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Document 62016CC0652

Opinion of Advocate General Mengozzi delivered on 28 June 2018.
Nigyar Rauf Kaza Ahmedbekova and Rauf Emin Ogla Ahmedbekov v Zamestnik-predsedatel na Darzhavna agentsia za bezhantsite.
Request for a preliminary ruling from the Administrativen sad Sofia-grad.
Reference for a preliminary ruling — Common policy on asylum and subsidiary protection — Standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection — Directive 2011/95/EU — Articles 3, 4, 10 and 23 — Applications for international protection lodged separately by family members — Individual assessment — Taking into account threats in respect of a family member in carrying out the individual assessment of the application for international protection of another family member — More favourable standards capable of being retained or introduced by the Member States for the purpose of extending the refugee or subsidiary protection status of a beneficiary of international protection to family members — Assessment of the reasons for persecution — Involvement of an Azerbaijani national in bringing a complaint against her country before the European Court of Human Rights — Common procedural standards — Directive 2013/32/EU — Article 46 — Right to an effective remedy — Full and ex nunc examination — Reasons for persecution or evidence withheld from the determining authority but invoked in the course of an action against the decision taken by that authority.
Case C-652/16.

Digital reports (Court Reports - general)

ECLI identifier: ECLI:EU:C:2018:514

OPINION OF ADVOCATE GENERAL

MENGOZZI

delivered on 28 June 2018 ( 1 )

Case C‑652/16

Nigyar Rauf Kaza Ahmedbekova,

Rauf Emin Ogla Ahmedbekov

v

Zamestnik-predsedatel na Darzhavna agentsia za bezhantsite

(Request for a preliminary ruling
from the Administrativen sad Sofia‑grad (Administrative Court, Sofia, Bulgaria))

(References for a preliminary ruling — Area of freedom, security and justice — Borders, asylum and immigration — Rules on the grant of refugee status — Directives 2005/85/EC and 2011/95/EU — Applications for international protection made by family members of a person who has applied for refugee status — National provision granting refugee status to family members of a recognised refugee — Directive 2013/32/EU — Right to an effective remedy)

1.

By the request for a preliminary ruling which is the subject of this Opinion, the Administrativen sad Sofia‑grad (Administrative Court, Sofia, Bulgaria) asks the Court of Justice a series of nine questions on the interpretation of various provisions of Directives 2011/95/EU ( 2 ) and 2013/32/EU. ( 3 ) In large part, these questions concern aspects, both procedural and substantive, of the processing of applications for international protection made by members of a single family group. ( 4 ) The second, third, eighth and ninth questions, on the other hand, touch upon the examination of the admissibility of applications for international protection and the scope of the judicial review of decisions refusing international protection that may be carried out by courts of first instance, which are aspects that have already been raised, albeit from a partly different angle, by the Administrativen sad Sofia‑grad (Administrative Court, Sofia) in Alheto, a case in which I delivered an Opinion on 17 May of this year (C‑585/16, EU:C:2018:327).

A. Legal context

2.

For ease of reading, I shall set out the relevant provisions of European Union law and national law as I analyse each of the questions referred for a preliminary ruling. At this point, suffice it to observe that, under Bulgarian law, applications for international protection are examined in accordance with the Zakon za ubezhishteto i bezhantsite (Law on asylum and refugees, ‘the ZUB’), which provides for two forms of international protection, the first being the grant of refugee status (Article 8 of the ZUB), the other being the grant of humanitarian status (Article 9 of the ZUB), which corresponds to subsidiary protection under Directive 2011/95. That directive and Directive 2013/32 were transposed into Bulgarian law by means of amendments made to the ZUB by two laws which entered into force on 16 October and 28 December 2015 respectively. ( 5 )

II.   The main proceedings, the questions referred for a preliminary ruling and the procedure before the Court

3.

The facts in the main proceedings are summarised in the order for reference. On 16 December 2012, Mrs Ahmedbekova and her family members left Azerbaijan legally to go to Ukraine, via Turkey. During their stay in Ukraine, which lasted for a year and two months, Mrs Ahmedbekova and her family members made an application for international protection and registered with the United Nations High Commissioner for Refugees (UNHCR). Without waiting for the outcome of that application, on 19 January 2014, they left Ukraine legally to go to Turkey and from there they illegally entered Bulgaria. That same day they were stopped while attempting to leave Bulgaria with Greek passports. ( 6 )

4.

On 20 January 2014, Mrs Ahmedbekova and her husband, Emin Ahmedbekov, applied separately to the President of the Republic of Bulgaria for asylum. Mrs Ahmedbekova’s application was also made on behalf of the couple’s minor child, who was born on 5 October 2007. Both applications were rejected on 4 November 2014.

5.

On 19 November 2014, Emin Ahmedbekov lodged an application for international protection with the Darzhavna agentsia za bezhantsite (State Agency for Refugees, ‘the DAB’), which was rejected by decision of 12 May 2015. Mr Ahmedbekov’s action for the annulment of that decision was dismissed at first instance on 2 November 2015. On the date of the request for a preliminary ruling, his appeal against that judgment was still pending before the Varhoven administrativen sad (Supreme Administrative Court, Bulgaria).

6.

On 25 November 2014, Mrs Ahmedbekova lodged applications for international protection with the DAB, for herself and her son. Those applications too were rejected by decision of 12 May 2015. It is for the annulment of that decision that Mrs Ahmedbekova has brought an action before the referring court. In that action, Mrs Ahmedbekova has indicated that her application for international protection is made in her own behalf, on grounds of the well-founded fear she has that she would be persecuted on account of her political opinions, and as a member of the family of a person, her husband, who has suffered persecution in his home country.

7.

It is apparent from the order for reference that a return decision has been taken in respect of Mrs Ahmedbekova and her son pursuant to Directive 2008/115/EC. ( 7 )

8.

By decision of 5 December 2016, the Administrativen sad Sofia‑grad (Administrative Court, Sofia) decided to stay the proceedings and refer the following questions to the Court of Justice for a preliminary ruling:

‘(1)

Does it follow from Article 78(1) and 78(2)(a), (d) and (f) [TFUE] and from recital 12 and Article 1 of Directive [2013/32] that the ground for the inadmissibility of applications for international protection provided for in Article 33(2)(e) of that directive constitutes a directly effective provision which the Member States may not disapply, for example by applying more favourable provisions of national law under which the initial application for international protection must be examined first from the point of view of whether the applicant fulfils the conditions for qualification as a refugee and then from the point of view of whether the person is eligible for subsidiary protection, in accordance with Article 10(2) of that directive?

(2)

Does it follow from Article 33(2)(e) of Directive 2013/32, read in conjunction with Article 7(3) and Article 2(a), (c) and (g) and recital 60 of that directive, that, in the circumstances of the main proceedings, an application for international protection lodged by a parent on behalf of an accompanied minor is inadmissible where the reason given for the application is that the child is a member of the family of a person who has applied for international protection on the ground that he is a refugee within the meaning of Article 1(A) of the of the Convention relating to the Status of Refugees, [which was concluded in Geneva on 28 July 1951 and entered into force on 22 April 1954 (‘the Geneva Convention’)]? ( 8 )

(3)

Does it follow from Article 33(2)(e) of Directive 2013/32, read in conjunction with Article 7(1) and Article 2(a), (c) and (g) and recital 60 of that directive, that, in the circumstances of the main proceedings, an application for international protection lodged on behalf of an adult is inadmissible where the only reason given for the application in the proceedings before the relevant administrative authority is that the applicant is a member of the family of a person who has applied for international protection on the ground that he is a refugee within the meaning of Article 1A of the Geneva Convention and, at the time of lodging the application, the applicant has no right to carry on an economic activity?

(4)

Does Article 4(4) of Directive [2011/95], read in conjunction with recital 36 of that directive, require that the assessment of whether there is a well-founded fear of persecution or a real risk of suffering serious harm be carried out solely on the basis of facts and circumstances relating to the applicant?

