the notice of appeal does not necessarily mean that the appellant deliberately chose not to raise certain defects and therefore wishes to accept those defects. … In accordance with Article 48 of the Wetboek van Burgerlijke Rechtsvordering [(Code of Civil Procedure)], the second paragraph stipulates that the court shall supplement the legal grounds ex officio. The third paragraph stipulates that the court may supplement the facts ex officio. The significance of the latter lies mainly in the fact that, unlike in civil proceedings, the court does not, in principle, have to accept the facts as presented by the parties. The judge may ask further questions. The power to supplement the factual grounds does not extend so far as to allow the judge to base his or her decision on facts on which the parties have not been able to comment during the proceedings. The present power therefore does not affect the rule in the first paragraph. If facts that are of substantial significance for the judgment first come to light in chambers, the appropriate course of action is for the court to reopen the investigation and give the parties the opportunity to comment on those facts’ (translated with the aid of machine translation).
9      See judgment of 5 February 2026, Predsedatel na Darzhavna agentsia za bezhantsite (C‑718/24, EU:C:2026:68, paragraph 73 and the case-law cited).
10      Moreover, recital 50 of the Asylum Procedures Directive provides that the right to an effective remedy reflects a basic principle of Union law that the decisions taken on an application for international protection are, inter alia, subject to an effective remedy before a court or tribunal.
11      Alheto, paragraphs 111 to 113. The Court repeated that interpretation in its judgment of 29 July 2019, Torubarov (C‑556/17, ‘Torubarov’, EU:C:2019:626, paragraph 55 and the case-law cited).
12      Alheto, paragraph 147.
13      Torubarov, paragraph 50.
14      Emphasis added.
15      The Netherlands Government refers to the judgment of 8 November 2022, Staatssecretaris van Justitie en Veiligheid (Ex officio review of detention)
(C‑704/20 and C‑39/21, EU:C:2022:858, paragraphs 72, 77, 82, 83, 87 and 88).
16      See Article 15(2) of the Returns Directive and Article 9(3) of Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (OJ 2013 L 180, p. 96).
17      As confirmed by the Court in the judgment of 29 January 2026, Staatssecretaris van Justitie en Veiligheid (C‑431/24, EU:C:2026:53, paragraphs 31 and 32 and the case-law cited).
18      Convention relating to the Status of Refugees, signed in Geneva on 28 July 1951, which entered into force on 22 April 1954 (United Nations Treaty Series, Vol. 189, p. 137), as supplemented by the Protocol relating to the Status of Refugees, concluded in New York on 31 January 1967 (United Nations Treaty Series, Vol. 606, p. 267), which entered into force on 4 October 1967 (together, ‘the Geneva Convention’).
19      As confirmed by the Court in the judgment of 6 July 2023, Bundesamt für Fremdenwesen und Asyl (Refugee who has committed a serious crime) (C‑663/21, EU:C:2023:540, paragraph 36 and the case-law cited).
20      Ararat, paragraph 50.
21      Ibid.
22      See Ararat, paragraph 36 and the case-law cited.
23      See ECtHR, 11 January 2007, Salah Sheekh v. the Netherlands (CE:ECHR:2007:0111JUD000194804,
§ 136).
24      Alheto, paragraph 110.
25      My reading of the relevant Netherlands law and the interpretative notice does not seem to prevent such a consistent interpretation. That is, however, for the national court to decide. It may be worth mentioning that the Court has held that that established national case-law should not prevent national courts from interpreting a rule of national law in conformity with EU law. See, in that respect, judgment of 17 April 2018, Egenberger (C‑414/16, EU:C:2018:257, paragraphs 72 and 73 and the case-law cited).
26      Torubarov, paragraph 73.