OPINION OF ADVOCATE GENERAL

BOT

delivered on 24 January 2019 ( )

Case C‑720/17

Mohammed Bilali

v

Bundesamt für Fremdenwesen und Asyl

(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 qualification of third-country nationals or stateless persons as beneficiaries of international protection — Subsidiary protection — Article 19 — Revocation of subsidiary protection status — Scope of the grounds — National legislation providing for subsidiary protection status to be revoked on account of an error on the part of the administrative authorities with respect to the facts — Whether permissible — Annulment of the act granting subsidiary protection status — Procedural autonomy of the Member States — Principles of equivalence and effectiveness)





I. Introduction

1. May a competent national authority rely on the provisions of Article 19 of Directive 2011/95/EU ( ) in order to revoke the subsidiary protection status granted to a stateless person on account of an erroneous assessment of the need for international protection for which that authority alone is responsible?

2. That, in essence, is the purport of the question referred for a preliminary ruling by the Verwaltungsgerichtshof (Supreme Administrative Court, Austria).

3. The question arises in the context of proceedings between Mr Mohammed Bilali, who is by his own account stateless, and the Bundesamt für Fremdenwesen und Asyl (Federal Office for Immigration and Asylum, Austria) (‘the Office’) concerning the decision adopted by the latter to revoke, of its own motion, the subsidiary protection status which had been conferred on Mr Bilali on account of an incorrect determination of his country of origin.

4. This is a question which has not been raised before and the Court’s answer will put an end to a nebulousness in national practices which is brought into sharp relief by the most recent report published by the European Asylum Support Office. ( ) ( )

5. The examination of the question referred will call, first, for an analysis of the meaning and scope of the provisions of Article 19 of Directive 2011/95, which contains an exhaustive list of the grounds on which the Member States have the option or the obligation to revoke subsidiary protection status. Following that examination, I shall conclude that that article precludes the revocation of that status in a situation such as that at issue, where, on account of an error on the part of the competent national authority, the applicant was wrongly afforded that protection.

6. The examination of the question referred will call, secondly, for clarification of the purpose and nature of the decision which the competent national authority must adopt in those circumstances.

7. In that regard, I shall explain that, in a situation such as that at issue, in which the decision granting subsidiary protection status was adopted in breach of rules of law and, in particular, the required eligibility criteria, and in which that breach had a decisive impact on the outcome of the examination of the application for international protection, subsidiary protection status must be cancelled. This approach, after all, has the twofold advantage of not necessitating an extensive interpretation of the very strict provisions of the Convention relating to the Status of Refugees, signed in Geneva on 28 July 1951, as supplemented by the Protocol relating to the Status of Refugees of 31 January 1967, ( ) while at the same time ensuring optimum observance of procedural guarantees and full respect for the fairness owed to a person who bears no responsibility for the error made by the administrative authorities. It is also required in order to guarantee the integrity of the common European asylum system, since any incorrect recognition must be corrected in order to ensure that international protection is granted only to those genuinely in need of it.

8. Since EU law does not contain any specific provision on the procedural rules and regulations applicable to cancellation of subsidiary protection status on account of errors made by the administrative authorities, I shall explain that those rules are, in accordance with the principle of the procedural autonomy of the Member States, to be determined by the national legal order, subject, nonetheless, to compliance with the principles of equivalence and effectiveness.

II. Legal framework

A. EU law

1. Directive 2011/95

9. The provisions of Chapter V of Directive 2011/95, entitled ‘Qualification for subsidiary protection’, as well as those laid down in Chapter VI thereof, entitled ‘Subsidiary protection status’, are formulated in such a way as to guarantee that only persons who satisfy the substantive conditions specifically prescribed qualify for international protection status and the rights associated with it.

10. Chapter V of Directive 2011/95 contains Articles 15 to 17. While Article 15 of that directive defines ‘serious harm’, Article 16 contains a so-called ‘cessation’ clause, which provides:

‘1. A third-country national or a stateless person shall cease to be eligible for subsidiary protection when the circumstances which led to the granting of subsidiary protection status have ceased to exist or have changed to such a degree that protection is no longer required.

2. In applying paragraph 1, Member States shall have regard to whether the change in circumstances is of such a significant and non-temporary nature that the person eligible for subsidiary protection no longer faces a real risk of serious harm.