(5)

Does Article 4 of Directive 2011/95, read in conjunction with recital 36 thereof and Article 31(1) of Directive 2013/32, permit national case-law in a Member State which:

(а)

obliges the competent authority to assess applications for international protection lodged by members of a single family in a single procedure in cases where the applications are based on the same facts, specifically the asserted refugee status of only one of the family members;

(b)

obliges the competent authority to stay proceedings relating to applications for international protection lodged by family members who do not personally meet the conditions for such protection until the conclusion of proceedings on an application lodged by the family member on the ground that he or she is a refugee within the meaning of Article 1A of the Geneva Convention;

and is that case-law also permissible in the light of considerations relating to the best interests of the child, maintaining the family unit and the right to privacy and family life and the right to remain in the Member State pending the assessment of the application, that is to say, in the light of Articles 7, 18 and 47 of the Charter of Fundamental Rights of the European Union, recitals 12 and 60 and Article 9 of Directive 2013/32, recitals 16, 18 and 36 and Article 23 of Directive 2011/95 and recitals 9, 11 and 35 and Articles 6 and 12 of Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection? ( 9 )

(6)

Does it follow from recitals 16, 18 and 36 and Article 3 of Directive 2011/95, read in conjunction with recital 24 and Article 2(d) and (j), Article 13 and Article 23(1) and (2) of that directive, that a provision of national law, such as Article 8(9) of the [ZUB], pursuant to which the family members of a foreign national who has been granted refugee status are also regarded as refugees in so far as that is compatible with their personal status and there are no reasons in national law for excluding the grant of refugee status, is permissible?

(7)

Does it follow from the rules relating to the reasons for persecution contained in Article 10 of Directive 2011/95 that the bringing of a complaint before the European Court of Human Rights against the State of origin of the person concerned establishes that person’s membership of a particular social group within the meaning of Article 10(1)(d) of that directive, or that the bringing of such a complaint is to be regarded as constituting a political opinion within the meaning of Article 10(1)(e) of the directive?

(8)

Does it follow from Article 46(3) of Directive 2013/32 that the court is obliged to examine the substance of new grounds for the grant of international protection which are put forward in the course of court proceedings but which were not indicated in the application challenging the decision refusing international protection?

(9)

Does it follow from Article 46(3) of Directive 2013/32 that the court is obliged to assess the admissibility of the application for international protection on the basis of Article 33(2)(e) of that directive in the court proceedings brought against the decision refusing international protection, in so far as, in reaching the contested decision, the application was, in accordance with Article 10(2) of that directive, assessed first from the point of view of whether the applicant met the conditions for qualification as a refugee and then from the point of view of whether that applicant was eligible for subsidiary protection?’

9.

Written observations have been submitted to the Court by the Hellenic Republic, the Czech Republic, the United Kingdom, Hungary and the European Commission.

III.   Analysis

A. Preliminary observations

10.

As a preliminary point, I would observe that, for the same reasons as I gave in points 58 to 61 of my Opinion of 17 May 2018 in Alheto (C‑585/16, EU:C:2018:327), Directive 2013/32 is not applicable ratione temporis to the facts of the main proceedings. Since Mrs Ahmedbekova made applications for international protection for herself and for her son on 25 November 2014, before both the date of entry into force of the law transposing Directive 2013/32 into Bulgarian law (28 December 2015) and the date fixed in the first sentence of the first paragraph of Article 52 of that directive (20 July 2015), those applications, in accordance with both national law (Article 37 of the law transposing Directive 2013/32) ( 10 ) and European Union law (the second sentence of the first paragraph of Article 52 of Directive 2013/32), have to be examined on the basis of the provisions transposing into Bulgarian law Directive 2005/85/EC, ( 11 ) which preceded Directive 2013/32. Accordingly, I shall where possible read the questions referred by the Administrativen sad Sofia‑grad (Administrative Court, Sofia) as referring to Directive 2005/85.

11.

In so far as concerns Directive 2011/95, on the basis of the information provided by the Administrativen sad Sofia‑grad (Administrative Court, Sofia) in its request for a preliminary ruling in Alheto (Case C‑585/16), that directive was transposed into Bulgarian law by a law which entered into force on 16 October 2015 and does not apply retroactively. That law should not, therefore, be applicable to Mrs Ahmedbekova’s application for international protection or to the application which she made on behalf of her son, both of which were made on 25 November 2014 and rejected by decision of 12 May 2015, just as it was not applicable to the application for international protection made by Ms Alheto. ( 12 ) By contrast with the request for a preliminary ruling in Alheto (Case C‑585/16), however, in the order for reference in the present case, the Administrativen sad Sofia‑grad (Administrative Court, Sofia) does not express a position on the inapplicability of the law in question, nor does it say anything about possible differences in the various versions of the relevant provisions of the ZUB which followed the transposition of Directive 2004/83/EC, ( 13 ) which preceded Directive 2011/95, and that latter directive. In addition, Directive 2011/95 is certainly applicable to the facts of the case in the main proceedings and, in any event, the answers to the questions that have been referred concerning the interpretation of the provisions of Directive 2011/95 would not be different if the corresponding provisions of Directive 2004/83 were to be taken into consideration instead. I do not therefore think it necessary to reformulate those questions.

B. The first, second and third questions referred for a preliminary ruling

12.

The first three questions referred for a preliminary ruling concern the interpretation of Article 33(2)(e) of Directive 2013/32 and I shall examine them together.

13.

In accordance with Article 33(1) of Directive 2013/32, ‘Member States are not required to examine whether the applicant qualifies for international protection in accordance with Directive [2011/95] where an application is considered inadmissible pursuant to this article’. Article 33(2) provides that ‘Member States may consider an application for international protection as inadmissible only if … (e) a dependant of the applicant lodges an application after he or she has in accordance with Article 7(2) consented to have his or her case be part of an application lodged on his or her behalf and there are no facts relating to the dependant’s situation which justify a separate application’.

14.

According to the information given in the order for reference, there is in the ZUB no provision corresponding to Article 33(2)(e) of Directive 2013/32. Consequently, the DAB examined the merits of the applications for international protection at issue in the main proceedings without first considering whether they were inadmissible on the ground mentioned in Article 33(2)(e).

15.

By its first question, the referring court essentially asks the Court of Justice whether examination of the admissibility of an application for international protection on the basis of Article 33(2)(e) of Directive 2013/32 is mandatory, and whether that provision has direct effect. By the second and third questions referred for a preliminary ruling, the national court essentially asks the Court whether, in circumstances such as those in question in the main proceedings, an application for international protection may be considered inadmissible under Article 33(2)(e) when it is based on the fact that the applicant is a member of the family of a person who has applied for asylum under Article 1A of the Geneva Convention. That question is put with reference, first, to the case where the application is lodged by the spouse of the asylum applicant on behalf of the minor child of the couple (the second question) and, secondly, to the case where the application is made by the spouse in her own behalf (the third question).

16.

As I indicated in point 10 above, Directive 2013/32 is not applicable ratione temporis to the facts of the main proceedings and so the questions set out above must be reformulated so as to refer to Article 25(2)(g) of Directive 2005/85, the wording of which is almost identical to that of Article 33(2)(e) of Directive 2013/32, which recast Directive 2005/85.

17.

As I have already had occasion to point out, in points 78 to 80 of my Opinion of 17 May 2018 in Alheto (C‑585/16, EU:C:2018:327), it is clear from the wording of Article 25(1) of Directive 2005/85 that Member States had the option, but not the obligation to lay down, in their respective national procedures for examining asylum applications, the grounds of inadmissibility mentioned in Article 25(2), while it is clear from recital 22 of the directive that Article 25 thereof constituted an exception to the rule that all asylum applications must be examined on their merits by the competent authorities of the Member States. ( 14 )

18.

In other words, Article 25(1) of Directive 2005/85 merely authorised the Member States to not examine the merits of asylum applications where one of the grounds of inadmissibility mentioned in Article 25(2) applied. It did not require them either to introduce into their legal systems an obligation upon the competent authorities to examine the admissibility of asylum applications or to provide that, where one the abovementioned grounds applied, applications should automatically be rejected, without any examination of their merits.

19.

It follows that, when transposing Directive 2005/85, the Bulgarian legislature could legitimately decide, as indeed it did, not to transpose some or all of the grounds for finding an asylum application inadmissible that are mentioned in Article 25(2) of that directive and, in particular, the ground described in Article 25(2)(g).

20.

The answer to the first question referred for a preliminary ruling, as reformulated and to the extent that it asks the Court whether examination of the admissibility of applications for international protection with reference to Article 25(2)(g) of Directive 2005/85 is mandatory, should therefore be that Article 25 of that directive, read in the light of recital 22 thereof, is to be interpreted as not imposing any obligation on Member States to examine the admissibility of an asylum application by reference to the grounds mentioned in Article 25(2), or to reject that application where one or other of those grounds applies.

