CJEU Case C-652/16 / Opinion

Key facts of the case

(Request for a preliminary ruling
from the Administrativen sad Sofia‑grad (Administrative Court, Sofia, Bulgaria))

(References for a preliminary ruling — Area of freedom, security and justice — Borders, asylum and immigration — Rules on the grant of refugee status — Directives 2005/85/EC and 2011/95/EU — Applications for international protection made by family members of a person who has applied for refugee status — National provision granting refugee status to family members of a recognised refugee — Directive 2013/32/EU — Right to an effective remedy)

Outcome of the case

In the light of all the foregoing considerations, I suggest that the Court should declare inadmissible the second, third, eighth and ninth questions referred for a preliminary ruling and should answer the remaining questions, once reformulated, as follows:

Article 25 of Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status, read in the light of recital 22 thereof, is to be interpreted as not imposing any obligation on Member States to examine the admissibility of an asylum application by reference to the grounds mentioned in Article 25(2), or to reject such an application where one or other of those grounds applies.

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, in particular Articles 2(d) and 4(3) thereof, read in the light of recital 36 thereof, is to be interpreted as not precluding the grant of refugee status to an applicant for international protection on account of his or her family connection with a person who has been the victim of acts of persecution, within the meaning of Article 9(1) of that directive, or who rightly fears persecution for one of the reasons referred to in Article 2(d) of the directive where, on an examination of his or her individual situation and personal circumstances and in light of all the relevant facts, it is clear that, because of that family link, the applicant individually entertains a well-founded fear of being persecuted himself or herself.

Directive 2005/85, and in particular Article 6(2) and (3) and Article 9(3) thereof, are to be interpreted as precluding applications for international protection made, in their own behalf, by family members of a person who has applied for refugee status from being treated as an integral part of the application lodged by such a person and dealt with jointly in a single procedure, even where they are based exclusively on the grounds for the grant of refugee status which relate to that person. Directives 2005/85 and 2011/95 are to be interpreted as not precluding the staying of the procedures on the applications for international protection made separately by various members of a family group on the basis of a fear of being persecuted on account of the situation of one of the members of that family group pending the outcome of the procedure on the asylum application of the family member whose situation gave rise to the family group’s fear of persecution. However, any such stay must not undermine the autonomy of the applications lodged, in their own behalf, by the family members of the applicant whose situation gave rise to their fear of persecution, nor impede their examination on the merits once the procedure examining the application made by the main applicant has been completed, regardless of the outcome of that procedure.

A national provision, such as that at issue in the main proceedings, under which the family members of a person who has been granted refugee status in accordance with Article 1A of the Geneva Convention are recognised as refugees whether or not they individually meet the criteria laid down in Article 1A of the Geneva Convention, where such recognition is compatible with their personal legal status and no grounds of exclusion, under Article 12 of Directive 2011/95, militate against it, is compatible with the provisions of Directive 2011/95, for the purposes of applying the qualification laid down in Article 3 thereof. A national provision of such kind will fall within the scope of Article 3 of Directive 2011/95 only if the members of the refugee’s family are allowed to request and obtain the grant of refugee status as an autonomous right, provided that they individually fulfil the conditions for the grant of such status.

The fact that an asylum applicant has brought an action against his or her own State of origin before the European Court of Human Rights does not automatically establish that he or she is a member of a particular social group, within the meaning of Article 10(1)(d) of Directive 2011/95, or his or her adherence to a political opinion, within the meaning of Article 10(1)(e) of that directive.
Paragraphs referring to EU Charter

8) By decision of 5 December 2016, the Administrativen sad Sofia‑grad (Administrative Court, Sofia) decided to stay the proceedings and 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) [TFUE] 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 of the Convention relating to the Status of Refugees, [which was concluded in Geneva on 28 July 1951 and entered into force on 22 April 1954 (‘the Geneva Convention’)]? ( 8 )

(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 1A 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 1A 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/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection? ( 9 )

(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?’
Paragraphs referring to EU Charter (original language)

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CJEU Case C-652/16 / Opinion

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