…’

11. Article 17 of Directive 2011/95 contains an ‘exclusion’ clause. That article is worded as follows:

‘1. A third-country national or a stateless person is excluded from being eligible for subsidiary protection where there are serious reasons for considering that:

(a) he or she has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

(b) he or she has committed a serious crime;

(c) he or she has been guilty of acts contrary to the purposes and principles of the United Nations as set out in the Preamble and Articles 1 and 2 of the Charter of the United Nations;

(d) he or she constitutes a danger to the community or to the security of the Member State in which he or she is present.

2. Paragraph 1 applies to persons who incite or otherwise participate in the commission of the crimes or acts mentioned therein.

3. Member States may exclude a third-country national or a stateless person from being eligible for subsidiary protection if he or she, prior to his or her admission to the Member State concerned, has committed one or more crimes outside the scope of paragraph 1 which would be punishable by imprisonment, had they been committed in the Member State concerned, and if he or she left his or her country of origin solely in order to avoid sanctions resulting from those crimes.’

12. In Chapter VI of that directive, Article 18 sets out the conditions for the ‘granting of subsidiary protection status’. It states:

‘Member States shall grant subsidiary protection status to a third-country national or a stateless person eligible for subsidiary protection in accordance with Chapters II and V.’

13. By contrast, Article 19 of Directive 2011/95, the interpretation of which is requested in the present case, lays down the conditions under which the Member States must revoke, end or refuse to renew that status. It is worded as follows:

‘1. Concerning applications for international protection filed after the entry into force of Directive 2004/83/EC, [( )] Member States shall revoke, end or refuse to renew the subsidiary protection status of a third-country national or a stateless person granted by a governmental, administrative, judicial or quasi-judicial body if he or she has ceased to be eligible for subsidiary protection in accordance with Article 16.

2. Member States may revoke, end or refuse to renew the subsidiary protection status of a third-country national or a stateless person granted by a governmental, administrative, judicial or quasi-judicial body, if after having been granted subsidiary protection status, he or she should have been excluded from being eligible for subsidiary protection in accordance with Article 17(3).

3. Member States shall revoke, end or refuse to renew the subsidiary protection status of a third-country national or a stateless person, if:

(a) he or she, after having been granted subsidiary protection status, should have been or is excluded from being eligible for subsidiary protection in accordance with Article 17(1) and (2);

(b) his or her misrepresentation or omission of facts, including the use of false documents, was decisive for the granting of subsidiary protection status.

4. Without prejudice to the duty of the third-country national or stateless person in accordance with Article 4(1) to disclose all relevant facts and provide all relevant documentation at his or her disposal, the Member State which has granted the subsidiary protection status shall, on an individual basis, demonstrate that the person concerned has ceased to be or is not eligible for subsidiary protection in accordance with paragraphs 1, 2 and 3 of this Article.’

2. Directive 2013/32/EU

14. Article 1 of Directive 2013/32/EU ( ) lays down the rules governing common procedures applicable to the grant and withdrawal of international protection in accordance with Directive 2011/95.

15. Article 2(o) of Directive 2013/32 provides:

‘For the purposes of this Directive:

…

(o) “withdrawal of international protection” means the decision by a competent authority to revoke, end or refuse to renew the refugee or subsidiary protection status of a person in accordance with Directive [2011/95].’

16. In Chapter IV, entitled ‘Procedures for the withdrawal of international protection’, Article 44 of Directive 2013/32 is worded as follows:

‘Member States shall ensure that an examination to withdraw international protection from a particular person may commence when new elements or findings arise indicating that there are reasons to reconsider the validity of his or her international protection.’

17. Article 45 of that directive sets out the guarantees enjoyed by the person concerned where the competent national authority is considering withdrawing, in accordance with Articles 14 and 19 of Directive 2011/95, the international protection which has been conferred on him.

B. Austrian law

18. Paragraph 8 of the Bundesgesetz über die Gewährung von Asyl (Federal Law concerning the granting of asylum) ( ) of 16 August 2005 provides:

‘(1) Subsidiary protection status shall be granted to a foreign national:

1. who has filed an application for international protection in Austria, if that application is refused in relation to the granting of asylum status …

…

(6) If the asylum seeker’s country of origin cannot be established, the application for international protection shall be refused in relation to subsidiary protection status. In that event, a return decision shall be adopted, where this is not impermissible under Paragraph 9(1) and (2) [of the Bundesgesetz, mit dem die allgemeinen Bestimmungen über das Verfahren vor dem Bundesamt für Fremdenwesen und Asyl zur Gewährung von internationalem Schutz, Erteilung von Aufenthaltstiteln aus berücksichtigungswürdigen Gründen, Abschiebung, Duldung und zur Erlassung von aufenthaltsbeendenden Maßnahmen sowie zur Ausstellung von österreichischen Dokumenten für Fremde geregelt werden (Procedural law on the Office) ( ) of 16 August 2012].

