Opinion of the Advocate General — ECLI:EU:C:2025:700
Date: 2025-09-11
Language of the case: Swedish

Summary of the request for a preliminary ruling 
In order to determine whether it was correct for the Migrationsverket (Swedish 
Migration Agency) not to examine the individual parties’ applications for 
international protection in so far as they relate to subsidiary protection, the 
national court requires guidance concerning, first, the interpretation of Directive 
2001/55/EC 1 and, second, whether Directive 2011/95/EU 2 and Directive 
2013/32/EU 3 apply to applications for a grant of refugee status or alternative 
protection status after temporary protection has been granted under Directive 
2001/55. 
Introduction 
1 Since 1 January 2010, Sweden has a legal provision dealing with a special 
procedure for persons granted temporary protection under Directive 2001/55 who 
apply for a residence permit as a refugee, a grant of refugee status and a travel 
documents. That provision previously existed in national law but was redrafted in 
the context of the implementation of Directive 2011/95 and Directive 2013/32. 
The provision is based on Directive 2001/55. 
2 The Förvaltningsrätten i Göteborg, migrationsdomstolen (Administrative Court 
for Immigration Matters, Gothenburg) seeks clarification, by way of a preliminary 
ruling, of the interpretation of Articles 3, 17 and 19 of Directive 2001/55. 
Guidance is needed on how those articles relate to the scope of Directive 2013/32 
and Directive 2011/95. The national court thus also needs guidance on the 
interpretation of Articles 3(1) and 10(2) of Directive 2013/32. Furthermore, the 
national court needs guidance on whether the Swedish legislation is compatible 
with EU law. 
 
1 Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary 
protection in the event of a mass influx of displaced persons and on measures promoting a 
balance of efforts between Member States in receiving such persons and bearing the 
consequences thereof […] [(OJ 2001 L 212, p. 12)]. 
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)]. 
FRAMHOLM 
 
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Request for urgent processing 
3 The Administrative Court for Immigration Matters requests urgent processing of 
the request for a preliminary ruling, referring in particular to Articles 78 and 79 
TFEU. 4 In the event that the competent authorities in Sweden have misinterpreted 
the provisions, third-country nationals or stateless persons enjoying temporary 
protection under Directive 2001/55 risk having their rights to apply for 
international protection under Article 18 of the Charter of Fundamental Rights of 
the European Union infringed. That is the case because, according to the current 
interpretation by the competent authority, the application for a grant of alternative 
protection status (equivalent to the status of being eligible for subsidiary 
protection) of the persons concerned is being refused without being examined on 
the merits. 
Subject matter of the main proceedings 
4 AA and BA, together with their four children, have applied for international 
protection in Sweden. AA is a national of Nigeria. AA has an indefinite duration 
residence entitlement in Ukraine. BA and the children are citizens of Ukraine. 
5 The family has been granted temporary protection in Sweden under provisions 
based on Directive 2001/55. The Swedish Migration Agency has subsequently 
examined their applications for international protection. The Swedish Migration 
Agency decided to refuse to grant AA’s application for refugee status and to 
refuse to grant the application for alternative protection status. In a separate 
decision of the same day, the Swedish Migration Agency decided to refuse to 
grant the applications of BA and the children for refugee status and to refuse to 
grant their applications for alternative protection status. The principal reasons for 
those decisions are set out below. 
Today, AA, BA and the children have a fixed-term residence permit with 
temporary protection in Sweden under Chapter 21 of the utlänningslagen (Law on 
foreign nationals). Chapter 21 of the Law on foreign nationals and Directive 
2001/55 constitute a special set of rules that is to be applied before the general 
rules on processing applications for international protection and for the granting of 
refugee status or alternative protection status. The provisions in Paragraph 5 of 
Chapter 21 of the Law on foreign nationals does not permit the examination of an 
application for a grant of alternative protection status from a foreign national who 
has been granted temporary protection. Nor can an interpretation of the Swedish 
legislation in accordance with EU law be regarded as leaving any scope for 
examining such an application. Accordingly, there is no right to an examination of 
alternative protection status as long as the temporary protection remains in place. 
 
