Case summaries
The safe third country ground under Article 33(2)(c) of Directive 2013/32 is optional; an application may be declared inadmissible on that basis even if the applicant qualifies for international protection, but it cannot be rejected as unfounded on that ground.
Article 38 requires national law to define criteria establishing a sufficient connection between the applicant and the third country to make transfer reasonable.
Article 38(2)(b) and (c) of Directive 2013/32 permits reliance on publicly available sources and executive lists of safe third countries, provided that national law sets out a methodology for an individualised assessment of safety and allows the applicant to challenge the existence of the required connection.
Courts hearing appeals must verify the existence of such a connection, even if national law does not expressly grant that power.
The Court of Justice held that defending personal interests against illegally acting non-state actors due to state corruption can be regarded as ‘political opinion’ under Directive 2011/95 if perceived as opposition by the persecuting actors.
Account must be taken of the evolution of the circumstances in the country of origin, from the moment of the application for international protection, until the moment when the Court has to take a decision.
In this instance, relying on the change of circumstances that has taken place in Ukraine since the Applicants introduced the demand, the Court grants subsidiary protection status to a Ukrainian family. The current international conflict taking place in Ukraine exposes them to a risk of serious harm.
The Federal Administrative Court found that Art. 3 of the Qualification Directive does not hinder Member States to allow parents and siblings, fulfilling the requirements for family members under Art. 2(j) of the Directive, to change their status of subsidiary protection into a refugee status which they derive from their minor sponsor.
The Court of Justice held that Directive 2011/95 does not preclude a Member State from granting refugee status to a minor through one of his parents, even though there is no risk of persecution in case of removal to his country of nationality (Tunisia).
The Court decides that the relevant point in time to assess the ‘minor’ status of a beneficiary of international protection under the Qualification Directive is the date on which the applicant makes an (informal) application for international protection.
The Court decides that the notion of ‘family member’ under the Qualification Directive does not require an actual resumption of family life between the parent who benefited international protection and the child. Furthermore, the rights of a family member to claim the benefits under the Qualification Directive persist after the beneficiary of subsidiary protection reaches the age of majority, for the duration of the period of validity of the residence permit granted to them.
Except for very limited exceptions, the statutory three-year waiting period for family reunification of persons granted ‘temporary protection’ does not allow for an individualised assessment of the interest of family unity in light of the concrete situation of the persons concerned. Eventually the Court finds a violation of Article 8 of the Convention since the measure (whose goal is not otherwise challenged) had a disproportionate impact in the case at hand.
The assessment of the existence of indiscriminate violence under Article 15 (c) of the Qualification Directive may not be based exclusively on a quantitative assessment of casualties and population ratios. A comprehensive appraisal of all the circumstances of the individual case, and in particular those which characterise the situation of the applicant’s country of origin, is required.
National legislation that grants the possibility of rejecting an application made by a third-country national or a stateless person for international protection, whose previous application seeking refugee status in another Member State implementing the Dublin III Regulation had been rejected, is precluded under Article 33(2)(d) of Directive 2013/32 read in conjunction with Article 2(q) thereof.
In the context of cessation of refugee status under Article 11 (1)(e), the change in circumstances must remedy the reasons which led to the recognition of refugee status; a country of origin’s ability or inability to demonstrate that it can provide protection from acts of persecution constitutes ‘a crucial element’ in this assessment.
Mere social and financial support to the third country national is inherently incapable of either preventing acts of persecution or of detecting, prosecuting and punishing such acts and, therefore, cannot be regarded as providing the protection required by Article 11(1)(e). In order to determine whether the third-country national still has a well-founded fear of persecution, the existence of protection against acts of persecution should be considered when examining the change in circumstances.