CELEX: 62019CJ0255
Language: en
Date: 2021-01-20
Title: Judgment of the Court (Second Chamber) of 20 January 2021.#Secretary of State for the Home Department v O A.#Reference for a preliminary ruling – Directive 2004/83/EC – Minimum standards for granting refugee status or subsidiary protection status – Refugee status – Article 2(c) – Cessation of refugee status – Article 11 – Change in circumstances – Article 11(1)(e) – Possibility of availing oneself of the protection of the country of origin – Criteria for assessment – Article 7(2) – Financial and social support – Irrelevant.#Case C-255/19.

JUDGMENT OF THE COURT (Second Chamber)
20 January 2021 (*)
(Reference for a preliminary ruling – Directive 2004/83/EC – Minimum standards for granting refugee status or subsidiary protection status – Refugee status – Article 2(c) – Cessation of refugee status – Article 11 – Change in circumstances – Article 11(1)(e) – Possibility of availing oneself of the protection of the country of origin – Criteria for assessment – Article 7(2) – Financial and social support – Irrelevant)
In Case C‑255/19,
REQUEST for a preliminary ruling under Article 267 TFEU from the Upper Tribunal (Immigration and Asylum Chamber) (United Kingdom), made by decision of 22 March 2019, received at the Court on 26 March 2019, in the proceedings

Secretary of State for the Home Department

v

OA,

intervening parties:

United Nations High Commissioner for Refugees (UNHCR),

THE COURT (Second Chamber),
composed of A. Arabadjiev, President of the Chamber, K. Lenaerts, President of the Court, acting as a Judge of the Second  Chamber,  A.  Kumin, T. von Danwitz (Rapporteur) and P.G. Xuereb, Judges,
Advocate General: G. Hogan,
Registrar: C. Strömholm, administrator,
having regard to the written procedure and further to the hearing on 27 February 2020,
after considering the observations submitted on behalf of:
–        the Government of the United Kingdom, by  Z. Lavery and J. Simpson, acting as Agents, and by  D. Blundell, Barrister,  
–        the French Government, initially by A.-L. Desjonquères and A. Daniel, D. Colas and D. Dubois, and subsequently by A.‑L. Desjonquères, A. Daniel and  D. Dubois, acting as Agents,
–        the Hungarian  Government, by  M.Z. Fehér and  R. Kissné Berta, acting as Agents,
–        the European Commission, initially by A. Azema, M. Condou‑Durande and J.Tomkin, and subsequently by A. Azema and J. Tomkin, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 30 April 2020,
gives the following

Judgment

1        This  request for a preliminary ruling concerns the interpretation of Article 2(c), Article 7  and  Article 11(1)(e) of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (OJ 2004 L 304, p. 12, and corrigendum, OJ 2005 L 204, p. 24).

2        The request has been made in  proceedings between the Secretary of State for the Home Department (United Kingdom) (‘the Secretary of State’)  and OA, a Somali national, concerning the revocation of the latter’s  refugee status 
 Legal context

 International law

3        The  Convention on the Status of Refugees, signed  in Geneva  on  28 July 1951 (United Nations Treaty Series,  vol. 189, p. 150, No 2545 (1954)), entered into force on  22 April 1954. It was supplemented by the Protocol Relating to the Status of Refugees, concluded in New York on 31 January 1967, which for its part entered into force on 4 October 1967 (‘the Geneva Convention’).

4        The first subparagraph of Article 1(A)(2) of the Geneva Convention provides that the term ‘refugee’ is to apply 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; or who, not having a nationality and being outside the country of his former habitual residence …, is unable or, owing to such fear, is unwilling to return to it’.

5        Article 1(C)(5) of the Geneva Convention provides that:
‘This Convention shall cease to apply to any person falling under the terms of section A if:
…
(5)      He can no longer, because the circumstances in connexion with which he has been recognised as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality;
Provided that this paragraph shall not apply to a refugee falling under section A(1) of this article who is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself of the protection of the country of nationality.’
 EU law

6        Recital (3) of Directive 2004/83 states that ‘the Geneva Convention and the Protocol provide the cornerstone of the international legal regime for the protection of refugees’.

