Judgment;Summary — ECLI:EU:C:2024:748
Date: 2024-09-12
Language of the case: Bulgarian
Court formation: Ninth Chamber
Subject matter: Asylum policy;Justice and home affairs;Area of freedom, security and justice;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Bulgaria

Summary C-352/23 – 1 
Case C-352/23 [Changu] 1 
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:  
7 June 2023 
Referring court:  
Administrativen sad Sofia-grad (Bulgaria) 
Date of the decision to refer:  
29 May 2023 
Applicant:  
LF 
Defendant:  
Zamestnik-predsedatel na Darzhavna agentsia za bezhantsite  
  
Subject matter of the main proceedings 
The main proceedings were instituted by way of an action brought by a third-
country national against the decision rejecting his application for international 
protection and refusing to grant him refugee status and humanitarian status 
(subsidiary protection). 
Subject matter and legal basis of the request 
The request for a preliminary ruling is made under the second paragraph of 
Article 267 TFEU and concerns the interpretation of recital 15 and Article 2(h) 
and Article 3 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 
for the content of the protection granted, of recital 12 and Article 14(2) of 
 
1 The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.  
EN 
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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, and of Articles 1, 4 and 7 of the 
Charter of Fundamental Rights of the European Union (‘the Charter’). The request 
for a preliminary ruling raises the question as to whether the Bulgarian legislation 
which provides for the possibility of granting humanitarian status (which is the 
equivalent in Bulgarian law of subsidiary protection within the meaning of 
Directive 2011/95) to a foreign national not in the case where he or she might be 
exposed to a real risk of suffering serious harm but in the case where ‘other 
humanitarian grounds’ are present is compatible with the abovementioned 
provisions. The referring court wishes to ascertain in particular whether the fact 
that the foreign national has been staying in Bulgaria for a considerable length of 
time, some 27 years, constitutes a ‘humanitarian ground’ justifying the grant of 
humanitarian status (subsidiary protection), given that he is staying illegally, that 
no identity documents have been issued to him, and that, for most of his stay, he 
has not been able to afford to meet his most basic needs – food, personal hygiene 
and accommodation. That raises the further question as to whether the inaction of 
the national authorities, in having failed during this long period of time to 
regularise the foreign national’s status on Bulgarian territory in accordance with 
the applicable national law, infringes the abovementioned provisions of the 
Charter. 
Questions referred for a preliminary ruling 
1. Must recital 15, Article 2(h) and Article 3 of Directive 2011/95 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, be 
interpreted as allowing a Member State to introduce national legislation on the 
grant of international protection on the basis of compassionate or humanitarian 
grounds which bears no relation to the logic and spirit of Directive 2011/95 in 
accordance with recital 15 and Article 2(h) of Directive 2011/95 (another kind of 
protection), or must, in that case also, the possibility provided for in national law 
of granting protection on ‘humanitarian grounds’ be compatible with the standards 
of international protection under Article 3 of Directive 2011/95? 
2. Do recital 12 and Article 14(2) of Directive 2008/[1]15 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 conjunction with Articles 1 and 4 of the Charter, categorically 
compel a Member State to provide third-country nationals with written 
confirmation attesting that they are staying illegally but cannot yet be removed? 
3. In the case of a national legal framework whose only provision on 
regularising the status of a third-country national on ‘humanitarian grounds’ is 
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contained in Article 9(8) of the Zakon za ubezhishteto i bezhantsite (Law on 
Asylum and Refugees; ‘the ZUB’), is an interpretation of that national provision 
which bears no relation to the character and grounds of Directive 2011/95 
compatible with recital 15 and Article 2(h) and Article 3 of Directive 2011/95? 
4. Do Articles 1, 4 and 7 of the Charter require, for the purposes of the 
application of Directive 2011/95, an assessment of whether the fact that a third-
country national has been staying in a Member State for a long time without a 
regularised status constitutes an independent reason for granting international 
protection on ‘compelling humanitarian grounds’? 
5. Does the positive obligation of a Member State to ensure compliance with 
Articles 1 and 4 of the Charter allow a broad interpretation of the national measure 
envisaged in Article 9(8) of the ZUB that goes beyond the logic and standards of 
international protection as provided for in Directive 2011/95, and does it call for 
an interpretation that is consistent exclusively with the observance of the absolute 
fundamental rights enshrined in Articles 1 and 4 of the Charter? 