21.

Given that answer, it will not be necessary to rule on the first question, as reformulated, to the extent that it asks the Court to clarify whether Article 25(2)(g) of Directive 2005/85 has direct effect.

22.

As regards the second and third questions, as reformulated, since it follows from the answer which I propose to the first question that, under the Bulgarian law which applies to the examination of the applications of Mrs Ahmedbekova and her son for international protection, those applications could not, in any event, be declared inadmissible on the ground laid down in Article 25(2)(g) of Directive 2005/85, these questions are manifestly hypothetical and thus inadmissible. ( 15 ) It is therefore merely in the alternative that I shall now briefly examine them.

23.

The referring court observes that the case-law of the Varhoven administrativen sad (Supreme Administrative Court) is not consistent with regard to the question whether an application for international protection based on a fear of the persecution of a person belonging to the same family group as the applicant may be examined in the context of a separate procedure distinct from that relating to the asylum application made by the person in question. Indeed, Article 32 of the administrativnoprotsesualen Kodeks (Code of Administrative Procedure), which, pursuant to Article 2(1) thereof, applies to all administrative procedures before all Bulgarian authorities, except as otherwise provided for by law, establishes that, when, in separate proceedings, ‘the rights and obligations of the parties arise from one and the same factual situation and where a single administrative authority is competent, a single procedure may be conducted with respect to several parties’. In so far as concerns the circumstances in question in the main proceedings, the Administrativen sad Sofia‑grad (Administrative Court, Sofia) points out that the application for international protection lodged by Mrs Ahmedbekova on behalf of her son should be regarded as forming part of Mr Ahmedbekov’s application because it is justified on grounds which relate to Mr Ahmedbekov. It questions whether that application should not, for that reason, be considered inadmissible under Article 33(2)(e) of Directive 2013/32 (Article 25(2)(g) of Directive 2005/85 once the questions are reformulated). ( 16 ) In so far as concerns the application which Mrs Ahmedbekova made in her own behalf, the referring court questions whether it may be made separately from Mr Ahmedbekov’s application, given that Mrs Ahmedbekova puts forward in support of her application the fact that she is a member of Mr Ahmedbekov’s family.

24.

Article 6(2) of Directive 2005/85 provides that ‘Member States shall ensure that each adult having legal capacity ( 17 ) has the right to make an application for asylum on his/her own behalf’. Pursuant to Article 6(3), in the event that Member States provide that an asylum application may be made by an applicant on behalf of a dependant, they are to ensure that ‘dependent adults consent to the lodging of the application on their behalf, failing which they shall have an opportunity to make an application on their own behalf’. ( 18 )

25.

It follows from those provisions that a person who has reached the age of majority and has legal capacity has the right to make an application for international protection in his or her own name, even if the sole ground relied on in support of the application is membership of the family of a person who has applied for the grant of refugee status. It is also clear from those provisions that an application for international protection cannot be made on behalf of an adult who has legal capacity unless the person in question is a dependant ( 19 ) and has expressly consented to proceeding in that way, waiving the right to lodge an application in his or her own behalf.

26.

From the order for reference it appears neither that Mrs Ahmedbekova is to be regarded as dependent on her husband, ( 20 ) nor that she has consented to his lodging an application for international protection on her behalf. It is also common ground that Mr Ahmedbekov has not made an application on behalf of his wife. On the contrary, the two spouses have always initiated separate procedures, both before the President of the Republic of Bulgaria and when they lodged their applications with the DAB.

27.

Given those circumstances, in which the conditions for the application of Article 25(2)(g) of Directive 2005/85 are not fulfilled, in particular the condition relating to the consent of the person in question, Mrs Ahmedbekova’s application could not have been declared inadmissible on the ground mentioned in that provision, even if it had been transposed into Bulgarian law. Nor could it have been regarded as forming part of Mr Ahmedbekov’s application. It was in fact necessary for it to be examined, on its merits, separately, as was done by the DAB.

28.

In so far as concerns the application made by Mrs Ahmedbekova on behalf of her son, I would point out that, in this case too, Article 6(3) of Directive 2005/85 does not make the possibility of lodging an application for international protection on behalf of a dependent minor conditional on the type of grounds relied on in support of the application. It follows that, provided that Mrs Ahmedbekova’s son may be regarded as dependent on her, the application which she made on his behalf could not have been declared inadmissible on the ground mentioned in Article 25(2)(g) of Directive 2005/85 — supposing that provision had been transposed into Bulgarian law — merely because the ground for that application relates to Mr Ahmedbekov’s being a refugee. ( 21 )

C. The fourth question referred for a preliminary ruling

29.

By its fourth question the referring court essentially asks the Court of Justice whether Article 4(4) of Directive 2011/95 is to be interpreted as meaning that the assessment of whether there is a well-founded fear of persecution (for the purposes of the grant of refugee status) or a real risk of suffering serious harm (for the purposes of the grant of subsidiary protection) must be carried out solely with reference to the facts and circumstances relating to the applicant himself.

30.

It is clear from the considerations set out by the referring court and from the circumstances in question in the main proceedings that the purpose of this question is to clarify whether it is consistent with the scheme of Directive 2011/95 for a Member State to grant refugee status to an applicant for international protection solely because the applicant is a member of the family of a recognised refugee.

31.

In accordance with Article 2(d) of Directive 2011/95 ‘refugee’ means, inter alios, ‘a third-country national who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, is outside the country of nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country’. In accordance with Article 4(3) of the directive ‘the assessment of an application for international protection is to be carried out on an individual basis’ and is to include an evaluation of the matters described in points (a) to (e) of the provision, which include, in point (c), ‘the individual position and personal circumstances of the applicant, … so as to assess whether, on the basis of the applicant’s personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm’. Pursuant to Article 4(4) of Directive 2011/95, which is the only provision mentioned in the wording of the question referred, ‘the fact that an applicant has already been subject to persecution or serious harm, or to direct threats of such persecution or such harm, is a serious indication of the applicant’s well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated’. Article 9(1) of Directive 2011/95 defines the criteria that must be met in order for an act to be regarded as an ‘act of persecution’ within the meaning of Article 1A of the Geneva Convention and Article 9(2) offers examples of the forms that such acts may take. Article 10(1) of Directive 2011/95 lists, in points (a) to (e), the matters which the Member States must take into consideration when assessing the reasons for persecution, as referred to in Article 2(d) of the directive. Finally, pursuant to Article 9(3) of the directive, there must be a connection between the acts of persecution, within the meaning of Article 9(1), and the reasons referred to in Article 10.

32.

The abovementioned provisions require that the determination of whether a person qualifies as a refugee must be made with reference to the asylum applicant himself. They do not, however, rule out the possibility that the requirements for qualifying as a refugee may be satisfied as a result of a family connection between the applicant and a person who has been the victim of acts of persecution, within the meaning of Article 9(1) of Directive 2011/95, who rightly fears being persecuted for one of the reasons referred to in Article 2(d) of the Directive. Although it will not in itself be sufficient, to that end, for an applicant merely to rely in support of his application on the persecution of a family member, the refugee status must, on the other hand, be granted to a member of the family of a refugee who has made such an application where, on an examination of his individual situation and personal circumstances and in light of all the relevant facts, including in particular the prevailing situation in the country of origin and the modus operandi of those responsible for the persecution, ( 22 ) it is clear that, because of that family link, the applicant individually entertains a well-founded fear of being persecuted himself and there are no reasons for which he should not be granted refugee status. ( 23 ) In those circumstances the connection between the acts and the reasons for persecution, as required by Article 9(3) of Directive 2011/95, will be made out, indirectly, by reference to the reasons for the persecution inflicted on the applicant’s family member.

33.

As the referring court has pointed out, such a situation is specifically contemplated by recital 36 of Directive 2011/95, which states that ‘family members, merely due to their relation to the refugee, will normally be vulnerable to acts of persecution in such a manner that could be the basis for refugee status’. ( 24 ) The risk that such a situation of vulnerability to persecution should materialise is thus regarded as significant by the European Union legislature itself.

34.

