CJEU: AG Bot delivers opinion on revocation of subsidiary protection status (Case C‑720/17)

Date: 
Thursday, January 24, 2019

On 24 January, Advocate General Bot delivered his opinion on a case concerning the revocation of subsidiary protection status based on the wrongful assumption of the country of origin by the national authorities.

The case concerned a third-country national seeking asylum in Austria as a stateless person. The Federal Office for Immigration and Asylum initially rejected the application, but granted him subsidiary protection status after he successfully challenged the decision before the Asylum Court. Following a second successful appeal against his subsidiary protection status, the Federal Office once again rejected his refugee status claim and revoked the subsidiary protection status considering that the applicant claimed to be of Moroccan and Mauritanian descent and, thus, the prerequisites for granting subsidiary protection were never met in the first place. When the case reached the Supreme Administrative Court, the latter requested a preliminary ruling from the Court of Justice of the European Union regarding the correct interpretation of Article 19 of Directive 2011/95/EU.

According to the Advocate General, a national provision allowing for the revocation of the subsidiary protection status, when the domestic authorities have granted the status based on wrong assumptions falling solely within their responsibility, was contrary to Article 19 of the Directive. As Article 19 exhaustively lists the grounds for revocation and the act of revocation results in the loss of rights, the provision should be interpreted restrictively in accordance with the 1951 Refugee Convention. Consequently, the notion of changed circumstances within the meaning of Article 19 (1) read in conjunction with Article 16 (2) of the Directive cannot be understood so broadly as to include a change in the domestic authorities’ subjective knowledge of the facts but only an actual objective change in the factual circumstances.

Secondly, AG Bot held that in situations like the one referred, where the protection status was granted in violation of the provisions of the Directive due to a mistake of the national authorities, the Member State should cancel the protection status in order to guarantee that international protection is only granted to those in need. In the absence of any provisions under EU law governing such situations, a decision annulling the protection status should be taken according to the relevant national law of the Member State concerned.

The Advocate General clarified, however, that the procedural autonomy of the State was limited by fundamental rights as well as the EU law principles of equivalence and effectiveness. In this vein, any protection status cancellation should take into account the applicant’s individual circumstances, including acquired family rights, the person’s level of integration and the consequences of the cancellation itself.

Based on an unofficial translation by the ELENA Weekly Legal Update.

 

This item was reproduced with the permission of ECRE from the weekly ELENA legal update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE. 

                                               

 

Keywords: 
Revocation of protection status
Subsidiary Protection