6. Is the fact of not granting the protection provided for in Article 9(8) of the 
ZUB to a third-country national in the applicant’s situation capable of constituting 
a failure by the Member State to fulfil its obligations under Articles 1, 4 and 7 of 
the Charter? 
Provisions of international law relied on 
Convention relating to the Status of Refugees, adopted in Geneva on 28 July 1951 
by the United Nations Conference of Plenipotentiaries on the Status of Refugees 
and Stateless Persons (‘the Geneva Convention’) 
European Convention for the Protection of Human Rights and Fundamental 
Freedoms (‘the ECHR’): Article 1, Article 3 and Article 8(1) 
Provisions of European Union law and case-law relied on 
Charter of Fundamental Rights of the European Union: Articles 1, 4 and 7 and 
Article 19(2) 
Directive 2011/95: recital 15, Article 2(h) and Article 3 
Directive 2008/115: recital 12, Article 6(4) and Articles 8 and 14 
The referring court cites the Court’s case-law on the following: concept of 
‘compelling humanitarian grounds’ – judgment of 18 December 2014, M’Bodj (С-
542/13, EU:C:2014:2452, paragraphs 39 and 40); period for removal of an 
illegally staying third-country national – judgment of the Court of Justice of 
20 October 2022, Centre public d’action sociale de Liège (Withdrawal or 
suspension of a return decision) (С-825/21, EU:C:2022:810, paragraph 50); 
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unlawfulness of the existence of an intermediate status of third-country nationals – 
judgment of 3 June 2021, Westerwaldkreis (С-546/19, EU:C:2021:432); 
indifference of the authorities of a Member State which puts the person concerned 
in a state of degradation incompatible with human dignity – judgment of 
19 March 2019, Jawo (С-163/17, EU:C:2019:218, paragraph 92). 
Provisions of national law relied on 
Zakon za ubezhishteto i bezhantsite (Law on Asylum and Refugees; ‘the ZUB’): 
Article 1, Article 8(1), Article 9(1) and (8), Article 29, Article 40(1) and (3), 
Articles 76a and 76c 
Zakon za chuzhdentsite v Republika Bulgaria (Law on foreign nationals in the 
Republic of Bulgaria; ‘the ZChRB’): Article 9e, Article 9h(1) and (4), 
Article 10(2), Article 14(1), Article 14(5)(1), Article 22(1), Articles 27 and 28, 
and Article 44b [(1)](16) of the Dopalnitelni razporedbi (Additional Provisions) to 
that Law 
Pravilnik za prilozhenie na Zakona za chuzhdentsite v Republika Bulgaria (Rules 
on applying the ZChRB): Articles 3 and 11 
Zakon za bulgarskite lichni dokumenti (Law on Bulgarian identity documents): 
Article 14(1), Article 55(1) and (3), Article 57 
Succinct presentation of the facts and procedure in the main proceedings 
1 The applicant, a Tanzanian national, left his country of origin illegally and entered 
Bulgaria in 1996. Since then, the applicant has made several attempts to have his 
status in Bulgaria regularised, by submitting a total of 11 successive applications 
for international protection in 1997, 2004, 2006, 2007, 2008, 2009 (two 
applications for protection), 2012, 2014, 2017 and 2021. His applications were 
rejected mainly on the ground that there were no grounds for granting him refugee 
status or humanitarian status (subsidiary protection). 
2 As the applicant does not have any identity documents, he can neither take up 
employment nor pay for food and accommodation. He has been the subject of a 
number of final convictions for the acquisition and possession of narcotics. The 
applicant submits that he has been arrested several times by the police and spent 
three years in prison as well as a period of time in a closed reception centre run by 
the Darzhavna agentsia za bezhantsite (State Agency for Refugees; ‘the DAB’). A 
number of coercive administrative measures as provided for in the ZChRB were 
imposed on the applicant with a view to his removal and return to his country of 
origin. None of those measures has been enforced. 
