62024CJ0431_RES
Case C‑431/24 [Multan] (
i
)
W
v
Staatssecretaris van Justitie en Veiligheid
(Request for a preliminary ruling from the rechtbank Den Haag, zittingsplaats Roermond)
Judgment of the Court (Fifth Chamber) of 29 January 2026
(Reference for a preliminary ruling – Asylum policy – Directive 2013/32/EU – Common procedures for granting and withdrawing international protection – Article 23(1) – Access to the information in the file of an applicant for international protection – Article 46 – Right to an effective remedy – Charter of Fundamental Rights of the European Union – Article 4, Article 18 and Article 19(2) – Principle of non-refoulement – Second paragraph of Article 47 – Right to a fair trial – Investigation in the applicant’s country of origin – Rejection of an application for international protection and adoption of a return decision – Access of the court of first instance and the applicant to information relating to the manner in which the investigation was conducted in the applicant’s country of origin – Scope of the rights of the defence and of the right to an effective remedy – Connection with the principle of non-refoulement)
Border controls, asylum and immigration – Asylum policy – Procedures for granting and withdrawing international protection – Directive 2013/32 – Action against a decision rejecting an application for international protection – Right to an effective remedy – Rights of the defence – Right of access to the file – Information in the applicant’s file – Concept – Information relating to the conduct of the investigation by the authorities of the host Member State in the applicant’s country of origin – Included – Scope – Assessment by the court of whether the principle of non-refoulement has been complied with
(Charter of Fundamental Rights of the European Union, Art. 47; European Parliament and Council Directive 2013/32, Arts 23(1), 30 and 46)
(see paragraphs 31-46, operative part)
Border controls, asylum and immigration – Asylum policy – Procedures for granting and withdrawing international protection – Directive 2013/32 – Action against a decision rejecting an application for international protection – Right to an effective remedy – Rights of the defence – Right of access to the file – Exception – Lawful objectives justifying the non-disclosure of certain information to the applicant – Obligation on the Member States to establish procedures which guarantee respect for the rights of the defence – Possibility of granting access to that information to a legal adviser or other counsellor of the applicant who has undergone a security check
(Charter of Fundamental Rights of the European Union, Art. 47; European Parliament and Council Directive 2013/32, Art. 23(1), second subpara.)
(see paragraphs 49-54)
Résumé
Ruling on a request for a preliminary ruling from the rechtbank Den Haag (District Court, The Hague, Netherlands), the Court of Justice provides clarification on the information which must be made available to an applicant for international protection and taken into account by the court before which that applicant brought his or her action against both the decision rejecting his or her application and the return decision taken against him or her.
In 2014, the applicant in the main proceedings, a Christian of Pakistani origin, lodged an application for international protection in the Netherlands, which was rejected.
After a fatwa was issued against the him in his country of origin, he made, in 2018, a new application for international protection. The Minister van Buitenlandse Zaken (Minister for Foreign Affairs, Netherlands) therefore conducted an investigation in Pakistan in order to establish whether the applicant in the main proceedings needed international protection. The outcomes of the investigation were recorded in an individual official report sent to the Staatssecretaris van Justitie en Veiligheid (State Secretary for Justice and Security, Netherlands; ‘the State Secretary’). That individual official report, together with a redacted version of the documents supporting it, which included an investigation report (‘the supporting documents’), were then sent to the applicant in the main proceedings.
In 2022, the State Secretary rejected the application for international protection of the applicant in the main proceedings and adopted a return decision against him.
In support of his action against those decisions before the District Court of the Hague, the applicant claimed, in particular, that the State Secretary had infringed the EU law principle of respect for the rights of the defence by not giving him full access to the supporting documents.
The Minister for Foreign Affairs provided the unredacted supporting documents to the District Court of the Hague and made an application on the basis of national legislation (
1
) that only the referring court should have access to certain parts of those documents, which was granted. Subsequently, however, the applicant in the main proceedings refused to allow the referring court to inspect the unredacted supporting documents for the purpose of ruling on the decision rejecting his application for international protection, on the ground that that national legislation, in his view, infringed EU law.
Since it harbours doubts as to the compliance with Directive 2013/32 (
2
) of such legislation which restricts access to supporting documents, the District Court of the Hague decided to refer the matter to the Court for a preliminary ruling. It asks the Court whether information relating to the manner in which an investigation was conducted in the context of an application for international protection is covered by the concept of ‘information in the applicant’s file upon the basis of which a decision is or will be made’, within the meaning of Article 23(1) of Directive 2013/32, (
3
) with the result that the applicant for international protection and the court having jurisdiction must be able to access that information by the means provided for in points (a) and (b) of the second subparagraph of Article 23(1) of that directive.
Findings of the Court
The Court finds, first of all, that the main objective of Directive 2013/23 is to develop further the standards for procedures for granting and withdrawing international protection in compliance, in particular, with the principle of non-refoulement, which is guaranteed, as a fundamental right, in Article 18 of the Charter of Fundamental Rights of the European Union (‘the Charter’), read in conjunction with Article 33 of the Geneva Convention relating to the Status of Refugees, (
4
) and Article 19(2) of the Charter.
As Article 30 of Directive 2013/32 confirms, (
5
) a risk of infringement of that principle may however result from the manner in which an investigation is conducted by a national authority in the country of origin of the applicant for international protection.
