Case C‑255/19

Secretary of State for the Home Department

v

OA

(Request for a preliminary ruling,
made by the Upper Tribunal (Immigration and Asylum Chamber))

Judgment of the Court (Second Chamber), 20 January 2021

(Reference for a preliminary ruling – Directive 2004/83/EC – Minimum standards for granting refugee status or subsidiary protection status – Refugee status – Article 2(c) – Cessation of refugee status – Article 11 – Change in circumstances – Article 11(1)(e) – Possibility of availing oneself of the protection of the country of origin – Criteria for assessment – Article 7(2) – Financial and social support – Irrelevant)

1. Border controls, asylum and immigration – Asylum policy – Refugee status or subsidiary protection status – Directive 2004/83 – Cessation of refugee status – Conditions – Protection from acts of persecution – Criteria for assessment – Criteria identical to those applied on the granting of refugee status

   (Council Directive 2004/83, Arts 2(c), 7(1) and (2), and 11(1)(e))

   (see paragraphs 35-39, operative part 1)

2. Border controls, asylum and immigration – Asylum policy – Refugee status or subsidiary protection status – Directive 2004/83 – Cessation of refugee status – Conditions – Protection from acts of persecution – Criteria for assessment – Social and financial support provided by private actors, such as the family or a clan – Any protection in terms of security provided by the family or the clan – Exclusion – Consequences – That support and that protection of no relevance to the assessment of the effectiveness or availability of protection from acts of persecution

   (Council Directive 2004/83, Arts 7(1)(a) and (2), and 11(1)(e))

   (see paragraphs 44, 46-49, 52, 53, 63, operative part 2)

3. Border controls asylum and immigration – Asylum policy – Refugee status or subsidiary protection status – Directive 2004/83 – Cessation of refugee status – Conditions – No fear of persecution – Criteria for assessment – Taking account of protection from acts of persecution – Protection to comply with the requirements arising from that directive

   (Council Directive 2004/83, Arts 2(c), 7(2), and 11(1)(e))

   (see paragraphs 56, 59-63, operative part 2)

Résumé

OA is a Somali national who is a member of the minority Reer Hamar clan. In the course of the 1990s, OA and his wife were the victims of persecution at the hands of the militia of the majority Hawiye clan. Because of that persecution, they fled Somalia in 2001 and OA’s wife obtained refugee status in the United Kingdom. In 2003 OA joined her and also obtained that status, as a dependent of his wife.

However, in September 2016 the Secretary of State for the Home Department (United Kingdom) revoked OA’s refugee status on the ground that the minority clans are no longer subject to persecution, and that the State offers effective protection. In that regard, under Directive 2004/83 (‘the Qualification Directive’), ( 1 ) refugee status comes to an end when the circumstances that justified recognition of that status have ceased to exist, and the person concerned can then no longer continue ‘to refuse to avail himself or herself of the protection of the country of nationality’. ( 2 ) OA then brought against that decision an action which is now to be examined by the Upper Tribunal (Immigration and Asylum Chamber) (United Kingdom). He claims that he continues to have a fear of persecution and that the Somali authorities are not able to protect him. Further, he submits that it cannot be inferred that there is sufficient ‘protection’ in his country of origin from the fact that social and financial support is provided by his family or other members of his clan, who are private and not State actors.

In that context, the national court hearing the action decided to refer questions to the Court, in order to determine, in essence, whether social and financial support that may be provided by private actors, such as the family or the clan, can permit the conclusion that there exists ‘protection’ within the meaning of the Qualification Directive and whether such support is of relevance to the assessment of the effectiveness or availability of the ‘protection’ provided by the State or to the determination of whether there continues to be a well-founded fear of persecution. Further, that court seeks to ascertain whether the criteria governing the examination of that protection, made when analysing the cessation of refugee status, are the same criteria as applied in relation to the granting of that status.