4 Treaty on the Functioning of the European Union (Consolidated Version). 
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6 The applicants have appealed against the decision of the Swedish Migration 
Agency to the Administrative Court for Immigration Matters and have requested 
that they be granted refugee status and a travel document or alternative protection 
status. The applicants also request that the case be referred back so that the 
possibility of a grant of alternative protection status can be examined. They have 
also requested that a preliminary ruling be sought from the Court of Justice of the 
European Union. 
7 Appeals against decisions of the Administrative Court for Immigration Matters in 
the relevant area of law can brought before Migrationsöverdomstolen (Court of 
Appeal for Immigration Matters), and the referring court is not therefore the court 
of final instance. Given that the legal position is unclear and that the interpretation 
of EU law is crucial to the national court’s ability to decide the case, the 
Administrative Court for Immigration Matters considers the reference for a 
preliminary ruling in this case to be necessary. 
8 The case before the Administrative Court for Immigration Matters, Gothenburg, 
has been stayed pending the decision of the Court of Justice of the European 
Union. 
Provisions of national law relied upon 
9 The Swedish provisions on the right of foreign nationals to remain in the country 
and grants of refugee status and of alternative protection status are contained in 
the utlänningslagen (2005:716) (Law on foreign nationals (2005:716)). In the 
implementation of Directive 2011/95 into Swedish law, ‘subsidiärt 
skyddsbehövande’ (eligible for subsidiary protection) and ‘status som subsidiärt 
skyddsbehövande’ (subsidiary protection status) have been transposed as 
‘alternativt skyddsbehövande’ (eligible for alternative protection) and ‘alternativ 
skyddsstatusförklaring’ (grant of alternative protection status) respectively. 
10 The provisions governing temporary protection based on Directive 2001/55 are 
contained in Chapter 21 of the Law on foreign nationals. 
11 Directive 2001/55 was transposed into Swedish law by legislative amendments 
which entered into force on 15 January 2003. The introduction of Directive 
2004/83/EC, 5 which was replaced by Directive 2011/95, and Directive 
2005/85/EC, 6 which was replaced by Directive 2013/32, led to drafting 
amendments to the provisions in question. The provision relevant here, 
Paragraph 5 of Chapter 21 of the Law on foreign nationals, reads as follows: 
 
5 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)]. 
6 Council 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).] 
FRAMHOLM 
 
