CJEU - C‑662/17, E.G. v Republika Slovenija

Facts:

This case concerns an Afghan unaccompanied minor who arrived in Slovenia in 2015 and claimed asylum. He had previously lived in Iran with his parents from the age of one year old. The Slovenian authorities decided that he was not eligible for refugee status, but that he could be granted subsidiary protection status until attaining full age.

The applicant appealed this decision, on the basis that in order to fully integrate in Slovenian society he must be granted refugee status, because only that status would give him a sufficient level of protection to make integration possible.

The Slovenian Court asked the CJEU: whether the second paragraph of Article 46(2) of (Asylum Procedures) Directive 2013/32 must be interpreted as meaning that subsidiary protection status granted under legislation of a Member State, offers the ‘same rights and benefits as those offered by the refugee status under Union and national law’, within the meaning of that provision, so that a court of that Member State may dismiss an appeal brought against a decision considering an application unfounded in relation to refugee status but granting subsidiary protection status as inadmissible on the grounds of insufficient interest on the part of the applicant in maintaining the proceedings, and whether, if it is found that the rights and benefits afforded by each international protection status under the applicable national legislation are not identical, such an appeal may nevertheless be dismissed as inadmissible where it is ascertained that, having regard to the applicant’s particular circumstances, granting refugee status could not confer on him more rights and benefits than granting subsidiary protection status, in so far as the applicant does not, or has not yet, relied on rights which are granted by virtue of refugee status, but which are not granted, or which are granted only to a limited extent, by virtue of subsidiary protection status.  

Decision & reasoning:

First, the Court points out that although Directive 2011/95 has put in place a scheme of rights and benefits which, as a general rule, is the same for all beneficiaries of international protection, certain rights and benefits enjoyed by persons regarded as refugees are not granted, or not granted to the same extent, to beneficiaries of subsidiary protection status, Member States are, however, able in their legislation transposing that Directive, to bring the rights and benefits conferred by that status in line with those related to refugee status.

In respect of a derogation from the right to a remedy set out in the second paragraph of Article 46(2) of Directive 2013/32, the Court makes clear that this must be interpreted narrowly as it amounts to a derogation from the right to an effective remedy against any decision rejecting an application for international protection imposed by Article 46 and to a restriction of the fundamental right to effective judicial protection enshrined in Article 47 of the Charter.

Therefore, according to the Court, this derogation from the right to an effective remedy must be interpreted as applying only if the rights and benefits offered by subsidiary protection status, granted by the Member State concerned, are genuinely identical to those offered by refugee status under Union law and the applicable national law.

As such, for a subsidiary protection beneficiary’s action to be deemed inadmissible due to lack of sufficient interest, the rights and benefits granted must indeed be the same as those the applicant would enjoy if they held refugee status, even if the difference only encompasses ancillary rights. Moreover, a difference between the duration of the two statuses has to be regarded as difference in rights and benefits that justifies an admissible legal challenge.

Lastly, any relevant assessment on the existence of different rights and benefits for international protection beneficiaries should not depend on the appellant’s individual situation, but rather on an overall assessment of national legislation. According to the Court’s restrictive interpretation, this is dictated by the text of Article 46 (2), as well as the need for the predictability of this legal provision, which would vary unacceptably according to each applicant’s personal circumstances.

Outcome:

The second paragraph of Article 46(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 must be interpreted as meaning that the second paragraph of Article 46(2) of Directive 2013/32 must be interpreted as meaning that subsidiary protection status, granted under legislation of a Member State such as that at issue in the main proceedings, does not offer the ‘same rights and benefits as those offered by the refugee status under Union and national law’, within the meaning of that provision, so that a court of that Member State may not dismiss an appeal brought against a decision considering an application unfounded in relation to refugee status but granting subsidiary protection status as inadmissible on the grounds of insufficient interest on the part of the applicant in maintaining the proceedings where it is found that, under the applicable national legislation, those rights and benefits afforded by each international protection status are not genuinely identical.

Such an appeal may not be dismissed as inadmissible, even if it is found that, having regard to the applicant’s particular circumstances, granting refugee status could not confer on him more rights and benefits than granting subsidiary protection status, in so far as the applicant does not, or has not yet, relied on rights which are granted by virtue of refugee status, but which are not granted, or are granted only to a limited extent, by virtue of subsidiary protection status.