Provisional text
OPINION OF ADVOCATE GENERAL
NORKUS
delivered on 6 March 2025 (1)
Case C‑656/23 [Karaman] (i)
B
v
Staatssecretaris van Justitie en Veiligheid
(Request for a preliminary ruling from the rechtbank Noord-Holland (District Court, North Holland, Netherlands))
( Reference for a preliminary ruling – Asylum policy – Directive 2011/95/EU – Standards for the qualification as a beneficiary of international protection and the content of protection granted – Declaratory nature of refugee status – Article 13 – Recital 21 – Residence permit – Article 24(1) – Determination of the date on which a residence permit issued to a refugee takes effect – Directive 2013/32/EU – Common procedures for granting and withdrawing international protection – Article 6 – Date application is ‘made’, ‘registered’ or ‘lodged’ – More favourable national standards )
I.      Introduction
1.        This request for a preliminary ruling (2) presents the Court of Justice with an opportunity to clarify further the concept of refugee status and the rights attached thereto. The Court must ascertain whether the declaratory nature of the recognition of refugee status has legal consequences for the determination of the date a residence permit issued by a Member State to a refugee takes effect. Given that Member States must issue to beneficiaries of refugee status a residence permit as soon as possible after the grant of international protection, (3) the question arises whether that permit takes effect retroactively from the moment the person in question has a subjective right to recognition of their refugee status or at some other time.
2.        The rechtbank Noord-Holland (District Court, North Holland, Netherlands) seeks to ascertain, in particular, whether the time a residence permit issued to a refugee takes effect is determined by Article 6 of Directive 2013/32/EU (4) and, if so, whether the relevant date is that of making, registering or lodging an application for international protection in accordance with that provision. In the event that a residence permit issued to a refugee does not take effect ‘when a person makes an application for international protection’ in accordance with Article 6(1) of the Procedures Directive, the referring court queries how this may be reconciled with Article 13 and recital 21 of the Qualification Directive, which refer to the obligation on Member States to grant refugee status to persons who fulfil the relevant qualifying criteria and the declaratory nature of that act.
3.        The present request for a preliminary ruling arises in the context of alleged (protracted) delays in the processing of applications for international protection and the resultant postponement, in certain instances, of the vesting or enjoyment of rights – such as the right to a residence permit – granted by EU law to beneficiaries of international protection.
II.    Legal framework
A.      European Union law
The Qualification Directive
4.        Recital 21 of that directive states:
‘The recognition of refugee status is a declaratory act.’
5.        Article 2 of that directive provides:
‘For the purposes of this Directive the following definitions shall apply:
…
(d)      “refugee” means a third-country national who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, is outside the country of nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country, or a stateless person, who, being outside of the country of former habitual residence for the same reasons as mentioned above, is unable or, owing to such fear, unwilling to return to it …
(e)      “refugee status” means the recognition by a Member State of a third-country national or a stateless person as a refugee;
…’
6.        According to Article 13 of that directive, entitled ‘Granting of refugee status’:
‘Member States shall grant refugee status to a third-country national or a stateless person who qualifies as a refugee in accordance with Chapters II and III.’
7.        Article 24(1) of that directive, entitled ‘Residence permits’, provides:
‘As soon as possible after international protection has been granted, Member States shall issue to beneficiaries of refugee status a residence permit which must be valid for at least 3 years and renewable, unless compelling reasons of national security or public order otherwise require …’
The Procedures Directive
8.        Article 6 of that directive, entitled ‘Access to the procedure’, provides:
‘1.      When a person makes an application for international protection to an authority competent under national law for registering such applications, the registration shall take place no later than three working days after the application is made.
…
2.      Member States shall ensure that a person who has made an application for international protection has an effective opportunity to lodge it as soon as possible. …
3.      Without prejudice to paragraph 2, Member States may require that applications for international protection be lodged in person and/or at a designated place.
4.      Notwithstanding paragraph 3, an application for international protection shall be deemed to have been lodged once a form submitted by the applicant or, where provided for in national law, an official report, has reached the competent authorities of the Member State concerned.
…’
9.        Article 9(1) of that directive, entitled ‘Right to remain in the Member State pending the examination of the application’, states:
‘Applicants shall be allowed to remain in the Member State, for the sole purpose of the procedure, until the determining authority has made a decision in accordance with the procedures at first instance set out in Chapter III. That right to remain shall not constitute an entitlement to a residence permit.’
10.      Article 31, entitled ‘Examination procedure’, provides:
‘…
2.      Member States shall ensure that the examination procedure is concluded as soon as possible, without prejudice to an adequate and complete examination.
3.      Member States shall ensure that the examination procedure is concluded within six months of the lodging of the application.
…
Member States may extend the time limit of six months set out in this paragraph for a period not exceeding a further nine months …
…
By way of exception, Member States may, in duly justified circumstances, exceed the time limits laid down in this paragraph by a maximum of three months where necessary in order to ensure an adequate and complete examination of the application for international protection.
…’.
Directive 2013/33/EU (5)
11.      Article 6 of that directive, entitled ‘Documentation’, outlines:
‘1.      Member States shall ensure that, within three days of the lodging of an application for international protection, the applicant is provided with a document issued in his or her own name certifying his or her status as an applicant or testifying that he or she is allowed to stay on the territory of the Member State while his or her application is pending or being examined.
If the holder is not free to move within all or a part of the territory of the Member State, the document shall also certify that fact.
…
4.      Member States shall adopt the necessary measures to provide applicants with the document referred to in paragraph 1, which must be valid for as long as they are authorised to remain on the territory of the Member State concerned.