…’

19. Paragraph 9 of the AsylG 2005 provides:

‘(1) The subsidiary protection status of a foreign national shall be revoked of [the competent authority’s] own motion by administrative decision if

1. the conditions for the granting of subsidiary protection status (Paragraph 8(1)) are not met or are no longer met;

…

(2) If the subsidiary protection status is not to be revoked for the reasons set out in subparagraph (1) alone, then revocation shall also take place if

1. any of the reasons specified in Article 1(F) of the [Geneva Convention] applies;

2. the foreign national constitutes a danger to society or to the security of the Republic of Austria; or

3. the foreign national has been convicted of a crime by a final judgment of a domestic court …

…’

III. The facts of the dispute in the main proceedings and the question referred for a preliminary ruling

20. Mr Bilali, who is by his own account stateless, filed an application for international protection with the Office on 27 October 2009.

21. On the basis that his country of origin was Algeria, the Office refused that application by decision of 15 March 2010 and ordered his removal to that country. By judgment of 8 April 2010, the Asylgerichtshof (Asylum Court, Austria) annulled the decision refusing the application for international protection and referred the case back to the Office for reconsideration.

22. By decision of 27 October 2010, the Office refused Mr Bilali’s application for refugee status, but nonetheless granted him subsidiary protection status. It appears from that decision that his identity had not been established and that he was ‘probably an Algerian national’.

23. Mr Bilali brought an action against the decision refusing his application for refugee status. In the meantime, the decision granting him subsidiary protection status became final.

24. By judgment of 16 July 2012, the Asylgerichtshof (Asylum Court) once again annulled the decision refusing his application for refugee status, on the ground, in particular, that the determination of his country of origin was based only on assumptions. It again referred the case back to the Office for reconsideration.

25. In the course of its reconsideration, the Office concluded, in the light of the responses provided by the Staatendokumentation (Country of Origin Information Unit, Austria), that Mr Bilali was able to claim not Algerian nationality but, by reason of his parentage, Moroccan and Mauritanian nationality.

26. Consequently, by decision of 24 October 2012, ( ) the Office refused Mr Bilali’s application for refugee status. In addition, after finding that ‘the conditions for the granting of subsidiary protection had never been met’ and were based ‘on the incorrect assumption’ that Mr Bilali’s country of origin was Algeria, the Office, of its own motion, revoked the subsidiary protection status granted on 27 October 2010 and withdrew from Mr Bilali the temporary right of residence which had been granted to him by virtue of that status. Finally, the Office refused the application for subsidiary protection status made by Mr Bilali on the basis that Morocco is his country of origin and ordered his removal to that country.

27. Mr Bilali brought before the Bundesverwaltungsgericht (Federal Administrative Court, Austria) an action which culminated only in the annulment of the decision ordering his removal.

28. It was in those circumstances that Mr Bilali lodged an extraordinary appeal on a point of law (Revision) before the Verwaltungsgerichtshof (Supreme Administrative Court).

29. That court has doubts about the interpretation of Article 19 of Directive 2011/95, which sets out the situations in which subsidiary protection status may be revoked.

30. The Verwaltungsgerichtshof (Supreme Administrative Court) therefore decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Do the provisions of EU law, in particular Article 19(3) of Directive 2011/95, preclude a national provision of a Member State … pursuant to which subsidiary protection status may be revoked without a change in the factual circumstances themselves which are relevant for the purpose of granting that status, but rather only where the state of knowledge of the authority in this regard has undergone a change, and, in that context, without either a misrepresentation or an omission of facts on the part of the third-country national or stateless person having been a determinant factor in the granting of [that] status?’

31. Written observations have been lodged by the appellant on a point of law, the Austrian, Hungarian, Netherlands, Polish and United Kingdom Governments and the European Commission.

IV. Preliminary observations

32. Before turning to examine the question that the referring court has addressed to the Court of Justice, it is vital that we clarify its wording and, in particular, spell out the legal provisions referred to and the ground on which the contested decision is based. That ground, after all, has consequences for the nature of that decision and the applicability of Directive 2011/95.

