OPINION OF ADVOCATE GENERAL
RICHARD DE LA TOUR
delivered on 15 June 2023 (1)
Case C‑222/22
Bundesamt für Fremdenwesen und Asyl
with the participation of
JF
(Request for a preliminary ruling from the Verwaltungsgerichtshof (Supreme Administrative Court, Austria))
(Reference for a preliminary ruling – Area of freedom, security and justice – Directive 2011/95/EU – Standards for the granting of international protection and the content of the protection granted – International protection needs arising sur place – Conditions – Article 5(3) – Refusal to grant refugee status – Concept of ‘circumstances which the applicant has created by his or her own decision since leaving the country of origin’ – Discretion of the Member States – National legislation making the granting of refugee status subject to the condition that the sur place activities are lawful activities constituting the continuation of convictions or orientations held in the country of origin – Sur place religious conversion of third-country nationals)
I.      Introduction
1.        The present case provides an opportunity for the Court to clarify the conditions and limits under which Member States may recognise a need for international protection resulting from activities carried out by a third-country national or a stateless person since leaving the country of origin, namely activities ‘sur place’.
2.        Specifically, the Court is being asked to rule on the meaning and scope of Article 5(3) of Directive 2011/95/EU, (2) under which Member States may ‘normally’ refuse to grant refugee status, following the examination of a subsequent application, if the risk of persecution is based on ‘circumstances which the applicant has created by his or her own decision since leaving the country of origin’. In that context, the Court will have to determine the extent to which a Member State may use the margin of discretion conferred on it by that provision to make the granting of that status subject to the condition that the activities carried out sur place by the applicant are permitted in that Member State and it is established that those activities constitute the expression and continuation of convictions held in the country of origin.
3.        This case arises in the context of a dispute between JF, an Iranian national who converted to Christianity while residing in Austria, and the Bundesamt für Fremdenwesen und Asyl (Federal Office for Immigration and Asylum, Austria, ‘the BFA’) concerning the lawfulness of the BFA’s decision to refuse to grant refugee status to that individual. The BFA considered, in application of Article 5(3) of Directive 2011/95, that the risk of persecution arising from that religious conversion was based on circumstances which the applicant had created by his own decision since leaving the country of origin.
4.        In the following analysis, I will set out the reasons why I consider that Article 5(3) of Directive 2011/95 must be interpreted as meaning that a Member State may refuse to grant refugee status to a third-country national or stateless person who has made a subsequent application only if it is established that that application is manifestly based on a risk of persecution that the applicant deliberately provoked following the adoption of the final decision on his or her previous application, by engaging in activities, committing acts or behaving in a manner that was or were not sincere, with the sole aim of creating the conditions necessary to be considered a refugee.
5.        I will also explain why I consider that a Member State may not use the margin of discretion conferred on it by that provision to make the granting of refugee status subject to conditions other than those expressly enumerated in Directive 2011/95.
II.    Legal context
A.      International law
6.        The first subparagraph of Article 1(A)(2) of the Convention relating to the Status of Refugees, (3) as supplemented by the Protocol relating to the Status of Refugees, (4) (‘the Geneva Convention’), provides that the term ‘refugee’ applies to any person who ‘owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country’.
B.      European Union law
7.        Article 2(d) of Directive 2011/95 defines the concept of ‘refugee’ as ‘a third-country national who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, is outside the country of nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country … and to whom Article 12 does not apply’.
8.        In Chapter II of that directive, entitled ‘Assessment of applications for international protection’, Article 4(3)(d) states as follows:
‘The assessment of an application for international protection is to be carried out on an individual basis and includes taking into account:
…
(d)      whether the applicant’s activities since leaving the country of origin were engaged in for the sole or main purpose of creating the necessary conditions for applying for international protection, so as to assess whether those activities would expose the applicant to persecution or serious harm if returned to that country’.
9.        Article 5 of that directive, entitled ‘International protection needs arising sur place’, is worded as follows:
‘1.      A well-founded fear of being persecuted or a real risk of suffering serious harm may be based on events which have taken place since the applicant left the country of origin.
2.      A well-founded fear of being persecuted or a real risk of suffering serious harm may be based on activities which the applicant has engaged in since he or she left the country of origin, in particular where it is established that the activities relied upon constitute the expression and continuation of convictions or orientations held in the country of origin.
3.      Without prejudice to the Geneva Convention, Member States may determine that an applicant who files a subsequent application shall not normally be granted refugee status if the risk of persecution is based on circumstances which the applicant has created by his or her own decision since leaving the country of origin.’
C.      Austrian law
10.      Paragraph 2(1)(23) of the Bundesgesetz über die Gewährung von Asyl (Federal Law on the Granting of Asylum) (5) of 16 August 2005, as amended by Bundesgesetz, mit dem das Asylgesetz 2005, das Fremdenpolizeigesetz 2005 und das BFA-Verfahrensgesetz geändert werden (Federal Law amending the 2005 Asylum Law, the 2005 Law on policing foreign nationals and the Law on the Procedure before the Federal Administrative Court (BFA)) (6) of 20 May 2016, defines the concept of a ‘subsequent application’ as ‘any new application submitted after a final decision has been taken on a previous application’.
11.      Paragraph 3 of the AsylG 2005, entitled ‘Person entitled to asylum status’, states as follows:
‘(1)      A foreign national who has filed an application for international protection in Austria shall, unless that application is to be rejected pursuant to Article 4, 4a or 5, be granted asylum status if it is credible that he or she would be at risk of persecution as defined in Article 1(A)(2) of the [Geneva Convention] in the country of origin.
