C-921/19: AG Hogan interprets Article 40(2) of the Procedures Directive

Thursday, February 11, 2021

On 11 February 2021, AG Hogan published his Opinion in case C-921/19 on the interpretation of Article 40 of the Procedures Directive (Directive 2013/32).
The case before the national court regards LH, an Afghan national, who unsuccessfully applied for international protection in the Netherlands. A few months after the final appeal on his first application, LH made a subsequent application and provided further documentation to prove his claim, thereby also explaining why he had not been able to supply the new documents before. Nonetheless, the State Secretary considered the application inadmissible, as the Dutch authorities had not been able to assess whether these ‘new elements or findings’ fulfilled their ‘authenticity’ criteria.  L.H. appealed the rejection decision, stating that it was impossible for him to prove the authenticity of the original documents. He considered, inter alia, that it was unreasonable to place the burden of proof solely on him, by automatically rejecting the original documents. Therefore, the District Court of The Hague stayed the proceedings and referred preliminary questions to the CJEU.
AG Hogan first highlighted that, while the objective of the Procedures Directive is that applicants for international protection are treated equally throughout the EU, a 2010 UNHCR study found that Article 40(2) of this Directive is subject to divergent interpretations, such as in the Netherlands, where it is interpreted restrictively. He further noted the two-legged nature of the admissibility procedure of a subsequent application for international protection, as codified in Article 40(2) and (3). First, ‘new elements or findings’ must have arisen or have been presented that relate to the examination of the applicant’s qualification for international protection. Secondly, those new elements or findings must significantly add to the likelihood of the applicant qualifying for international protection. In this context, he highlighted that the Dutch practice rules out the ‘new elements or findings’ on the basis of the second leg, without going through the first one.

Therefore, the AG concluded that that the Dutch practice whereby original documents can never constitute new elements or findings in the context of a subsequent application, if the authenticity of those documents cannot be established, is incompatible with Article 40(2) of the Procedures Directive, read in conjunction with Article 4(2) of the Qualification Directive (Directive 2011/95). Furthermore, he noted that there is no difference between copies of documents or documents originating from a non-objectively verifiable source in so far as all documents have to be considered carefully, rigorously and individually in order to ascertain whether they significantly add to the likelihood that the applicant qualifies for international protection and in order to prevent a person from risking to face refoulement, which breaches the Charter. Finally, he stated that Article 40, read in light of Article 4(2) Qualification Directive, does not permit the authorities of a Member State, when assessing documents and assigning probative value to such documents, to distinguish between documents submitted in an initial application and those submitted in a subsequent application. A Member State, when assessing documents in a subsequent application, is obliged to cooperate with the applicant to the same extent as in the initial procedure.

This item was reproduced with the permission of ECRE from the ELENA Weekly Legal Update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.                               

Assessment of facts and circumstances
Inadmissible application
Individual assessment
Relevant Documentation
Subsequent application