33. In the first place, as regards the legal provisions the interpretation of which is requested in the present case, the referring court asks the Court of Justice about the basis on which Member States may revoke subsidiary protection status in the light of the ‘provisions of EU law’ and, in particular, Article 19(3) of Directive 2011/95. Given the wording of the order for reference, I understand the Verwaltungsgerichtshof (Supreme Administrative Court) to be referring more specifically to the provisions contained in Article 19(3)(b) of that directive, which provides for the revocation of subsidiary protection status on account of fraudulent conduct on the part of the person concerned. In that regard, the referring court considers that the situation envisaged in that provision does not, on the face of it, encompass circumstances in which subsidiary protection status is revoked on the basis of the acquisition of new results of investigations but in the absence of any fraud committed by the person concerned.

34. In addition, it is apparent from reading the order for reference that the referring court’s other and paramount concern is to obtain an interpretation of Article 19(1) of Directive 2011/95, which provides for the revocation of that status as a result of the implementation of the cessation clause laid down in Article 16 of that directive. It thus asks whether the situation contemplated in Article 19(1) of that directive is capable of encompassing circumstances in which the person concerned ceases to be eligible for subsidiary protection on account of a ‘changed state of knowledge on the part of the authority as to the factual circumstances’.

35. In the second place, as regards the ground on which the contested decision is based, while it follows from the wording of the question referred that the status conferred on the person concerned was revoked on account of a change in the Office’s ‘state of knowledge’, it is in fact abundantly clear from the order for reference and the documents in the national case file before the Court that that change is the result not of new elements or facts but of more extensive investigative measures taken by the Office in order to remedy the inadequacies of its first examination and to correct its ‘error’ and the ‘incorrect assumption’ with respect to Mr Bilali’s country of origin. ( )

36. It thus follows from the order for reference that the Office was unsuccessful in establishing Mr Bilali’s correct nationality on account of the inadequate or inappropriate investigations it carried out, the facts not, therefore, having come to light until after the contested decision had been adopted. As the referring court notes, ‘the conditions for the granting of subsidiary protection had never been met’. ( ) It is therefore common ground in the present case that the Office should not have granted subsidiary protection status to Mr Bilali at the outset of the procedure, since, on the basis of his country of origin, he was not eligible for such international protection.

37. Consequently, in the light of the foregoing, I consider that the referring court’s question to the Court seeks, in essence, to determine whether EU law and, in particular, Article 19(1) and (3)(b) of Directive 2011/95 is to be interpreted as meaning that a Member State may revoke subsidiary protection status where the competent national authority has made an error, for which it alone is responsible, as to the circumstances on account of which that protection was granted.

V. Analysis

38. The answer to the question referred falls, to my mind, into two parts. In the first place, it is important to set out the reasons why Article 19 of Directive 2011/95 — account being taken of the meaning and scope of that article — precludes the revocation of subsidiary protection status on account of an error of assessment by the competent national authority with respect to the circumstances on account of which that protection was granted. In the second place, it is necessary to examine the nature of the decision to be adopted in a situation such as that at issue and the legal regime applicable to it.

A. The scope of the revocation procedure laid down in Article 19 of Directive 2011/95

39. The Common European Asylum System is based on a comprehensive body of rules harmonised at EU level. In accordance with Article 78(1) TFEU and Article 18 of the Charter of Fundamental Rights of the European Union, that system 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. ( )

40. The purpose of Directive 2011/95 is thus to guide the competent national authorities in the application of that convention on the basis of common concepts and criteria for the granting and withdrawal of international protection. ( )

41. In accordance with settled case-law, the provisions of Directive 2011/95 must therefore be interpreted not only in the light of the general scheme and purpose of that directive, but also in a manner consistent with the Geneva Convention, ( ) the consultations with the United Nations High Commissioner for Refugees ( ) being a source of valuable guidance in this regard. ( )

42. The rules for the withdrawal of international protection laid down within the framework of the Common European Asylum System are thus based first and foremost on the principles set out in the Geneva Convention with respect to the cessation of and exclusion from eligibility for international protection. Since the Geneva Convention does not establish procedural mechanisms for the withdrawal of that protection, those rules are based, secondly, on procedures the nature of which is specified in Articles 14 and 19 of Directive 2011/95 and the details of which are set out in Articles 44 and 45 of Directive 2013/32.

1. The grounds for withdrawing international protection

43. Article 19 of Directive 2011/95 establishes the procedural mechanisms for ensuring the withdrawal of subsidiary protection status in a manner consistent with the Geneva Convention. ( ) That article thus contains an exhaustive list of the grounds on which the Member States have the option or the obligation to revoke, end or refuse to renew that status.

44. Those grounds flow, first, from the cessation clauses set out in Article 1(C) of the Geneva Convention and, secondly, from the exclusion clauses referred to in Article 1(D) to (F) of that convention.

