Judgment;Abstract — ECLI:EU:C:2023:540
Date: 2023-07-06
Language of the case: German
Court formation: First Chamber
Subject matter: Area of freedom, security and justice
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary C-663/21 – 1 
Case C-663/21 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
5 November 2021 
Referring court: 
Verwaltungsgerichtshof (Austria) 
Date of the decision to refer: 
20 October 2021 
Respondent authority in the appeal on a point of law: 
Bundesamt für Fremdenwesen und Asyl 
Interested party:  
A A 
  
Subject matter of the main proceedings 
Revocation of the status of a person entitled to asylum on account of a particularly 
serious crime – Weighing up of interests – Directive 2011/95/EU – Directive 
2008/115/EC – Principle of non-refoulement  
Subject matter and legal basis of the request 
Request for a preliminary ruling under Article 267 TFEU  
Questions referred for a preliminary ruling 
1. In the assessment as to whether the asylum status previously granted to a 
refugee by the competent authority can be revoked on the ground set out in 
Article 14(4)(b) of 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 
EN 
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for the content of the protection granted (recast), must the competent authority 
carry out a weighing up of interests in such a way that revocation requires that the 
public interests in forced return must outweigh the refugee’s interests in the 
continuation of the protection afforded by the State of refuge, whereby the 
reprehensibility of a crime and the potential danger to society must be weighed 
against the foreign national’s interests in protection – including with regard to the 
extent and nature of the measures with which he or she is threatened? 
2. Do the provisions of 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, in particular 
Articles 5, 6, 8 and 9 thereof, preclude a situation under national law in which a 
return decision is to be adopted in respect of a third-country national whose 
previous right of residence as a refugee is withdrawn due to the revocation of 
asylum status, even if it is already declared at the time of adoption of the return 
decision that his or her removal is not permissible for an indefinite period of time 
on account of the principle of non-refoulement, and this is also declared capable 
of having legal force? 
Provisions of European Union law and international law relied on 
Directive 2011/95/EU (‘the Qualification Directive’), Article 14  
Charter of Fundamental Rights of the European Union (‘the Charter’), Articles 2, 
4 and 19 
Directive 2008/115/EC (‘the Return Directive’), Articles 5, 6, 8 and 9 
Geneva Convention on Refugees, Article 33 
European Convention on Human Rights (‘the ECHR’), Articles 2 and 3 
Provisions of national law relied on 
Asylgesetz 2005 (2005 Law on asylum; ‘the AsylG 2005’), Paragraphs 2, 3, 6 to 
10 and 57  
Exclusion from asylum status 
Paragraph 6. (1) A foreign national shall be excluded from asylum status if 
1. and for as long as he or she enjoys protection under Article 1(D) of the 
Geneva Convention on Refugees; 
2. any of the reasons specified in Article 1(F) of the Geneva Convention on 
Refugees applies; 
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3. there are reasonable grounds to believe that the foreign national constitutes a 
danger to the security of the Republic of Austria; or 
4. he or she has been convicted by a final judgment of a domestic court of a 
particularly serious crime and, owing to that criminal conduct, constitutes a 
danger to the community. … 
Revocation of asylum status 
Paragraph 7. (1) The asylum status of a foreign national shall be revoked of [the 
competent authority’s] own motion by administrative decision if 
1. a ground for exclusion from asylum under Paragraph 6 applies 
… 
(4) The revocation pursuant to Paragraph 1(1) and (2) is to be combined with a 
declaration that the person concerned is no longer entitled to refugee status by 
operation of law. … 
Revocation of subsidiary protection status 
Paragraph 9. (1) The subsidiary protection status of a foreign national shall be 
revoked of [the competent authority’s] own motion by administrative decision if 
1. the conditions for granting subsidiary protection status (Paragraph 8(1)) are 
not met or are no longer met; 
… 
(2) If the subsidiary protection status is not to be revoked for the reasons set out in 
subparagraph (1) alone, then revocation shall also take place if 
1. any of the reasons specified in Article 1(F) of the Geneva Convention on 
Refugees applies; 
2. the foreign national constitutes a danger to society or to the security of the 
Republic of Austria; or 
3. the foreign national has been convicted of a crime (Paragraph 17 of the 
Strafgesetzbuch (Criminal Code; ‘the StGB’)) by a final judgment of a domestic 
court. … 
In such cases, the revocation of the subsidiary protection status shall be combined 
with the issuance of a removal order and a declaration that refoulement, expulsion 
or removal of the foreign national to his or her country of origin is impermissible 
since it would entail a genuine risk of a breach of Article 2 of the ECHR, Article 3 
of the ECHR or Protocol No 6 or No 13 to the Convention, or would entail for 
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him or her, as a civilian, a serious threat to his or her life or person by reason of 
indiscriminate violence in situations of international or internal armed conflict. 