(2)      Persecution may also be based on events which have taken place since the foreign national left his or her country of origin (objective reasons arising sur place) or on activities engaged in by the foreign national since leaving the country of origin which in particular constitute the expression and continuation of convictions held in the country of origin (subjective reasons arising sur place). A foreign national who files a subsequent application (Paragraph 2(1)(23)) shall normally not be granted asylum status if the risk of persecution is based on circumstances which the foreign national has created by his or her own decision since leaving his or her country of origin, unless the activities in question are permitted in Austria and it is established that those activities constitute the expression and continuation of convictions held in the country of origin.
…’
III. The facts in the main proceedings and the question referred for a preliminary ruling
12.      JF, an Iranian national, lodged an application for international protection with the Austrian authorities on 3 October 2015 on the grounds that, as a driving school instructor, he had been questioned by the Iranian secret services for refusing to obey instructions, and prosecuted for criticising a preacher during his first year of studies.
13.      By decision of 7 June 2017, the BFA dismissed that application on the ground that the arguments put forward by JF for having left his home country were not credible and issued a return decision against him. JF lodged a complaint against that decision, which was dismissed by the Bundesverwaltungsgericht (Federal Administrative Court, Austria; ‘the BVwG’) by judgment of 3 January 2018. That decision became final.
14.      On 26 June 2019, JF filed a subsequent application for international protection on the grounds that he had converted to Christianity after the decision of the BVwG had become final and therefore feared persecution in his country of origin. By decision of 24 June 2020, the BFA refused to grant refugee status to the applicant in application of the provisions of the second sentence of Paragraph 3(2) of the AsylG 2005. The BFA did, however, grant JF subsidiary protection status. According to the BFA, JF had credibly demonstrated, during several interviews and on the basis of specific elements of proof, that he had converted to Christianity in Austria and that he actively practised that religion there. Consequently, in the event that he returned to Iran, there was a risk he could be exposed to individual persecution. However, the BFA considered that this ground for persecution occurred sur place and had been brought about by his own decisions.
15.      JF lodged a complaint against that decision before the BVwG, which allowed the complaint on 29 September 2020. That court held that, while, in the context of a subsequent application, the risk of persecution based on circumstances created by the applicant ‘by his own decision’ ‘normally’ precludes the granting of refugee status, the latter term nevertheless indicates that there are cases in which such status may be granted, notwithstanding the second sentence of Paragraph 3(2) of the AsylG 2005, which requires verification that there has been an abuse of the procedure on the part of the applicant. That court also held that the mere fact that there was no indication that the applicant’s conversion was the expression and continuation of a conviction already held in his country of origin was not sufficient to refuse to grant refugee status.
16.      The BFA brought an appeal on a point of law against that decision before the Verwaltungsgerichtshof (Supreme Administrative Court, Austria), on the grounds that the second sentence of Paragraph 3(2) of the AsylG 2005 establishes a general rule that refugee status cannot be granted in cases such as the one at issue in the main proceedings. The only exception to that rule concerned cases where the activities in question were activities permitted in Austria and where it was established that those activities constituted the expression and continuation of convictions held by the applicant in the country of origin.
17.      The referring court takes the view that the resolution of the dispute in the main proceedings depends on the interpretation of Article 5(3) of Directive 2011/95.
18.      In those circumstances, the Verwaltungsgerichtshof (Supreme Administrative Court) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:
‘Must Article 5(3) of Directive [2011/95] be interpreted as precluding legislation of a Member State under which a foreign national who files a subsequent application is not normally to be granted asylum status if the risk of persecution is based on circumstances which the foreign national has created by his or her own decision since leaving his or her country of origin, unless the activities in question are permitted in Austria and it is established that those activities constitute the expression and continuation of convictions held in the country of origin?’
19.      Written observations were submitted by JF, the Austrian and German Governments and the European Commission.
IV.    Analysis
20.      By its reference for a preliminary ruling, the referring court is essentially asking the Court to clarify the meaning and scope of the rule laid down in Article 5(3) of Directive 2011/95 in order to determine the extent to which a Member State may derogate from that provision, within the margin of discretion conferred on it by that provision.
21.      In interpreting that provision, it is necessary to consider not only its wording, but also the context in which it occurs and the objectives pursued by Directive 2011/95. The origins of that text may also provide information relevant to its interpretation. (7) The Geneva Convention should also be taken into account, (8) and consultations with the United Nations High Commissioner for Refugees (UNHCR) may also provide valuable guidance. (9)
A.      The wording of Article 5(3) of Directive 2011/95
22.      Article 5(3) of Directive 2011/95 states that ‘without prejudice to the Geneva Convention, Member States may determine that an applicant who files a subsequent application shall not normally be granted refugee status if the risk of persecution is based on circumstances which the applicant has created by his or her own decision since leaving the country of origin’.
23.      First, as the wording of that article shows, it is an optional provision, such that refusal to grant refugee status is merely an option left to the discretion of the Member States. This provision is thus distinct from Article 12 of Directive 2011/95, which lays down mandatory grounds for exclusion from refugee status, and from Article 14(1) and (3) of that directive, which lays down mandatory grounds for revocation of, ending of, or refusal to renew refugee status.
24.      The use of the adverb ‘normally’ also reflects the desire of the EU legislature to leave Member States the possibility of applying this rule flexibly, by introducing exceptions where appropriate.
