CJEU Case C-652/16 / Judgment

Key facts of the case

Request for a preliminary ruling from the Administrativen sad Sofia-grad.

Reference for a preliminary ruling — Common policy on asylum and subsidiary protection — Standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection — Directive 2011/95/EU — Articles 3, 4, 10 and 23 — Applications for international protection lodged separately by family members — Individual assessment — Taking into account threats in respect of a family member in carrying out the individual assessment of the application for international protection of another family member — More favourable standards capable of being retained or introduced by the Member States for the purpose of extending the refugee or subsidiary protection status of a beneficiary of international protection to family members — Assessment of the reasons for persecution — Involvement of an Azerbaijani national in bringing a complaint against her country before the European Court of Human Rights — Common procedural standards — Directive 2013/32/EU — Article 46 — Right to an effective remedy — Full and ex nunc examination — Reasons for persecution or evidence withheld from the determining authority but invoked in the course of an action against the decision taken by that authority.

Outcome of the case

On those grounds, the Court (Second Chamber) hereby rules:

1. Article 4 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 meaning that, in carrying out the assessment of an application for international protection on an individual basis, account must be taken of the threat of persecution and of serious harm in respect of a family member of the applicant for the purpose of determining whether the applicant is, because of his family tie to the person at risk, himself exposed to such a threat.

2. Directive 2011/95 and 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 must be interpreted as not precluding applications for international protection lodged separately by members of a single family from being subject to measures intended to address any interaction between applications, but as precluding those applications from being subject to a single assessment. They also preclude the assessment of one of those applications from being suspended until the conclusion of the examination procedure in respect of another of those applications.

3. Article 3 of Directive 2011/95 must be interpreted as permitting a Member State, when granting international protection to a family member pursuant to the system established by that directive, to provide for an extension of the scope of that protection to other family members, provided that they do not fall within the scope of a ground for exclusion laid down in Article 12 of that directive and that their situation is, due to the need to maintain family unity, consistent with the rationale of international protection.

4. Article 33(2)(e) of Directive 2013/32 does not cover a situation, such as that at issue in the main proceedings, in which an adult lodges, in her own name and on behalf of her minor child, an application for international protection which is based, inter alia, on a family tie with another person who has lodged a separate application for international protection.

5. The involvement of an applicant for international protection in bringing a complaint against his country of origin before the European Court of Human Rights cannot in principle be regarded, for the purposes of assessing the reasons for persecution referred to in Article 10 of Directive 2011/95, as proof of that applicant’s membership of a ‘particular social group’, within the meaning of Article 10(1)(d) of that directive, but must be regarded as a reason for persecution for ‘political opinion’, within the meaning of Article 10(1)(e) of the directive, if there are valid grounds for fearing that involvement in bringing that claim would be perceived by that country as an act of political dissent against which it might consider taking retaliatory action.

6. Article 46(3) of Directive 2013/32 read in conjunction with the reference to the appeal procedure contained in Article 40(1) of that directive, must be interpreted as meaning that a court before which an action has been brought against a decision refusing international protection is, in principle, required to examine, as ‘further representations’ and having asked the determining authority for an assessment of those representations, grounds for granting international protection or evidence which, whilst relating to events or threats which allegedly took place before the adoption of the decision of refusal, or even before the application for international protection was lodged, have been relied on for the first time during those proceedings. That court is not, however, required to do so if it finds that those grounds or evidence were relied on in a late stage of the appeal proceedings or are not presented in a sufficiently specific manner to be duly considered or, in respect of evidence, it finds that that evidence is not significant or insufficiently distinct from evidence which the determining authority was already able to take into account.
Paragraphs referring to EU Charter

6) Recitals 14, 16, 18, 24 and 36 of that directive state: ‘

(14) Member States should have the power to introduce or maintain more favourable provisions than the standards laid down in this Directive for third-country nationals or stateless persons who request international protection from a Member State, where such a request is understood to be on the grounds that the person concerned is either a refugee within the meaning of Article 1(A) of the Geneva Convention, or a person eligible for subsidiary protection.