‘Right of residence by virtue of a need for special protection’ 
Paragraph 57. (1) Third-country nationals residing in the Federal territory shall be 
granted a ‘right of residence by virtue of a need for special protection’ of [the 
competent authority’s] own motion or on submission of a substantiated 
application: 
1. if the third-country national’s residence in the Federal territory has been 
tolerated pursuant to Paragraph 46a(1)(1) or (3) of the Fremdenpolizeigesetz 2005 
(2005 Law on the policing of foreign nationals; ‘the FPG’) for at least one year 
and the conditions for that tolerance continue to be met, unless the third-country 
national constitutes a danger to society or the security of the Republic of Austria 
or has been convicted of a crime (Paragraph 17 of the StGB) by a final judgment 
of a domestic court. …’ 
Return decision 
Paragraph 52(1) … 
(2) The Federal Office shall adopt a return decision in respect of a third-country 
national … by administrative decision if 
1. … 
3. his or her asylum status is revoked without subsidiary protection status being 
granted to him or her; or 
… 
 (9) The return decision shall, at the same time, be accompanied by a declaration 
as to whether removal of the third-country national to one or more specific States 
in accordance with Paragraph 46 is permissible. … 
Succinct presentation of the facts and procedure in the main proceedings 
1 Mr A A (‘the interested party’) was born in Damascus (Syria) in 1989 and lived in 
Syria until August 2014. He entered Austria unlawfully on 10 December 2014 and 
filed an application for international protection under the AsylG 2005 on the same 
day. He stated that he was stateless and a Palestinian national. At that time, he was 
in possession of a travel document issued by a Syrian authority for Palestinians 
and an identity card issued by the same authority. In August 2014, he was ordered 
by the military police to start his service (in the military). As a result, he fled 
Syria. He was threatened with persecution by the government if he returned to 
Syria (presumably because he had evaded military service). 
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2 The Bundesamt für Fremdenwesen und Asyl (Federal Office for Immigration and 
Asylum – respondent authority in the appeal on a point of law) granted the 
interested party’s application by administrative decision of 22 December 2015 and 
declared that the interested party was granted asylum status and that it had been 
established that he was entitled to refugee status by operation of law. 
3 The interested party committed criminal offences during his stay in Austria. On 
22 March 2018, the Landesgericht Linz (Regional Court, Linz) imposed on him a 
custodial sentence of one year and three months and a fine of 180 on the scale of 
daily penalty units for the offences of dangerous threatening behaviour, damage to 
property, unauthorised handling of narcotic drugs and narcotic drug trafficking. 
Execution of the custodial sentence was conditionally suspended for a 
probationary period of three years.  
4 By final judgment of the Regional Court, Linz of 14 January 2019, the interested 
party was finally convicted of the offences of assault and dangerous threatening 
behaviour and given a custodial sentence of three months. On 11 March 2019, the 
Landesgericht Wels (Regional Court, Wels) delivered a final judgment convicting 
the interested party of the offences of attempted physical assault and dangerous 
threatening behaviour and gave him a custodial sentence of six months. The 
execution of the custodial sentences was conditionally suspended in each case and 
the probationary period was ultimately extended to five years. 
5 On 28 March 2019, as a result of the new convictions, the Federal Office for 
Immigration and Asylum initiated proceedings to revoke the asylum status granted 
to the interested party. The interested party was informed of this by letter of 
29 March 2019. He was also given the opportunity to comment on the matter, 
which he did. 