25.      Second, Member States may exercise this option ‘without prejudice to the Geneva Convention’. The referring court is questioning the extent to which the Member States are obliged to ensure compliance with that convention, having regard to the expression used in the German-language version of Directive 2011/95, namely ‘unbeschadet der Genfer Flüchtlingskonvention’. The term ‘unbeschadet’ is ambivalent and could be translated both as ‘sans préjudice de’ [without prejudice to] and as the adverb ‘nonobstant’ [notwithstanding], which means ‘sans avoir égard à, en dépit de, malgré’ [without regard to, in spite of, despite]. (10)
26.      I should point out that, according to settled case-law, the wording used in one language version of a provision of EU law cannot serve as the sole basis for the interpretation of that provision, or be made to override the other language versions. (11) In this respect, I note that most language versions of Directive 2011/95, such as the Spanish, English, Italian, Latvian, Portuguese and Swedish versions, use the expression ‘without prejudice to’ or an equivalent term. This expression means ‘sans porter atteinte à, sans que renonciation soit faite de’, (12) [without prejudice to or renunciation of] or ‘sans faire de tort à, sans renoncer à, sans contrevenir à’, (13) [without harming, renouncing, undermining or contravening], as confirmed by the case-law of the Court of Justice. (14)
27.      Furthermore, provisions of EU law must be interpreted and applied uniformly in the light of the versions existing in all the languages of the European Union and, where there is any divergence between those various versions, the provision in question must be interpreted by reference to the general scheme and the purpose of the rules of which it forms part. (15) Under Article 78(1) TFEU and Article 18 of the Charter of Fundamental Rights of the European Union, (16) the common European asylum system, which incorporates Directive 2011/95, is based on the full and inclusive application of the Geneva Convention, which constitutes the ‘cornerstone’ of the international legal regime for the protection of refugees. (17) While this directive establishes a legislative system laying down concepts and criteria that are common to the Member States and therefore specific to the European Union, its purpose is nevertheless to ensure full compliance with Article 1 of that convention. (18)
28.      I infer from the above that Member States may refuse to grant refugee status to a third-country national or stateless person who makes a subsequent application on the grounds referred to in Article 5(3) of Directive 2011/95 only if they guarantee effective respect for the rights laid down in the Geneva Convention to which that directive refers and, in particular, the principle of non-refoulement.
29.      Third, Article 5(3) of Directive 2011/95 concerns the conditions under which the granting of ‘refugee status’ may be refused. This concept is defined in Article 2(e) of that directive as referring to ‘the recognition by a Member State of a third-country national or a stateless person as a refugee’. Thus, within the system introduced by that directive, a third-country national or a stateless person who satisfies the material conditions set out in Chapter III of that directive is, on that basis alone, a refugee for the purposes of Article 2(d) thereof and Article 1(A) of the Geneva Convention. (19) Formal recognition of refugee status, which constitutes the granting of refugee status, has the consequence that the refugee concerned is, by virtue of Article 2(b) of Directive 2011/95, a beneficiary of international protection, such that he or she enjoys all the rights and benefits provided for in Chapter VII of that directive. If refugee status is not recognised, the individual concerned will at least be entitled to the rights and protections laid down in the Geneva Convention referred to in Article 14(6) of the directive, including the principle of non-refoulement. (20)
30.      Fourth, the scope of Article 5(3) of Directive 2011/95 is limited to the examination of a ‘subsequent application’ for international protection. On the basis of the definition of this concept in Article 2(q) of Directive 2013/32/EU, (21) a Member State may refuse to grant refugee status only on condition that the competent authority has already adopted a final decision on a previous application for international protection, in which it found either that the application was inadmissible or unfounded, or that the application had been explicitly or implicitly withdrawn. (22)
31.      Fifth and final point, Member States may refuse to grant refugee status if it is established that the risk of persecution to which the applicant is exposed is based ‘on circumstances which the applicant has created by his or her own decision’. While this condition is essential to the implementation of the option laid down in Article 5(3) of Directive 2011/95, it seems to me that the terms used by the EU legislature do not make it possible to determine the exact scope of that option.
32.      The concept of ‘circumstances’ is not defined in Directive 2011/95. Combined with the risk of persecution that those circumstances are likely to engender, this concept covers, in my view, a wide range of activities, acts or even behaviours that the applicant may have adopted since leaving the country of origin and which could be perceived by those involved in persecution as grounds linked to the applicant’s race, nationality, religion, political opinions or membership of a certain social group, which are used as the basis for acts of persecution. With regard to the expression relating to ‘circumstances which the applicant has created by his or her own decision’, (23) I think particular importance should be attached to the choice of the verb ‘to create’, which is not accidental in view of the preparatory work for Directive 2004/83/EC, (24) which preceded Directive 2011/95. Indeed, it is clear from the Commission’s proposal for a directive (25) that it intended to address the situation where the applicant’s fear of persecution was ‘fabriquée de toutes pièces’ (‘manufactured’ in the English version of the article commentary). In my view, the expression used by the EU legislature is therefore intended to cover new circumstances – as opposed to pre-existing circumstances that might have justified the applicant’s flight from the country of origin – which the applicant has devised or ‘manufactured’ since his or her departure from the country of origin and over which he or she exercises some form of control – as opposed to the events that may take place in the country of origin referred to in Article 5(1) of Directive 2011/95.
33.      As I have indicated, that literal interpretation does not make it possible to ascertain the exact scope of the condition laid down by the EU legislature in Article 5(3) of Directive 2011/95. I therefore believe it is essential to examine the context of this provision and the purpose of the directive.
B.      The general scheme and the purpose of Directive 2011/95
34.      Chapter II of Directive 2011/95 deals with assessment of applications for international protection. Article 4 of this directive lays down the general rules governing the process of assessment of facts and circumstances on which an application for international protection is based. As for Article 5 of that directive, it specifies, in line with recital 25, the special rules for assessing a need for international protection that has arisen sur place. (26)
35.      Both Articles 4 and 5 of Directive 2011/95 apply to a subsequent application, where the competent authority finds, following its preliminary examination, that the new elements or findings presented by the applicant add to the likelihood of the applicant qualifying as a beneficiary of international protection. (27)
36.      While Article 5(2) of Directive 2011/95 lays down the principle that the competent authority may establish a well-founded fear of being persecuted by reason of the exercise of activities sur place, Article 5(3) of that directive, on the other hand, allows that authority to refuse to recognise refugee status where the procedure for granting international protection has been exploited in a self-serving manner.