…’
12.      Article 7 of that directive, entitled ‘Residence and freedom of movement’, provides:
‘1.      Applicants may move freely within the territory of the host Member State or within an area assigned to them by that Member State. The assigned area shall not affect the unalienable sphere of private life and shall allow sufficient scope for guaranteeing access to all benefits under this Directive.
…’
B.      Netherlands law
The Law on Foreign Nationals
13.      The Vreemdelingenwet (Law on Foreign Nationals) of 23 November 2000 (6) provides, in Article 28:
‘1.      [The defendant] shall have the power:
(a)      to grant the application for a fixed-term residence permit, reject it, not examine it, declare it inadmissible or refuse to consider it; …’
14.      Article 29 of that law provides:
‘1.      A fixed-term residence permit, as referred to in [Article 28], may be issued to a foreign national:
(a)      who has refugee status; or
…’
15.      According to Article 44 of that law:
‘…
2.      If the application for a fixed-term residence permit as referred to in Article 28(1)(a) is accepted, that residence permit shall be granted from the date of receipt of the application.’
III. The dispute in the main proceedings and the questions referred for a preliminary ruling
16.      On 10 October 2021, B (‘the applicant’), a third-country national, went to the Ter Apel Application Centre of the Immigratie- en Naturalisatiedienst
(Immigration and Naturalisation Service, Netherlands; ‘the IND’) to apply for asylum. His application was registered on that date. From that date, the applicant resided lawfully in the Netherlands, benefited from asylum reception conditions, and was not at risk of deportation (risk of refoulement).
17.      On 20 October 2021, the IND, operating under the authority of the Staatssecretaris van Justitie en Veiligheid (State Secretary for Justice and Security, Netherlands; ‘the defendant’), provided the applicant with the standard national application form for international protection, form M35-H, which he signed and lodged on the same date.
18.      By decision dated 26 August 2022, the defendant granted the applicant international protection pursuant to Article 29(1)(a) of the Law on Foreign Nationals. (7) In accordance with Article 44(2) of that law, that decision took effect on 20 October 2021, namely, the date the applicant lodged the M35-H application form. The applicant was granted a residence permit from 20 October 2021 to 20 October 2026.
19.      The applicant brought an action before the referring court challenging the date on which his residence permit took effect. He considers that a residence permit takes effect on the date an asylum seeker notifies his or her wish to obtain asylum. This is when an asylum seeker makes an application pursuant to Article 6(1) of the Procedures Directive – in this case, on 10 October 2021.
20.      According to the applicant, the fact that a residence permit does not produce effects until the defendant’s procedural requirements for the lodging of an application for international protection are satisfied undermines the declaratory nature of refugee status as confirmed by the Court (8) and is contrary to Article 13 of the Qualification Directive. It is also contrary to the effectiveness and purpose of the Procedures Directive as the applicant would be unduly dependent on the competent authorities regarding the right to asylum, the possibility of availing himself or herself of the rights guaranteed under Article 18 (Right to asylum) of the Charter of Fundamental Rights of the European Union (‘the Charter’), and the acquisition of long-term resident status pursuant to Directive 2003/109/EC. (9) The exercise of the right to asylum must not depend on the workload of the competent authorities or on the political choices made by the Member States regarding staffing of those authorities, and asylum seekers must not be treated differently solely on the basis of when they are able to lodge a formal application for international protection.
21.      In addition, in accordance with Article 31(2) of the Procedures Directive, Member States must ensure that the examination procedure is concluded as soon as possible. Article 31(3) of that directive states that the period within which the decision must be taken begins to run from the time the application for international protection is lodged. An exception is thus expressly made to the premiss that the rights mentioned in the Procedures Directive may be relied on from the ‘making’ of the application. It can be inferred from this that all rights apply from the ‘making’ of an application, unless another date is provided for in the Procedures Directive.
22.      The defendant considers that Article 44 of the Law on Foreign Nationals complies with EU law. An application for asylum is deemed received thereunder only after it has been lodged in the prescribed manner. The applicant indicated that he wished to apply for asylum on 10 October 2021. That wish was registered on the same day. On 20 October 2021, the formal requirements were completed by the signature of the application form and the asylum procedure commenced. A residence permit was issued to the applicant with effect from the date of the application, namely 20 October 2021. The defendant considers that this complies with Article 24(1) of the Qualification Directive and with the requirement thereunder that a renewable residence permit is issued ‘as soon as possible after international protection has been granted’. It is apparent from that provision that there is a difference between refugee status, which is declaratory, and a residence permit, which is not. Directive 2003/86/EC (10) and the judgments in A and S and XC which interpreted that directive cannot be applied by analogy, as Article 24 of the Qualification Directive explicitly regulates the date on which a residence permit must be issued.
23.      By indicating his wish to obtain asylum, the applicant made a request for international protection pursuant to Article 6 of the Procedures Directive and a request for asylum pursuant to Article 28 of the Law on Foreign Nationals. That does not mean that the residence permit issued to the applicant should take effect from that date. Article 6 of the Procedures Directive provides that Member States may distinguish between making (to make) an asylum application and lodging (to lodge) that application. It is clear from Article 6(3) of the Procedures Directive that the Member States are competent to lay down detailed rules for the lodging of an application.
24.      Moreover, given the pressure on the IND at the time of the applicant’s application, the period of 10 days between the moment he indicated his wish to obtain international protection and the moment he was able to lodge an asylum application is not unreasonably long. The applicant was able to lodge an application for international protection ‘as soon as possible’ and the defendant thus acted in accordance with Article 6(2) of the Procedures Directive.