3 The proceedings before the referring court were initiated in connection with the 
eleventh application for international protection, which the applicant filed on 
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13 April 2021. In that application, he submitted that there is no Tanzanian 
embassy in Bulgaria, that, in order to obtain a Tanzanian passport, he has to go to 
that country’s nearest embassy, which is in Berlin, that he cannot afford to travel 
there, and that, because of his worsened state of health, such a long journey would 
endanger his life. The applicant stated that he cannot undergo treatment in his 
country of origin because he has no access to medical care there. He further 
submitted that he has spent half of his conscious life in Bulgaria, that he has 
integrated into Bulgarian society and that he is proficient in the Bulgarian 
language. 
4 By decision of 29 April 2021, the competent authority of the DAB found the 
application to be inadmissible. It held that the provisions of the ZUB are not 
applicable in the present case and that the applicant must be returned to his 
country of origin by the Direktsia ‘Migratsia’ kam Ministerstvo na vatreshnite 
raboti (‘Migration’ Directorate of the Ministry of the Interior) or by the 
International Organisation for Migration, in accordance with the procedure 
provided for in the ZChRB. 
5 That decision was annulled by judgment of the Administrativen sad Sofia-grad 
(Administrative Court, Sofia City) of 25 November 2021. In that judgment, it was 
held that the principle of non-refoulement was applicable to the applicant, in the 
light of his assertion that his worsened state of health meant that long journeys 
would directly endanger his life. That court ruled that the non-observance of that 
principle constituted a ground for granting humanitarian status, which also 
rendered the application for protection admissible. 
6 In the administrative proceedings conducted as a result, the defendant, the 
Zamestnik-predsedatel na DAB (Deputy Chairperson of the DAB), on 10 August 
2022, adopted the decision being challenged before the referring court, by which 
the defendant refused to grant the applicant refugee or humanitarian status on the 
ground that he had failed to prove the existence of a well-founded fear of 
persecution or a real risk of suffering serious harm. The defendant found that the 
personal grounds cited, in connection with the applicant’s integration into 
Bulgarian society, did not constitute a ground for granting humanitarian status and 
that the alleged integration was disproved by the final convictions against the 
applicant. 
The essential arguments of the parties in the main proceedings 
7 The applicant claims that the ZChRB does not apply to him and that the only 
possible means of having his status regularised is that provided for in Article 9(8) 
of the ZUB, according to which ‘humanitarian status may also be granted on other 
humanitarian grounds’. He submits that he has lived in Bulgaria for almost 
27 years and is entitled to respect for his private life, his human dignity and the 
fundamental rights enshrined in the Charter. The applicant asserts that the legal 
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vacuum in which he finds himself constitutes inhuman and degrading treatment in 
breach of Article 3 of the ECHR. 
8 The defendant contends that the action should be dismissed, since the applicant 
has failed to establish the presence either of circumstances justifying the grant of 
refugee status under Article 8(1) of the ZUB – that is to say, there is no ‘well-
founded fear of persecution for reasons of race, religion, nationality, political 
opinion or membership of a particular social group’ – or of grounds for granting 
humanitarian status (subsidiary protection) under Article 9(1) of the ZUB – that is 
to say, no indications of a ‘real risk of suffering serious harm such as the death 
penalty or execution, or torture, inhuman or degrading treatment or punishment, or 
a serious threat to a civilian’s life or person by reason of indiscriminate violence 
in situations of international or internal armed conflict’. In the defendant’s view, 
the applicant’s legal position should be regularised in accordance with the 
ZChRB. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
9 The referring court proceeds on the premiss that it is indeed the case that the facts 
of the proceedings do not indicate the presence in relation to the applicant of 
either a ‘well-founded fear of persecution’ or a ‘real risk of suffering serious 
harm’. The reason for that, according to the referring court, is that the question of 
the measures to be taken by the competent national authorities in respect of the 
applicant arises not in the context of his persecution or a risk of his suffering 
serious harm in his country of origin if he were to be returned to that country, but 
in connection with the applicant’s particular situation in Bulgaria. 
10 As regards the possibility of a residence permit being granted on humanitarian 
grounds, the referring court states that national law, in particular the ZChRB, does 
not provide for such a possibility, unlike the possibility provided for in 
Article 6(4) of Directive 2008/115, according to which ‘Member States may at 
any moment decide to grant an autonomous residence permit or other 
authorisation offering a right to stay for compassionate, humanitarian or other 
reasons to a third-country national staying illegally on their territory’. The 
referring court states, however, that EU law does not impose any obligation on the 
Member States to grant a right of residence to an illegally staying third-country 
national on humanitarian grounds alone. The introduction of such a possibility is, 
rather, a matter for their discretion. 