On the basis of the foregoing considerations, I suggest that the answer to the fourth question referred for a preliminary ruling should be that Directive 2011/95, in particular Article 2(d) and Article 4(3) thereof, read in the light of recital 36 thereof, is to be interpreted as not precluding the grant of refugee status to an applicant for international protection on account of his or her family connection with a person who has been the victim of acts of persecution, within the meaning of Article 9(1) of that directive, or who rightly fears persecution for one of the reasons referred to in Article 2(d) of the directive where, on an examination of his or her individual situation and personal circumstances and in light of all the relevant facts, it is clear that, because of that family link, the applicant individually entertains a well-founded fear of being persecuted himself or herself.

D. The fifth question referred for a preliminary ruling

35.

By its fifth question the referring court essentially asks the Court of Justice whether Article 4 of Directive 2011/95 and Article 31(1) of Directive 2013/32, along with considerations relating to the best interests of the child, maintaining the family unit and the right to privacy and family life, preclude national case-law which requires the competent authority to examine in a single procedure applications for international protection made the members of a single family group and based on the claim that one of them alone qualifies as a refugee, or which requires proceedings on the applications lodged by the other family members to be stayed pending the conclusion of proceedings on an application lodged pursuant to Article 1A of the Geneva Convention.

36.

For the reasons I have set out in point 10 above, this question must be examined in the light not of the provisions of Directive 2013/32 but of the provisions of Directive 2005/85, which preceded it.

37.

It has become clear on examining the first three questions for a preliminary ruling, and it follows from point 27 above in particular that, in the circumstances of the main proceedings, Mrs Ahmedbekova’s application for international protection must, given that she did not give the consent referred to in Article 6(3) of Directive 2005/85, be examined separately from her husband’s application and independently of the grounds put forward in support of the husband’s application.

38.

On this point Article 9(3) of Directive 2005/85 clearly indicates that it is solely for the purposes of the application of Article 6(3) of the directive, that is to say, only where an application is made on behalf of one or more dependants, that ‘Member States may take one single decision, covering all dependants’, provided that ‘the application is based on the same grounds’. ( 25 )

39.

However, where the conditions for the application of Article 6(3) of Directive 2005/85 are not fulfilled — as in Mrs Ahmedbekova’s case — the competent authority is required to examine the applications lodged by various members of a single family in their own behalf in separate procedures.

40.

It is worth emphasising that that is true both in the event that, as some passages of the order for reference imply, Mrs Ahmedbekova’s application to the DAB was based solely on the fact that she is the spouse of a person who has applied for refugee status, and in the event that, as might be inferred from other passages of the order, her application is based on her personal fear of being persecuted on account of her husband’s situation.

41.

The application of the Ahmedbekov’s son, which Mrs Ahmedbekova lodged on his behalf and which is based on the same grounds as those on which Mrs Ahmedbekova herself relies must, on the other hand, be examined together with that of his mother, in accordance with Article 6(3) and Article 9(3) of Directive 2005/85.

42.

In so far as the referring court appears to take the view that dealing with the applications for international protection made by various members of a family group separately could jeopardise the maintenance of the family unit or be prejudicial to the best interests of the child, for example if the applications are rejected at different times, I would observe that such considerations cannot restrict the right of applicants, enshrined in Article 6(2) of Directive 2005/85, to lodge an application for international protection separately from other family members. It will be for the Member State concerned to ensure that the abovementioned principles are observed in the context of any return procedures that may be commenced following the definitive rejection of the applications for international protection made by each member of the family. ( 26 ) Incidentally, I would point out, as did the Commission in its written observations, that as long as they remain ‘applicants’ within the meaning of Article 2(c) of Directive 2005/85, that is to say, until a final decision is taken on their asylum application, Mrs Ahmedbekova and her son enjoy the benefits attaching to that status, in particular those provided for by Directives 2003/9/EC ( 27 ) and 2013/33.

43.

It follows from the foregoing considerations that Directive 2005/85 precludes an application for international protection made, in his or her own behalf, by a member of the family of an asylum applicant from being treated as an integral part of the asylum applicant’s application and dealt with jointly with that application, irrespectively of the grounds on which the application for international protection of the family member is made.

44.

On the other hand, neither Directive 2005/85 nor Directive 2011/95 seems to preclude the staying of the procedures on the applications for international protection made separately by various members of a family group on the basis of a fear of being persecuted on account of the situation of one of the members of that family group pending the outcome of the procedure on the application of the family member (‘the main applicant’) whose situation gave rise to the family group’s fear of persecution.

45.

Nevertheless, in order for such a stay to be permissible, three conditions must, in my view, be satisfied. First of all, as the Commission asserted in its written observations, the stay must be in the interests of a full and proper examination of the applications in question or the maintenance of the family unit, or in the best interests of the child, and must not infringe the right to privacy and family life of the persons concerned. Secondly, the stay must not undermine the autonomy of the applications made separately by the family members of the main applicant. Thirdly, it must not result in the preclusion of an examination of the merits of such applications that is individual, objective and impartial, as is required by Article 8(2) of Directive 2005/85, regardless of the outcome of the main applicant’s application, whether it is finally rejected or upheld.

46.

On the basis of all the foregoing considerations, the answer to the fifth question referred for a preliminary ruling should, in my view, be that Directive 2005/85, and in particular Article 6(2) and (3) and Article 9(3) thereof, are to be interpreted as precluding applications for international protection made, in their own behalf, by family members of a person who has applied for refugee status from being treated as an integral part of the latter’s application and dealt with jointly in a single procedure, even where they are based exclusively on the grounds for the grant of refugee status which relate to the principal applicant. Directives 2005/85 and 2011/95 are to be interpreted as not precluding the staying of the procedures on the applications for international protection made separately by various members of a family group on the basis of a fear of being persecuted on account of the situation of one of the members of that family group pending the outcome of the procedure on the asylum application of the family member whose situation gave rise to the family group’s fear of persecution. However, any such stay must not undermine the autonomy of the applications lodged, in their own behalf, by the family members of the applicant whose situation gave rise to their fear of persecution, nor impede their examination on the merits once the procedure examining the application made by the main applicant has been completed, regardless of the outcome of that procedure.

E. The sixth question referred for a preliminary ruling

47.

By its sixth question the referring court asks the Court of Justice whether Directive 2011/95 precludes national legislation which provides for the grant of refugee status to family members of a refugee solely on the basis of their family relationship with the latter.

48.

Article 8(9) of the ZUB provides that ‘the members of the family ( 28 ) of a foreign national who has been granted refugee status shall also be considered refugees’. ( 29 ) It may be inferred from the order for reference that, pursuant to that provision, the grant of refugee status to the family members of a recognised refugee is automatic and does not entail any verification that the family members individually have a well-founded fear of being persecuted. According to the referring court, that provision might be incompatible with Directive 2011/95, which does not provide for such automatic recognition.

49.

I would immediately point out — as indeed the referring court has done in its request for a preliminary ruling — that Article 8(9) of the ZUB would apply to Mrs Ahmedbekova (and her son) only if Mr Ahmedbekov’s application for asylum were upheld. However, in reply to a request for clarification, made by the Court in accordance with Article 101 of its Rules of Procedure, the referring court has stated that, by judgment of 25 January 2017, the Varhoven administrativen sad (Supreme Administrative Court) dismissed the appeal brought by Mr Ahmedbekov against the judgment which upheld the rejection of his asylum application, rendering that decision final. It follows that the automatic recognition provided for by Article 8(9) of the ZUB can no longer come into play for Mrs Ahmedbekova’s benefit or that of her son, once Mr Ahmedbekov’s situation is taken into account for the purposes of the application of that provision. Nevertheless, I do not think that that means that the sixth question referred for a preliminary ruling is inadmissible. Indeed, it is apparent from the order for reference that Mrs Ahmedbekova has put forward in the course of the court proceedings additional grounds in support of her application for international protection which relate to her own personal situation. In the event that the examination of those grounds (by the referring court) leads to the grant of refugee status to Mrs Ahmedbekova, Article 8(9) of the ZUB could be applied for the benefit of her son, the rejection of whose application by the DAB is also challenged in the main proceedings. The sixth question is not therefore merely hypothetical and retains a sufficient connection with the dispute which is before the referring court.

50.

As to the substance, this question essentially concerns the compatibility with Directive 2011/95 of national legislation which permits the automatic grant of refugee status, as a derived right, of the family members of a person who meets the criteria for recognition as a refugee.

51.

