Case C‑720/17
Mohammed Bilali
v
Bundesamt für Fremdenwesen und Asyl
(Request for a preliminary ruling from the Verwaltungsgerichtshof (Austria))
Judgment of the Court (Fifth Chamber) of 23 May 2019
(Reference for a preliminary ruling — Area of freedom, security and justice — Asylum policy — Subsidiary protection — Directive 2011/95/EU — Article 19 — Revocation of subsidiary protection status — Error on the part of the administrative authorities with respect to the facts)
1. Border controls, asylum and immigration — Asylum policy — Refugee status or subsidiary protection status — Directive 2011/95 — Revocation or ending of subsidiary protection status or refusal to renew it — Error on the part of the administrative authorities with respect to the facts — Obligation to revoke subsidiary protection status
(Geneva Convention relating to the Status of Refugees; European Parliament and Council Directive 2011/95, Arts 16 and 19(1))
(see paragraphs 40-52, 56, 57, 64, operative part)
2. Border controls, asylum and immigration — Asylum policy — Refugee status or subsidiary protection status — Directive 2011/95 — Revocation or ending of subsidiary protection status or refusal to renew it — Loss of subsidiary protection status — Consequence — Automatic loss of the right of residence — None
(Charter of Fundamental Rights of the European Union, Art. 7; European Parliament and Council Directive 2011/95, Art. 19(1) and (3)(b); Council Directive 2003/109, Arts 4(1a) and 9(3a)
(see paragraphs 58-62)
Résumé
In the judgment in Bilali (C‑720/17), delivered on 23 May 2019, the Court ruled that Article 19(1) of Directive 2011/95, (1) read in conjunction with Article 16 thereof, must be interpreted as meaning that a Member State must revoke subsidiary protection status if it granted that status when the conditions for granting it were not met, in reliance on facts which have subsequently been revealed to be incorrect, and notwithstanding the fact that the person concerned cannot be accused of having misled the Member State on that occasion.
In the present case, the subsidiary protection status and the temporary right of residence which the person concerned had been awarded had been revoked of the relevant authority’s own motion, since a mistake had been made in the determination of what was assumed to be that person’s nationality and, moreover, he had never been exposed to a real risk of suffering serious harm, within the meaning of Article 15 of Directive 2011/95, in the event of his being returned to his country of origin or to the country of his former habitual residence.
In that context, the Court first of all noted that Article 19(3)(b) of Directive 2011/95 provides for the loss of subsidiary protection status only where there has been a misrepresentation or omission by the person concerned that was decisive for the granting of that status. Furthermore, no other provision expressly states that that status must or may be withdrawn if the decision granting that status was taken on the basis of incorrect information, without any misrepresentation or omission by the person concerned.
However, the Court also found that that status is not expressly precluded from being lost where the host Member State realises that it has granted it on the basis of incorrect information that is not attributable to the person concerned. In that regard, the Court indicated, first, that the situation of an individual who has obtained subsidiary protection status on the basis of incorrect information without ever having met the conditions for obtaining that status has no connection with the rationale of international protection. Consequently, the loss of subsidiary protection status in such circumstances is consistent with the purpose and general scheme of Directive 2011/95, and in particular with Article 18 thereof, which provides for subsidiary protection status to be granted only to persons who meet those conditions. If the Member State concerned was not entitled legally to grant that status, it must, a fortiori, be obliged to withdraw it when its mistake is discovered.
Second, the Court pointed out that Article 19(1) of Directive 2011/95 provides that, concerning applications for international protection filed, as in this case, after the entry into force of Directive 2004/83, (2) Member States must revoke, end or refuse to renew the subsidiary protection status of a third-country national or stateless person if he or she has ceased to be eligible for subsidiary protection in accordance with Article 16 of Directive 2011/95, namely, when the circumstances which led to the granting of subsidiary protection status have ceased to exist or have changed to such a degree that protection is no longer required. In that regard, a change in the host Member State’s state of knowledge of the personal situation of the individual concerned can, in the same way as a change in the factual circumstances in the third country, result in that individual’s original fear of serious harm no longer appearing to be well founded, provided that that change in the host Member State’s state of knowledge is sufficiently significant and definitive as to whether the person concerned qualifies for the granting of subsidiary protection status. Therefore, where the host Member State has new information which establishes that, contrary to its initial assessment of the situation of a third-country national or of a stateless person to whom it granted subsidiary protection, based on incorrect information, that person never faced a risk of serious harm, that Member State must conclude from this that the circumstances underlying the granting of subsidiary protection status have changed in such a way that retention of that status is no longer justified. Moreover, the fact that the error made by the host Member State is not attributable to the person concerned cannot alter the finding that that person never in fact met the conditions for the granting of subsidiary protection status.
According to the Court, support for that interpretation of Directive 2011/95 is to be found in the Geneva Convention, (3) the requirements of which must be taken into account for the purpose of interpreting Article 19 of that directive. In that context, the Court noted that documents from the United Nations High Commissioner for Refugees (UNHCR) are particularly relevant in the light of the role conferred on the UNHCR by the Geneva Convention. Although there is nothing in that convention that expressly provides for loss of refugee status if it subsequently emerges that that status should never have been conferred, the UNHCR nevertheless considers that, in such a situation, the decision granting refugee status must, in principle, be annulled.
The Court also stated that the loss of subsidiary protection status, pursuant to Article 19(1) of Directive 2011/95, does not imply the adoption of a position on the separate question as to whether the person concerned loses any right of residence in the Member State concerned and can be deported to his country of origin. First, unlike the loss of subsidiary protection status pursuant to Article 19(3)(b) of Directive 2011/95, the loss of that status, pursuant to Article 19(1) of that directive, covers neither those cases in which Member States must refuse, in accordance with Article 4(1a) of Directive 2003/109, (4) to grant long-term resident status to beneficiaries of international protection, or those cases in which, under Article 9(3a) of Directive 2003/109, Member States may withdraw long-term resident status from those beneficiaries. Second, Directive 2011/95 allows for host Member States to be allowed to grant, in accordance with their national law, national protection which includes rights enabling individuals who do not enjoy subsidiary protection status to remain in the territory of the Member State concerned.
The Court added that, in that context, the Member State concerned is obliged to observe, in particular, the fundamental right of the person concerned to respect for private and family life, as guaranteed by Article 7 of the Charter of Fundamental Rights of the European Union. The fact that, unlike the situation envisaged in Article 19(3) of Directive 2011/95, the person whose subsidiary protection status has been revoked on the basis of Article 19(1), in conjunction with Article 16, of that directive did not wilfully mislead the competent national authority when it granted that status is a relevant circumstance, in that respect.