11 After having spent a considerable time submitting applications for international 
protection with a view to being granted asylum or humanitarian status (subsidiary 
protection), in the proceedings before the referring court, the applicant is seeking 
the grant of humanitarian status under Article 9(8) of the ZUB on humanitarian 
grounds connected with the fact that he has been staying in Bulgaria for a long 
time, without being in possession of any identity documents, and, for much of that 
time, without being able to afford food and accommodation. The referring court is 
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of the view that, in the light of the situation in which the applicant finds himself, 
the only way in which his status can be regularised under Bulgarian law is 
precisely by applying Article 9(8) of the ZUB, granting him humanitarian status 
(subsidiary protection) on humanitarian grounds. 
12 However, the referring court is unsure whether Article 9(8) of the ZUB is 
consistent with Directive 2011/95, in particular recital 15, Article 2(h) and 
Article 3 thereof. According to recital 15 of that directive, ‘those third-country 
nationals or stateless persons who are allowed to remain in the territories of the 
Member States for reasons not due to a need for international protection but on a 
discretionary basis on compassionate or humanitarian grounds fall outside the 
scope of this Directive’. In the view of the referring court, it follows from the 
definition of the concept of ‘application for international protection’ in 
Article 2(h) of that directive that EU law allows for the possibility that a third-
country national ‘explicitly request another kind of protection, outside the scope 
of this Directive, that can be applied for separately’. 
13 At the same time, Article 3 of Directive 2011/95 provides that ‘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’. 
14 In the view of the referring court, the foregoing raises the question of whether the 
abovementioned provisions of Directive 2011/95 allow national legislation which 
provides for the possibility of granting international protection on the basis of an 
assessment on ‘compassionate or humanitarian grounds’ (recital 15 of the 
abovementioned directive) rather than on the grounds referred to in that directive, 
or, conversely, whether the grant of such protection much be compatible with 
Directive 2011/95 pursuant to Article 3 thereof. 
15 The referring court notes that, in accordance with the case-law of the Varhoven 
administrativen sad (Supreme Administrative Court; ‘the VAS’), the concept of 
‘other humanitarian grounds’ provided for in Article 9(8) of the ZUB concerns 
cases which differ from those referred to in paragraph 1 of that article and which 
establish an equally high real risk that a foreign national will suffer serious harm 
to his or her person if he or she is returned to his or her country of origin. 
16 In its case-law, the VAS proceeds on the premiss that Article 9(8) grants special 
protection applicable only in exceptional cases which relate to the situation of the 
foreign national in his or her country of origin and do not include any economic, 
social or family related grounds that are exclusively dependent on the wishes of 
the person seeking protection. In a number of decisions, the VAS has upheld the 
grant of humanitarian status under Article 9(8) in cases in which that provision 
was applied on special grounds such as, for example, to safeguard the best 
interests of minor children, to preserve the family unit, to protect against domestic 
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violence, to respond to a humanitarian crisis in the country of origin in question, 
and so on. 
17 According to national case-law, the excessive length of the foreign national’s 
illegal stay in Bulgaria in a situation such as that in the main proceedings does not 
constitute a ground for the grant of refugee status and humanitarian status 
(subsidiary protection). 
18 In the view of the referring court, however, the question arises as to whether the 
abovementioned long duration of the foreign national’s stay without identity 
documents and with no means of paying for food and accommodation constitutes 
an independent reason for granting international protection on ‘compelling 
humanitarian grounds’ within the meaning of paragraph 39 of the judgment of the 
Court of Justice of 18 December 2014, M’Bodj (С-542/13, EU:C:2014:2452). In 
that paragraph 39, the Court held that, ‘according to the case-law of the European 
Court of Human Rights[,] …, a decision to remove a foreign national suffering 
from a serious physical or mental illness to a country where the facilities for the 
treatment of the illness are inferior to those available in that State may raise an 
issue under Article 3 [of the] ECHR in very exceptional cases, where the 
humanitarian grounds against removal are compelling (see, inter alia, European 
Court of Human Rights, judgment in N. v. the United Kingdom [GC], no. 