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12 ‘The fact that a foreign national has been granted a residence permit with 
temporary protection is not an impediment to the examination of an application to 
be granted a residence permit as a refugee under Paragraph 1 of Chapter 4. The 
same applies to an application for a grant of refugee status under Paragraph 3 of 
Chapter 4 and to an application for a travel document under Paragraph 4 of 
Chapter 4. 
The examination of an application under the first subparagraph may be suspended 
only if there are special reasons for doing so. If the application has not been 
examined before the temporary protection has ceased to have effect, it must be 
examined as soon as possible after that date.’ 
13 It is clear from the proposal for the legislative amendments when Directive 
2004/83 and Directive 2005/85 were to be implemented into Swedish law 
(proposal 2009/10:31) that when the definition of asylum in Paragraph 3 of 
Chapter 1 of the law on foreign nationals was expanded to include both the 
residence permit as a refugee and those eligible for alternative protection, that 
entailed an amendment of Paragraph 5 of Chapter 21 of the Law on foreign 
nationals. The provision was amended by replacing ‘application to be granted 
asylum under Paragraph 1 of Chapter 4’ with ‘application for a residence permit 
as a refugee under Paragraph 1 of Chapter 4’ (see pp. 44-45 and 257 of the 
proposal referred to above). 
Interpretation of the provisions by the national competent authority 
14 Residence permits on the basis of temporary protection under provisions based on 
Directive 2001/55 are granted by the Swedish Migration Agency. The Swedish 
Migration Agency issues legal opinions to assist its employees. In the field in 
question, the Swedish Migration Agency has published a document headed 
Rättsligt ställningstagande. Ordningen för prövningen enligt 21 kap. 
utlänningslagen (2005:716) – RS/005/2022 (version 3.0) (Legal Opinion – 
Procedure for examination under Chapter 21 of the Law on foreign nationals 
(2005:716) – RS/005/2022 (version 3.0)). The following can be deduced from the 
legal opinion with regard to the examination of the protection status of persons 
who have been granted a residence permit on the basis of temporary protection. 
15 Paragraph 5 of Chapter 21 of the Law on foreign nationals does not preclude an 
application for a grant of refugee status from a person who has been granted a 
residence permit with temporary protection. A person granted temporary 
protection can therefore submit an application for a grant of refugee status 
declaration at any time (reference is made in that respect to Article 17 of Directive 
2001/55). However, it is to be noted that the wording of the provision does not 
allow for the examination of a grant of alternative protection status. 
The proposals for the implementation of Directive 2004/83 and Directive 2005/85 
do not reveal much in relation to Directive 2001/55, but it can be noted that the 
legislator retained the wording in Paragraph 5 of Chapter 21 of the Law on foreign 
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nations in that it was not extended to include a grant of alternative protection 
status. 
Where Directive 2001/55 is activated, Chapter 21 of the Law on foreign nationals 
is to apply. Those rules are then to be applied before the general rules on the 
processing of applications for international protection and grants of refugee status 
and of alternative protection status. In the light of the wording of the provision, 
the background of the Law on foreign nationals and what can be deduced from the 
legislative proposals, Paragraph 5 of Chapter 21 must be interpreted as precluding 
an examination of a grant of alternative protection status for persons who have a 
residence permit with temporary protection on the basis of Directive 2001/55. Nor 
can Swedish legislation be regarded as allowing an interpretation of EU law that 
provides scope for examining such an application. Those persons already enjoy 
protection due to an armed conflict. For the duration of that temporary protection, 
there is therefore no need to examine any individual grounds for alternative 
protection. An application for a grant of alternative protection status must 
therefore be refused. 
Questions referred for a preliminary ruling 
The Administrative Court for Immigration Matters, Gothenburg, seeks 
clarification on the following four questions in the context of the background set 
out above. The second question is divided into two sub-questions. 
(1) Are Directive 2011/95/EU and Directive 2013/32/EU applicable to 
applications for a grant of protection status following the granting of 
temporary protection under Directive 2001/55? 
(2) (a) Must Articles 17(1) and 19(2) of Directive 2001/55/EC be 
interpreted as meaning that the possibility of making an ‘application 
for asylum’ refers to the possibility of making an application for 
refugee status and of making an application for subsidiary protection 
status and of having such an application examined in the light of 
Directive 2011/95 and Directive 2013/32? 
(b) Is Article 3(1) of Directive 2001/55 to be interpreted as meaning 
that temporary protection under that directive precludes the recognition 
of subsidiary protection status under Directive 2011/95 for persons 
eligible for or enjoying temporary protection under the first directive? 
(3) If Articles 17(1) and 19(2) of Directive 2001/55 also cover the right to 
apply for subsidiary protection status under the Directive 2011/95, are 
those articles, in conjunction with Article 10(2) of Directive 2013/32, 
sufficiently clear and precise to have direct effect? 
(4) Is national legislation, such as the Swedish rules in Paragraph 5 of 
Chapter 21 of the utlänningslagen (2005:716) (Law on foreign 
FRAMHOLM 
 