It must be observed that, while a ‘derivative status’ of such kind is not contemplated by the Geneva Convention, ( 30 ) which does not incorporate the principle of family unity within its definition of the term ‘refugee’, ( 31 ) the Final Act of the United Nations Conference of Plenipotentiaries, which drew up the convention, expressly recognised the ‘essential right’ of refugees to the unity of the family and recommended that the signatory States take the necessary measures to maintain family unity and, more generally, to protect the families of refugees. Those recommendations have often been repeated over many years by the bodies of the UNHCR. ( 32 ) To give an example, in a document of 4 June 1999, the UNHCR Executive Committee asserted that ‘it follows from the principle of family unity that, if the head of a family meets the criteria for recognition of refugee status, the dependent members of his or her family should normally be recognised as refugees’. ( 33 ) More recently, the UNHCR has recommended that family members of potential victims of female genital mutilation should be granted the derivative refugee status, and it has admitted the possibility, even for an accompanied minor, of being the principal applicant with a right to family unity. ( 34 ) A reference to the ‘derivative status’ of refugee appears also in the UNHCR Guidelines on International Protection relating to Child Asylum Claims. ( 35 ) Lastly, derivative refugee status is normally allowed in procedures for the determination of refugee status under UNHCR’s mandate. ( 36 )

52.

Like the Geneva Convention, Directive 2011/95 makes no provision for the recognition of derivative refugee status for the family members of a recognised refugee.

53.

Paragraph 2 of Article 23 of Directive 2011/95, which is entitled ‘Maintaining family unity’, provides that the family members of a refugee who do not individually qualify for international protection are entitled to claim certain benefits, ( 37 ) listed in Articles 24 to 35 of the directive, the content of which is substantially the same as for recognised refugees. ( 38 ) However, the protection afforded under that provision does not include the most typical form of protection afforded by refugee status, that is to say, protection from refoulement, provided for by Article 21 of Directive 2011/95, and it cannot, therefore, be assimilated to the recognition of a ‘derivative refugee status’. Notwithstanding, the legal basis for Article 23(2) of Directive 2011/95 is the same, namely the right of refugees to maintain the family unit, which Article 23(1) of the directive requires the Member States to observe. ( 39 )

54.

Article 3 of Directive 2011/95, read in the light of recital 14 thereof, enables the Member States to adopt or retain national standards, in so far as they are compatible with the directive, that are more favourable toward third-country nationals and stateless persons who request international protection ‘where such a request is understood to be on the grounds that the person concerned is … a refugee within the meaning of Article 1A of the Geneva Convention’. ( 40 ) In my view, a provision such as Article 8(9) of the ZUB falls within the scope of the qualification in Article 3.

55.

It is true that an application by which a member of the family of a person who meets the criteria for the grant of refugee status requests recognition for himself as a refugee, whether or not he personally has a well-founded fear of being persecuted, cannot be considered, strictu sensu, as being based on Article 1A of the Geneva Convention, as is required by Article 3 of Directive 2011/95, read in the light of recital 14 thereof.

56.

However, I would point out that, in the cases in which the Court of Justice has ruled against recourse to the qualification in Article 3 of Directive 2004/83 for the purpose of authorising more favourable national standards for determining the criteria for qualification as a refugee, it has not based its decisions on any finding that the application of the asylum seeker in question could not be brought within the scope of Article 1A of the Geneva Convention. It has instead emphasised the incompatibility of the application with the scheme of the convention, or its fundamental lack of any connection with the convention. It has thus given preference to a substantive criterion, rather than a formal one, in the interpretation and application of the qualification in Article 3 of Directive 2004/83.

57.

Thus, in its judgment of 9 November 2010, B (C‑57/09 and C‑101/09, EU:C:2010:661, paragraphs 114 and 115), the Court held that Article 3 of Directive 2004/83 should not apply to national provisions under which refugee status is granted to persons who are excluded from that status pursuant to Article 12(2) of the directive, the reason given for the inapplicability of Article 3 being that the purpose of the grounds of exclusion from refugee status is to ‘maintain the credibility of the protection system’ provided for in that directive. Similarly, in its judgment of 18 December 2014, M’Bodj (C‑542/13, EU:C:2014:2452, paragraphs 42 to 44), the Court held that ‘it would be contrary to the general scheme and objectives of Directive 2004/83 to grant refugee status and subsidiary protection status to third-country nationals in situations which have no connection with the rationale of international protection’. ( 41 )

58.

Thus, the grant of refugee status, as a derived right, to the family members of a recognised refugee is not incompatible with the scheme of the Geneva Convention and is even recommended by the UNHCR and normally allowed in procedures for the determination of refugee status under UNHCR’s mandate. ( 42 ) It also pursues objectives that are in line with Directive 2011/95, Article 23(1) of which expressly requires the Member States to ensure that the unity of the families of refugees can be maintained, ( 43 ) albeit leaving the Member States free to decide what measures to adopt to that end, yet at the same time laying down, in Article 23(2), the minimum content of the regime which applies to family members. Furthermore, the treatment reserved to the members of the families of recognised refugees relates to situations which fall squarely within the ‘rationale of international protection’, as is apparent both from the Final Act of the Geneva Convention and from the practice of the UNHCR, and as has been emphasised by the European Court of Human Rights (‘ECtHR’), in particular in its judgment in Mugenzi v. France. ( 44 )

59.

Before concluding on this point, I would add that, in order for a provision, such as Article 8(9) of the ZUB, to be considered compatible with Directive 2011/95 under the qualification laid down in Article 3 thereof, it must permit the member of the family of a refugee to request and obtain in the Member State concerned the grant of refugee status as an autonomous right, not as a derived right, provided that the family member individually fulfils the conditions for the grant of such status.

60.

On the basis of all the foregoing considerations, the answer to the sixth question referred for a preliminary ruling should, in my view, be that a national provision, such as that at issue in the main proceedings, under which the family members of a person who has been granted refugee status in accordance with Article 1A of the Geneva Convention are recognised as refugees whether or not they individually meet the criteria laid down in Article 1A of the Geneva Convention, where such recognition is compatible with their personal legal status and no grounds of exclusion, under Article 12 of Directive 2011/95, militate against it, is compatible with the provisions of Directive 2011/95, for the purposes of applying the qualification laid down in Article 3 thereof. A national provision of such kind will fall within the scope of Article 3 of Directive 2011/95 only if the members of the refugee’s family are allowed to request and obtain the grant of refugee status as an autonomous right, provided that they individually fulfil the conditions for the grant of such status.

F. The seventh question referred for a preliminary ruling

61.

By its seventh question the referring court asks whether the fact that an asylum applicant has brought a complaint against his or her own State of origin before the European Court of Human Rights establishes that applicant’s membership of a ‘social group’, within the meaning of Article 10(1)(d) of Directive 2011/95, or constitutes a political opinion, within the meaning of Article 10(1)(e) of that directive.

62.

It seems, although it is not entirely clear from the order for reference, that Mrs Ahmedbekova has put forward before the Administrativen sad Sofia‑grad (Administrative Court, Sofia) reasons for persecution which relate to her personally (rather than in her capacity as a member of Mr Ahmedbekov’s family) relating to her political opinions and the support she has given to persons persecuted by the Azerbaijan Government. Among the circumstances which Mrs Ahmedbekova has mentioned to the referring court is her involvement (possibly as an applicant or possibly merely as a person close to the actual applicants) in the bringing of an action against Azerbaijan before the European Court of Human Rights. The referring court essentially questions whether that fact in itself triggers the application of the concepts defined in Article 10(1)(d) and (e) of Directive 2011/95 to Mrs Ahmedbekova’s situation.

63.

I agree with all the Member States that have submitted written observations to the Court and with the Commission that the answer to this question that should be proposed to the Court is in the negative.

64.

In accordance with Article 2(d) of Directive 2011/95 a ‘refugee’ is a third-country national or stateless person who, in the circumstances described in that provision, has a well-founded fear of being persecuted because of his race, religion, nationality, political opinions or membership of a particular social group. Article 10(1) of the directive describes the matters which the Member States must take into consideration when assessing the reasons for persecution.

65.

