Opinion of the Advocate General — ECLI:EU:C:2018:514
Date: 2018-06-28
Language of the case: Bulgarian
Subject matter: Asylum policy;Area of freedom, security and justice;Border checks
Procedure: Reference for a preliminary ruling
Origin: Bulgaria

Summary — Judgment of the Court (Second Chamber), 4 October 2018 1. Border controls, asylum and immigration — Asylum policy — Refugee status or subsidiary protection status — Directive 2011/95 — Procedure for examining an application for international protection — Assessment of facts and circumstances — Account of the threat of persecution and of serious harm in respect of a family member of the applicant (European Parliament and Council Directive 2011/95, Art. 4) 2. Border controls, asylum and immigration — Asylum policy — Refugee status or subsidiary protection status — Directive 2011/95 — Procedures for granting and withdrawing international protection — Directive 2013/32 — Procedure for examining an application for international protection — Applications lodged separately by family members — Rules on processing — Single assessment of the applications — Not permissible — Suspension of the assessment of one of those applications until the conclusion of the procedure in respect of another application — Not permissible (European Parliament and Council Directive 2011/95, Arts 4(3) and 23(1)); European Parliament and Council Directive 2013/32, Art. 31(2)) 3. Border controls, asylum and immigration — Asylum policy — Refugee status or subsidiary protection status — Directive 2011/95 — More favourable standards — National legislation enabling refugee status or subsidiary protection status to be extended to the family members of a beneficiary of such status — Lawfulness — Conditions (European Parliament and Council Directive 2011/95, Art. 3) 4. Border controls, asylum and immigration — Asylum policy — Procedures for granting and withdrawing international protection — Directive 2013/32 — Procedure for examining an application for international protection — Application capable of being considered as inadmissible by the Member States — Application lodged by a person to herself and her child based on a family tie with another person who has lodged a separate application — Not included (European Parliament and Council Directive 2013/32, Art. 33(2)(e)) 5. Border controls, asylum and immigration — Asylum policy — Refugee status or subsidiary protection status — Directive 2011/95 — Qualification for refugee status — Risk of persecution — Reasons for persecution — Assessment — Concept of membership of a particular social group — Person involved in bringing a complaint against her country of origin before the European Court of Human Rights — Not included — Concept of political opinion — Involvement in bringing such an action — Included — Conditions (European Parliament and Council Directive 2011/95, Art. 10(1)(d)(e)) 6. Border controls, asylum and immigration — Asylum policy — Procedures for granting and withdrawing international protection — Directive 2013/32 — Appeal against a decision refusing an application for international protection — Right to an effective remedy — Obligation to examine all facts and points of law — Scope — Obligation to examine the grounds for granting international protection or the evidence relied on for the first time in the action — Conditions (European Parliament and Council Directive 2013/32, Arts 40(1) and 46(3)) 1. Article 4 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, must be interpreted as meaning that, in carrying out the assessment of an application for international protection on an individual basis, account must be taken of the threat of persecution and of serious harm in respect of a family member of the applicant for the purpose of determining whether the applicant is, because of his family tie to the person at risk, himself exposed to such a threat. It thus follows from the system established by the EU legislature for granting the uniform asylum or subsidiary protection status that the assessment of an application for international protection, prescribed by Article 4 of Directive 2011/95, is intended to determine whether the applicant — or, where relevant, the person on whose behalf he has lodged an application — has a well-founded fear of being personally persecuted or personally faces a real risk of suffering serious harm. Although it follows from the foregoing that an application for international protection cannot be granted as such on the ground that one of the applicant’s family members has a well-founded fear of being persecuted or faces a real risk of suffering serious harm, by contrast, as the Advocate General stated in point 32 of his Opinion, account must be taken of such threats in respect of one of the applicant’s family members for the purpose of determining whether the applicant is, because of his family tie to the person at risk, himself exposed to the threat of persecution or serious harm. In that regard, as stated in recital 36 of Directive 2011/95, family members of a person at risk will also normally be in a vulnerable situation themselves. (see paras 49-51, operative part 1) 2. Directive 2011/95 and 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 must be interpreted as not precluding applications for international protection lodged separately by members of a single family from being subject to measures intended to address any interaction between applications, but as precluding those applications from being subject to a single assessment. They also preclude the assessment of one of those applications from being suspended until the conclusion of the examination procedure in respect of another of those applications. Directives 2011/95 and 2013/32 do not specify how to treat the potential interaction between such applications for international protection, which may, in part, concern identical facts or circumstances. Failing specific provisions, the Member States have latitude in that regard. However, first, Article 4(3) of Directive 2011/95 requires an individual assessment of each