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(16) This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. In particular this Directive seeks to ensure full respect for human dignity and the right to asylum of applicants for asylum and their accompanying family members and to promote the application of Articles 1, 7, 11, 14, 15, 16, 18, 21, 24, 34 and 35 of that Charter, and should therefore be implemented accordingly.

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(18) The “best interests of the child” should be a primary consideration of Member States when implementing this Directive, in line with the 1989 United Nations Convention on the Rights of the Child. In assessing the best interests of the child, Member States should in particular take due account of the principle of family unity, the minor’s well-being and social development, safety and security considerations and the views of the minor in accordance with his or her age and maturity.

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(24) It is necessary to introduce common criteria for recognising applicants for asylum as refugees within the meaning of Article 1 of the Geneva Convention.

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(36) Family members, merely due to their relation to the refugee, will normally be vulnerable to acts of persecution in such a manner that could be the basis for refugee status.’

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11) Article 12 of that directive states:

‘1. A third-country national or a stateless person is excluded from being a refugee if:

(a) he or she falls within the scope of Article 1(D) of the Geneva Convention, …

…

2. A third-country national or a stateless person is excluded from being a refugee where there are serious reasons for considering that:

(a) he or she has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

(b) he or she has committed a serious non-political crime outside the country of refuge prior to his or her admission as a refugee, which means the time of issuing a residence permit based on the granting of refugee status; particularly cruel actions, even if committed with an allegedly political objective, may be classified as serious non-political crimes;

(c) he or she has been guilty of acts contrary to the purposes and principles of the United Nations as set out in the Preamble and Articles 1 and 2 of the Charter of the United Nations.

3. Paragraph 2 applies to persons who incite or otherwise participate in the commission of the crimes or acts mentioned therein.’

...

17) Recitals 12 and 60 of that directive state:

‘(12) The main objective of this Directive is to further develop the standards for procedures in Member States for granting and withdrawing international protection with a view to establishing a common asylum procedure in the Union.

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(60) This Directive respects the fundamental rights and observes the principles recognised by the Charter [of Fundamental Rights]. In particular, this Directive seeks to ensure full respect for human dignity and to promote the application of Articles 1, 4, 18, 19, 21, 23, 24, and 47 of [that] Charter and has to be implemented accordingly.’

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28) Recitals (9), (11) and (35) of Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (OJ 2013 L 180, p. 96) state:

‘(9) In applying this Directive, Member States should seek to ensure full compliance with the principles of the best interests of the child and of family unity, in accordance with the [Charter of Fundamental Rights], the 1989 United Nations Convention on the Rights of the Child and the European Convention for the Protection of Human Rights and Fundamental Freedoms respectively.

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(11) Standards for the reception of applicants that will suffice to ensure them a dignified standard of living and comparable living conditions in all Member States should be laid down.

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(35) This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter [of Fundamental Rights]. This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. In particular, this Directive seeks to ensure full respect for human dignity and to promote the application of Articles 1, 4, 6, 7, 18, 21, 24 and 47 of [that] Charter and has to be implemented accordingly.’

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43) In those circumstances, the Administrativen sad Sofia-grad (Administrative Court, Sofia) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Does it follow from Article 78(1) and 78(2)(a), (d) and (f) [TFEU] and from recital 12 and Article 1 of Directive [2013/32] that the ground for the inadmissibility of applications for international protection provided for in Article 33(2)(e) of that directive constitutes a directly effective provision which the Member States may not disapply, for example by applying more favourable provisions of national law under which the initial application for international protection must be examined first from the point of view of whether the applicant fulfils the conditions for qualification as a refugee and then from the point of view of whether the person is eligible for subsidiary protection, in accordance with Article 10(2) of that directive?

(2) Does it follow from Article 33(2)(e) of Directive [2013/32], read in conjunction with Article 7(3) and Article 2(a), (c) and (g) and recital 60 of that directive, that, in the circumstances of the main proceedings, an application for international protection lodged by a parent on behalf of an accompanied minor is inadmissible where the reason given for the application is that the child is a member of the family of a person who has applied for international protection on the ground that he is a refugee within the meaning of Article 1(A) of the Geneva Convention?