An applicant for international protection must be able to assert his or her right to be protected from disclosure, by the Member States, of information regarding his or her application to the alleged actor of persecution or serious harm by relying on the relevant information relating to the manner in which the investigation was carried out in his or her country of origin. Similarly, the national court before which an action against a decision rejecting an application for international protection is brought must be able to review the compliance of the Member States with their obligations under Article 30(a) of Directive 2013/32.
Therefore, information relating to the manner in which an investigation was conducted by the authorities of the host Member State in the country of origin of that third-country national for the purpose of determining the merits of his or her application, such as the supporting documents which include the investigation report at issue in the main proceedings, is covered by the concept of ‘information in the applicant’s file upon the basis of which a decision is or will be made’, within the meaning of Article 23(1) of Directive 2013/32, where it is likely to be relevant to the assessment, by that court, of whether the principle of non-refoulement has been complied with.
The Court adds that, in the present case, the lack of full and direct access to the supporting documents by the determining authority, which is responsible for examining the application for international protection, does not affect the relevance of that information for ensuring the effectiveness of the action brought against the decision rejecting that application and for allowing the assessment, by the referring court, of compliance with the principle of non-refoulement.
That interpretation is supported, first, by Article 46(3) of Directive 2013/32, which states that the court or tribunal before which the decision relating to the application for international protection is contested is to carry out a full and ex nunc examination of both facts and points of law. According to settled case-law, the adjective ‘full’ confirms that the court is, in particular, required to examine the evidence which the competent authority took into account or should have taken into account.
Secondly, the effective exercise of the rights of the defence, as guaranteed in the second paragraph of Article 47 of the Charter, has as a necessary corollary the right of access to the file. The Court has held that the person against whom an act adversely affecting him or her has been adopted has the right to examine all the documents in the investigation file that are likely to be relevant to his or her defence and that it cannot be for the authority which took that act alone to determine which documents are useful for that purpose. (
6
)
It follows that the applicant for international protection and the court having jurisdiction must be able to access that information by the means provided for in points (a) and (b) of the second subparagraph of Article 23(1) of Directive 2013/32. It is apparent from the wording of that article that the court must have access to all the information that is likely to be relevant for its decision, even though the disclosure of some of that information may be limited as regards the applicant.
Member States may make an exception to the applicant’s right to access his or her file where disclosure of information or sources would jeopardise, inter alia, national security or the security of sources. Where one or more lawful objectives justify the non-disclosure of information to the applicant, which is a matter for the referring court to ascertain, the Member States are to make access to such information or sources available to courts before which such an action is brought and guarantee that the rights of defence of the person concerned are respected.
Since Directive 2013/32 does not prescribe how the Member States are to guarantee respect for those rights, they must lay down the practical arrangements of the procedures necessary for that purpose, provided, however, that they respect, in particular, the right to an effective remedy as enshrined in Article 47 of the Charter. In accordance with Article 23(1) of Directive 2013/32, Member States may, inter alia, grant access to relevant information to a legal adviser or other counsellor of the applicant who has undergone a security check.
(
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.
(
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)	Article 8:29(1) of the Algemene wet bestuursrecht (Code of Administrative Law, Netherlands), in the version applicable to the dispute in the main proceedings, provides that ‘parties which are required to provide information or to produce documents may, if there are serious reasons for doing so, refuse to provide that information or produce those documents or may indicate to the administrative court that it alone may be privy to that information or those documents. …’
(
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)	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).
(
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)	Article 23(1) of Directive 2013/32 states: ‘Member States shall ensure that a legal adviser or other counsellor admitted or permitted as such under national law, who assists or represents an applicant under the terms of national law, shall enjoy access to the information in the applicant’s file upon the basis of which a decision is or will be made. Member States may make an exception where disclosure of information or sources would jeopardise national security, the security of the organisations or person(s) providing the information or the security of the person(s) to whom the information relates or where the investigative interests relating to the examination of applications for international protection by the competent authorities of the Member States or the international relations of the Member States would be compromised. In such cases, Member States shall: (a) make access to such information or sources available to the authorities referred to in Chapter V; and (b) establish in national law procedures guaranteeing that the applicant’s rights of defence are respected. In respect of point (b), Member States may, in particular, grant access to such information or sources to a legal adviser or other counsellor who has undergone a security check, insofar as the information is relevant for examining the application or for taking a decision to withdraw international protection.’
(
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)	Convention relating to the Status of Refugees, signed in Geneva on 28 July 1951, United Nations Treaty Series, Vol. 189, p. 150, No 2545 (1954), as amended by the Protocol relating to the Status of Refugees, signed in New York on 31 January 1967.
(
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)	Article 30 of Directive 2013/32 provides, in point (b) thereof, that, in the course of collecting information, Member States ‘shall not … obtain any information from the alleged actor(s) of persecution or serious harm in a manner that would result in such actor(s) being directly informed of the fact that an application has been made by the applicant in question, and would jeopardise the physical integrity of the applicant or his or her dependants, or the liberty and security of his or her family members still living in the country of origin’. Similarly, point (a) of that article provides that, for the purpose of collecting information on individual cases, Member States ‘shall not … disclose information regarding individual applications for international protection, or the fact that an application has been made, to the alleged actor(s) of persecution or serious harm’.
(
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)	See, to that effect, judgment of 1 December 2022, Bundesrepublik Deutschland (Access to the file in asylum cases) (C‑564/21, EU:C:2022:951, paragraphs 38 and 39).