6 By administrative penalty order of 13 August 2019, the Landespolizeidirektion 
Oberösterreich (Regional Police Directorate, Upper Austria) imposed a fine on the 
interested party for aggressive behaviour towards a member of a public 
supervisory body. 
7 In its administrative decision of 24 September 2019, the Federal Office for 
Immigration and Asylum declared that the interested party’s asylum status was 
revoked pursuant to Paragraph 7(1)(1) of the AsylG 2005 and that it was 
established, pursuant to Paragraph 7(4) of the AsylG 2005, that he was no longer 
entitled to refugee status by operation of law (point I. of the operative part of the 
decision). At the same time, it was declared that the interested party was not 
granted subsidiary protection status (point II. of the operative part of the decision), 
that he was not granted, of the Federal Office’s own motion, leave to remain on 
the basis of extenuating circumstances pursuant to Paragraph 57 of the AsylG 
2005 (point III. of the operative part of the decision) and that a return decision was 
adopted in respect of him (point IV. of the operative part of the decision) together 
with a prohibition on entry for a fixed period of eight years (point VII. of the 
operative part of the decision) and that a deadline of 14 days from the date on 
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which the return decision becomes final was set for his voluntary departure (point 
VI. of the operative part of the decision). However, by that same administrative 
decision, it was also declared that the refoulement, expulsion (or) removal of the 
interested party to Syria was not permissible (point V. of the operative part of the 
decision). 
8 In its statement of reasons, the Federal Office for Immigration and Asylum 
proceeded on the assumption that, on the basis of the current reports on Syria, it is 
apparent that the country still presents a risk of people being compulsorily 
recruited. It cannot be ruled out that the interested party would be a victim of 
compulsory recruitment and forced to participate in war crimes. Therefore, the 
competent authority must refrain from removing the interested party to Syria in 
the future also. 
9 The interested party lodged an appeal against that administrative decision before 
the Federal Administrative Court. 
10 The interested party continued to commit criminal offences. By final judgment of 
the Bezirksgericht Linz (District Court, Linz) of 16 June 2020, he was sentenced 
to an (unconditional) term of imprisonment of four months for the offence of 
assault. On 8 October 2020, the Regional Court, Linz sentenced the interested 
party to an (unconditional) term of imprisonment of five months for the offences 
of dangerous threatening behaviour pursuant to Paragraph 107(1) of the StGB and 
fraud pursuant to Paragraph 146 of the StGB. 
11 On 28 October 2020, the Federal Administrative Court held a hearing in which the 
interested party declared that he was withdrawing the appeal brought against point 
V. of the operative part of the administrative decision – by which his removal was 
found to be impermissible. By judgment of 28 May 2021, the Federal 
Administrative Court upheld the interested party’s appeal and set aside the other 
points of the operative part of the administrative decision (points I. to IV., VI. and 
VII.) without replacing them. 
12 In its grounds, the Federal Administrative Court stated that, under 
Paragraph 7(1)(1) of the AsylG 2005, the asylum status of a foreign national is to 
be revoked of [the competent authority’s] own motion by administrative decision 
if a ground for exclusion from asylum under Paragraph 6 of the AsylG 2005 
applies. According to the Federal Administrative Court, four conditions must be 
met in order to be able to deem the criteria for that ground to be fulfilled. First, the 
foreign national must have committed a particularly serious crime; second, he or 
she must have been convicted of that crime by a final judgment; third, he or she 
must constitute a danger to the community; and, fourth, the public interests in his 
or her removal must outweigh his or her interests in the continuing existence of 
the protection afforded by the State of refuge. 
13 Taking into account the case-law of the Supreme Administrative Court, the 
Federal Administrative Court subsequently found that the first, second and third 
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conditions set out above were met. It held that, as a result of his narcotic drug 
trafficking offence and his repeated violent attacks on other people, the interested 
party posed a considerable danger to society. It also concluded that a ‘favourable 
prognosis for the future’ is not possible in the case of the interested party, who 
always re-offended within a short space of time. Regarding the fourth condition, 
the Federal Administrative Court stated that it is necessary to carry out a weighing 
up of interests in order to determine whether the interests of the State of refuge 
outweigh those of the refugee. If the principle of non-refoulement is to be 
understood as an instrument of human rights protection and consideration is given 
to the principle that even those who infringe the provisions of criminal law are not 
automatically deprived of all their fundamental rights, the interests of the State of 
refuge can prevail only in rare and extreme exceptional cases. It is apparent that 
the Federal Administrative Court based its assessment on the findings that military 
service is compulsory for ‘Palestinian refugees who permanently reside in Syria’. 