25.      When calculating the duration of legal residence, third-country nationals are treated more favourably in the Netherlands than required under EU law. (11) In the event an application for asylum is successful, a residence permit granted takes effect from the date of the lodging of that application. This means that the entire duration of the asylum procedure is deemed to constitute a period of legal residence when assessing applications for long-term resident status.
26.      The referring court is uncertain whether national rules providing that a residence permit cannot take effect prior to compliance with national procedural requirements (12) is contrary to the declaratory nature of refugee status and/or to Article 13 of the Qualification Directive. (13) It is clear from Article 6 of the Procedures Directive that there is a difference between the making and the lodging of an asylum application. The dispute in the present case essentially concerns whether EU law governs the date on which a residence permit granted to refugees takes effect and, if so, whether, under EU law, those effects are linked to the date on which an application for international protection is ‘made’ or ‘lodged’, or to another date.
27.      The rechtbank Noord-Holland (District Court, North Holland) thus decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)      Is Article 6 of [the Procedures Directive] relevant for the purpose of answering the question as to the effective date on which a residence permit is to be deemed to have been granted?
(2)      If so, must Article 6 of the Procedures Directive be interpreted as meaning that the effective date of the residence permit is determined by the date on which the application for international protection:
–        is made (first subparagraph of Article 6(1) of the Procedures Directive); or
–        is registered (first subparagraph of Article 6(1) and Article 6(5) of the Procedures Directive); or
–        is (formally) lodged (Article 6(2), (3) and (4) of the Procedures Directive)?
(3)      If the effective date of the residence permit is not determined by the date on which the application is made, how can this be reconciled with Article 13 of the Qualification Directive,
read in conjunction with recital 21 thereof, having regard to the declaratory nature of refugee status therein?’
IV.    The procedure before the Court
28.      The applicant, the Netherlands Government and the European Commission submitted written observations.
The same parties
presented oral argument and replied to the Court’s questions at the hearing on 5 December 2024.
V.      Assessment
A.      Arguments
29.      The applicant considers that the referring court’s third question should be answered first as the declaratory nature of refugee status must take precedence over the answer to the referring court’s questions. He considers that a residence permit issued pursuant to Article 24(1) of the Qualification Directive takes effect from the date of ‘making’ an application for international protection pursuant to Article 6(1) of the Procedures Directive. Any later date would undermine the declaratory nature of refugee status as confirmed by Article 13 and recital 21 of the Qualification Directive and applicants would be unduly dependent on the competent authorities to implement their right to asylum guaranteed by Article 18 of the Charter. In the alternative, the applicant submits that a residence permit should take effect on the date of registration of an application for international protection.
30.      The Netherlands Government and the Commission consider that Article 6 of the Procedures Directive does not determine when a residence permit takes effect. The Commission observes that in accordance with Article 9(1) of the Procedures Directive, Article 6(1) of Directive 2013/33 and Article 24 of the Qualification Directive, Member States may issue a residence permit that takes effect from the date of the grant of international protection. The Commission considers
that national legislation that provides that a residence permit takes effect retroactively from the date on which an application for international protection is lodged ‘goes beyond’ the requirements of the Qualification Directive and the Procedures Directive. The Netherlands Government observes that Article 24(1) of the Qualification Directive does not determine when a residence permit issued to a refugee takes effect. EU law, however, does not preclude national rules pursuant to which such a residence permit takes effect from the lodging of an application for international protection. Both the Netherlands Government and the Commission consider that the fact that a residence permit takes effect from the date on which an application for international protection is lodged does not undermine the declaratory nature of refugee status.
B.      Analysis
31.      By its questions, the referring court seeks to ascertain, in essence, whether Article 6 of the Procedures Directive governs the date on which a residence permit (14) issued to a refugee takes effect. In the event that that provision does not govern that matter and a residence permit does not take effect on the date on which a refugee makes an application for international protection, the referring court asks how this can be reconciled with the declaratory nature of refugee status.
32.      Prior to analysing the relevance of Article 6 of the Procedures Directive in the context of the present request for a preliminary ruling, I shall examine the concept of refugee status and the distinction in EU law between that status and ‘being a refugee’. In addition, the different rights attached to those legal concepts are examined. In particular, the link between the grant of refugee status (15) and the right to a residence permit pursuant to EU law is explained, together with the relevance of Article 6 of the Procedures Directive in that context. Finally, the question whether the Qualification Directive and the Procedures Directive preclude the adoption of national legislation that provides that a residence permit takes effect retroactively from the date on which an application for international protection is lodged is addressed.