1.      Recognition of a well-founded fear of being persecuted as a result of the applicant’s activities sur place, within the meaning of Article 5(2) of Directive 2011/95
37.      Article 5(2) of Directive 2011/95 concerns the status of refugee ‘sur place’. Indeed, the concept of ‘refugee’, defined in Article 2(d) of that directive, covers not only the situation of a person who has fled his or her country of origin because of a fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, but also the situation of a person who, while already outside that country, is afraid to return there because of the risk of persecution to which he or she is exposed as a result of activities carried out in the host Member State, and thus ‘sur place’. In each of those two situations, the person ‘is outside the country of nationality’, in accordance with Article 2(d) of that directive. (28)
38.      Article 5(2) of Directive 2011/95 lays down the principle that ‘a well-founded fear of being persecuted or a real risk of suffering serious harm may be based on activities which the applicant has engaged in since he or she left the country of origin, in particular where it is established that the activities relied upon constitute the expression and continuation of convictions or orientations held in the country of origin’.
39.      As can be seen from the use of the expression ‘in particular’, which is here the equivalent of the word ‘specifically’, the fact that the activities engaged in by the applicant in the host Member State are a continuation of the convictions or orientations previously held by the applicant in his or her country of origin, does not constitute an essential condition for the purposes of recognising a need for international protection that has arisen sur place. Rather, this is a factor likely to reinforce the applicant’s credibility, by making it easier to rule out the risk of abusive intent, and thus to establish more easily the merits of the application.
40.      Consequently, Article 5(2) of Directive 2011/95 allows consideration to be given to the situation in which the person concerned has not manifested his or her political opinions, religious beliefs or sexual orientation in his or her country of origin, either because he or she was forced or consciously decided to conceal them in view of the risks involved, or because of his or her young age. (29) The words ‘in particular’ in Article 5(2) also make it possible to consider the situation in which the person concerned decides, after leaving his or her country of origin, to pursue new activities sur place because of a change in his or her personal identity, religious beliefs or political convictions, with those circumstances therefore being neither an expression nor a continuation of his or her previous convictions or orientations.
41.      Given the sensitive nature of issues relating to an applicant’s personal sphere and, in particular, his or her religion or sexuality, the competent authority cannot conclude that there has been an abuse of rights simply because, for example, the applicant has converted to another religion or revealed his or her homosexuality since leaving the country of origin. Such an approach would disregard not only the applicant’s need for international protection, since the activities he or she carries out sur place
are just as likely to expose him or her to a risk of persecution or serious harm if returned to that country, but also the fundamental rights guaranteed to him or her by the Charter, such as the right to freedom of religion, which includes the right to change religion, or the right to freedom of opinion and expression. (30)
42.      Consequently, the application of Article 5(2) of Directive 2011/95 requires that the competent authority examine all the circumstances of each individual case, in accordance with the rules enumerated in Article 4 of that directive.
43.      In that regard, Article 4(3)(d) of that directive lays down an essential rule for the purposes of assessing whether a need for international protection has arisen sur place. This provision highlights a particular difficulty relating to the examination of an application for international protection based on activities carried out sur place by the applicant, namely the situation in which the applicant deliberately carries out those activities in the territory of the host Member State in order to lodge or support the application. (31)
44.      The European Court of Human Rights (ECtHR) has acknowledged that it is generally very difficult to assess whether a person is genuinely interested in the activity in question, be it a political cause or a religion, or whether the person has only become involved in it in order to create post-flight grounds. (32) The UNHCR, for its part, considers that a person who objectively faces a risk of persecution in his or her country of origin is eligible for international protection regardless of his or her motives, intentions or conduct. Directive 2011/95, like the Geneva Convention, does not lay down any legal obligation of good faith in the context of applications for international protection, the conditions for granting such protection being objective conditions. (33)
45.      Under Article 4(3)(d) of Directive 2011/95, the EU legislature therefore requires that the competent authority take into account, when making an individual assessment of the applicant, ‘whether the applicant’s activities since leaving the country of origin were engaged in for the sole or main purpose of creating the necessary conditions for applying for international protection, so as to assess whether those activities would expose the applicant to persecution or serious harm if returned to that country’. (34)
46.      This provision reflects the tension between, on the one hand, the need to make a purely objective assessment of the application, taking into account the concrete risks of persecution or of serious harm to which the applicant is exposed in his or her country of origin as a result of the activities carried out sur place and, on the other hand, the need to consider more subjective factors by assessing the extent to which the applicant is attempting to abuse the international protection system by carrying out ‘window-dressing’ activities, which are merely a pretext for obtaining refugee status or subsidiary protection status.
47.      Although it is clear that the applicant’s credibility is affected where he or she carries out activities sur place in a ‘self-serving’ manner, the wording chosen by the EU legislature in Article 4(3)(d) of Directive 2011/95 nevertheless reflects the fact that the assessment to be made by the competent authority relates in all cases to whether the circumstances created by the applicant give rise to a presumption that he or she has a well-founded fear, in the light of the individual situation, of being exposed to acts of persecution based on one of the grounds enumerated in Article 10 of that directive, or to serious harm if returned to his or her country of origin. (35)
48.      For this purpose, the European Union Agency for Asylum (EUAA), (36) the UNHCR (37) and the European Court of Human Rights (38) share an identical approach as regards the procedures for the examination to be carried out by the competent authority. In the first instance, that authority is required to examine whether the activities carried out sur place demonstrate a conviction or an orientation that is real, sincere and serious. This examination must make it possible to determine the extent to which the applicant will continue those activities on his or her return to the country of origin and thus to assess the extent and nature of the risks to which he or she will be exposed. As the Court has ruled, that assessment of the extent of the risk must, in all cases, be carried out with vigilance and care, since what are at issue are issues relating to the integrity of the person and to individual liberties, issues which relate to the fundamental values of the European Union. (39) Thus, even a person whose religious conversion is not sincere, but is demonstrated by the act of baptism, could be considered by the authorities of certain countries, such as Iran in the main proceedings, to be guilty of the crime of apostasy, entailing a real risk of persecution in the event of his or her return to that country.