Article 10(1)(d) of Directive 2011/95 defines the concept of ‘particular social group’. According to that definition, a group is to be regarded as a ‘particular social group’ if two cumulative conditions are fulfilled. First, the members of the group must share an ‘innate characteristic’ or a ‘common background that cannot be changed’ or ‘a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it’. Secondly, the group must have a distinct identity in the country in question that is attributable to its being perceived as different by the surrounding society. ( 45 ) However, it seems obvious to me that such a concept does not apply to a group of people simply because they have brought, individually or collectively, an action against their own country of origin before an international court. Such a circumstance does not, in itself, support the assertion that the people in question, albeit united in certain political convictions, share an ‘innate characteristic’ or a ‘common background’ or a ‘fundamental belief’ within the meaning of the abovementioned provision or may be regarded, in their country of origin, as belonging to a group which has its own identity on account of being perceived as different.

66.

In so far as concerns the expression ‘political opinion’, Article 10(1)(e) of Directive 2011/95 clarifies that this refers to ‘the holding of an opinion, thought or belief on a matter related to the potential actors of persecution … and to their policies or methods, whether or not that opinion, thought or belief has been acted upon by the applicant’. Although it is not possible to rule out, a priori, that bringing an action before the European Court of Human Rights constitutes acting upon a ‘belief on a matter related to the potential actors of persecution and to their policies or methods’ (where the persecution may be attributed to the State against which the action is brought), or might be perceived as such, I do not think that this circumstance alone should automatically lead the competent authorities of the Member State concerned to regard the reason for persecution relating to the political opinions of the applicant as established.

67.

I would point out in this connection that, in accordance with Article 4(3) of Directive 2011/95, the assessment of applications for international protection must be carried out taking into account all the relevant facts and circumstances relating, in particular, to the asylum applicant, and that it is in the light of all those facts and circumstances that it must be determined whether the applicant professes a political opinion that is not tolerated by the authorities of his or her country of origin and whether, because of that opinion, the applicant has a well-founded fear of being persecuted should he or she return to that country. ( 46 )

68.

In the light of the foregoing considerations, the appropriate answer to the seventh question referred for a preliminary ruling is that the fact that an asylum applicant has brought an action against his or her own State of origin before the European Court of Human Rights does not automatically establish that he or she is a member of a particular social group, within the meaning of Article 10(1)(d) of Directive 2011/95, or his or her adherence to a political opinion, within the meaning of Article 10(1)(e) of that directive.

G. The eighth question referred for a preliminary ruling

69.

By its eighth question, the Administrativen sad Sofia‑grad (Administrative Court, Sofia) essentially asks the Court of Justice whether Article 46(3) of Directive 2013/32 is to be interpreted as meaning that a court of first instance hearing an action against a decision refusing international protection is obliged to examine grounds for the grant of such protection which the applicant puts forward for the first time in the course of the court proceedings and which were not relied on in the application for international protection that was rejected by the contested decision or in the application initiating the proceedings. ( 47 )

70.

For the reasons I have set out in point 10 above, this question should, in my view, be considered inadmissible, since, for the reasons I gave in point 65 of my Opinion of 17 May 2018 in Alheto (C‑585/16, EU:C:2018:327), it cannot be treated as relating to Article 39 of Directive 2005/85. The following considerations are therefore set out in the alternative.

71.

In accordance with Article 46(1)(a)(i) of Directive 2013/32 ‘Member States shall ensure that applicants have the right to an effective remedy before a court or tribunal against … a decision taken on their application for international protection, including a decision … considering an application to be unfounded in relation to refugee status and/or subsidiary protection status’. Article 46(3) provides that, ‘in order to comply with paragraph 1, Member States shall ensure that an effective remedy provides for a full and ex nunc examination of both facts and points of law, including, where applicable, an examination of the international protection needs pursuant to Directive 2011/95/EU, at least in appeals procedures before a court or tribunal of first instance’.

72.

In its exposition of the reasons which led it to refer to the Court of Justice its eighth question for a preliminary ruling, the national court states that, in the course of the court proceedings, Mrs Ahmedbekova has argued that she has a well-founded fear of being persecuted on account of her political opinions, alleging in support of that argument the connections she has with people who have brought an action against Azerbaijan before the European Court of Human Rights ( 48 ) and her actions in defence of people persecuted by the Azerbaijan authorities. ( 49 )

73.

While it is clear from the order for reference that these allegations were put forward for the first time in the court proceedings, it is not quite so clear, as I have already had occasion to observe, in point 40 above, that the application for international protection which Mrs Ahmedbekova made and which was rejected by the DAB did not already mention that she was facing a risk of being persecuted individually, as the spouse of a person suffering political persecution or because of the opinions she had expressed, in particular while her husband was in prison. ( 50 )

74.

In the event that this risk of being persecuted individually (even if arising in connection with the husband’s situation) had already been raised before the DAB, which is a matter for the referring court to establish, the facts and circumstances alleged and the documents presented for the first time by Mrs Ahmedbekova in the course of the court proceedings must, in my view, be treated as new evidence of that risk and not as new ‘grounds for asylum’. ( 51 ) Indeed, quite apart from any other consideration, all the evidence submitted by Mrs Ahmedbekova, both to the DAB and to the referring court, may be regarded as relating to a single reason for persecution (direct or indirect), ( 52 ) relating to the opinions expressed by Mrs Ahmedbekova (and/or her husband) critical of the Azerbaijan Government and her actions in defence of the rights of persons whom she regards as being persecuted by that government. ( 53 )

75.

As I have already had occasion to explain, in point 69 of my Opinion of 17 May 2018 in Alheto (C‑585/16, EU:C:2018:327), in that it provides that the factual and legal examination of the grounds of any appeal against a decision refusing international protection must be carried out ‘ex nunc’, Article 46(3) of Directive 2013/32 must be interpreted as meaning that that examination must be carried out not on the basis of the circumstances of which the authority that adopted the decision appealed against was aware or should have been aware when it adopted that decision, but on the basis of the circumstances present at the time when the court gives its ruling. ( 54 ) That means, first, that the applicant must be allowed to rely on new matters that were not put forward before the authority which examined his or her application for international protection, ( 55 ) and, secondly, that the court hearing the appeal must be free to take account of new factors that are relevant in the assessment of the applicant’s position. ( 56 )

76.

It follows that, in a situation like that in question in the main proceedings, in which the facts and circumstances alleged and the documents presented for the first time by Mrs Ahmedbekova in the course of the court proceedings may be regarded as intended to prove a well-founded fear of being personally persecuted that had already been put forward in the application for international protection that was rejected by the decision appealed against before the referring court, that court can and must take them into account and must itself examine, in the light of all the facts, circumstances and documents, and where it has sufficient facts before it, the international protection needs of the applicant, in accordance with Article 46(3) of Directive 2013/32, without being required to refer the case back to the administrative authority. ( 57 )

77.

On the other hand, in the event that the application lodged by Mrs Ahmedbekova with the DAB did not mention any well-founded fear of being individually persecuted — even in her capacity as a member of the family of a person who has suffered or who risks suffering persecution — but confined itself to requesting, on the basis of the applicable national provisions, the grant of a derivative refugee status such as that which I examined earlier, the facts alleged and the documents presented by Mrs Ahmedbekova in the course of the court proceedings could in fact, as the referring court seems to think possible, be regarded as signifying the submission, for the first time and before that court, of an application for international protection based on Article 1A of the Geneva Convention. ( 58 )

78.

If, in such case, the court does not, under the relevant provisions of national law, have jurisdiction to examine such an application, I do not think that such jurisdiction can be inferred from Article 46(3) of Directive 2013/32, which defines the scope of the judicial review that the Member States are required to ensure can be exercised with regard to decisions refusing international protection within the meaning of Directive 2011/95 and which therefore relates solely to situations in which such a decision has been taken and has been appealed against.

H. The ninth question referred for a preliminary ruling

79.

By its ninth question, the referring court essentially asks the Court of Justice whether Article 46(3) of Directive 2013/32 is to be interpreted as requiring a court of first instance hearing an appeal against a decision refusing international protection to give a ruling on the question whether the application is inadmissible pursuant to Article 33(2)(e) of that directive even if the competent authority has examined the merits of the application.

80.

For the reasons I have given in points 10 and 70 above, this question too should, in my view, be declared inadmissible. As to its substance, it should be answered in the negative, for the reasons set out in points 17 to 19 above.

IV.   Conclusion

81.

In the light of all the foregoing considerations, I suggest that the Court should declare inadmissible the second, third, eighth and ninth questions referred for a preliminary ruling and should answer the remaining questions, once reformulated, as follows:

Article 25 of Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status, read in the light of recital 22 thereof, is to be interpreted as not imposing any obligation on Member States to examine the admissibility of an asylum application by reference to the grounds mentioned in Article 25(2), or to reject such an application where one or other of those grounds applies.