Refugee status and the right to a residence permit pursuant to Article 24(1) of the Qualification Directive
33.      The purpose of the Qualification Directive is to establish common criteria for the identification of persons in need of international protection and to ensure that a minimum level of benefits is available for those persons in all Member States. (16) Article 13 of the Qualification Directive provides that Member States shall grant refugee status to all third-country nationals or stateless persons who satisfy the material conditions for qualification as a refugee in accordance with Chapters
II and
III of that directive. The Member States have no discretion in that respect. (17)
34.      While reaffirming that the recognition or grant of refugee status is declaratory and not constitutive of being a refugee, (18) the Court has highlighted
that there is a distinction between the fact of being a ‘refugee’, as defined by Article 2(d) of the Qualification Directive, and the formal grant or recognition of ‘refugee status’, as defined by Article 2(e) of that directive. (19) It is only upon formal recognition as a refugee that the person concerned is, under Article 2(b) of the Qualification Directive, the ‘beneficiary of international protection’ for the purposes of that directive and he or she is entitled to all the rights and benefits laid down in Chapter VII of the Qualification Directive. (20)
35.      The distinction between being a refugee and refugee status and the different rights attached to those concepts is particularly clear from Article 14(4) to (6) of the Qualification Directive on the revocation of, ending of or refusal to renew refugee status and the case-law thereon. A Member State may revoke or not grant refugee status under Article 14(4) or (5) of the Qualification Directive even where the person concerned satisfies the material conditions on which his or her being a refugee depends. Refugees continue to benefit from certain rights guaranteed under the Geneva Convention
despite the loss of refugee status but they will no longer be entitled to all the benefits in Chapter VII of the Qualification Directive. In accordance with Article 14(6) of that directive, the minimum level of protection laid down by the Geneva Convention must be observed, as required by Article 78(1) TFEU and Article 18 of the Charter. (21)
36.      It follows that certain rights in Chapter VII of the Qualification Directive such as protection from refoulement (Article 21) are, in principle, granted to all refugees; others, including the right to information on the rights and obligations relating, inter alia, to refugee status (Article 22), the right to a residence permit (Article 24), the right to travel documents (Article 25) and access to employment (Article 26) are dependent upon the grant of international protection. (22) In addition, Chapter VII of the Qualification Directive contains rights equivalent to those set out in the Geneva Convention
and rights providing greater protection, which have no equivalent in that convention. The right to a residence permit pursuant to Article 24 of the Qualification Directive falls into the latter category.
37.      The right to a residence permit is of particular importance as it may de facto facilitate access to other rights under Chapter VII of the Qualification Directive. In that regard, recital 40 of the Qualification Directive states that ‘within the limits set out by international obligations, Member States may lay down that the granting of benefits with regard to access to employment, social welfare, healthcare and access to integration facilities requires the prior issue of a residence permit.’ While the Court stated that the condition in that recital ‘refers to processes purely administrative in nature’ since the objective of Chapter VII of the Qualification Directive is to guarantee refugees a minimum level of benefits in all Member States, (23) the importance of a residence permit and effective access to rights is evidenced by the recent legislative enactment of Article 20(3) of Regulation (EU) 2024/1347. (24) That provision states that ‘where a residence permit is not issued to a beneficiary of international protection within 15 days of the granting of international protection, the Member State concerned shall take provisional measures, such as registration or the issuance of a document, to ensure that the beneficiary has effective access to the rights laid down in [Chapter VII], … until such time as a residence permit is issued in accordance with Article 24.’ (25)
38.      In the judgment in M and Others (Revocation of refugee status),  the Court confirmed that a third-country national or stateless person whose refugee status is not formally recognised is not entitled to a residence permit pursuant to Article 24(1) of the Qualification Directive. (26) This is so even though the person has submitted an application for international protection in accordance with Chapter II of the Qualification Directive, fulfils the material conditions laid down by Chapter III of that directive and has a subjective right to be recognised as having refugee status. (27)
39.      It follows that the right to a residence permit pursuant to Article 24(1) of the Qualification Directive is ‘associated with’ or ‘attaches to’ refugee status (28) as defined by Article 2(e) of that directive. (29) In that regard, Article 24(1) of the Qualification Directive requires Member States to issue a residence permit to refugees as soon as possible after they have been granted international protection.  There is no requirement in the Qualification Directive to issue a residence permit prior to that date. Moreover, while that provision does not explicitly determine the point in time the residence permit takes effect under EU law, there is nothing in the text of the Qualification Directive indicating that the EU legislature intended residence permits issued to refugees to take effect retroactively and thus prior to the formal grant of international protection. It follows from the text of Article 24(1) of the Qualification Directive that Member States must expedite the issue of a residence permit after a refugee is granted international protection. (30) In order not to undermine or frustrate the objective of that provision and to ensure that a person with refugee status effectively benefits from all the rights in Chapter VII of that directive, I consider that the residence permit must take effect from the date of its issue.
40.      This interpretation of Article 24(1) of the Qualification Directive cannot be called into question by the third subparagraph of Article 4(2) of Directive 2003/109. (31) Article 4(1) of Directive 2003/109 requires a Member State to grant long-term resident status to third-country nationals who have resided legally and continuously within its territory for five years immediately prior to the submission of the relevant application. Article 4(2) and (3) of Directive 2003/109 lay down precise rules for calculating the ‘five years’ residence period stipulated in Article 4(1) of that directive. In that regard, the third subparagraph of Article 4(2) of Directive 2003/109, which relates to applicants for international protection, provides that ‘at least half of the period between the date of the lodging of the application for international protection on the basis of which that international protection was granted and the date of the grant of the residence permit referred to in Article 24 of [the Qualification Directive], or the whole of that period if it exceeds 18 months, shall be taken into account in the calculation of the period referred to in paragraph 1’.
It must be highlighted that the third subparagraph of Article 4(2) of Directive 2003/109 does not regulate when a residence permit issued in accordance with Article 24(1) of the Qualification Directive takes effect but rather provides for periods of residence of persons granted international protection to be calculated, in certain circumstances, from the lodging of their application for international protection solely for the purpose of calculating the ‘five years’ residence requirement in question. The third subparagraph of Article 4(2) of Directive 2003/109 cannot be applied out of context and does not lend any support to the applicant’s assertion that a residence permit issued in accordance with Article 24(1) of the Qualification Directive takes effect from the date of making an application for international protection.