(3) Does it follow from Article 33(2)(e) of Directive [2013/32], read in conjunction with Article 7(1) and Article 2(a), (c) and (g) and recital 60 of that directive, that, in the circumstances of the main proceedings, an application for international protection lodged on behalf of an adult is inadmissible where the only reason given for the application in the proceedings before the relevant administrative authority is that the applicant is a member of the family of a person who has applied for international protection on the ground that he is a refugee within the meaning of Article 1(A) of the Geneva Convention and, at the time of lodging the application, the applicant has no right to carry on an economic activity?

(4) Does Article 4(4) of Directive [2011/95], read in conjunction with recital 36 of that directive, require that the assessment of whether there is a well-founded fear of persecution or a real risk of suffering serious harm be carried out solely on the basis of facts and circumstances relating to the applicant?

(5) Does Article 4 of Directive [2011/95], read in conjunction with recital 36 thereof and Article 31(1) of Directive [2013/32], permit national case-law in a Member State which:

(а) obliges the competent authority to assess applications for international protection lodged by members of a single family in a single procedure in cases where the applications are based on the same facts, specifically the asserted refugee status of only one of the family members;

(b) obliges the competent authority to stay proceedings relating to applications for international protection lodged by family members who do not personally meet the conditions for such protection until the conclusion of proceedings on an application lodged by the family member on the ground that he or she is a refugee within the meaning of Article 1(A) of the Geneva Convention;

and is that case-law also permissible in the light of considerations relating to the best interests of the child, maintaining the family unit and the right to privacy and family life and the right to remain in the Member State pending the assessment of the application, that is to say, in the light of Articles 7, 18 and 47 of the Charter of Fundamental Rights of the European Union, recitals 12 and 60 and Article 9 of Directive [2013/32], recitals 16, 18 and 36 and Article 23 of Directive [2011/95] and recitals 9, 11 and 35 and Articles 6 and 12 of Directive [2013/33]?

(6) Does it follow from recitals 16, 18 and 36 and Article 3 of Directive [2011/95], read in conjunction with recital 24 and Article 2(d) and (j), Article 13 and Article 23(1) and (2) of that directive, that a provision of national law, such as Article 8(9) of the [ZUB], pursuant to which the family members of a foreign national who has been granted refugee status are also regarded as refugees in so far as that is compatible with their personal status and there are no reasons in national law for excluding the grant of refugee status, is permissible?

(7) Does it follow from the rules relating to the reasons for persecution contained in Article 10 of Directive [2011/95] that the bringing of a complaint before the European Court of Human Rights against the State of origin of the person concerned establishes that person’s membership of a particular social group within the meaning of Article 10(1)(d) of that directive, or that the bringing of such a complaint is to be regarded as constituting a political opinion within the meaning of Article 10(1)(e) of the directive?

(8) Does it follow from Article 46(3) of Directive [2013/32] that the court is obliged to examine the substance of new grounds for the grant of international protection which are put forward in the course of court proceedings but which were not indicated in the application challenging the decision refusing international protection?

(9) Does it follow from Article 46(3) of Directive [2013/32] that the court is obliged to assess the admissibility of the application for international protection on the basis of Article 33(2)(e) of that directive in the court proceedings brought against the decision refusing international protection, in so far as, in reaching the contested decision, the application was, in accordance with Article 10(2) of that directive, assessed first from the point of view of whether the applicant met the conditions for qualification as a refugee and then from the point of view of whether that applicant was eligible for subsidiary protection?’

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52) By its fifth question, the referring court asks, in essence, whether Directives 2011/95 and 2013/32, read in conjunction with Articles 7, 18 and 47 of the Charter of Fundamental Rights and taking into account the best interests of the child, must be interpreted as precluding applications for international protection lodged separately by members of a single family from being assessed in a single procedure or the assessment of one of those applications from being suspended until the conclusion of the examination procedure in respect of another of those applications.

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64) Lastly, as regards the referring court’s question on the bearing of the best interests of the child and of Articles 7, 18 and 47 of the Charter of fundamental rights, suffice it to note that regard must be had to the fundamental rights set out in that Charter in implementing Directives 2011/95 and 2013/32, but that they do not, in respect of the answer to the present question referred, provide any further specific guidance.
Paragraphs referring to EU Charter (original language)

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CJEU Case C-652/16 / Judgment

EU Charter of Fundamental Rights