CJEU - C-175/08, C-176/08, C-178/08 and C-179/08, Aydin Salahadin Abdulla, Kamil Hasan, Ahmed Adem, Hamrin Mosa Rashi, Dier Jamal v Bundesrepublik Deutschland

Printer-friendly versionPrinter-friendly version
Country of Applicant: 
Iraq
Date of Decision: 
02-03-2010
Citation: 
C-175/08, C-176/08, C-178/08 and C-179/08
Court Name: 
Grand Chamber of the CJEU
Headnote: 

This case concerns the interpretation of Article 11 of the Qualification Directive when refugee status is deemed to have ceased to exist. The Court found this is when there has been change of circumstances which is significant and non-temporary and when there is no well-founded fear or other reason to risk being persecuted. States in assessing changes in circumstances must verify that the actors of protection have taken reasonable steps to prevent the persecution and that the person concerned has access to that protection. In making the assessment that there is no further risk the standard of probability used is the same that applied when refugee status was granted.

Facts: 

The Applicants applied for asylum in Germany and for various reasons submitted that they feared persecution in Iraq by the regime of Saddam Hussein’s Baath party. The Bundesamt granted them refugee status in 2001 and 2002.  As a result in the change of circumstances in Iraq in 2004 and 2005 the Bundesamt initiated procedures to revoke the recognition as refugees which had been granted to the Applicants. Subsequent judicial challenges from both sides at the national level led to the Federal Administrative Court staying the proceedings and submitting the following question to the CJEU for preliminary ruling: 

1. Is Article 11(1)(e) of [the] Directive … to be interpreted as meaning that – apart from the second clause of Article 1(C)(5) of the [Geneva] Convention – refugee status ceases to exist if the refugee’s well-founded fear of persecution within the terms of Article 2(c) of that directive, on the basis of which refugee status was granted, no longer exists and he also has no other reason to fear persecution within the terms of Article 2(c) of [that directive]?

2. If Question 1 is to be answered in the negative: does the cessation of refugee status under Article 11(1)(e) of [the] Directive also require that, in the country of the refugee’s nationality,

  • an actor of protection within the meaning of Article 7(1) of [the Directive] be present, and is it sufficient in that regard if protection can be assured only with the help of multinational troops,
  • the refugee should not be threatened with serious harm, within the meaning of Article 15 of [the Directive], which leads to the granting of subsidiary protection under Article 18 of that directive, and/or
  • the security situation be stable and the general living conditions ensure a minimum standard of living?

3. In a situation in which the previous circumstances, on the basis of which the person concerned was granted refugee status, have ceased to exist, are new, different circumstances founding persecution to be:

  • measured against the standard of probability applied for recognising refugee status, or is another standard to be applied in favour of the person concerned, and/or
  • assessed having regard to the relaxation of the burden of proof under Article 4(4) of [the] Directive ...?

The cases C-175/08 and C-179/08 were joined by the Court and the case C-177/08 was subsequently disjoined from those cases and removed from the register of the Court.

Decision & Reasoning: 

As to the CJEU’s jurisdiction, the Court noted that the Applicants filed their applications for international protections before the Directive entered into force therefore their applications are not covered ratione temporis by the Directive. That being said, the Court is in principle obliged to give a ruling on the interpretation of a provision of Community law when questions are submitted by national Courts. It is in the Community’s interest to forestall future differences of interpretation and that provisions from Community law must be interpreted uniformly irrespective of the circumstances in which they apply. Accordingly the preliminary reference questions should be answered.

The Court firstly expounded how the Directive should be interpreted in light of its scheme, purpose and the 1951 Geneva Convention as well as the Charter of Fundamental Rights. The Court held that refugee status ceases to exist where the national concerned no longer appears to be exposed, in his country of origin, to circumstances which demonstrate that that country is unable to guarantee him protection against persecution for one of the grounds in Article 2(c) of the Directive. Such cessation therefore implies that the change in circumstances has remedied the reasons which led to the recognition of refugee status (Para 69). The competent authorities must refer to Article 7(2) and verify  that the actor/s of protection have taken reasonable steps to prevent the persecution, that they inter alia operate  an effective legal system for the detection, prosecution and punishment of acts constituting persecution and that the national concerned will have access to that protection. The court then referred to what the competent authorities must assess including the conditions of operation of these actors of protection, in turn making a link to the assessment of facts and circumstances under Article 4(1) of the Directive including the extent to which basic human rights are guaranteed in that country. As for the terms of significant and non-temporary nature under Article 11(2) the Court held that the change of circumstances will be considered to be that when the factors which formed the basis of the refugee’s fear of persecution may be regarded as having been permanently eradicated (Para. 73).  The Court acknowledged that Article 7(1) does not preclude the protection being guaranteed by international organisations including protection ensured through the presence of a multinational force in the territory of the third country (Para 75).

As to the second question which deals with respective domains of the two systems of protection, refugee status and subsidiary protection, the cessation of refugee status cannot be conditional on a finding that the person does not qualify for subsidiary protection status. The possible cessation of refugee status occurs without prejudice to the right of the person concerned to request the granting of subsidiary protection (Para.80).