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 a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted, in particular Articles 2(d) and 4(3) thereof, read in the light of recital 36 thereof, is to be interpreted as not precluding the grant of refugee status to an applicant for international protection on account of his or her family connection with a person who has been the victim of acts of persecution, within the meaning of Article 9(1) of that directive, or who rightly fears persecution for one of the reasons referred to in Article 2(d) of the directive where, on an examination of his or her individual situation and personal circumstances and in light of all the relevant facts, it is clear that, because of that family link, the applicant individually entertains a well-founded fear of being persecuted himself or herself.

Directive 2005/85, and in particular Article 6(2) and (3) and Article 9(3) thereof, are to be interpreted as precluding applications for international protection made, in their own behalf, by family members of a person who has applied for refugee status from being treated as an integral part of the application lodged by such a person and dealt with jointly in a single procedure, even where they are based exclusively on the grounds for the grant of refugee status which relate to that person. Directives 2005/85 and 2011/95 are to be interpreted as not precluding the staying of the procedures on the applications for international protection made separately by various members of a family group on the basis of a fear of being persecuted on account of the situation of one of the members of that family group pending the outcome of the procedure on the asylum application of the family member whose situation gave rise to the family group’s fear of persecution. However, any such stay must not undermine the autonomy of the applications lodged, in their own behalf, by the family members of the applicant whose situation gave rise to their fear of persecution, nor impede their examination on the merits once the procedure examining the application made by the main applicant has been completed, regardless of the outcome of that procedure.

A national provision, such as that at issue in the main proceedings, under which the family members of a person who has been granted refugee status in accordance with Article 1A of the Geneva Convention are recognised as refugees whether or not they individually meet the criteria laid down in Article 1A of the Geneva Convention, where such recognition is compatible with their personal legal status and no grounds of exclusion, under Article 12 of Directive 2011/95, militate against it, is compatible with the provisions of Directive 2011/95, for the purposes of applying the qualification laid down in Article 3 thereof. A national provision of such kind will fall within the scope of Article 3 of Directive 2011/95 only if the members of the refugee’s family are allowed to request and obtain the grant of refugee status as an autonomous right, provided that they individually fulfil the conditions for the grant of such status.

The fact that an asylum applicant has brought an action against his or her own State of origin before the European Court of Human Rights does not automatically establish that he or she is a member of a particular social group, within the meaning of Article 10(1)(d) of Directive 2011/95, or his or her adherence to a political opinion, within the meaning of Article 10(1)(e) of that directive.


( 1 ) Original language: Italian.

( 2 ) 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 a 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.

( 3 ) Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection, OJ 2013 L 180, p. 60.

( 4 ) In accordance with Article 2(j) of Directive 2011/95, ‘family members’ include, in so far as the family already existed in the country of origin, the members of the family of the beneficiary of international protection who are present in the same Member State in relation to the application for international protection. They include, in so far as is relevant here, the spouse of the beneficiary of international protection and the minor children of the couple.

( 5 ) The first of these laws laying down provisions amending and supplementing the ZUB, was published in State Gazette No 80 of 2015 and the second in State Gazette No 101 of 2015.

( 6 ) In the course of a personal interview held on 25 November 2014, Mrs Ahmedbekova stated that she had come to an arrangement with a trafficker to be taken with her family to Germany. The trafficker had, however, left them in Bulgaria, without contacting them further.

( 7 ) Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (OJ 2008 L 348, p. 98). The return decision was adopted on 20 January 2014, that is to say, the day on which Mrs Ahmedbekova, her husband and her son were stopped by the Bulgarian authorities.

( 8 ) The Geneva Convention is supplemented by the Protocol relating to the Status of Refugees, which was adopted on 31 January 1967 and entered into force on 4 October 1967.

( 9 ) OJ 2013 L 180, p. 96.

( 10 ) As I noted in point 61 of my Opinion of 17 May 2018 in Alheto (C‑585/16, EU:C:2018:327), Article 37 of the law transposing Directive 2013/32, which entered into force on 28 December 2015, states that procedures commenced before that date are to be completed on the basis of the provisions previously in force.

( 11 ) Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (OJ 2005 L 326, p. 13).

( 12 ) See point 50 of and footnote 39 to my Opinion of 17 May 2018 in Alheto (C‑585/16, EU:C:2018:327).

( 13 ) 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).

( 14 ) The same may currently be said of Article 33(1)(e) of Directive 2013/32 (and see recital 43 of the directive, which is the same in content as recital 22 of Directive 2005/85). I would, however, point out that the Proposal for a regulation of the European Parliament and of the Council establishing a common procedure for international protection in the Union and repealing Directive 2013/32/EU (COM/2016/0467 final) renders examination of the admissibility of applications for international protection compulsory (see, in paragraph 1 of the explanatory memorandum, the section on the objectives of the proposal and, in particular, the objective of making procedures ‘simpler, clearer and shorter’; p. 4). In so far as is relevant here, Article 36(1) of the proposed regulation reads as follows: ‘The determining authority shall assess the admissibility of an application, in accordance with the basic principles and guarantees provided for in Chapter II, and shall reject an application as inadmissible where any of the following grounds applies: … (d) a spouse or partner or accompanied minor lodges an application after he or she had consented to have an application lodged on his or her behalf, and there are no facts relating to the situation of the spouse, partner or minor which justify a separate application.’

( 15 ) See, inter alia, the order of 22 June 2017, Fondul Proprietatea (C‑556/15 and C‑22/16, not published, EU:C:2017:494, paragraphs 20 and 21).

( 16 ) The referring court also wonders about the concept of ‘dependant’ in Article 33(2)(e) of Directive 2013/32, given that Mrs Ahmedbekova and Mr Ahmedbekov both appear unable themselves to meet their own needs or those of their son.

( 17 ) See, to the same effect, Article 7(1) of Directive 2013/32. In the Italian version, the words capacità giuridica are replaced by capacità di agire.

( 18 ) See, to the same effect, Article 7(2) of Directive 2013/32.

( 19 ) I would point out that, although the requirement of being a ‘dependent’ person is still present in Article 7 of Directive 2013/32, it is abandoned in the Proposal for a regulation of the European Parliament and of the Council establishing a common procedure for international protection in the Union and repealing Directive 2013/32/EU, cited in footnote 14, Article 31(1) and (2) of which provide that an applicant may lodge an application on behalf of his or her spouse or partner in a stable and durable relationship, provided that the spouse or partner has consented, minors or dependent adults without legal capacity.

( 20 ) The referring court has stated that Mrs Ahmedbekova and Mr Ahmedbekov are both unable themselves to meet their own needs or those of their son.

( 21 ) Article 7(3) of Directive 2013/32 provides that ‘Member States shall ensure that a minor has the right to make an application for international protection either on his or her own behalf, if he or she has the legal capacity to act in procedures according to the law of the Member State concerned, or through his or her parents or other adult family members …’. The parent’s right to lodge an application on behalf of his or her child is thus conditional on the child being a dependant, and both parents are on the same footing in this regard. To the same effect, Article 31(6) of the proposal for a regulation cited in footnote 14 provides that ‘a minor shall have the right to lodge an application in his or her own name if he or she has the legal capacity to act in procedures according to the national law of the Member State concerned, or through an adult responsible for him or her, whether by law or by practice of the Member State concerned, including his or her parents or other legal or customary caregiver, or adult family members in the case of an accompanied minor’.

( 22 ) On the notion of ‘actors of persecution’, see Article 6 of Directive 2011/95.

( 23 ) The grounds for exclusion from refugee status are listed in Article 12 of Directive 2011/95. In addition to the absence of grounds for exclusion, it is also necessary that the legal status of the family member should not preclude the grant of refugee status (for example, because the family member is a national of a third country from which he may claim protection).

( 24 ) My italics.

( 25 ) The same provision currently appears in Article 11(3) of Directive 2013/32 with reference to cases where applications are made on behalf of dependants, in accordance with Article 7(2) of that directive. An exception to the adoption of a single decision is, however, introduced for cases where that would lead to ‘the disclosure of particular circumstances of an applicant which could jeopardise his or her interests, in particular in cases involving gender, sexual orientation, gender identity and/or age-based persecution’. In such cases the competent authorities are required to issue a separate decision to the person concerned.