49.      Second, the competent authority must assess the extent to which the activities carried out sur place are able to attract the attention of those involved in persecution or have come to their attention and, where appropriate, the way in which they are perceived by the latter (are they perceived as constituting ‘window-dressing’ activities or, on the contrary, as demonstrating a characteristic linked, for example, to religion or membership of a certain social group, used as the basis for acts of persecution, etc.?). (40)
50.      It is on the basis of this individual assessment that the competent authority can establish whether the activities carried out by the applicant sur place, despite their self-serving nature, create a well-founded fear of being persecuted for one of the grounds enumerated in Article 10 of Directive 2011/95 and whether the applicant therefore qualifies as a refugee within the meaning of Article 2(d) of that directive. (41)
2.      Refusal to grant refugee status because the procedure for granting international protection has been abused, within the meaning of Article 5(3) of Directive 2011/95
51.      Article 5(3) of Directive 2011/95 follows on from Article 5(2) of that directive. It gives Member States the option of not formally recognising refugee status, by refusing to grant it, in the specific context of a subsequent application, if ‘the risk of persecution is based on circumstances which the applicant has created by his or her own decision’.
52.      Article 5(3) of Directive 2011/95 must clearly be interpreted strictly.
53.      First, I should recall that Article 13 of Directive 2011/95 provides that the Member States are required to grant refugee status to any third-country national or stateless person who qualifies as a refugee in accordance with Chapters II and III of that directive. (42) The Court has held in its case-law that the Member States do not have ‘any discretion in that respect’. (43)
54.      By giving Member States the option of refusing to grant refugee status, Article 5(3) of Directive 2011/95 thus constitutes an exception to the general rule laid down in Article 13 of that directive. In practical terms, a person who meets the conditions to be considered as a refugee will nevertheless be refused refugee status on the grounds that he or she alone has created the risk of persecution. The circumstances in which a Member State may make use of this option must therefore be interpreted restrictively.
55.      The refusal to grant refugee status has significant consequences, namely that the person concerned will not be entitled to all the rights and benefits set out in Chapter VII of that directive, those rights and benefits being associated with that status. (44)
56.      In those circumstances, I believe that a refusal to grant refugee status can be justified only in so far as it is intended to sanction manifestly abusive or opportunistic behaviour (45) on the part of the applicant, who has ‘manufactured’ (46) the circumstances serving as the basis for the risk of persecution to which he or she is exposed, with the aim of increasing the chances of success of the subsequent application. (47)
57.      In my view, this implies that the competent authority must establish that the subsequent application is clearly based on a risk of persecution that the applicant has deliberately provoked, following the adoption of the final decision on his or her previous application, by engaging in activities, committing acts or behaving in a manner that was or were insincere, with the sole aim of creating the conditions necessary to be considered a refugee.
58.      In that regard, a parallel can to some extent be drawn with Article 14(3)(b) of Directive 2011/95, which seeks to penalise manifestly fraudulent conduct on the part of third-country nationals by requiring Member States to revoke, end or refuse to renew refugee status where the person concerned has misrepresented or omitted facts or used false documents for the purposes of obtaining that status.
59.      It is clear that Article 5(3) of Directive 2011/95 must be applied with caution, as the competent authority is required to make its decision to refuse refugee status only after a full examination of all the circumstances of the applicant’s individual situation.
60.      It is settled case-law that decisions excluding, revoking, ending or refusing to renew refugee status must be preceded by an assessment by the competent authority of the specific facts within its knowledge and a full examination of all circumstances specific to the applicant’s individual case, with a view to determining whether there are serious reasons for considering that the situation of the person in question, who otherwise satisfies the qualifying conditions for obtaining or retaining international protection, falls within the scope of one of the cases of exclusion, revocation, ending or refusal to renew that status. (48) According to the Court, that assessment is an integral part of the international protection procedure, since it must be conducted in accordance with Directives 2011/95 and 2013/32 (49) and cannot be taken automatically. (50)
61.      In the context of Directive 2004/83, the EU legislature also envisaged a gradation in the measures that Member States could adopt in respect of an applicant who had demonstrated abusive intent. Member States could therefore either ‘reduce the benefits … granted to a refugee whose refugee status has been obtained on the basis of activities engaged in for the sole or main purpose of creating the necessary conditions for being recognised as a refugee’ (51) (Article 20(6) of that directive), or deprive that individual of this status for reasons identical to those referred to today in Article 5(3) of Directive 2011/95 (Article 5(3) of Directive 2004/83). This choice was made after weighing up all the facts and circumstances surrounding the application for international protection.
62.      This strict interpretation of the provisions of Article 5(3) of Directive 2011/95 is supported by the intended purpose of that directive.