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nationals (2005:716)), which restricts the right to apply for a grant of 
refugee status or of alternative protection status so that it makes 
provision solely for applications for a grant of refugee status, 
compatible with EU law? 
The reasons which prompted the national court to request a preliminary ruling 
Question 1 
The national court must determine whether the Swedish Migration Agency’s 
decision to refuse to grant the application for an alternative protection status is 
correct. Therefore, the national court needs guidance to understand how the 
different directives relate to each other and which directives are applicable to the 
current application. 
Question 2 
The national court needs answers to those questions in order to obtain guidance on 
how to interpret the provisions of Directive 2001/55 in the light of the 
introduction of Directive 2011/95 and Directive 2013/32. 
Question 3 
The national court needs an answer to that question in order to be able to 
determine whether AA, BA and their children are entitled to an examination of 
whether they may be granted subsidiary protection. 
Question 4 
The national court needs an answer to that question in order to determine whether 
Paragraph 5 of Chapter 21 of the Law on foreign nationals should be disapplied 
or, if possible, interpreted in conformity with the directive. 
The position of AA, BA and their children 
The family argues that Directive 2011/95 and Directive 2013/32 are applicable to 
the applications for a grant of refugee status or of alternative protection status 
lodged by persons granted temporary protection under Directive 2001/55. The 
right to apply for asylum under Article 17 of Directive 2001/55 should be 
understood as a right to apply for protection status under Directive 2011/95 and 
Directive 2013/32. Subsidiary protection has become an integral part of EU law 
through Directive 2011/95. The family claims that ‘lodging an application for 
asylum’ in Article 17 of Directive 2001/55 is synonymous with applying for 
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‘international protection’ as defined in Directive 2011/95 and Directive 2013/32. 
The European Commission’s Operational guidelines 7 support that interpretation. 
Articles 17(1) and 19(2) of Directive 2001/55 in combination with Article 10(2) of 
Directive 2013/32 should be considered to have direct effect. Given the purpose of 
Directive 2001/55 and the wording of Articles 17 and 19 of that directive, it is 
questionable whether Paragraph 5 of Chapter 21 of the Law on foreign nationals is 
compatible with EU law. 
The position of the Swedish Migration Agency 
The Swedish Migration Agency maintains that Paragraph 5 of Chapter 21of the 
Law on foreign nationals does not allow the examination of an application for a 
grant of alternative protection status from a foreign national who has been granted 
a residence permit with temporary protection. Further, the Swedish Migration 
Agency claims that Directive 2001/55 constitutes a special set of rules that is to be 
applied before the general rules on processing applications for international 
protection and for the granting of refugee status or alternative protection status. 
The position of the Administrative Court for Immigration Matters and of the 
[applicants], the family of AA and BA through their legal counsel, is that when 
Directive 2004/83 and Directive 2005/85, which were replaced by Directive 
2011/95 and Directive 2013/32 respectively, were introduced, Paragraph 5 of 
Chapter 21 of the Law on foreign nationals should have been amended to include 
the right to seek a grant of alternative protection status. That view is not shared by 
the Swedish Migration Agency. After the introduction of Directive 2004/83 and 
Directive 2005/85, which were replaced by Directive 2011/95 and Directive 
2013/32 respectively, Paragraph 5 of Chapter 21 of the Law on foreign nationals 
was not extended to include grants of alternative protection status. Nor does it 
appear from the directives or from Swedish legislation or case-law that a grant of 
alternative protection status is to be included in Paragraph 5 of Chapter 21 of the 
law on foreign nationals. Thus, the legislator has not considered that a grant of 
alternative protection status is to be covered by the provision. Nor does the case-
law referred to by the Administrative Court for Immigration Matters and the 
[applicants] support that view. The operational guidelines of the European 
Commission relied on by the [applicants] do not in themselves provide any 
support for that position. Nor are the guidelines binding. The Swedish Migration 
Agency is of the opinion that the wording of Paragraph 5 of Chapter 21 of the 
Law on foreign nationals is compatible with EU law and Directive 2011/95, 
Directive 2013/32 and Directive 2001/55. 
 