26565/05, § 42, ECHR 2008)’. In paragraph 40 of that judgment, however, the 
Court found that the fact that, in such a situation, the foreign national may not be 
removed to a country in which appropriate treatment is not available ‘does not 
mean that that person should be granted leave to reside in a Member State by way 
of subsidiary protection’. 
19 The referring court considers that the applicant’s worsened state of health should 
be examined in the context of the principle of non-refoulement enshrined in 
Article 33 of the Geneva Convention and in Article 19(2) of the Charter, and that 
any failure to observe that principle may raise questions concerning the 
application of Article 3 of the ECHR and Article 4 of the Charter, which prohibit 
inhuman and degrading treatment. 
20 The referring court cites paragraph 57 of the judgment of 3 June 2021, 
Westerwaldkreis (С-546/19, EU:C:2021:432), in which the Court of Justice held 
that ‘it would be contrary both to the purpose of Directive 2008/115 … and to the 
wording of Article 6 of that directive to tolerate the existence of an intermediate 
status of third-country nationals who are in the territory of a Member State 
without a right to stay or a residence permit …, but in respect of whom no return 
decision subsists’. 
21 The referring court further cites paragraph 50 of the judgment of the Court of 
Justice of 20 October 2022, Centre public d’action sociale de Liège (Withdrawal 
or suspension of a return decision) (C-825/21, EU:C:2022:810), according to 
which ‘the obligation imposed on the Member States by Article 8 [of Directive 
2008/115], in the cases referred to in Article 8(1), to carry out the removal [of an 
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illegally staying third-country national], must be fulfilled as soon as possible (see, 
to that effect, judgment of 6 December 2011, Achughbabian, C-329/11, 
EU:C:2011:807, paragraph 45)’. That requirement was not met in the case of the 
applicant, who has been resident in Bulgaria since his entry into Bulgarian 
territory in 1996 to date, even though several coercive administrative measures 
aimed at returning him to his country of origin have been imposed on him. 
22 The referring court also cites the judgment of 19 March 2019, Jawo (С-163/17, 
EU:C:2019:218), in paragraph 92 of which the Court of Justice refers to the case 
in which ‘the indifference of the authorities of a Member State would result in a 
person wholly dependent on State support finding himself, irrespective of his 
wishes and personal choices, in a situation of extreme material poverty that does 
not allow him to meet his most basic needs, such as, inter alia, food, personal 
hygiene and a place to live, and that undermines his physical or mental health or 
puts him in a state of degradation incompatible with human dignity (see, to that 
effect, ECtHR, 21 January 2011, M.S.S. v. Belgium and Greece, 
CE:ECHR:2011:0121JUD003069609, paragraphs 252 to 263)’. 
23 That, in the referring court’s view, raises the question as to whether the long-
standing inaction or indifference of the national authorities when it comes to 
regularising the status of a third-country national in the territory of Bulgaria in 
accordance with the applicable national law, constitutes an infringement of 
Articles 1, 4 and 7 of the Charter and Articles 3 and 8 of the ECHR. 
24 In the view of the referring court, the situation in which the applicant finds 
himself constitutes a failure to observe his fundamental rights under Articles 1, 4 
and 7 of the Charter, since he is exposed to inhuman and degrading treatment, his 
human dignity is violated and his private life is not respected. In a case such as 
that in the main proceedings, the abovementioned provisions do not allow an 
illegally staying third-country national whose removal has in fact been deferred in 
order to enable his action to be examined to be deprived of the possibility of 
meeting his most basic needs, namely food, personal hygiene and accommodation. 
25 The referring court therefore states that Article 9(8) of the ZUB should be 
interpreted broadly in this case by being applied not in the light of the grounds for 
granting subsidiary protection provided for in Directive 2011/95, but with regard 
for the observance of the fundamental rights enshrined in the Charter. 
26 The referring court states that national law does not contain any provision which 
confers on an illegally staying third-country national the right to be provided with 
a written confirmation of his or her situation, as provided for in Article 14(2) in 
conjunction with recital 12 of Directive 2008/115. In the case under examination 
in the main proceedings, the applicant’s non-regularised status is ‘tolerated’ by the 
State, inasmuch as the State has allowed his long illegal stay in its territory, 
without issuing a written confirmation of his situation in accordance with the 
abovementioned provisions of that directive.