45. According to the UNHCR handbook, those clauses are exhaustively enumerated and are to be interpreted restrictively, since the cessation and exclusion of the status of beneficiary of international protection terminates that protection and the rights associated with it. Thus, with the exception of those explicitly referred to in Article 1(C) to (F) of the Geneva Convention, no other clause may be invoked as a justification for the fact that international protection is no longer required. ( )

46. The EU legislature transposed those clauses into EU law in Articles 11 and 12 of Directive 2011/95, which, respectively, set out the grounds for the cessation of and exclusion from refugee status.

47. In so far as EU law provides for a subsidiary form of international protection, the EU legislature, in Articles 16 and 17 of Directive 2011/95, also set out grounds for the cessation of and exclusion from subsidiary protection status, which are modelled on the grounds referred to in Article 11(1)(e) and (f), and (2), and Article 12(2) and (3) of that directive.

48. Since the EU legislature seeks to ensure consistency and uniformity as between the two forms of international protection, ( ) any interpretation of the grounds on which the withdrawal of subsidiary protection is based must also be carried out in the light of the Geneva Convention. The grounds on which a Member State may or must withdraw that status must therefore be interpreted restrictively, in accordance with that convention.

49. Now, as we shall see, none of the grounds listed by the EU legislature in Article 19 of Directive 2011/95 empowers a Member State to withdraw international protection status for a reason other than those expressly and exhaustively mentioned by the legislature in that provision, including, in particular, in the event of an error for which its administration is alone responsible.

50. In the first place, pursuant to Article 19(1) of Directive 2011/95, subsidiary protection status may be revoked where the person concerned ceases to be eligible for international protection within the meaning of Article 16 of that directive.

51. It should be recalled that Article 16(1) of that directive provides:

‘A third-country national or a stateless person shall cease to be eligible for subsidiary protection when the circumstances which led to the granting of subsidiary protection status have ceased to exist or have changed to such a degree that protection is no longer required.’

52. That provision incorporates into EU law the fifth and sixth cessation clauses laid down in Article 1(C) of the Geneva Convention.

53. Moreover, Article 16(2) of Directive 2011/95 states that, ‘in applying paragraph 1, Member States shall have regard to whether the change in circumstances is of such a significant and non-temporary nature that the person eligible for subsidiary protection no longer faces a real risk of serious harm’.

54. In the present case, the referring court adopts a broad interpretation of the concept of ‘circumstances’, since it takes the view that the situation provided for in Article 19(1) of that directive is capable of covering a case in which the person concerned ceases to be eligible for subsidiary protection by reason of a ‘changed state of knowledge on the part of the authority as to the factual circumstances’.

55. That interpretation must be rejected at the outset, in so far as it is contrary to the very strict interpretation of the cessation clauses set out in Article 1(C) of the Geneva Convention.

56. As the UNHCR expressly noted in his handbook, ( ) ‘the cessation clauses are negative in character and are exhaustively enumerated. They should therefore be interpreted restrictively, and no other reasons may be adduced by way of analogy to justify the withdrawal of refugee status.’ ( ) The UNHCR adds that, in cases where it subsequently emerges that a person should never have been recognised as a refugee, if it subsequently appears that that status was granted on the basis of a misinterpretation of the facts or that the person concerned possesses another nationality, refugee status should be declared not to have ceased but to be cancelled. ( )

57. The interpretation proposed by the national court fails to take into account not only the extremely precise meaning of the term ‘circumstances’, as it is used in the cessation clause, but also the scheme and purpose of the legislation of which that term forms part.

58. The ‘circumstances’ referred to are those on the basis of which the competent national authority granted subsidiary protection status, in accordance with Article 2(f) of Directive 2011/95. ( ) These are the objective circumstances obtaining in the country of origin of the person concerned which support the view that there would be a real risk of serious harm if that person were returned to that country.

59. Those circumstances therefore have a decisive bearing on the granting of subsidiary protection because they demonstrate the inability of the applicant’s country of origin to protect him against harm and are the foundation for his fears. ( ) By the same token, a change in those circumstances has a decisive bearing on the cessation of that protection. ( )

60. Consequently, like Article 1(C)(5) and (6) of the Geneva Convention, Article 16 of Directive 2011/95, with a view to safeguarding the integrity of the international protection regime, provides that subsidiary protection is to cease when the circumstances which led to the granting of subsidiary protection status have ‘ceased to exist’ or ‘have changed’ to such a degree that the grounds on which that status was recognised have been remedied. The EU legislature thus requires that that change should be ‘of such a significant and non-temporary nature’ as to ensure that any status granted is not constantly being called into question because of fleeting changes in the situation prevailing in the country of origin of the person concerned, in order in this way to guarantee the stability of that person’s situation.