application, second, according to Article 23(1) of that directive, Member States are to ensure that family unity can be maintained and, third, Article 31(2) of Directive 2013/32 provides that each Member State is to ensure that the determining authority conduct and conclude an adequate and complete examination as soon as possible. It follows from the requirements of an individual assessment and of an exhaustive examination of applications for international protection that applications lodged separately by members of a single family, although potentially subject to measures intended to address any interaction between applications, must be subject to an examination of the situation of each person concerned. Those applications cannot therefore be subject to a single assessment. Second, in the light of the rule laid down in Article 31(2) of Directive 2013/32 that every assessment of an application for international protection must be concluded as soon as possible, and of the aim of that directive to ensure that applications for international protection are processed as soon as possible (judgment of 25 July 2018, Alheto, C‑585/16, EU:C:2018:584, paragraph 109), the assessment of a family member’s application should not lead to suspension of the assessment of another family member’s application such that the latter assessment cannot be conducted until the examination procedure of the first application has already been concluded through the adoption of a decision by the determining authority. On the contrary, in order to meet the objective of expediency and to facilitate maintaining family unity, decisions on related applications from members of a single family must be adopted promptly from one another. (see paras 56-58, 60, 65, operative part 2) 3. Article 3 of Directive 2011/95 must be interpreted as permitting a Member State, when granting international protection to a family member pursuant to the system established by that directive, to provide for an extension of the scope of that protection to other family members, provided that they do not fall within the scope of a ground for exclusion laid down in Article 12 of that directive and that their situation is, due to the need to maintain family unity, consistent with the rationale of international protection. The Court has previously held that the clarification contained in Article 3, according to which all more favourable standards must be compatible with Directive 2011/95, means that those standards must not compromise the general scheme or objectives of that directive. As the Advocate General stated in point 58 of his Opinion, granting — automatically under national law — refugee status to family members of a person to whom that status was granted under the system established by Directive 2011/95, is not, a priori, without connection to the rationale of international protection. (see paras 71, 72, 74, operative part 3) 4. Article 33(2)(e) of Directive 2013/32 does not cover a situation, such as that at issue in the main proceedings, in which an adult lodges, in her own name and on behalf of her minor child, an application for international protection which is based, inter alia, on a family tie with another person who has lodged a separate application for international protection. The ground of inadmissibility set out in Article 33(2)(e) of Directive 2013/32 concerns the specific situation in which a dependant of another person consents first, under Article 7(2) of that directive, to have an application for international protection lodged on his or her behalf, and then lodges his or her own application for international protection. (see paras 77, 81, operative part 4) 5. The involvement of an applicant for international protection in bringing a complaint against his country of origin before the European Court of Human Rights cannot in principle be regarded, for the purposes of assessing the reasons for persecution referred to in Article 10 of Directive 2011/95, as proof of that applicant’s membership of a ‘particular social group’, within the meaning of Article 10(1)(d) of that directive, but must be regarded as a reason for persecution for ‘political opinion’, within the meaning of Article 10(1)(e) of the directive, if there are valid grounds for fearing that involvement in bringing that claim would be perceived by that country as an act of political dissent against which it might consider taking retaliatory action. In that regard, it should be noted that Article 10(1) of Directive 2011/95 must be read in conjunction with Article 10(2) of that directive. According to Article 10(2) of Directive 2011/95, when assessing if an applicant has a well-founded fear of being persecuted it is immaterial whether the applicant actually possesses the racial, religious, national, social or political characteristic which attracts the persecution, provided that such a characteristic is attributed to the applicant by the actor of persecution. Therefore, regardless of whether an Azerbaijani national’s involvement in bringing a complaint against the European Court of Human Rights, for the purposes of supporting a finding that the governing regime disregards fundamental rights, conveys a ‘political opinion’ on the part of that national, it should be ascertained, in the course of the assessment of the reasons for persecution invoked in the application for international protection lodged by that national, whether there are valid grounds for fearing that that involvement would be perceived by the regime as an act of political dissent against which it might consider taking retaliatory action. Where there are valid grounds to fear that such is the case, it must be concluded that an applicant is subject to a serious and proven threat of persecution for the expression of his opinions on the policies and methods of his country of origin. As is clear from the wording of Article 10(1)(e) of Directive 2011/95, the concept of ‘political opinions’ in that provision covers such a situation. By contrast, the class of persons to which the applicant for international protection