Article 6 and Article 9(1) of the Procedures Directive
41.      I consider that Article 6 of the Procedures Directive and the case-law thereon does not alter or detract from this interpretation of Article 13 and Article 24(1) of the Qualification Directive. The Procedures Directive seeks to ensure effective, easy and rapid access to the procedure for granting international protection. (32) Article 6 of that directive requires Member States to ensure that the persons concerned may exercise effectively the right to apply for international protection and draws a distinction between making, registering and lodging an application for international protection.
42.      A third-country national or stateless person ‘makes’ an application for international protection by expressing a wish
to apply for that protection to an authority competent under national law for registering an application. (33) In accordance with Article 6(1) of that directive, Member States must register applications for international protection at the latest three or six working days
after such an application is ‘made’. (34)
43.      Article 6(2) of the Procedures Directive provides that Member States shall ensure that a person who has ‘made’ an application for international protection has an effective opportunity to ‘lodge’ it as soon as possible. (35) That latter act, in principle, requires the applicant for international protection to complete a form provided for that purpose in accordance with Article 6(4) of the Procedures Directive. The act of ‘making’ an application for international protection does not entail any administrative formalities. Those formalities must, however, be observed when the application is ‘lodged’. (36) The making and the lodging of an application for international protection are thus two separate, successive steps. There is nevertheless a close connection between those acts, inasmuch as they are meant to ensure effective access to the procedure in which applications for international protection are examined and to ensure the effectiveness of Article 18 of the Charter. (37)
44.      It is settled case-law that a Member State cannot, without undermining the effectiveness of Article 6 of the Procedures Directive, unjustifiably delay the time at which the person concerned is given the opportunity to make his or her application for international protection. (38) In my view, this approach applies mutatis mutandis to Article 6(2) of that directive and the lodging of an application for international protection in the light of the use in that provision of the terms ‘effective opportunity’ and ‘as soon as possible’. (39) The lodging of an application for international protection triggers the running of the six-month time limit (40) within which, in accordance with Article 31(3) of the Procedures Directive, the determining authority, in principle, must take a decision on that application. (41)
45.      While a third-country national acquires the status of an ‘applicant for international protection’, within the meaning of Article 2(c) of the Procedures Directive, (42) from the point in time he or she ‘makes’ such an application, that directive does not provide for the issue of a residence permit to such an applicant and a fortiori it does not specify the date on which such a residence permit takes effect. (43)
46.      Article 9(1) of the Procedures Directive, however, grants an applicant for international protection the right to remain on the territory of the Member State pending the examination of his or her application. The right to remain is for the sole purpose of the procedure and lasts until the adoption of a decision pursuant to Chapter III of the Procedures Directive. That provision also expressly states that the right to remain does not constitute an entitlement to a residence permit; (44) it prevents an applicant for international protection from being regarded as ‘staying illegally’, within the meaning of Directive 2008/115/EC, (45) during the period from making the application for international protection until the adoption of a decision at first instance on that application. (46)
47.      The right of an applicant for international protection to remain in a Member State (or a part thereof) while his or her application is pending examination is confirmed by, inter alia, Article 6(1) and Article 7(1) of Directive 2013/33. In addition, in accordance with Article 6(1) of that directive, Member States must provide an applicant for international protection with a document certifying his or her status as an applicant or testifying that he or she is allowed to remain on the territory of the Member State while his or her application is pending or being examined.
48.      Given that the examination stage of the procedure does not begin until after the access stage of the procedure (47) has ended, a delay at the access stage will result in a delay in commencing the examination procedure. (48) This will ultimately delay the eventual grant of refugee status (49) and the possibility for refugees to benefit from rights attached to that status – including the right to a residence permit pursuant to Article 24(1) of the Qualification Directive – will be postponed. However, in the absence of a legislative provision such as the third subparagraph of Article 4(2) of Directive 2003/109, I do not consider that, faced with such a delay, a refugee has a right to a residence permit upon the grant of refugee status which takes effect retroactively. To find otherwise would distort the clear distinction between ‘being a refugee’ and refugee status and the different rights that attach to those legal concepts. (50)
49.      In the present case, the applicant observes that although he was able to ‘lodge’ his application for international protection 10 days after making it, (51) the time period in question is not representative and certain applicants had to wait months before lodging their applications. In my view, given that there appears to be no unreasonable or unjustifiable delay undermining the effectiveness of Article 6(2)
of the Procedures Directive and access to the application procedure in the case before the referring court, the applicant’s observations regarding other eventualities relating to third parties are entirely moot.
50.      In any event, it is incumbent upon applicants for international protection to lodge an application with the competent authorities in accordance with Article 6(2) of the Procedures Directive, although a Member State must provide them, inter alia, with the required form pursuant to Article 6(4) thereof. (52) There is no indication in the file before the Court that the defendant failed to provide applicants with the requisite forms, failed to accept them once completed or hindered or delayed in an unreasonable manner their acceptance.
51.      It must also be pointed out that unlike the facts in the judgment in A and S, (53) in which an unaccompanied minor would be irrevocably denied the right to family reunification pursuant to Article 10(3)(a) of Directive 2003/86 on the basis that they were no longer a minor, depending on the date when that fact was assessed, there is no indication in the file before the Court that the rights granted to the applicant pursuant to, inter alia, the Qualification Directive will be eroded by the passage of time in a similar manner in the present case.