63.      Indeed, recital 12 of Directive 2011/95 clearly expresses the intention of the EU legislature to ensure that all Member States identify persons ‘genuinely in need of international protection’ and grant that international protection on the basis of common criteria by assessing individually the situation of each applicant. (52)
64.      Article 5(3) of the directive makes it possible to guarantee the credibility and integrity of the common European asylum system by allowing Member States to exclude from refugee status persons who attempt to abuse the system by deliberately creating circumstances that expose them, on their return to their country of origin, to a risk of persecution for the sole purpose of benefiting from the advantages conferred by refugee status. (53)
65.      On the basis of the above, I consider that Article 5(3) of Directive 2011/95 must be interpreted as meaning that a Member State may refuse to grant refugee status to a third-country national or stateless person who has made a subsequent application only after having established, with reasonable certainty, following a full examination of all the circumstances of the applicant’s individual situation, that that application is manifestly based on a risk of persecution that the applicant deliberately provoked following the adoption of the final decision on his or her previous application, by engaging in activities, committing acts or behaving in a manner that was insincere, with the sole aim of creating the conditions necessary to be considered a refugee.
C.      Examination of the legislation at issue
66.      In the light of the foregoing, I consider that, by adopting legislation such as Paragraph 3(2) of the AsylG 2005, the Austrian legislature has exceeded the discretion conferred on it by Article 5(3) of Directive 2011/95.
67.      I would remind the Court that the national provision in question stipulates that ‘a foreign national who files a subsequent application … is not normally to be granted asylum status if the risk of persecution is based on circumstances which the foreign national has created by his or her own decision since leaving his or her country of origin, unless the activities in question are permitted in Austria and it is established that those activities constitute the expression and the continuation of convictions held in the country of origin’.
68.      This provision lays down, first, a principle, as provided for in Article 5(3) of Directive 2011/95, and, second, an exception, which the Austrian legislature has added by exercising the discretion conferred on it by that article. (54) Thus, according to my understanding of Paragraph 3(2) of the AsylG 2005, it allows a third-country national or a stateless person who files a subsequent application based on the pursuit of activities in Austria to be granted refugee status if the risk of persecution arises from the pursuit of activities permitted in Austria that are established as being a continuation of the convictions or orientations he or she has expressed in his or her country of origin.
69.      I confess that I have difficulty understanding how the exception introduced by the Austrian legislature fits in with the principle underlying Article 5(3) of Directive 2011/95, namely the refusal to grant refugee status where there is a risk of persecution deliberately created by the applicant. In terms of its purpose, the national provision at issue appears to be more in keeping with the spirit of Article 5(2) of Directive 2011/95 since, as the Austrian Government points out in its observations, Paragraph 3(2) of the AsylG 2005 is intended to ensure that ‘certain sur place grounds [are] also taken into consideration in the subsequent application procedure’. This is the very purpose of Article 5(2) of Directive 2011/95, which covers subsequent applications for international protection. However, Paragraph 3(2) of the AsylG 2005 differs from this in its conditions of application. Indeed, the fact that the activities carried out by the applicant sur place are in line with the convictions or orientations that he or she expressed in his or her country of origin is not simply a factor that helps to establish the applicant’s credibility for the purposes of determining whether there is a well-founded fear of persecution. Rather, it is an essential condition for the granting of refugee status, along with a new criterion based on the lawfulness of the activities. Based on those factors, it seems to me that the national provision in question therefore sets out a new condition for granting refugee status ‘sur place’ in the specific context that a subsequent application is filed.
70.      On this question, I would point out that, in exercising the option conferred on them in Article 5(3) of Directive 2011/95, Member States do implement EU law. Consequently, this implies that the Member States must, first of all, not exercise this option in a manner which would undermine the objective and the effectiveness of that directive. In accordance with recitals 12 and 25, the purpose of the directive is to ensure that all Member States apply common criteria for identifying persons genuinely in need of international protection and, in particular, for recognising needs arising sur place. Second, this requires that Member States apply the grounds for refusing refugee status laid down in this provision in a way that respects the fundamental rights enshrined in the Charter. (55) Recital 16 of Directive 2011/95 also states that that directive respects the fundamental rights and observes the principles recognised by the Charter. (56)
71.      However, there is nothing in Directive 2011/95 that requires, for the purposes of establishing a need for international protection that has arisen sur place, that the activities carried out by the applicant are activities permitted in the territory of the host Member State which, moreover, it is established are a continuation of the convictions or orientations he or she had in his or her country of origin. The lawfulness of those activities cannot be a condition for the granting of international protection. The Austrian legislature has therefore added a condition that is not provided for in Directive 2011/95 and does not make it possible to guarantee the uniformity of criteria sought by the EU legislature for the purposes of recognising the need for international protection arising sur place.
72.      Moreover, in a situation such as that at issue in the main proceedings, where the competent authority has established the applicant’s general credibility and has accepted not only the sincerity of his religious conversion, but also a well-founded fear of persecution in the event of his return to his country of origin, such a condition amounts to depriving the person concerned of refugee status solely on the ground that he converted after the final decision was adopted on his earlier application. This approach disregards the very purpose of subsequent applications, which by their very nature involve new facts or circumstances, and infringes the fundamental rights guaranteed by the Charter, in that it does not ensure effective respect for the freedom of religion enshrined in Article 10 of the Charter, which includes the right to change religion.
73.      On the basis of those factors, I consider that Article 5(3) of Directive 2011/95 must be interpreted as precluding legislation of a Member State under which a third-country national who files a subsequent application is not normally to be granted refugee status if the risk of persecution is based on circumstances which the third-country national has created by his or her own decision since leaving his or her country of origin, unless the activities in question are permitted in that Member State and it is established that those activities constitute the expression and continuation of convictions held in the country of origin.
V.      Conclusion
74.      In the light of all of the foregoing, I propose that the Court’s answer to the question referred for a preliminary ruling by the Verwaltungsgerichtshof (Supreme Administrative Court, Austria) should be as follows:
Article 5(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,
–        must be interpreted as meaning that a Member State may refuse to grant refugee status to a third-country national or stateless person who has made a subsequent application only after having established, with reasonable certainty, following a full examination of all the circumstances of the applicant’s individual situation, that that application is manifestly based on a risk of persecution that the applicant deliberately provoked following the adoption of the final decision on his or her previous application, by engaging in activities, committing acts or behaving in a manner that was or were insincere, with the sole aim of creating the conditions necessary to be considered a refugee.