61. It is clear from the foregoing that cessation of the status of beneficiary of subsidiary protection can apply only to persons whose status was legitimately conferred by reason of the circumstances in their country of origin but who, for objective reasons relating to changes in those circumstances, now no longer require international protection. Cessation of subsidiary protection is not, therefore, intended to correct errors on the part of the administrative authorities and clearly cannot be dependent on such a subjective and changeable criterion as the state of knowledge of the competent national authority in relation to those circumstances.

62. In the light of those considerations, I am of the opinion that the ground for revocation provided for in Article 19(1) of Directive 2011/95 does not empower the competent national authority to revoke subsidiary protection status in a situation, such as that at issue in the main proceedings, where that authority made an error in determining the country of origin of the person concerned for which it alone is responsible.

63. In the second place, in accordance with Article 19(2) and (3)(a) of Directive 2011/95, subsidiary protection status may be revoked where, although the person concerned meets the conditions of eligibility for that protection, he is nevertheless excluded on account of the danger he constitutes to the community or to the security of the Member State or by reason of the particularly serious acts he is believed to have committed or participated in, as referred to in Article 17 of that directive (the exclusion clause).

64. That provision incorporates into EU law Article 1(F) of the Geneva Convention.

65. It is clear that, in the absence of any criminal behaviour on the part of Mr Bilali or any threat which he might pose to Austria, there is no point in examining this provision.

66. In the third place, and finally, subsidiary protection status may be revoked on account of fraudulent behaviour on the part of the beneficiary.

67. Thus, in accordance with Article 19(3)(b) of Directive 2011/95, to which the referring court expressly refers, Member States are required to revoke subsidiary protection status if, as a result of misrepresentation or omission of facts of which the person concerned is guilty, that status was wrongly granted by the competent national authority.

68. Given that the ground on which the revocation provided for in that provision does not apply in this case, Mr Bilali having neither misrepresented nor omitted the facts pertaining to him, it is clear that the terms of that provision do not allow for his status to be revoked.

69. It must be concluded, therefore, that, as with the grounds set out in Article 1(D) to (F) of the Geneva Convention, none of the grounds for revocation expressly and exhaustively listed in Article 19 of Directive 2011/95 empowers the competent national authority to revoke the subsidiary protection status conferred on Mr Bilali as a result of an error in the determination of his country of origin for which that authority alone is responsible.

2. The procedural mechanisms for the withdrawal of international protection

70. The purpose of Article 19 of Directive 2011/95, as we have seen, is to establish the procedural mechanisms for withdrawing subsidiary protection status in a manner consistent with the rules of the Geneva Convention. That article thus contains an exhaustive list of the grounds on which the Member States have the option or the obligation to revoke, end or not to renew that status, the applicable procedural rules being set out in Articles 44 and 45 of Directive 2013/32.

71. It is very clear from the wording of Article 19 of Directive 2011/95 and from the nature of the decisions to which the EU legislature refers that these concern the treatment of persons whose status has been legitimately conferred but who, on account of changes in their country of origin (cessation clause) or by reason of their own conduct (exclusion clause), no longer qualify for that protection. The decisions to which the EU legislature refers in Article 19 of Directive 2011/95 are not therefore intended to govern the situation of persons who should not have been granted international protection because, for example, their need for it was incorrectly determined. On the face of it, a situation such as that at issue is not, therefore, caught by the provisions of Article 19 of the directive.

72. Nor, moreover, is that permitted by the procedural provisions relating to the ‘withdrawal of international protection’ laid down in Chapter IV of Directive 2013/32.

73. I would recall that Article 44 of that directive states that Member States ‘shall ensure that an examination to withdraw international protection from a particular person may commence when new elements or findings arise indicating that there are reasons to reconsider the validity of his or her international protection’.

74. While it is true that the EU legislature uses a legal term here (‘withdrawal’) that differs from those used in Articles 14 and 19 of Directive 2011/95 and that it refers, very broadly, to the emergence of ‘new elements or findings’, it is clear that the concept of ‘withdrawal of international protection’ is defined in Article 2(o) of Directive 2013/32 as referring to the ‘decision by a competent authority to revoke, end or refuse to renew the refugee or subsidiary protection status of a person in accordance with [Directive 2011/95]’.