Interim conclusion
52.      Article 6 of the Procedures Directive does not determine the date on which a residence permit issued to a person with refugee status takes effect. In accordance with Article 13 of the Qualification Directive, read in conjunction with recital 21, and Article 24(1) thereof,
a residence permit must be issued to a refugee as soon as possible after he or she has been granted refugee status and, in principle, takes effect from the date of issue notwithstanding the declaratory nature of refugee status. There is no requirement pursuant to those provisions for a residence permit to be granted or to take effect prior to the formal grant or recognition of refugee status.
The right of Member States to introduce more favourable standards
53.      In accordance with Article 5 of the Procedures Directive, Member States may introduce or retain more favourable standards on procedures for granting and withdrawing international protection, in so far as those standards are compatible with that directive. Article 3 of the Qualification Directive also provides that Member States
may introduce or retain more favourable standards
for determining the content of international protection
provided they are compatible with that directive. (54) The Court has thus held, in essence, that the scope of application of the Qualification Directive cannot be extended ratione personae to include persons who, a priori, have no connection to the rationale of international protection. (55)
54.      I consider, however, that a Member State may, after granting a person refugee status, deem that a residence permit issued pursuant to Article 24(1) of the Qualification Directive to that person takes effect retroactively from the date his or her application for international protection was lodged in accordance with Article 6(2) of the Procedures Directive. (56) In that regard, a national provision such as Article 44(2) of the Law on Foreign Nationals does not extend the scope of application of the Qualification Directive ratione personae to include persons who, a priori, have no connection to the rationale of international protection. It merely enhances a right granted pursuant to Chapter VII of the Qualification Directive to a beneficiary of international protection. While this may blur the lines between the status and corresponding rights of applicants for international protection and beneficiaries of international protection, that provision does not appear to undermine the objectives of the Procedures Directive
or the Qualification Directive. The Court highlighted in paragraph 57 of the judgment in A and S the fact that the duration of an asylum procedure may be significant. In particular, in periods of substantial surges in applications for international protection, the time limits laid down in that regard by EU law are often exceeded. Given that national provisions such as Article 44(2) of the Law on Foreign Nationals may alleviate to a certain degree delays in the procedure, it does not appear, subject to verification by the referring court, to undermine the objectives of the directives in question.
VI.    Conclusion
55.      In the light of the foregoing, I propose that the Court of Justice answer the questions referred by the rechtbank Noord-Holland (District Court, North Holland, Netherlands) as follows:
(1)      Article 6 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
must be interpreted as meaning that it does not determine the date on which a residence permit issued to a person with refugee status takes effect.
(2)      Article 13, read in conjunction with recital 21, and Article 24(1) 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,
must be interpreted as meaning that a residence permit must be issued to a refugee as soon as possible after he or she has been granted refugee status. Without prejudice to the right of a Member State to introduce or retain, in certain circumstances, more favourable standards, such a residence permit must take effect from the date of issue notwithstanding the declaratory nature of refugee status.
1      Original language: English.
i      The name given to the present case is fictitious and does not correspond to the name of any party to the proceedings.
2      The request was lodged at the Registry of the Court of Justice on 7 November 2023.
3      See Article 24(1) 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 (OJ 2011 L 337, p. 9) (‘the Qualification Directive’).
4      Directive 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 Procedures Directive’).
5      Directive 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).
6      Stb. 2000, No 495.
7      That provision refers to refugee status.
8      See judgments of 12 April 2018, A and S (C‑550/16, EU:C:2018:248, paragraphs 53 and 54; ‘the
judgment in A and S’), and of 1 August 2022, Bundesrepublik Deutschland (Family reunification of a child who has reached the age of majority) (C‑279/20, EU:C:2022:618, paragraph 46; ‘the
judgment in XC’).
9      Council Directive of 25 November 2003 concerning the status of third-country nationals who are long-term residents (OJ 2004 L 16, p. 44), as amended by Article 1(3)(b) of Directive 2011/51/EU of the European Parliament and of the Council of 11 May 2011 amending Directive 2003/109 to extend its scope to beneficiaries of international protection (OJ 2011 L 132, p. 1).
10      Council Directive of 22 September 2003 on the right to family reunification (OJ 2003 L 251, p. 12).
11      See Article 4 of Directive 2003/109.
12      In this case, 20 October 2021.
13      See also recital 21 of the Qualification Directive and the judgment in A and S.
14      In accordance with Article 2(m) of the Qualification Directive a ‘“residence permit” means any permit or authorisation issued by the authorities of a Member State, in the form provided for under that State’s law, allowing a third-country national or stateless person to reside on its territory’.
15      Recital 21 of the Qualification Directive refers to the ‘recognition of refugee status’ (English-language version), ‘la
reconnaissance du statut de réfugié’ (French-language version), ‘pabėgėlio statuso pripažinimas’ (Lithuanian-language version), ‘el reconocimiento del estatuto de refugiado’ (Spanish-language version), o
‘reconhecimento do estatuto de refugiado’, (Portuguese-language version), and ‘recunoașterea statutului de refugiat’ (Romanian-language version). These terms allude, in my view, to the formal acknowledgment of a pre-existing situation. Article 13 of that directive refers to ‘granting refugee status’ (English-language version), ‘l’octroi du statut de réfugié’ (French-language version’), ‘pabėgėlio statuso suteikimas’ (Lithuanian-language version),
‘concesión del estatuto de refugiado’ (Spanish-language version), ‘concessão do estatuto de refugiado’ (Portuguese-language version), and
‘acordarea statutului de refugiat’ (Romanian-language version). These terms allude, in my view, to the conferment of a status, which did not necessarily previously exist. I consider, however, that these terms in recital 21 and Article 13 of the Qualification Directive are interchangeable and I shall use them accordingly in the present Opinion. See, for example, point 35 of the present Opinion. This approach is borne out, for example, by the Italian- and German-language versions of the Qualification Directive which use respectively the same term ‘riconoscimento’ and ‘zuerkennen’ in both recital 21 and Article 13 of that directive. See also the judgment of 14 May 2019, M and Others (Revocation of refugee status) (C‑391/16, C‑77/17 and C‑78/17, EU:C:2019:403, paragraph 91; ‘the judgment in M and Others (Revocation of refugee status)’). The Convention relating to the Status of Refugees, signed in Geneva on 28 July 1951 (United Nations Treaty Series, Vol. 189, 1954, p. 150, No 2545), as supplemented by the Protocol relating to the Status of Refugees, concluded in New York on 31 January 1967, which entered into force on 4 October 1967 (‘the Geneva Convention’), refers, in essence, to recognition ‘as a refugee’ (Article 1(C)(6)) and the according of rights under that convention (Articles 4, 13, 14 and 15).