–        It precludes legislation of a Member State under which a third-country national who files a subsequent application is not normally to be granted refugee status if the risk of persecution is based on circumstances which the third-country national has created by his or her own decision since leaving his or her country of origin, unless the activities in question are permitted in that Member State and it is established that those activities constitute the expression and continuation of convictions held in the country of origin.
1      Original language: French.
2      Directive 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      Signed in Geneva on 28 July 1951 (United Nations Treaty Series, Vol. 189, p. 150, No 2545 (1954)) and which entered into force on 22 April 1954.
4      Concluded in New York on 31 January 1967 and which entered into force on 4 October 1967.
5      BGBl. I, 100/2005.
6      BGBl. I, 24/2016, ‘the AsylG 2005’.
7      See judgment of 2 September 2021, CRCAM (C‑337/20, EU:C:2021:671, paragraph 31 and the case-law cited).
8      See judgments of 19 November 2020, Bundesamt für Migration und Flüchtlinge (Military service and asylum) (C‑238/19, EU:C:2020:945, paragraphs 19 and 20), and of 13 January 2021, Bundesrepublik Deutschland (Refugee status of a stateless person of Palestinian origin) (C‑507/19, EU:C:2021:3, paragraphs 38 and 39 and the case-law cited).
9      See recital 22 of Directive 2011/95.
10      Definition from the Larousse dictionary.
11      See judgment of 17 January 2023, Spain v Commission (C‑632/20 P, EU:C:2023:28, paragraph 40).
12      See the Larousse dictionary.
13      See La langue française online dictionary.
14      See, by analogy, judgment of 2 September 2021, CRCAM (C‑337/20, EU:C:2021:671, paragraph 35).
15      See judgment of 17 January 2023, Spain v Commission (C‑632/20 P, EU:C:2023:28, paragraph 42 and the case-law cited).
16      ‘The Charter’.
17      See recitals 3 and 4 of Directive 2011/95.
18      See recitals 3, 12, 23 and 24 of Directive 2011/95 (judgments of 14 May 2019, M and Others (Revocation of refugee status) (C‑391/16, C‑77/17 and C‑78/17, EU:C:2019:403, paragraphs 80, 81 and 83, and the case-law cited), and of 19 November 2020, Bundesamt für Migration und Flüchtlinge (Military service and asylum) (C‑238/19, EU:C:2020:945, paragraph 20)).
19      See judgment of 14 May 2019, M and Others (Revocation of refugee status) (C‑391/16, C‑77/17 and C‑78/17, EU:C:2019:403, paragraph 86).
20      This covers the rights laid down in Articles 3 (the principle of non-discrimination), 4 (the right to freedom of religion), 16 (the right to have access to courts), 22 (the right to education), 31 (the right to freedom from criminal penalties and restrictions for unauthorised entry or residence), 32 (prohibition of expulsion, except in special circumstances) and 33 (the principle of non-refoulement) of the Geneva Convention.
21      Directive 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).
22      See Articles 27, 28, 32 and 33 of Directive 2013/32.
23      This expression is also used in other language versions of Directive 2011/95, such as the German, English, Portuguese and Swedish versions.
24      Council Directive 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).
25      Proposal for a Council Directive on minimum standards for the qualification and status of third country nationals and stateless persons as refugees or as persons who otherwise need international protection (COM(2001) 0510 final) (‘the proposal for Directive 2004/83’).
26      Recital 25 of Directive 2011/95 states that ‘in particular, it is necessary to introduce common concepts of protection needs arising sur place …’.
27      See, on this point, Article 40(3) of Directive 2013/32.
28      See, on this point, Hathaway, J.C., and Foster, M., The law of refugee status, 2nd ed., Cambridge University Press, Cambridge, 2014, p. 75.
29      See, on that point, Joint Position 96/196/JHA of 4 March 1996 defined by the Council on the basis of Article K.3 of the Treaty on European Union on the harmonised application of the definition of the term ‘refugee’ in Article 1 of the Geneva Convention of 28 July 1951 relating to the status of refugees (OJ 1996 L 63, p. 2) (point 9.2).
30      See, in that regard, UNHCR Comments on the European Commission’s proposal for a Directive of the European Parliament and of the Council on minimum standards for the qualification and status of third country nationals or stateless persons as beneficiaries of international protection and the content of the protection granted (COM(2009) 551), 21 October 2009). The UNHCR notes that ‘even where it cannot be established that the applicant has already held the relevant convictions or orientations in the country of origin, the asylum-seeker is entitled to freedom of expression, freedom of religion and freedom of association, within the limits defined in Article 2 of the [Geneva Convention] and other human rights instruments. Such freedoms include the right to change one’s religion or convictions, which could occur subsequent to departure, e.g. due to disaffection with the religion or policies of the country of origin, or greater awareness of the impact of certain policies’ (p. 15 and 16).
31      See, on this point, Dörig, H., ‘Article 5, International protection needs arising sur place’, in Hailbronner, K., and Thym, D., EU Immigration and Asylum Law: A Commentary,
2nd ed., C.H. Beck, Munich, 2016, pp. 1142 to 1147, and especially p. 1144, which describes the relationship between Article 5(2) of Directive 2011/95 and Article 4(3)(d) of that directive.