75. This is expressly confirmed by the reference made in Article 45(1) and Article 46(1)(c) of Directive 2013/32.

76. In the light of the foregoing, I am able to conclude that the only situations in which the EU legislature intended to permit the Member States to revoke or withdraw subsidiary protection status are those referred to in Article 19 of Directive 2011/95.

77. That provision therefore precludes national legislation, such as that at issue in the main proceedings, which allows the competent national authority to revoke that status on a ground other than those expressly and exhaustively set out by the EU legislature in that provision.

78. In the light of all those considerations, I therefore propose that the Court rule that Article 19 of Directive 2011/95 must be interpreted as precluding national legislation, such as that at issue in the main proceedings, under which a Member State may revoke subsidiary protection status where the competent national authority has made an error, for which it alone is responsible, as to the circumstances on account of which that protection was granted.

B. Applicable rules of law

79. Having in mind the need to provide the referring court with all the information necessary to enable it to dispose of the dispute before it, I am of the opinion that the examination of the question referred calls for clarification of the purpose and nature of the decision which the competent national authority must adopt where, on account of an error of assessment for which it is responsible, the person concerned was wrongly granted subsidiary protection status. The legal regime applicable to that decision depends, after all, on its legal classification.

80. In the present case, the Office revoked that status of its own motion, pursuant to Paragraph 9(1)(1) of the AsylG 2005.

81. It is common ground that the Office should not have granted subsidiary protection status to Mr Bilali at the outset of the procedure. It is thus clear from the order for reference that the Office did not succeed in correctly establishing Mr Bilali’s country of origin because it did not carry out the appropriate investigations and made an ‘incorrect assumption’ as a result of which ‘the conditions for the granting of subsidiary protection had never been met’. ( )

82. In circumstances such as those at issue, in which the decision granting subsidiary protection status was adopted in breach of the relevant rules of law and, in particular, the eligibility criteria laid down in Chapters II and V of Directive 2011/95, and in which that breach had a decisive impact on the outcome of the examination of the application for international protection, the subsidiary protection status must, in my view, be cancelled.

83. This approach has the advantage of not calling for an extensive interpretation of the very strict provisions of the Geneva Convention and of not thereby making it necessary to contort the wording and purpose of Article 19 of Directive 2011/95, and at the same time ensures optimum procedural guarantees and full respect for the fairness owed to a person who bears no responsibility for the error made by the administrative authorities.

84. This approach is also necessary in order to protect the integrity of the common European asylum system, since any incorrect recognition must be corrected in order to ensure that international protection is granted only to those genuinely in need of it. It should be noted in this regard that, in a situation where the status is granted incorrectly on account of an error of law or fact by the body which investigated the matter, the UNHCR recommends that the act recognising that status be annulled or invalidated in a procedure that respects the general principles of law. While the Geneva Convention does not explicitly provide for annulment or invalidation, the UNHCR considers that these steps are nevertheless fully in line with the objective and purpose of that convention and that they are required in order to preserve the integrity of the definition of refugee. ( )

85. That cancellation procedure is particularly necessary in the present case, given that the assumptions on which the competent national authority relied affected the entire procedure for examining the application for international protection, that is to say, not only the legality of the decision refusing refugee status but also the legality of the decision granting subsidiary protection status. It must after all be borne in mind that Article 10(2) of Directive 2013/32 establishes a single procedure by which the competent national authority examines an application in the light of both forms of international protection, first from the point of view of the conditions laid down for obtaining refugee status, and then from the point of view of the conditions laid down for granting subsidiary protection, the determination of the applicant’s country of origin being, moreover, a point of reference common to both forms of international protection. ( )

86. In the course of the action before it, furthermore, the Asylgerichtshof (Asylum Court) annulled the decision by which the Office refused to grant refugee status to Mr Bilali on account of the very assumptions on the basis of which the Office had carried out its examination.

87. In such circumstances, where the entire procedure for examining the application for international protection was flawed and where the beneficiary was ultimately not eligible for subsidiary protection, it would have been fairer, in my view, to annul the decision granting that status.

88. EU law does not contain any specific provision on the procedural rules and regulations applicable to the cancellation of subsidiary protection status on account of errors made by the administrative authorities.

89. Consequently, in the absence of any express provisions of EU law, those rules are, in accordance with the principle of the procedural autonomy of the Member States, to be determined by the national legal order, in particular its administrative law provisions. A case such as that at issue therefore falls under the heading of traditional litigation relating to the annulment of an act creating rights by reason of an error on the part of the administrative authorities.

90. This is nonetheless a special act since it confers under EU law a form of international protection associated with which are rights of residence and family reunification that also fall within the scope of EU law.