16      See recital 12 of the Qualification Directive.
17      See judgment in M and Others (Revocation of refugee status) and
judgment of 18 June 2024, Bundesrepublik Deutschland (Effect of a decision granting refugee status) (C‑753/22, EU:C:2024:524, paragraph 71 and the case-law cited). See, however, Article 14(4) of the Qualification Directive on the revocation of, ending of or refusal to renew refugee status. See also, Article 14(5) of the Qualification Directive on the decision not to grant refugee status for the situations described in Article 14(4) of that directive.
18      See also recital 21 of the Qualification Directive.
19      See, to that effect, the
judgment in M and Others (Revocation of refugee status), paragraphs 90 to 92 and98, 99, 106, 110 and 111. In his Opinion in M and Others (Revocation of refugee status) (C‑391/16, C‑77/17 and C‑78/17, EU:C:2018:486, point 78), Advocate General Wathelet stated that ‘it is apparent from the general scheme of [the Qualification Directive] that the conditions for being a refugee, on the one hand, and the grant or withdrawal of refugee status, on the other, are two distinct concepts’.
20      The immediate vesting of rights in Chapter VII of the Qualification Directive in beneficiaries of international protection law may be contrasted with the incremental or staggered acquisition of rights under the Geneva Convention. ‘In contrast to the usual approach in international human rights law, it is not the case that all the rights set out in the Convention are immediately owed to every presumptive refugee arriving at a State’s territory. Refugees are instead entitled to an expanding array of rights as their relationship with the asylum State deepens’; see Hathaway, J.C., ‘The Architecture of the UN Refugee Convention and Protocol’, in Costello, C., Foster, M. and Mc Adam, J. (eds), The Oxford Handbook of International Refugee Law, Oxford University Press, 2021, pp. 180-182.
21      Judgment in M and Others (Revocation of refugee status), paragraphs 91, 98, 99, 110 and 111. See, also, judgment of 6 July 2023, Commissaire général aux réfugiés et aux apatrides (Refugee who has committed a serious crime) (C‑8/22, EU:C:2023:542, paragraphs 66 to 70).
22      Judgment in M and Others (Revocation of refugee status), paragraph 91. See, also, judgment of 18 June 2024, Generalstaatsanwaltschaft Hamm (Request for the extradition of a refugee to Türkiye) (C‑352/22, EU:C:2024:521, paragraphs 39 to 41).
23      See, by analogy, judgment of 24 June 2015, T. (C‑373/13, EU:C:2015:413, paragraph 96).
24      Regulation of the European Parliament and of the Council of 14 May 2024 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, amending Directive 2003/109 and repealing Directive 2011/95 (OJ L 2024/1347).
25      See also recital 57 of Regulation 2024/1347. That regulation is not applicable ratione temporis to the present request for a preliminary ruling. See Article 42 of that regulation, which provides that it shall apply from 1 July 2026.
26      Judgment in M and Others (Revocation of refugee status), paragraphs 91, 99 and 103.
27      See, by analogy, the judgment in A and S, paragraph 54.
28      See also Article 24(2) of the Qualification Directive on the rights of beneficiaries of subsidiary protection status to a residence permit.
29      Judgment in M and Others (Revocation of refugee status), paragraphs 91, 99 and 103.
A refugee’s right to a residence permit may be revoked pursuant to Article 24(1) of the Qualification Directive for compelling reasons of national security or public order. In such circumstances, the refugee retains his or her refugee status
until that status is actually ended. See, by analogy, judgment of 24 June 2015, T. (C‑373/13, EU:C:2015:413, paragraphs 45 to 55 and 95). See also Article 24(1) and (5) of Regulation 2024/1347. Article 24(1) of that regulation provides that ‘beneficiaries of international protection shall have the right to a residence permit for as long as they hold refugee status or subsidiary protection status.’ Article 24(5) thereof states that ‘the competent authorities may revoke or refuse to renew a
residence permit only where they have withdrawn refugee status …’.
30      See also Article 24(2) of Regulation 2024/1347 which provides that ‘a residence permit shall be issued as soon as possible after refugee status or subsidiary protection status has been granted, and at the latest 90 days from the notification of the decision to grant international protection …’ (emphasis added).
31      See points 20 and 25 of the present Opinion.
32      Judgment of 17 December 2020, Commission
v Hungary (Reception of applicants for international protection) (C‑808/18, EU:C:2020:1029, paragraph 104 and the case-law cited).