32      See judgment of the ECtHR of 23 March 2016, F.G. v. Sweden (CE:ECHR:2016:0323JUD004361111, § 123).
33      See, on this point, the comments from the UNHCR cited in footnote 30 to the present Opinion, and UNHCR, Amicus curiae of the [UNHCR] on the interpretation and application of ‘sur place’ claims within the meaning of Article 1A(2) of the 1951 Convention relating to the Status of Refugees, 14 February 2017 (paragraphs 25 to 29).
34      Emphasis added.
35      In its proposal for Directive 2004/83, the Commission already emphasised that the fact of the applicant having ‘manufactured’ a fear of being persecuted or of suffering serious harm does not, in itself, necessarily mean that such a fear cannot be well founded.
36      See European Asylum Support Office (EASO) [which was replaced by the EUAA by Regulation (EU) 2021/2303 of the European Parliament and of the Council of 15 December 2021 on the European Union Agency for Asylum and repealing Regulation (EU) No 439/2010 (OJ 2021 L 468, p. 1)], Qualification for international protection, Judicial analysis, second edition, January 2023
(paragraph 1.10.3, relating to Article 5(2) of Directive 2011/95).
37      See Guidelines on International Protection No 6: Religion-Based Refugee Claims under Article 1A(2) of the 1951 Convention and/or the 1967 Protocol relating to the Status of Refugees of 28 April 2004 (‘the Guidelines on religion-based refugee claims’), (paragraph 35).
38      The European Court of Human Rights has ruled on numerous occasions on the risk of persecution and the death penalty faced by third-country nationals in their countries of origin because of their religious conversions. It has stated the principle that the competent authorities must assess whether the applicant’s conversion is genuine and has attained ‘a certain level of cogency, seriousness, cohesion and importance’ before assessing whether the applicant would be at risk of treatment contrary to Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950. According to that Court, the competent authority must also make an individual assessment of whether a foreign national has plausibly demonstrated that his or her conviction sur place is genuine in the sense that it is based on ‘genuine personal religious conviction’. See, on this point, judgments of the ECtHR of 23 March 2016, F.G v. Sweden (CE:ECHR:2016:0323JUD004361111, §§ 144 and 145), and of 5 November 2019, A.A. v. Switzerland (CE:ECHR:2019:1105JUD003221817, §§ 49 and 51).
39      See judgment of 2 March 2010, Salahadin Abdulla and Others (C‑175/08, C‑176/08, C‑178/08 and C‑179/08, EU:C:2010:105, paragraph 90).
40      See, on this point, the judicial analysis from the EUAA cited in footnote 36 to this Opinion (paragraph 1.10.3).
41      In its guidelines on religion-based refugee claims, the UNHCR emphasises that ‘self-serving’ activities do not create a well-founded fear of persecution on a Geneva Convention ground in the claimant’s country of origin, if the opportunistic nature of such activities will be apparent to all, including the authorities there, and serious adverse consequences would not result if the person were returned (paragraph 36).
42      See judgment of 12 January 2023, Migracijos departamentas (Reasons for persecution on the ground of political opinions) (C‑280/21, EU:C:2023:13, paragraph 23).
43      See judgment of 14 May 2019, M and Others (Revocation of refugee status) (C‑391/16, C‑77/17 and C‑78/17, EU:C:2019:403, paragraph 89 and the case-law cited).
44      See judgment of 14 May 2019, M and Others (Revocation of refugee status) (C‑391/16, C‑77/17 and C‑78/17, EU:C:2019:403, paragraph 99).
45      The EUAA, in its judicial analysis cited in footnote 36 to this Opinion (paragraph 1.10.3), and the UNHCR, in its Guidelines on religion-based refugee claims (paragraph 36), refer to a clearly opportunistic action on the part of the applicant.
46      This is the expression used by the Commission in its comments on the articles of the proposal for Directive 2004/83.
47      In its Guidelines on religion-based refugee claims, the UNHCR states that ‘in the event that the claim is found to be self-serving but the claimant nonetheless has a well-founded fear of persecution on return, international protection is required. Where the opportunistic nature of the action is clearly apparent, however, this could weigh heavily in the balance when considering potential durable solutions that may be available in such cases’ (paragraph 36).
48      See, in relation to Article 12(2)(b) and (c) of Directive 2011/95, judgment of 13 September 2018, Ahmed (C‑369/17, EU:C:2018:713, paragraph 48 and the case-law cited), and, in relation to Article 14(4)(a) and Article 17(1)(d) of that directive, judgment of 22 September 2022, Országos Idegenrendészeti Főigazgatóság and Others (C‑159/21, EU:C:2022:708, paragraph 72 and the case-law cited).
49      See judgment of 22 September 2022, Országos Idegenrendészeti Főigazgatóság and Others (C 159/21, EU:C:2022:708, paragraph 73).
50      See judgment of 13 September 2018, Ahmed (C‑369/17, EU:C:2018:713, paragraph 49 and the case-law cited).
51      Emphasis added.
52      See judgments of 13 September 2018, Ahmed (C‑369/17, EU:C:2018:713, paragraph 37), and of 14 May 2019, M and Others (Revocation of refugee status) (C‑391/16, C‑77/17 and C‑78/17, EU:C:2019:403, paragraph 79).
53      See, to that effect, judgment of 13 September 2018 Ahmed (C‑369/17, EU:C:2018:713, paragraph 51 and the case-law cited).
54      See point 24 of this Opinion.
55      See, by analogy, judgment of 12 December 2019, Bevándorlási és Menekültügyi Hivatal (Family reunification – Sister of a refugee) (C‑519/18, EU:C:2019:1070, paragraphs 61 to 64).
56      That recital also states that this directive seeks not only to ensure full respect for human dignity and the right to asylum of applicants for asylum and their accompanying family members, but also to promote the application of Articles 1, 7, 11, 14, 15, 16, 18, 21, 24, 34 and 35 of that Charter, and should therefore be implemented accordingly.