According to reports, the (Syrian) government regards refusal to serve in the 
military as not only an offence subject to criminal prosecution, but also an 
expression of political dissent and unwillingness to protect the ‘fatherland’ against 
terrorist threats. The Federal Administrative Court stated that it is true that there 
are differing reports and contrasting opinions on the consequences of desertion 
and refusal to serve in the military. It is also reported that ‘the capture of a person 
who has refused to serve in the military is tantamount to a guarantee of torture and 
a death sentence’. 
14 The appeal on a point of law brought before the Supreme Administrative Court by 
the Federal Office for Immigration and Asylum is directed against that judgment. 
The essential arguments of the parties in the main proceedings 
15 The authority contends that the case-law of the Supreme Administrative Court 
was handed down at a time, and in a legal situation, that is not comparable to the 
current legal situation. It submits that the legislature took precautions to ensure 
that, depending on the legal situation applicable in an appeal on a point of law, a 
foreign national cannot be removed to his or her country of origin if he or she is 
threatened with consequences of such a nature that a violation of Article 2 or 
Article 3 of the ECHR is to be feared. The weighing up of interests carried out by 
the Federal Administrative Court is not necessary for the purposes of protection 
against removal, because the interested party enjoys national protection against 
removal in such a way that, where the principle of non-refoulement applies, it is 
declared in a manner capable of having legal force that removal is not permissible. 
A consideration of the ground for exclusion contained in Directive 2011/95/EU 
shows that the purpose of those provisions is to maintain the credibility of the 
protection system provided for in the directives in accordance with the Geneva 
Convention on Refugees. Those provisions therefore even preclude the 
maintenance of the protection status previously granted. 
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16 The authority submits that the Court of Justice of the European Union (‘the 
Court’) stated, in its judgment of 9 November 2010, C-57/09 and C-101/09, that 
the exclusion of a person from refugee status pursuant to Article 12(2)(b) and (c) 
of Directive 2004/83/EC is not conditional on an assessment of proportionality in 
relation to the particular case. According to the authority, Article 12(2)(b) and (c) 
of Directive 2004/83/EC was incorporated into the recast Directive 2011/95/EU 
(Qualification Directive). Article 12(2)(b) and (c) of the Qualification Directive 
was transposed into national law by Paragraph 6(1)(2) of the AsylG 2005. The 
Austrian legislature transposed Article 14(4)(b) of the Qualification Directive by 
means of Paragraph 6(1)(4) of the AsylG 2005, which is relevant to the present 
case. The Court has not yet ruled on the question as to whether, under that 
provision, a weighing up of interests must be carried out. The Federal Office for 
Immigration and Asylum takes the view that the statements made by the Court in 
relation to Article 12(2)(b) and (c) of Directive 2004/83/EC in the judgment of 
9 November 2010 are also decisive for the purposes of understanding 
Article 14(4)(b) of the Qualification Directive. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
The first question 
17 In accordance with the case-law of the Supreme Administrative Court, the term 
‘particularly serious crime’ covers only those offences which objectively violate 
particularly important legally protected interests. Crimes that are typically serious 
in nature include homicide, rape, child abuse, arson, drug trafficking, armed 
robbery and the like. The violation of the legally protected interest in the sexual 
integrity of children has also been categorised as a ‘particularly serious crime’. 
However, the Supreme Administrative Court has already stated that those crimes 
constitute a demonstrative and thus by no means exhaustive list of offences in 
connection with Article 33(2) of the Geneva Convention on Refugees. Similarly, 
the Supreme Administrative Court stated that, in the case where there is a 
multitude of relevant final convictions and considerable and largely unconditional 
custodial sentences have been imposed in respect of those convictions, offences 
committed can also be qualified as a ‘particularly serious crime’ in the context of 
an overall assessment. 
