CJEU: Request for preliminary ruling on the interpretation of “new elements and findings” in asylum applications

Monday, December 16, 2019

On 16 December 2019, the Court of the Hague published its decision to call upon the Court of Justice of the European Union to give a preliminary ruling on the interpretation of Article 40 Directive 2013/32 in circumstances where the authenticity of newly provided evidence in asylum applications cannot be established.
The applicant, an Afghan national fled his country of origin after a number of targeted attacks by the Taliban. His initial application for asylum was rejected on the grounds that individual threats were believed not to be credible. New evidence was provided in a second application, including a statement from the fire brigade and fingerprints from witnesses. The Secretary of State declared this application inadmissible on the grounds that no “new evidence or findings” were presented and the authenticity and substantive accuracy of said evidence could not be established. The Court noted that even if the authenticity of evidence cannot be established a careful assessment of the evidential value would consider: the nature of the documents; the way the evidence was obtained; the relevance of the evidence in the overall asylum application; and the uncertainty surrounding the authenticity of the evidence. The Court considered it necessary to question how the term “new elements and findings” referred to in Article 40 2013/32 should be interpreted in order to determine whether Dutch legislation is in accordance with EU law. The following questions were referred:

I. Is it compatible with Article 40(2) Asylum Procedures Directive, Article 4 Qualification Directive and Article 52 of the Charter of Fundamental Rights of the European Union for Member States to conclude that newly presented evidence can never be new elements or findings if their authenticity cannot be established? If no, does it make any difference if copies of documents or documents originating from a non-objectively verifiable source are submitted?

II. Is Article 40, in conjunction with Article 4 Qualification Directive to be interpreted as permitting the Member State, when assessing evidentiary value of documents, to distinguish between documents submitted at the time of an initial application and those of a subsequent application? Are Member States permitted not to give further consideration to the duty of cooperation if the authenticity of the documents cannot be established?

The Dutch Council for Refugees assisted in the case.

Thank you to Sadhia Rafi, ELENA coordinator for the Netherlands, for informing the EWLU team about this judgment and for assisting us with writing this summary. Based on an unofficial translation by the EWLU team.

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 pusexblished but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.

Subsequent application