( 26 ) See Article 5 of Directive 2008/115 and recital 22 thereof, according to which ‘the best interests of the child’ and respect for family life should be primary considerations of Member States when implementing that directive.

( 27 ) Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers (OJ 2003 L 31, p. 18).

( 28 ) According to the information provided in the order for reference, ‘members of the family’, within the meaning of the ZUB, include the spouse of the applicant for international protection or the person with whom the applicant has a stable, long-term relationship, the unmarried minor children of the couple and unmarried adult children who are incapable of meeting their own needs on account of serious health reasons. The referring court has not indicated whether other categories of persons are also covered by Article 8(9) of the ZUB.

( 29 ) In so far as that is compatible with their personal legal status and there are no reasons under the ZUB for excluding the granting of refugee status.

( 30 ) Under the convention, only persons who individually have a well-founded fear of persecution may qualify as refugees in accordance with Article 1A of the convention.

( 31 ) See UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (HCR/1P/4/Eng/REV.1), 1992, paragraph 183.

( 32 ) See, for example, the Conclusion on International Protection adopted by the Executive Committee of the UNHCR at its 49th session in 1998 (UN doc. A/AC.96/911, paragraph 21) and point (b)(iii) of Conclusion No 88 (l) — 1999 (UN doc. A/54/12/Add.1), available at: http://www.unhcr.org/excom/exconc/3ae68c4340/protection-refugees-family.html

( 33 ) See the document entitled ‘Family Protection Issues’ (UN doc. EC/49/SC/CRP.14), available at: http://www.refworld.org/docid/4ae9aca00.html. In its Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, the UNHCR notes that the majority of States, whether or not parties to the Geneva Convention, were observing the abovementioned recommendation in the Final Act of the Conference; see paragraphs 183 and 184. According to these documents, the family members who may benefit from the principle of family unit include at least the spouse and the minor children.

( 34 ) See UNHCR, Guidance Note on Refugee Claims relating to Female Genital Mutilation, May 2009, available at: http://www.refworld.org/docid/4a0c28492.html, paragraph 11.

( 35 ) See UNHCR, Guidelines on International Protection No 8: Child Asylum Claims, 22 December 2009, available at: http://www.unhcr.org/publications/legal/50ae46309/guidelines-international-protection-8-child-asylum-claims-under-articles.html, paragraph 9.

( 36 ) See UNHCR, Procedural Standards for Refugee Status Determination under UNHCR’s Mandate, 20 November 2003, paragraph 5.1.1.

( 37 ) In accordance with national procedures and as far as is compatible with their personal legal status.

( 38 ) The only difference is stipulated in the second paragraph of Article 24(1) of Directive 2011/95. It concerns the duration of the residence permit, which may be less than three years for family members, notwithstanding the requirement under Article 23(1) of the directive to preserve family unity.

( 39 ) Article 23(1) provides that ‘Member States shall ensure that family unity can be maintained’.

( 40 ) See recital 14 of Directive 2011/95. Pursuant to Article 3 of Directive 2011/95, ‘Member States may introduce or retain more favourable standards for determining who qualifies as a refugee or as a person eligible for subsidiary protection, and for determining the content of international protection, in so far as those standards are compatible with this directive.’ See, to the same effect, Article 3 and recital 8 of Directive 2004/83.

( 41 ) My italics. The case concerned the grant of subsidiary protection status to a third-country national suffering from a serious illness on the ground that there was a risk that that person’s health would deteriorate as a result of the fact that adequate treatment was not available in his country of origin.

( 42 ) The importance of UNHCR’s role in deciding whether or not to grant refugee status in accordance with the Geneva Convention is recognised in recital 22 of Directive 2011/95.

( 43 ) See also recital 16 of Directive 2011/95, according to which the directive seeks to guarantee the right to asylum of applicants and their accompanying family members and to promote the application of, inter alia, Article 7 of the Charter of Fundamental Rights of the European Union, which enshrines the right to respect for family life.

( 44 ) ECtHR, 10 July 2014 (CE:ECHR:2014:0710JUD005270109, § 54).

( 45 ) See the judgment of 7 November 2013, X and Others (C‑199/12 to C‑201/12, EU:C:2013:720, paragraph 45).

( 46 ) See UNHCR, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, December 2011, available at: http://www.refworld.org/docid/4f33c8d92.html, paragraphs 80 to 86.

( 47 ) I would mention that the same issue has been raised in two questions for a preliminary ruling put to the Court of Justice by the Raad van State, Afdeling Bestuursrechtspraak (Council of State, Administrative Appeals Division, Netherlands) in Case C‑586/17, D. and I. In that case the issue is the compatibility with Article 46(3) of Directive 2013/32 of a bar, imposed on the administrative court by the settled case-law of the Raad van State (Council of State), on examining, in an appeal against a decision refusing international protection, grounds for the grant of protection that were not previously relied on before the administrative authority.

( 48 ) The order for reference mentions a first action brought by Mrs Ahmedbekov in 2008 and a second brought by her in 2010. The two actions have since been joined.

( 49 ) Mrs Ahmedbekova mentions in this connection her collaboration with an opposition television network based in Turkey, called Azerbyydzhanski chas. She does not, however, specify on what date that collaboration began.

( 50 ) The referring court states that, on 30 March 2010, Mr Ahmedbekov was sentenced to a term of three years’ imprisonment and that Mrs Ahmedbekova has stated that, beginning on 1 June 2010, she had publicly expressed her views on the right to correspond and the right to visit and that she had been summoned by the police, interrogated and threatened, in order to persuade her to stop making public statements. Mrs Ahmedbekova has also stated that she has suffered sexual harassment at her place of work. It appears that these allegations were put to the DAB.

( 51 ) On the other hand, I do not think that, in the event that Mrs Ahmedbekova’s application is to be understood as already having mentioned a personal risk of persecution on account of opinions which she or her husband had expressed critical of the Azerbaijan Government, her allegations concerning her connections with persons opposed to that government or her support of such persons may be regarded as ‘further representations’ within the meaning of Article 40(1) of Directive 2013/32. On this point, the circumstances in question in the main proceedings differ from those which gave rise to the request for a preliminary ruling in Case C‑586/17, D. and I., currently pending before the Court, in which the applicants had put forward for the first time in the court proceedings grounds for the grant of subsidiary protection status unconnected with any of the grounds put forward before the administrative authority.

( 52 ) I would observe that the reasons for persecution are listed in Article 1A of the Geneva Convention and repeated in Article 2(d) of Directive 2011/95. Article 10 of that directive describes the matters which Member States must take into account when assessing the reasons for persecution.

( 53 ) Even the allegation of sexual harassment at her place of work which Mrs Ahmedbekova put forward before the DAB seems to have been characterised by her as an act of retaliation for the opposition to the Azerbaijan Government to which the Ahmedbekovs refer.

( 54 ) See, to that effect, with reference to the application of Articles 3 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, ECtHR, inter alia, 23 August 2016, J.K. and Others v. Sweden (CE:ECHR:2016:0823JUD005916612, § 83), 23 March 2016F.G. v. Sweden, (CE:ECHR:2016:0323JUD004361111, § 115), 2 October 2012, Singh and Others v. Belgium (CE:ECHR:2012:1002JUD003321011, § 91), and 11 January 2007, Salah Sheekh v. Netherlands (CE:ECHR:2007:0111JUD000194804, §136).

( 55 ) See, to that effect, ECtHR, 21 January 2011, M.S.S v. Belgium and Greece (CE:ECHR:2011:0121JUD003069609, § 389).

( 56 ) See, to that effect, in so far as concerns the powers of review of the European Court of Human Rights, 14 February 2017, Allanazarova v. Russia (CE:ECHR:2017:0214JUD004672115, § 68) and 11 January 2007, Salah Sheekh v. Netherland (CE:ECHR:2007:0111JUD000194804, § 136).

( 57 ) See point 71 of my Opinion of 17 May 2018 in Alheto (C-585/16, EU:C:2018:327).

( 58 ) It scarcely needs be mentioned that, in this case too, the provisions of Article 40 of Directive 2013/32, in particular those relating to subsequent applications, would not come into play, since the application which Mrs Ahmedbekova submitted to the DAB could not be regarded as having been made in accordance with Directive 2011/95 and, in any event, no final decision on that application has been taken, as is required by Article 2(q) of Directive 2013/32 if an application for international protection is to be classified as a ‘subsequent’ application.

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