18 Moreover, the Supreme Administrative Court stated that, in line with Article 33(2) 
of the Geneva Convention on Refugees, only offenders who constitute a danger to 
the community may be returned to their country of origin. If there is a favourable 
prognosis for the future behaviour of the perpetrator, the ground for revocation at 
issue in the present case may not be applied, in line with Article 33(2) of the 
Geneva Convention on Refugees. In the context of the risk prognosis, it is not the 
mere fact of the conviction or punishment of a foreign national that is to be taken 
into account, but the nature and seriousness of the underlying criminal offences 
and the resulting personality profile. 
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19 The obligation to weigh up interests is recognised in the practice of the State. In 
that weighing up of interests, the authority concerned must weigh up the 
reprehensibility of a crime and the potential danger to society against the asylum 
seeker’s interests in protection, including with regard to the extent and nature of 
the measures of which he or she is threatened. Article 1(F)(b) and Article 33(2) of 
the Geneva Convention on Refugees cannot be applied, for example, if the 
threatened measures are relatively severe but the asylum seeker can largely be 
considered to have been rehabilitated because he or she has not reoffended. If the 
asylum seeker has to reckon with torture or death, the public interests in not 
granting asylum will rarely outweigh an individual’s interests in protection.  
20 That consideration is based primarily on the fact that the foreign national faces a 
significant and present danger which the State of refuge wishes to avert. However, 
if consideration is given to the potential consequences of a forced return despite 
the ongoing danger that the foreign national concerned will be persecuted in his or 
her home country, it appears to be obvious that it is necessary to weigh up the 
interests of the foreign national in order to determine whether the risks that forced 
return to his or her home country would impose on him or her are acceptable in 
relation to the danger that he or she poses. 
21 The most important factor in understanding the ground for revocation under 
Article 14(4) is that the foreign national has demonstrated that he or she is 
unworthy of being permitted to retain asylum status because of his or her extreme 
delinquency and the danger that he or she poses as a result. That view taken by the 
authority is in line with the intention expressly stated by the Austrian legislature in 
the context of amendments to the AsylG 2005. 
22 It appears to follow from the statements of the European Asylum Support Office 
(EASO) that, in the context of the application of the national provision enacted in 
transposition of Article 14(4) of the Qualification Directive, it is only in Austrian 
case-law that the courts carry out a weighing up of interests which can lead to an 
outcome in which a foreign national who has committed a criminal offence is not 
merely granted (national) protection against removal, but his or her asylum status 
must not be denied or revoked. 
23 Therefore, there does not appear to be a uniform interpretation of Article 14(4)(b) 
of the Qualification Directive within the Member States. However, a different 
interpretation would appear likely to prompt persons applying for international 
protection or seeking to maintain the protection status already granted to them to 
travel to other Member States which tend to interpret EU law in a manner more 
favourable to them. This could encourage a practice of ‘forum shopping’ aimed at 
circumventing the rules set up by the Qualification Directive. However, it should 
be recalled that, as stated in recital 13 of that directive, the approximation of rules 
on the recognition and content of refugee and subsidiary protection status should, 
inter alia, help to ‘limit the secondary movement of applicants for international 
protection between Member States’, where such movement is purely caused by 
differences in legal frameworks of the Member States (see judgment of 10 June 
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2021, Bundesrepublik Deutschland [Concept of ‘serious and individual threat’], 
C-901/19, EU:C:2021:472, paragraph 36). 
