The Netherlands: Preliminary questions regarding Article 15(c) of the Qualifications Directive

Monday, October 19, 2020

On 19 October 2020, a Dutch Court asked 4 preliminary questions regarding the interpretation of Article 15(c) Qualification Directive (Directive 2011/95) in a case concerning an Afghan family with several vulnerable family members.
The Afghan applicants arrived in the Netherlands in 2015. They belong to the Hazara population and are religiously affiliated with the Shia. They have three children, two were born in the Netherlands and one in Iran. The mother suffers from the PTSD, while one of the children experiences several behavioural and emotional problems. Currently, they are undergoing individual and family therapy in the Netherlands. The applicants have lodged four international protection applications, which were all considered manifestly ill-founded. A previous, successful, appeal that quashed the 2018 rejection of their application for international protection in the Netherlands, was overturned by the Dutch Council of State, who sent the case back to the Court.
The applicants claim that the Dutch authorities did not, inter alia, take their specific vulnerabilities or their ethnicity into account in their assessment of Article 15(c) Qualifications Directive. In that sense, they assert that the authorities disregarded the findings of the Elgafaji judgment of the CJEU. In turn, the Dutch authorities consider that Article 15(c) only refers to the granting of subsidiary protection in the case of an exceptional situation.
After having reiterated the findings in Elgafaji, the Court agrees that the scope of Article 15(c) is not clear and therefore decides to stay the proceedings and referral several preliminary questions to the CJEU. Specifically, the Court asks (i) whether Article 15(c) is to be interpreted narrowly, in the sense that Article 15(c) would only apply in situations of exceptionally high levels of arbitrary violence, whereby there are compelling reasons to assume that a citizen who returns to their country or area, runs a real risk of a threat of serious harm, merely because of their presence there. If the question is answered negatively, the Court asks, (ii) whether Article 15(c) should be interpreted as meaning that even a lesser degree of arbitrary violence, in conjunction with the personal and individual circumstances of an applicant, can lead to the assumption that an applicant returning to the country or territory concerned is at risks the threat of serious harm. If that is the case, the Court asks whether (iii) a sliding scale should be used, with a differentiation in possible levels of arbitrary violence and the corresponding degree of individual circumstances. In that regard, it asks what personal and individual circumstances can play a role in the assessment. Finally, if the first question is answered positively, the Court asks (iv) whether the provisions of Article 15 are complied with when an applicant can only be granted subsidiary protection under Article 15(a) and (b), when that person finds himself in a situation involving a degree of arbitrary violence less than in the exceptional situation, but can provide evidence that he or she is specifically affected for reasons related to his or her personal circumstances.
Based on an unofficial translation by the EWLU team.

Many thanks to Sadhia Rafi, the ELENA Coordinator for the Netherlands, for informing the EWLU team about this judgment.

This item was reproduced with the permission of ECRE from the ELENA Weekly 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.                               

Serious harm