7  Communication from the Commission on Operational guidelines for the implementation of 
Council implementing Decision 2022/382 establishing the existence of a mass influx of 
displaced persons from Ukraine within the meaning of Article 5 of Directive 2001/55/EC, and 
having the effect of introducing temporary protection [(OJ 2022 CI 126, p. 1)]. 
FRAMHOLM 
 
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The legal situation is not unclear, but is in fact rather unambiguous, inter alia 
because of the reasons set out below. Directive 2001/55 is activated in the event of 
extraordinary circumstances that give rise to a temporary and special 
arrangements for the processing of applications for international protection. Once 
activated, as stated, those rules apply before the general rules on the processing of 
applications for international protection. One consequence of the activation of 
Directive 2001/55 is that the general EU rules on asylum will not apply in certain 
respects. 
Article 2 of Directive 2001/55 sets out the circumstances in which temporary 
protection may arise. The article is worded largely in identical terms to the 
paragraph in the Law on foreign nationals on alternative protection status 
(Paragraph 2 of Chapter 4 of the Law on foreign nationals). Both provide 
protection in the event of armed conflict and in circumstances where there is a risk 
of serious infringements. One can say that Directive 2001/55 replaces the 
provision in the Law on foreign nationals on alternative protection once that 
directive is activated. Since Directive 2001/55 is to be applied first, where the 
application for temporary protection is granted, the need for an examination of 
alternative protection status ought to have fallen away. The exception, which is, 
inter alia, indirectly clear in Article 2 of Directive 2001/55 and directly clear in 
Paragraph 5 of Chapter 21 of the Law on foreign nationals, is the right to apply for 
a residence permit as a refugee. 
Furthermore, it is clear from [Article 1 of Directive 2001/55] that the purpose of 
the directive is to [‘] … [give] temporary protection in the event of a mass influx 
of displaced persons and … [promote] a balance of efforts between Member 
States in receiving such persons and bearing the consequences thereof[’]. If it 
were instead possible to choose to use the provisions of the Law on foreign 
nationals on alternative protection status for persons covered by Directive 
2001/55, that would mean that Directive 2001/55 would become redundant, 
including in relation to other Member States, as the balance between the Member 
States’ efforts would disappear. That practice would most likely rather to run 
counter to the purpose pursued by the EU through its directives. 
For the group of persons covered by Directive 2001/55, there can therefore be no 
scope for examining an application for alternative protection status when that 
directive has been activated, and the application must therefore be rejected. 
The family comprised of AA, BA and their children has protection under 
Directive 2001/55 and has had its application for refugee status examined. Their 
rights have not been infringed. The family is also now has its statutory domicile in 
Sweden and has the same social rights as others living here. 
Directive 2001/55 has been activated and must therefore be applied by the 
Member States; the introduction of Directive 2004/83 and 2005/85, replaced by 
Directive 2011/95 and Directive 2013/32 respectively, does not justify amending 
Paragraph 5 of Chapter 21 of the Law on foreign nationals. 
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The position of the Administrative Court for Immigration Matters 
Question 1: Interpretation of the status of Directive 2001/55 in relation to 
Directive 2011/95 and 2013/32 
The position of the Administrative Court for Immigration Matters is that Directive 
2011/95 and Directive 2013/32 are applicable to the applications for a grant of 
refugee status or of alternative protection status lodged by persons granted 
temporary protection under Directive 2001/55. 
A person who has previously been granted temporary protection and subsequently 
applies for refugee status and/or alternative protection status (subsidiary 
protection) is not applying for protection which is outside the scope of Directive 
2011/95 and which may be covered by a separate application, see Article 2(h) of 
Directive 2011/95 and Article 2(b) of Directive 2013/32. Thus, such a person is 
covered by the purpose of both Directive 2011/95, as defined in Article 1, and 
Directive 2013/32, as defined in Article 3. 
It is clear from the case-law of the Court of Justice of the European Union that the 
purpose of Directive 2001/55 is to safeguard the effective possibility for third-
country nationals and stateless persons benefiting from temporary protection of 
obtaining international protection following an appropriate examination of their 
individual situation, whilst guaranteeing them immediate protection of more 
limited scope (see judgment of 19 December 2024, Kaduna, C-244/24 and 
C-290/24, EU:C:2024:1038), [paragraphs] 125 to 127). However, the Court of 
Justice of the European Union has however not expressly ruled on the national 
court’s questions. 
The case-law cited supports the position of the Administrative Court for 
Immigration Matters that Directive 2001/55 is intended to enable a large influx of 
persons eligible for protection to be dealt with expeditiously and that the 
temporary protection made possible by it does not prevent a subsequent 
comprehensive application for international protection. 
Question 2: Interpretation of Directive 2001/55 
The Administrative Court for Immigration Matters takes the view that Directive 
2001/55 should be interpreted in the light of the fact that subsidiary protection was 
not an integral part of the EU asylum system at the time when Directive 2001/55 
was introduced. Through Directive 2004/83, which was replaced by Directive 
2011/95, subsidiary protection has become an integral part of EU law. 
The Administrative Court for Immigration Matters considers that ‘lodging an 
application for asylum’ in Article 17 of Directive 2001/55 is synonymous with 
applying for ‘international protection’ as that term is defined in Directive 2011/95 
and Directive 2013/32. 
FRAMHOLM 
 