91. This reference to the procedural autonomy of the Member States must therefore be tempered by the obligation to respect fundamental rights, on the one hand, and the principles of equivalence and effectiveness, on the other. ( )

92. Under the principle of equivalence, persons asserting rights conferred by the EU legal order are not to be disadvantaged by comparison with those asserting rights of a purely domestic nature.

93. In a situation such as that at issue, observance of that principle therefore requires that the procedural rules and regulations applicable to the annulment of the act granting subsidiary protection status should not be any less favourable than those governing the annulment of an act granting a similar status under national law.

94. It is for the national court to assess the comparability of those statuses, account being taken, in particular, of their purpose and the rights and advantages associated with them, in particular economic and social advantages such as the issue of residence permits and access to social welfare, health care and the labour market. In so far as Directive 2011/95 provides for exhaustive harmonisation in the field of international protection, it will be necessary to refer to the statuses which Member States confer on a discretionary basis on compassionate or humanitarian grounds. ( )

95. Moreover, as regards the applicable procedural rules and regulations, I know that most Member States attach strict conditions to the annulment of an act creating rights on account of an error for which the administrative authority alone is responsible. Where the applicant filed his application in good faith, cooperated in the investigation procedure and was entitled to have confidence in the fairness and validity of the decision, the principles of legal certainty and legitimate expectations normally outweigh the interest which a State may have in correcting errors made by its decision-making bodies.

96. In those circumstances, it is for the national court to ensure, in particular, that international protection status is cancelled in strict observance of the guarantees of procedural fairness and the principle of proportionality. In order to ensure that cancellation does not entail disproportionate consequences which are seriously prejudicial to the person concerned, it is appropriate, in my view, to take account of all the relevant circumstances, including the rights and advantages which that person has enjoyed since his status was granted, in particular the family reunification for which he qualifies, the length of his stay and the degree to which he is socially and economically integrated into the Member State concerned, as well as the difficulties he may face if the status conferred on him is cancelled.

97. As regards, now, the principle of effectiveness, this requires that the procedural rules and regulations applicable to the annulment of an act granting subsidiary protection status should not make it excessively difficult or impossible in practice to exercise the rights conferred by the EU legal order. ( )

98. The principle of effectiveness is closely linked to the right to effective judicial protection and presupposes that, if individuals enjoy a right under EU law, the Member States have a responsibility to ensure its effective protection, including, in principle, by making available a judicial remedy.

99. While it is for the referring court to verify whether that principle has been observed, I would note that, in the main proceedings, Mr Bilali was able to bring an action before the Bundesverwaltungsgericht (Federal Administrative Court) and then an appeal on a point of law (Revision) before the Verwaltungsgerichtshof (Supreme Administrative Court) in connection with the procedure for the revocation of the subsidiary protection status which had been granted to him on the basis that Algeria was his country of origin.

100. It is in the light of all of those considerations that I propose that the Court rule that, in circumstances such as those at issue in the main proceedings, in which the decision granting subsidiary protection status was adopted in breach of the rules of law and, in particular, the eligibility criteria laid down in Chapters II and V of Directive 2011/95, and in which that breach had a decisive impact on the outcome of the examination of the application for international protection, the Member State is required to cancel the subsidiary protection status.

101. Moreover, in the absence of any express provisions of EU law, it should be noted that the procedural rules and regulations applicable to the cancellation of subsidiary protection status on account of an error made by the administrative authorities are, in accordance with the principle of the procedural autonomy of the Member States, to be determined by the national legal order, subject, nonetheless, to compliance with the principles of equivalence and effectiveness.

VI. Conclusion

102. In the light 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:

(1) Article 19 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, precludes national legislation, such as that at issue in the main proceedings, under which a Member State may revoke subsidiary protection status where the competent national authority has made an error, for which it alone is responsible, as to the circumstances on account of which that protection was granted.

(2) In circumstances such as those at issue, in which the decision granting subsidiary protection status was adopted in breach of the rules of law and, in particular, the eligibility criteria laid down in Chapters II and V of Directive 2011/95, and in which that breach had a decisive impact on the outcome of the examination of the application for international protection, the Member State is required to cancel the subsidiary protection status.

In the absence of any express provisions of EU law, the procedural rules and regulations applicable to the cancellation of subsidiary protection status on account of an administrative error made by the administrative authorities are, in accordance with the principle of the procedural autonomy of the Member States, to be determined by the national legal order, subject to compliance with the principles of equivalence and effectiveness.