CJEU - C-369/17, Shajin Ahmed v Bevándorlási és Menekültügyi Hivatal

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Country of Applicant: 
Afghanistan
Date of Decision: 
13-09-2018
Citation: 
C 369/17
Court Name: 
The Court of Justice of the European Union (Second Chamber)
Relevant Legislative Provisions: 
Headnote: 

CJEU rules that Hungarian national law which defines ‘serious crime’ (in the context of exclusion from subsidiary protection) as a crime with a possible custodial of 5 years sentence as incompatible with the Qualification Directive. Instead, each crime must be looked at on an individual basis to ascertain its “seriousness”.  

Facts: 

Mr Ahmed obtained refugee status in 2000 on account of the risk of persecution that he faced in his country of origin, as his father was a high-ranking officer in the Najibullah regime.

Criminal proceedings were subsequently brought in Hungary against him, in the course of which he requested that the consulate of the Islamic Republic of Afghanistan be fully informed of the outcome. As Mr Ahmed had voluntarily made this request for protection by the Afghani authorities, it was inferred that the risk of persecution had ceased to exist. Therefore, the Hungarian Immigration and Nationality Office initiated a procedure to review his refugee status.

Mr Ahmed was then found guilty of attempted murder and blackmail, for which he received custodial sentences. His refugee status was then withdrawn. The Hungarian Immigration Office took the view that that subsidiary protection could not be granted to Mr Ahmed due to the existence of a ground for exclusion within the meaning of the Law on the right to asylum, in that Mr Ahmed had committed a crime for which Hungarian law provides a custodial sentence of five years or more.

Decision & Reasoning: 

The question for the court was whether Article 17(1)(b) of the Qualification Directive must be interpreted as precluding legislation of a Member State pursuant to which the applicant for subsidiary protection is deemed to have ‘committed a serious crime’ within the meaning of that provision, which may exclude him from that protection, on the basis of the sole criterion of the penalty provided for a specific crime under the law of that Member State.

The Court points out that the concepts of ‘serious crime’ (Article 17(1)(b)), ‘particular serious crime’ (Article 14(4)(b) relating to the revocation of refugee status)  and of ‘serious non-political crime (Article 12(2)(b) relating to exclusion from refugee status) are not expressly defined in the QD.

However, recital 12 of the QD states that one of its main objectives is to ensure that all Member States apply common criteria for the identification of persons genuinely in need of international protection.

The Court makes clear that the QD refers to two separate systems of international protection: the system governing refugee status and the system relating to subsidiary protection status. Subsidiary protection is intended to be complementary and additional to the protection of refugees enshrined in the Geneva Convention.

The Court notes that as regards the grounds for exclusion from subsidiary protection status, the EU legislature drew inspiration from the rules applicable to refugees in order to extend them, so far as possible, to beneficiaries of subsidiary protection status. However, the grounds for exclusion from subsidiary protection, which are structured around the concept of ‘serious crime’ which is broader than the ground for exclusion from refugee status. Therefore, it is limited neither territorially nor temporally, or as to the nature of the crimes at issue.

The Court then refers to previous case law where it ruled that any decision to exclude a person from refugee status must be preceded by a full investigation into all the circumstances of his individual case and cannot be taken automatically. Such a requirement must also be transposed to decisions to exclude a person from subsidiary protection.

The Hungarian law means that any offence which may be punished, under Hungarian law, by a custodial sentence of five years or more is automatically classified as a serious crime and thus the applicant is excluded from subsidiary protection.

The Court rules that such a law is incompatible with the QD. The QD requires that each exclusion from subsidiary protection is done on a case-by-case basis with an assessment of the seriousness of the crime at issue, which requires that a full investigation into all the circumstances of the individual case concerned is carried out. 

Outcome: 

Article 17(1)(b) of Directive 2011/95/EU (Qualification Directive) 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, must be interpreted as precluding legislation of a Member State pursuant to which the applicant for subsidiary protection is deemed to have ‘committed a serious crime’ within the meaning of that provision, which may exclude him from that protection, on the basis of the sole criterion of the penalty provided for a specific crime under the law of that Member State. It is for the authority or competent national court ruling on the application for subsidiary protection to assess the seriousness of the crime at issue, by carrying out a full investigation into all the circumstances of the individual case concerned.

Attachment(s): 
Authentic Language: 
Hungarian
Country of preliminary reference: 
Hungary
National / Other Legislative Provisions: 
Hungary - Menedékjogról szóló 2007. évi LXXX. törvény (Law No LXXX of 2007 on the right to asylum) (Magyar Közlöny 2007/83; ‘the Law on the right to asylum’) Article 8
Article 11(3)
Article 15