CJEU - C-921/19, LH v Staatssecretaris van Justitie en Veiligheid

Facts:

The applicant, LH, fled Afghanistan due to threats he received from the Taliban. He lodged an application for international protection in the Netherlands, which was rejected. The State Secretary found that the applicant’s statement concerning the Taliban’s ambushes was credible, however, believed LH’s statements concerning the individual threats he received were untrue. As such, his application was rejected and a subsequent appeal was further dismissed.

LH submitted a subsequent application, where he attempted to prove the personal threats he faced by submitting supporting documents. These documents included the original copies of documents he had previously submitted. In specific, LH provided a statement from the fire services, proving that his house in Afghanistan had been set on fire, accompanied by fingerprints of witnesses. Notably, the authenticity of these documents could not be established, and therefore the State Secretary declared LH’s subsequent application inadmissible.

LH appealed the decision before the Rechtbank Den Haag, zittingsplaats’s-Hertogenbosch (District Court, The Hague, sitting in ‘s- Hertogenbosch, Netherlands). He noted that it was impossible for him to prove the authenticity of the documents, and that it was unreasonable to place the burden of proving the authenticity on the applicant.

In response, the District Court noted that according to the current Netherlands administrative practice, it is for the applicant to demonstrate the authenticity of the documents they provide in their subsequent applications. Moreover, it is only when doubts concerning the authenticity of those documents arise in a subsequent application, that those doubts constitute a ground for the authority to conclude that there are no new elements or findings, thereby rendering the application inadmissible.

Notwithstanding this, the Court also noted that in order to examine whether Netherland’s legislation and case-law are consistent with EU law, it is necessary to interpret the concept of ‘new elements or findings’ within the meaning of Article 40(2) of Directive 2013/32. Notably, the concept is not defined within the Article.  As such, the court decided to refer the following questions for a preliminary ruling:

1.      Does Article 40(2) of Directive 2013/32, read in conjunction with article 4(2) of Directive 2011/95, preclude national legislation, which states that any document submitted by an applicant for international protection in a subsequent application is automatically regarded as not constituting a ‘new element or finding’ if its authenticity cannot be established?

2.      Does Article 40 of Directive 2013/32, read in conjunction with Article 40(1) and (2) of Directive 2011/95, require Courts to recognize that there is no substantial difference between an application for international protection depending on whether it is the first application or a subsequent application? Moreover, are Member States permitted to withhold cooperation with an applicant when they submit documents whose authenticity cannot be established?

Decision & reasoning:

The first question

The referring court sought to establish whether a document, whose authenticity cannot be verified, may constitute a ‘new element or finding’ within the meaning of Article 40(2) of the Directive 2013/32.

The Court concluded that, Article 40(2) does not define the concept of ‘new elements or findings’ capable of substantiating a subsequent application, however, it equally does not draw any distinction between the first application for international protection and subsequent applications. As such, the assessment of the facts and circumstances in support of international protection applications must, in both cases, be carried out in the same manner [para. 40].

Consequently, when examining a subsequent application, Article 4(1) of Directive 2011/95/EU applies. As per this Article, any document submitted by the applicant in support of his application for international protection must be considered, and the inability to authenticate that document cannot, in itself, justify the exclusion of such a document from the examination [para. 44]

Therefore, in the current case, the fact that the document could not been authenticated does not permit the referring court to conclude, from the outset, that that application is inadmissible.

In the light of the foregoing considerations, the answer to the first question is that Article 40(2) of Directive 2013/32, read in conjunction with Article 4(2) of Directive 2011/95, must be interpreted as precluding national legislation.

The second question

The Court concluded that it is not evident in Articles 40 - 42 of Directive 2013/32, which concern subsequent applications, that Member States should treat the assessment of evidence submitted in subsequent applications different from evidence submitted in a first application [para. 57]

Moreover, in accordance with Article 4(1) of Directive 2011/95, it is the duty of the Member States to assess the relevant elements of an application for international protection in cooperation with the applicant. Thus, as per the article, even if the authenticity of a document cannot be established, the Member State is required to assess that document in cooperation with the applicant [para. 60].

In light of the foregoing, the answer to the second question is that Article 40 of Directive 2013/32, read in conjunction with Article 4(1) of Directive 2011/95, must be interpreted as meaning that no distinction should be made between a subsequent application and a first application for international protection. Moreover, Member State are required to cooperate with applicants, even if the authenticity of their supporting evidence cannot be established.

Outcome:

1.      Article 40(2) 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 Article 4(2) 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 precluding national legislation under which any document submitted by an applicant for international protection in support of a subsequent application is automatically considered not to constitute a ‘new element or finding’, within the meaning of that provision, when the authenticity of that document cannot be established or its source objectively verified.

2.      Article 40 of Directive 2013/32, read in conjunction with Article 4(1) and (2) of Directive 2011/95, must be interpreted as meaning, first, that the assessment of the evidence submitted in support of an application for international protection cannot vary according to whether the application is a first application or a subsequent application and, second, that a Member State is required to cooperate with an applicant for the purpose of assessing the relevant elements of his or her subsequent application, when that applicant submits, in support of that application, documents the authenticity of which cannot be established.