(Late) submission of new asylum motives during the appeal before first instance courts and the requirement of a full and ex nunc judicial examination of Article 46(3) RAPD

On 4 October 2017 the Administrative Jurisdiction Division of the Council of State (AJD) referred preliminary questions to the Court of Justice (Case C-586/17) about the judicial review in asylum cases. The AJD wants to know whether asylum motives (reasons for international protection) which are first mentioned during the appeal phase should be taken into account by the first instance court. The AJD also asks the Court of Justice whether it makes a difference whether the asylum motives already existed, but were not mentioned during the administrative phase through the fault of the asylum applicant, or have come up after the decision by the decision-making authority. Furthermore, the AJD asks whether it makes a difference whether it concerns an appeal in a first or a subsequent asylum procedure and whether the appeal court may refuse to take into account a new asylum motive in the light of the good order of proceedings.

The expert opinion of the Migration Law Clinic argues that Article 47 of the Charter precludes a system, under which first instance courts in asylum cases are prohibited to take into account in their assessment of the appeal, asylum motives that have been submitted for the first time in that appeal, irrespective of whether the asylum motive was submitted late due to the applicant’s fault.

After the CJEU’s judgment in the case of Ahmedbekova (C-652/16) the AJD withdrew the case. The case will now be decided by the AJD.

Expert opinion Migration Law Clinic New Asylum Motives def