33      Or before ‘other authorities’, within the meaning of the third subparagraph of Article 6(1) of the Procedures Directive. See, to that effect, judgment of 25 June 2020, Ministerio Fiscal (Authority likely to receive an application for international protection) (C‑36/20 PPU, EU:C:2020:495, paragraphs 94 and 98).
34      The time limit depends on whether the application is ‘made’ to the authority competent under national law to register that application or to other authorities which are likely to receive such an application but are not competent under national law to register it. The time limit may be extended where there are simultaneous applications by a large number of applicants. See Article 6(5) of the Procedures Directive.
35      While Article 6(1) of the Procedures Directive lays down specific time periods for registering an application for international protection, Article 6(2) of that directive does not do so for lodging an application for international protection. Article 28(1) of Regulation (EU) 2024/1348 of the European Parliament and of the Council of 14 May 2024 establishing a common procedure for international protection in the Union and repealing Directive 2013/32 (OJ L 2024/1348) provides, however, that, in principle, an applicant for international protection ‘shall lodge the application with the competent authority of the Member State … as soon as possible and no later than 21 days from when the application is registered …’. That time limit may be extended to two months pursuant to Article 28(5) of that regulation. Regulation 2024/1348 is not applicable ratione temporis to the present request for a preliminary ruling. See Article 79(1) thereof, which provides that that regulation applies from 12 June 2026.
36      Judgment of 25 June 2020, Ministerio Fiscal
(Authority likely to receive an application for international protection) (C‑36/20 PPU, EU:C:2020:495, paragraph 93).
37      Judgment of 30 June 2022, Valstybės sienos apsaugos tarnyba and Others (C‑72/22 PPU, EU:C:2022:505, paragraph 62).
38      Judgment of 22 June 2023, Commission
v Hungary (Declaration of intent prior to an asylum application) (C‑823/21, EU:C:2023:504, paragraphs 46 and 47 and the case-law cited). The rights granted to applicants for international protection vary according to the stage of the procedure in question. Thus, in accordance with Article 22(1) of the Procedures Directive, applicants have a right to consult an adviser at all stages of the procedure. By contrast, the guarantees for applicants in Article 12 of the Procedures Directive apply only to the procedures laid down in Chapter III of that directive.
39      See also, Article 4(1) of the Procedures Directive which provides that Member States must ensure that the determining authority responsible for the examination of applications ‘is provided with appropriate means, including sufficient competent personnel, to carry out its tasks in accordance with this Directive’.
40      The six-month time period is without prejudice to the possibility of extending that period on the grounds set out in Article 31(3) and (4) of the Procedures Directive.
41      Judgment of 17 December 2020, Commission
v Hungary (Reception of applicants for international protection) (C‑808/18, EU:C:2020:1029, paragraph 101). The time limits in Articles 6 and 31 of the Procedures Directive have been recently altered by Articles 27, 28 and 35 of Regulation 2024/1348.
42      Identical definitions may be found in Article 2(i) of the Qualification Directive and Article 2(b) of Directive 2013/33.
43      As the Netherlands Government observes, Article 6 of the Procedures Directive, entitled ‘Access to the procedure’, refers only to the application phase of the procedure for granting international protection. It does not refer to the residence permit issued pursuant to Article 24(1) of the Qualification Directive after the entire procedure has been completed.
44      The Netherlands Government emphasises that Article 9(1) of the Procedures Directive is the only provision of that directive which refers to a residence permit, only to explicitly exclude a right thereto.
45      Directive 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).
46      See, to that effect, judgments of 9 November 2023, Odbor azylové a migrační politiky MV (Scope of the Return Directive) (C‑257/22, EU:C:2023:852, paragraphs 37 to 42 and the case-law cited), and of 22 June 2023, Commission
v Hungary (Declaration of intent prior to an asylum application) (C‑823/21, EU:C:2023:504, paragraph 45).
47      Within the meaning of Article 6 of the Procedures Directive.
48      See, by analogy, judgment of 16 November 2021, Commission
v Hungary (Criminalisation of assistance to asylum seekers) (C‑821/19, EU:C:2021:930, paragraph 81).
49      To persons who have submitted an application for international protection in accordance with Chapter II of the Qualification Directive and fulfil the material conditions laid down by Chapter III of that directive.
50      In my view, in the light of the unequivocal nature of the obligation on Member States in Article 6(2) of the Procedures Directive, an applicant may nonetheless have a right to bring an action to compel a Member State’s competent authority to allow him or her to lodge an application for international protection or an action for damages for unreasonable delay.
51      It appears from the request for a preliminary ruling that over 10 months lapsed between the date the applicant made an application for international protection (10 October 2021) and was granted that protection (26 August 2022).
52      Member States may require applications to be lodged in person and/or at a designated place. See Article 6(3) of the Procedures Directive.
53      See paragraph 57 of that judgment.
54      See recital 12 of the Qualification Directive, which refers to the need to ensure a minimum level of benefits. See also recital 41 of that directive, which provides that Member States may introduce or retain more favourable standards for beneficiaries of international protection than those granted to their own nationals.
55      Judgment of 4 October 2018, Ahmedbekova (C‑652/16, EU:C:2018:801, paragraph 71 and the case-law cited).
56      As previously indicated in point 40 of the present Opinion, such a period of residence may also be taken into account, pursuant to the third subparagraph of Article 4(2) of Directive 2003/109. It must be stressed that if the time limits and conditions laid down in the third subparagraph of Article 4(2) of Directive 2003/109 are not met, Article 13 of that directive applies and the right of residence in other Member States as provided by Chapter III of that directive is excluded.