CJEU – C-255/19 Secretary of State for the Home Department v OA, 20 January 2021

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.

Facts:

In 2003, OA, a Somali national, was granted refugee status in the UK as a dependent of his then wife. In 2016, that status was revoked on the ground of changed circumstances in the country of origin; humanitarian protection was not found to be necessary, while it was considered that his return to Somalia would not breach Article 3.

OA challenged that decision before the First-tier Tribunal, which dismissed the action. Following a successful appeal to the Upper Tribunal, the First-tier Tribunal issued a second judgment dismissing OA’s action in part. The case was once again brought to the Upper Tribunal, where the Secretary of State claimed that there was no longer a risk for minority clans in the Mogadishu region and the State offered effective protection. This argument was supported by country guidance found in MOJ and Others (return to Mogadishu) [2014] UKUT 442. OA challenged those findings claiming that state authorities in Somalia cannot protect him from serious harm and that the country guidance cited was the result of an incorrect interpretation that protection can also be found to be available in the country of origin when provided by private actors.

The Upper Tribunal stayed the proceedings and referred several questions to the CJEU on the meaning of protection in the country of nationality in Directive 2004/83 (Qualification Directive - QD) and the criteria to determine the availability of protection in cessation cases.

Decision & Reasoning:

Fourth question

First, the Court examined whether the requirements for protection to be considered as available found in Articles 2 and 7 QD are also applicable in the context of cessation of refugee status under Article 11 (1) e QD. The latter Article foresees that the refugee status of a person can be ceased when the circumstances “in connection with which he or she has been recognised as a refugee have ceased to exist” and the person can “no longer continue to refuse” the available protection. This wording, which is similar to the one used in Article 1(C)b of the 1951 Geneva Convention, clearly indicates a reference to protection from the persecution acts that are specified in Article 2 (c) [para. 35].

According to the Court, there is a “parallelism” between the granting and the cessation of refugee status in the QD: the status will be ceased only when the circumstances that led to its granted no longer exist. Consequently, the requirements to be met regarding the availability of protection in cessation cases must be the same as those found in Article 7(1) and (2) QD [paras. 36-37]. This reasoning is also supported by the Court’s previous jurisprudence.

First, second and third question

The Court continued by looking into whether social and financial support provided by private actors, such as the family or clan of the third country national, meets the requirements of protection in line with Article 11 (1) e and 7 (2). The Court noted that protection in the meaning of those articles should refer to a country’s ability to prevent, detect and punish the acts of persecution referred to Article 9 (1) QD [paras. 43-44]. These acts can be sufficiently serious by their nature, or an accumulation of different measures that are sufficiently serious, resulting in a situation of severe violation of basic human rights. It follows that financial and social support are inherently incapable of protecting an individual against these very acts [paras. 45 and 46].

Consequently, such forms of support are not relevant to the assessment of the effectiveness or availability of protection in accordance with Article 7(1) a QD [para. 48]. Moreover, nothing suggests that the economic hardship that OA may face in Somalia could constitute persecution, which further underlines the lack of relevance of economic support in the assessment of the adequacy of State protection [paras. 49-50]. In any case, even if support by private actors was provided in the form of security, this would not be relevant for the assessment of the cessation case since any change in circumstances should have to concern the actors of protection found in Article 7, namely state actors and parties/organisations controlling territories [para. 52].

Lastly, the Court examined whether the social and financial support provided by a clan or family can exclude a fear of persecution, regardless of the definition of protection in Article 11 (1) e. In order to determine whether the third-country national has a well-founded fear of persecution, the existence of protection against acts of persecution should be considered. If the protection requirements of Article 7 (2) are met it can be inferred that there is no fear of persecution [paras. 58-60].

Outcome:

1. 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 the requirements to be met by the ‘protection’ to which that provision refers in respect of the cessation of refugee status must be the same as those which arise, in relation to the granting of that status, from Article 2(c) of that directive, read together with Article 7(1) and (2) thereof.

2. Article 11(1)(e) of Directive 2004/83, read together with Article 7(2) of that directive, must be interpreted as meaning that any social and financial support provided by private actors, such as the family or the clan of a third country national concerned, falls short of what is required under those provisions to constitute protection and is, therefore, of no relevance either to the assessment of the effectiveness or availability of the protection provided by the State within the meaning of Article 7(1)(a) of that directive, or to the determination, under Article 11(1)(e) of that directive, read together with Article 2(c) thereof, of whether there continues to be a well-founded fear of persecution.

Observations/Comments:

On 30 April 2020, AG Hogan issued his opinion on this case. The AG first addressed the meaning of protection under Article 2(c) and Article 11(1)(e) Qualification Directive. He observed that the wording of the provision is such that ‘protection’ refers clearly to State protection, which was also made clear in the Courts previous ruling in Salahadin Abdulla and Others.

AG Hogan observed that in any examination of an application for refugee status, one must address whether an applicant had established a well-founded fear of persecution, which requires an objective examination of whether or not there is protection available in the applicant’s country of nationality, and whether the individual has access to said protection. He noted that the continued need for international protection is determined by the ability of the relevant actor to take steps to prevent persecution of the applicant at the hand of non-state actors. To ascertain this fear of persecution, the availability of protection by actors, as described in Article 7(2) QD, must be considered and the same analysis applied for the cessation of refugee status in accordance with Article 11(1)(e) QD.

AG Hogan then considered the interpretation of the concept of ‘State’ protection as per Article 7(1)(a) QD and the potential availability of support from family members, which had been identified by the Upper Tribunal. He opined that the wording of Article 7(2) makes clear that protection is provided by the State or parties/organisations controlling part of the state and that family/clan support does not remotely satisfy this requirement. He therefore concluded that mere financial support falls below the threshold of protection envisaged by Article 7. Furthermore, AG Hogan noted that any change in circumstances must be shown to be significant and the nature of the persecution permanently changed. He opined that in order to conclude that a refugee’s fear of being persecuted is no longer well-founded, the competent authorities must verify, with regard to the person’s individual situation, that the actor or actors of protection of the third country in question have taken reasonable steps to prevent the persecution and that they operate, inter alia, an effective legal system for the detection, prosecution and punishment of acts constituting persecution.

You can read the full opinion here.

Case Law Cited:

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

Attachment(s):

CURIA - Documents c-255:19.pdf

Authentic Language:

English

Country of preliminary reference:

United Kingdom

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CJEU – C-255/19 Secretary of State for the Home Department v OA, 20 January 2021

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