The second question 
24 Austrian law prescribes that a return decision is to be adopted in respect of a 
foreign national who is not, or no longer, to be granted asylum or subsidiary 
protection status on account of criminal offences, even where his or her return is 
not permissible for an indefinite period of time. In that connection, the Austrian 
legislature stated in the travaux préparatoires that Directive 2011/95/EU does not 
take a position on the question as to whether a removal order may be imposed on 
foreign nationals who are not to be granted asylum or subsidiary protection status 
or are to have it revoked (Articles 12 and 14 of the Qualification Directive). In so 
far as Article 14(6) of the Qualification Directive declares that certain guarantees 
of the Geneva Convention on Refugee are applicable, mutatis mutandis, to such 
foreign nationals, those guarantees are taken into account by the fact that, in the 
cases of Paragraph 8(3a) and Paragraph 9(2) of the AsylG 2005, it continues to be 
necessary to declare that the refoulement, expulsion or removal of the foreign 
national to his or her country of origin is impermissible. According to Article 6(6) 
of the Return Directive, Member States are free to adopt a decision on the ending 
of a legal stay together with a return decision in a single administrative or judicial 
decision.  
25 According to the Austrian legal situation, the revocation of a person’s protection 
status entails the loss of his or her right of residence previously granted as a result 
of his or her asylum status (or subsidiary protection status). The residence of the 
foreign national is therefore no longer lawful. If a return decision is adopted 
together with the revocation, but it is declared at the same time that removal to the 
country of origin is impermissible, this has the consequence that (provided that 
removal to another country is not permissible) the residence of the foreign 
national in the Federal territory must be tolerated as long as the removal is not 
permissible.  
26 However, the provisions of the Return Directive, taking into account the recent 
case-law of the Court, could preclude such a legal situation. 
27 In its judgment of 3 June 2021, Westerwaldkreis (C-546/19, EU:C:2021:432), the 
Court recently ruled that it would be contrary to both the object of the Return 
Directive, as stated in Article 1 thereof, and the wording of Article 6 of that 
directive to tolerate the existence of an interim status of third-country nationals 
who were in the territory of a Member State without a right of residence or a 
residence permit, but in respect of whom there was no longer a valid return 
decision (paragraph 57). Those considerations would also have to apply to third-
country nationals residing unlawfully in the territory of a Member State who 
cannot be removed because the principle of non-refoulement precludes it 
(paragraph 58). It follows from Article 9(1)(a) of the Return Directive that that 
circumstance does not justify the non-adoption of a return decision in respect of a 
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third-country national in such a situation, but only the postponement of his or her 
removal, in execution of that decision (paragraph 59). 
28 If, however, as in the present case, it is clear from the outset that a return decision 
may not be enforced for an indefinite period of time, it cannot be said that an 
‘effective’ return decision has been adopted, with the result that Article 9(1)(a) of 
Directive 2008/115 also appears to address only those situations in which it can be 
assumed that the obstacle to removal will cease to exist in the foreseeable future. 
29 This is because the Court has also stated in its case-law that, where a return 
decision has been issued against a third-country national, but that third-country 
national has not complied with the obligation to return, or has not done so within 
the period for voluntary departure, Article 8(1) of Directive 2008/115 requires 
Member States, in order to ensure the effectiveness of return procedures, to take 
all measures necessary to carry out the removal of the person concerned, namely 
the physical transportation of the person concerned out of that Member State 
(judgment of 14 January 2021, TQ [Return of an unaccompanied minor], 
C-441/19, EU:C:2020:515, paragraph 79). As follows both from the duty of 
sincere cooperation on the Member States and the requirements of effectiveness 
referred to, in particular, in recital 4 of the Return Directive, the obligation 
imposed on the Member States by Article 8 of that directive, in the cases set out in 
Article 8(1), to carry out the removal of the third-country national, must be 
fulfilled as soon as possible (paragraph 80 of the abovementioned judgment in 
Case C-441/19). 
30 However, in the case where removal of the foreign national is declared to be 
impermissible in a manner capable of having legal force, it is entirely impossible 
for the authorities to fulfil that very obligation until an (unforeseeable) contrary 
decision establishing the permissibility of the removal has been adopted. In such a 
case, having regard to the case-law of the Court, the authority could then be 
prohibited, on the basis of the provisions of the Return Directive, from adopting a 
return decision (in advance, so to speak). 
31 It follows from the foregoing that the interpretation of EU law in relation to the 
questions set out above is not so obvious to the Supreme Administrative Court as 
to leave no scope for any reasonable doubt, for which reason those questions are 
referred to the Court of Justice of the European Union for a preliminary ruling 
pursuant to Article 267 TFEU.