For the third question the Court was asked to address whether prior to making a decision on cessation the competent authorities of the Member State must first verify that they are no other circumstances which could justify a fear of persecution on the part of the person concerned either for the same reason as that initially at issue or for one of the other reasons set out in Article 2(c) of the Directive and the standard of probability required. The Court makes a link to Article 4(1) and 14(2) of the Directive which refers to the extent of the risk and Article 9(2) which refers to the relevant facts being sufficiently serious. The Court acknowledges the level of difficultly for an applicant who has been residing as a refugee for a number of years in having the opportunity to assess the risk to which he would be exposed upon return (Para. 87). The court held that the standard of probability does not vary to that when applying for refugee status and that the assessment of the extent of risk must be carried out with vigilance and care since what are at issue are issues relating to the integrity of a person and to individual liberties which relate to fundamental values of the Union (para 90).

As to the question of the applicability of Article 4(4) the Court held that this is applicable in an analogous way to that carried out during the examination of an initial application. Therefore if the applicant raises new grounds for fear of persecution upon return to the country of origin, Article 4(4) may be applicable where there are earlier acts or threats of persecution which are connected with the reason for persecution being examined at this stage. Para 97 draws out the different scenarios when this may be applicable. If the new fear of persecution is for the same reason as that when the applicant was originally granted refugee status then the assessment is covered by Article 11(2) and not Article 4(4) of the Directive.

Outcome: 

The CJEU Court found: Article 11(1)(e) of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted must be interpreted as meaning that:

–        refugee status ceases to exist when, having regard to a change of circumstances of a significant and non-temporary nature in the third country concerned, the circumstances which justified the person’s fear of persecution for one of the reasons referred to in Article 2(c) of Directive 2004/83, on the basis of which refugee status was granted, no longer exist and that person has no other reason to fear being ‘persecuted’ within the meaning of Article 2(c) of Directive 2004/83;

–        for the purposes of assessing a change of circumstances, the competent authorities of the Member State must verify, having regard to the refugee’s individual situation, that the actor or actors of protection referred to in Article 7(1) of Directive 2004/83 have taken reasonable steps to prevent the persecution, that they therefore operate, inter alia, an effective legal system for the detection, prosecution and punishment of acts constituting persecution and that the national concerned will have access to such protection if he ceases to have refugee status;

–        the actors of protection referred to in Article 7(1)(b) of Directive 2004/83 may comprise international organisations controlling the State or a substantial part of the territory of the State, including by means of the presence of a multinational force in that territory.

When the circumstances which resulted in the granting of refugee status have ceased to exist and the competent authorities of the Member State verify that there are no other circumstances which could justify a fear of persecution on the part of the person concerned either for the same reason as that initially at issue or for one of the other reasons set out in Article 2(c) of Directive 2004/83, the standard of probability used to assess the risk stemming from those other circumstances is the same as that applied when refugee status was granted.

In so far as it provides indications as to the scope of the evidential value to be attached to previous acts or threats of persecution, Article 4(4) of Directive 2004/83 may apply when the competent authorities plan to withdraw refugee status under Article 11(1)(e) of that directive and the person concerned, in order to demonstrate that there is still a well-founded fear of persecution, relies on circumstances other than those as a result of which he was recognised as being a refugee. However, that may normally be the case only when the reason for persecution is different from that accepted at the time when refugee status was granted and only when there are earlier acts or threats of persecution which are connected with the reason for persecution being examined at that stage.

Subsequent Proceedings : 

See the Hungarian Helsinki Committee Publication, “The Luxembourg Court: Conductor for a Disharmonious Conductor?” mapping the national impact of the four initial asylum-related judgments of the EU Court of Justice: Available at: http://helsinki.hu/wp-content/uploads/The-Luxemburg-Court-06-04-2012-final.pdf This looks at the impact of this Judgment at the national level.

Observations/Comments: 

The Court’s reasoning as to whether it has jurisdiction or not (Para 45-49) is also relevant in the context of questions surrounding provisions in the recast asylum acquis legislation before their entry into force at the national level.

The point made by the Court in Article 87 that a person who has resided as a refugee for a number of years outside a country of origin may not normally have the same opportunities to assess the risk to which he would be exposed upon return in comparison to an applicant who has recently left his country of origin (Para 87) may also be relevant in the context of other types of claims such as sur place asylum claims. In coming to that analysis one should also bear in mind the reasoning in the case of M.M C-277/11 where the Court acknowledge the obligation of Member States to cooperate actively with applicants particularly when elements in the application are incomplete (see Para 66 of that judgment).

Advocate General Mazak’s opinion referred to the need to interpret Article 11 Qualification Directive in a cautious manner, fully respecting human dignity (Para 45 AG opinion). As regards the requirement of protection imposed under Article 7 (2) this must not exist in the abstract but in concrete, tangible and objective terms (Para 53 AG opinion). As regards the presence of multinational troops the AG found that in order to comply with the terms of Article 7 of Directive 2004/83, a State may only rely on the assistance of multinational troops provided such troops operate under the mandate of the international community, for example under the auspices of the United Nations. AG Mazak also raises some points in relation to standard of living conditions and holds that it is at least questionable whether the country in question will have the organisational structure and means to provide protection under Article 7 if it cannot ensure a minimum standard of living for its citizens (Para 63).

Case Law Cited: 

CJEU - C-3/04 Poseidon Chartering BV v Marianne Zeeschip VOF and Others
Authentic Language: 
German
Country of preliminary reference: 
Germany
National / Other Legislative Provisions: 
TFEU - Art 234
TFEU - Art 68
TEU - Art. 6(1)
Germany - AsylvfG (Asylum Procedure Act) - § 73