Findings of the Court

First, the Court holds that the requirements to be met by the ‘protection’ to which the provisions of the Qualification Directive refer in relation to the cessation of refugee status must be the same as those which arise from the provisions in relation to the granting of that status. ( 3 ) In that regard, the Court emphasises the parallelism between the granting and the cessation of refugee status. The Qualification Directive provides that refugee status is to be lost when the conditions governing the granting of refugee status are no longer met. Thus, the circumstances which demonstrate the country of origin’s inability or, conversely, its ability to provide protection from acts of persecution constitute a crucial element in the assessment which leads to the granting of refugee status, or, correspondingly, when appropriate, to the cessation of that status. Such cessation thus implies that the change in circumstances has remedied the reasons which led to the recognition of refugee status.

Second, the Court states that any social and financial support provided by private actors, such as the family or the clan of a third country national, falls short of what is required under the provisions of the Qualification Directive to constitute protection. Consequently, that support is of no relevance either to the assessment of the effectiveness or availability of the protection provided by the State, ( 4 ) or to the determination of whether there continues to be a well-founded fear of persecution. ( 5 )

To reach that conclusion, first, the Court states that protection from acts of persecution is generally considered to be provided when the State itself, or the parties or organisations controlling the State or a substantial part of the territory of that State, take reasonable steps to prevent such acts of persecution, inter alia, by operating an effective legal system for the detection, prosecution and punishment of such acts of persecution, and the applicant has access to such protection. Further, the Court states that, in order to constitute acts of persecution, the relevant acts must be sufficiently serious by their nature or repetition to constitute a severe violation of basic human rights, or be an accumulation of various measures that are sufficiently severe to affect an individual in a similar manner to a severe violation of basic human rights. The Court holds that mere social and financial support from the family or a clan is inherently incapable of either preventing or punishing acts of persecution and cannot, therefore, be regarded as providing the protection required from those acts. That is particularly the case where the objective of that social and financial support is not to protect a third country national concerned from such acts, but rather to ensure his or her reintegration in his or her country of origin.

Consequently, the Court finds, next, that such social and financial support is of no relevance to the assessment of the effectiveness or availability of the protection provided by the State. The Court notes, in that regard, that economic hardship cannot, as a general rule, be classified as ‘persecution’, ( 6 ) and, consequently, such support intended to remedy such hardship should not have any bearing on the assessment of the adequacy of the State protection from acts of persecution. Further, the Court adds that even if the clans were to provide – in addition to such social and financial support – protection in terms of security, that protection could not, in any event, be taken into account in order to ascertain that the State protection meets the requirements that arise from the Qualification Directive.

Last, the Court holds that a person’s fear of persecution cannot be excluded, irrespective of what is required to constitute protection under the Qualification Directive, by the fact that social and financial support is provided by his or her family or clan. The Court considers that the conditions on refugee status in relation to, on the one hand, the fear of persecution in his or her country of origin and, on the other, to protection from acts of persecution, are intrinsically linked. Consequently, in order to determine whether that fear is well-founded, it is necessary to take into account whether there is or is not protection from such acts. However, that protection permits the inference that there is no such fear only if it meets the requirements arising from the Qualification Directive. ( 7 ) Since the conditions relating to the fear of persecution and to protection from acts of persecution are intrinsically linked, their examination cannot be subject to a separate criterion of protection; their assessment must be made in the light of the requirements laid down in that directive. The Court holds that to adopt an interpretation to the effect that the protection existing in the third country of origin may rule out a well-founded fear of persecution even though that protection does not satisfy those requirements would be liable to call into question the minimum requirements laid down by that directive.

( 1 ) 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 (OJ 2004 L 304, p. 12, and corrigendum, OJ 2005 L 204, p. 24). That directive was repealed with effect from 21 December 2013 by Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third country nationals or stateless persons as beneficiaries of international protection, for uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (OJ 2011 L 337, p. 9).

( 2 ) See Article 11(1)(e) of the Qualification Directive.

( 3 ) See, respectively, Article 11(1)(e) and Article 2(c) of the Qualification Directive. With respect to the requirements in question, see Article 7(1) and (2) of that directive.

( 4 ) See Article 7(1)(a) of the Qualification Directive.

( 5 ) See Article 11(1)(e) of the Qualification Directive, read together with Article 2(c) thereof.

( 6 ) See Article 9 of the Qualification Directive.

( 7 ) See, in particular, Article 7(2) of the Qualification Directive.