belongs, where such is the case, through her involvement in bringing a claim before the European Court of Human Rights, cannot in principle be regarded as a ‘social group’ within the meaning of Article 10(1)(d) of Directive 2011/95. For it to be found that there is a ‘social group’, within the meaning of that provision, two cumulative conditions must be satisfied. First, members of that group must share an ‘innate characteristic’, or a ‘common background that cannot be changed’, or share a characteristic or belief that is ‘so fundamental to identity or conscience that a person should not be forced to renounce it’. Second, that group must have a distinct identity in the relevant country, because it is perceived as being different by the surrounding society (judgment of 7 November 2013, X and Others, C‑199/12 to C‑201/12, EU:C:2013:720, paragraph 45). (see paras 85-90, operative part 5) 6. Article 46(3) of Directive 2013/32 read in conjunction with the reference to the appeal procedure contained in Article 40(1) of that directive, must be interpreted as meaning that a court before which an action has been brought against a decision refusing international protection is, in principle, required to examine, as ‘further representations’ and having asked the determining authority for an assessment of those representations, grounds for granting international protection or evidence which, whilst relating to events or threats which allegedly took place before the adoption of the decision of refusal, or even before the application for international protection was lodged, have been relied on for the first time during those proceedings. That court is not, however, required to do so if it finds that those grounds or evidence were relied on in a late stage of the appeal proceedings or are not presented in a sufficiently specific manner to be duly considered or, in respect of evidence, it finds that that evidence is not significant or insufficiently distinct from evidence which the determining authority was already able to take into account. Although it thus follows from Article 46(3) of Directive 2013/32 that the Member States are required to amend their national law in such a way that the processing of the appeals referred to includes an examination, by the court or tribunal, of all the facts and points of law necessary in order to make an up-to-date assessment of the case at hand (judgment of 25 July 2018, Alheto, C‑585/16, EU:C:2018:584, paragraph 110), it does not follow, by contrast, that an applicant for international protection may, without it being subject to a further assessment by the determining authority, modify the ground for his application and, thereby, the configuration of the facts of the case by relying, in an appeal procedure, on a ground for international protection which, whilst relating to events or threats which allegedly took place before the adoption of that authority’s decision, or even before the application was lodged, were not mentioned before that authority. It must be stressed that the examination of the application for international protection by the determining authority, which is an administrative or quasi-judicial body with specific resources and specialised staff in this area, is a vital stage of the common procedures established by Directive 2013/32 and that the applicant’s right to obtain a full and ex nunc examination before a court or tribunal, laid down in Article 46(3) of that directive, cannot be interpreted to the effect of diminishing the obligation on the part of that applicant to cooperate with that authority (see, to that effect, judgment of 25 July 2018, Alheto, C‑585/16, EU:C:2018:584, paragraph 116). That vital stage before the determining authority would be circumvented if the applicant were, without any procedural consequences, allowed to rely, for the purposes of having a court annul or replace the decision of refusal adopted by that authority, on a ground of international protection which, whilst relating to allegedly antedated events or threats, was not raised before that authority and could not therefore be examined by it. Accordingly, where one of the grounds for international protection referred to in paragraph 95 above is invoked for the first time in an appeal procedure and relates to alleged events or threats antedating the adoption of that decision, or even the lodging of the application for international protection, that ground must be regarded as a ‘further representation’, within the meaning of Article 40(1) of Directive 2013/32. As follows from that provision, such a characterisation means that the court before which the appeal has been brought is required to consider that ground in the course of its examination of the decision against which the appeal has been brought, provided nonetheless that each of the ‘competent authorities’, which includes not only that court but also the determining authority, has the opportunity to assess, in that framework, that further representation. In order to determine whether that court itself is able to assess that further representation in the course of the action, it is for the court to ascertain, in accordance with the rules of procedure laid down by national law, whether the ground for international protection relied on for the first time before it has not been included in a later phase of the appeal procedure and has been presented in a sufficiently specific manner for it to be duly considered. Provided that as a result of that finding the court is able to incorporate that ground in its assessment of the action, it is for the court to ask the determining authority within a period of time in keeping with the objective of expediency pursued by Directive 2013/32 (see, in that regard, judgment of 25 July 2018, Alheto, C‑585/16, EU:C:2018:584, paragraph 109) for an assessment of that ground, the result and underlying reasons of which must be provided to the applicant and to the court before the court has interviewed the applicant and considered the case. (see paras 94, 96-101, 103, operative part 6)