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It is clear from Article 19(2) of Directive 2001/55 that where, after an asylum 
application has been examined, refugee status or, where applicable, another kind 
of protection is not granted to a person who could enjoy or is enjoying temporary 
protection, the Member States are to provide, without prejudice to Article 28, for 
that person to enjoy or to continue to enjoy temporary protection for the remainder 
of the period of protection. 
The Administrative Court for Immigration Matters also notes that the European 
Commission’s Operational guidelines 8 indicate that a person who has temporary 
protection can apply for both refugee status and subsidiary protection status. 
Against that background, the Administrative Court for Immigration Matters 
considers that there is much to suggest that ‘application for asylum’ in 
Article 17(1) of Directive 2001/55 ought to be interpreted as an application for 
international protection where there are reasons to assume that the person is 
seeking refugee status or subsidiary protection status. Such a procedure is also in 
line with international obligations in the field of asylum law (see in particular 
Article 18 of the Charter of Fundamental Rights of the European Union). 
The position of the Administrative Court for Immigration Matters is that the right 
to apply for asylum under Directive 2001/55 also entails a right to an examination 
of whether subsidiary protection may be granted. The Administrative Court for 
Immigration Matters considers that the national court’s view is supported by the 
wording of the directives, the purpose of the directives, the European 
Commission’s Operational guidelines and also to some extent by the case-law of 
the Court of Justice of the European Union. 
Question 3: Direct effect 
The Administrative Court for Immigration Matters takes the view that 
Articles 17(1) and 19(2) of Directive 2001/55 in combination with Article 10(2) of 
Directive 2013/32 should be considered to have direct effect. 
Question 4: Compatibility of the Swedish rules with EU law 
Given the purpose of Directive 2001/55 and the wording of Articles 17 and 19 of 
that directive, the Administrative Court for Immigration Matters takes the view 
that it is questionable whether Paragraph 5 of Chapter 21 of the Law on foreign 
nationals is compatible with EU law. 
 
8 Communication from the Commission on Operational guidelines for the implementation of 
Council implementing Decision 2022/382 establishing the existence of a mass influx of 
displaced persons from Ukraine within the meaning of Article 5 of Directive 2001/55/EC, and 
having the effect of introducing temporary protection [(OJ 2022 CI 126, p. 1)].