7        Article 1 of that directive provides:
‘The purpose of this Directive is to lay down minimum standards for the qualification of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted.’ 

8        Article 2(c) to (e) of that  directive provides:
‘For the purposes of this Directive:
…
(c)      “refugee” means 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, or a stateless person, who, being outside of the country of former habitual residence for the same reasons as mentioned above, is unable or, owing to such fear, unwilling to return to it, and to whom Article 12 does not apply;
(d)      “refugee status” means the recognition by a Member State of a third country national or a stateless person as a refugee;
(e)      “person eligible for subsidiary protection” means a third country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15, and to whom Article 17(1) and (2) does not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country.’

9        Article 7(1) and (2) of that directive, that article being headed ‘Actors of  protection’, provides:
‘1.      Protection can be provided by:
(a)      the State, or
(b)      parties or organisations, including international organisations, controlling the State or a substantial part of the territory of the State.
2.      Protection is generally provided when the actors mentioned in paragraph 1 take reasonable steps to prevent the persecution or suffering of serious harm, inter alia, by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm, and the applicant has access to such protection.’

10      Article 9 of Directive 2004/83, headed ‘Acts of persecution’, provides:
‘1.      Acts of persecution within the meaning of Article 1(A) of the Geneva Convention must:
(a)      be sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms [signed at Rome on 4 November 1950, ‘the ECHR’]; or
(b)      be an accumulation of various measures, including violations of human rights, which is sufficiently severe as to affect an individual in a similar manner as mentioned in point (a).
2.      Acts of persecution as qualified in paragraph 1  can, inter alia, take the form of:
(a)      acts of physical or mental violence, including acts of sexual violence;
…
3.      In accordance with Article 2(c), there must be a connection between the reasons mentioned in Article 10 and the acts of persecution as qualified in paragraph 1.’

11      Article 11(1)(e)  and (2) of that directive, that article being headed ‘Cessation’, provides:
‘1.      A third country national or stateless person shall cease to be a refugee, if he or she: 
…
(e)      can no longer, because the circumstances in connection with which he or she has been recognised as a refugee have ceased to exist, continue to refuse to avail himself or herself of the protection of the country of nationality;
…
2.      In considering points (e) and (f) of paragraph 1, Member States shall have regard to whether the change of circumstances is of such a significant and non-temporary nature that the refugee’s fear of persecution can no longer be regarded as well-founded.’

12      Article 15  of that directive, headed ‘Serious harm’, provides:
‘Serious harm consists of:
(a)      death penalty or execution; or
(b)      torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or
(c)      serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict.’

13      Directive 2004/83 was repealed with effect from 21 December 2013 by 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 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). In accordance with recital 50  of the latter directive, the United Kingdom of Great Britain and Northern Ireland  did not take part in the adoption of that directive and is not bound by it  or subject to its application. 
 United Kingdom law 

14      Regulation 4(1) and  (2)  of the Refugee or Person In Need of International Protection Regulations 2006 provides:
‘(1)      In deciding whether a person is a refugee or a person eligible for humanitarian protection, protection from persecution or serious harm can be provided by:
(a)      the State; or
(b)      any party or organisation, including any international organisation, controlling the State or a substantial part of the territory of the State.
2.      Protection shall be regarded as generally provided when the actors mentioned in paragraph (l)(a) and (b) take reasonable steps to prevent the persecution or suffering of serious harm by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm, and the person mentioned in paragraph (1) has access to such protection.’

15      Paragraph 338A of the Immigration Rules states:
‘A person’s grant of refugee status under paragraph 334 shall be revoked or not renewed if any of paragraphs 339A to 339AB apply. …’  

16      Paragraph 339A of the Immigration Rules states:
‘This paragraph applies when the Secretary of State is satisfied that one or more of the following applies: 
…
(v)      they can no longer, because the circumstances in connection with which they have been recognised as a refugee have ceased to exist, continue to refuse to avail themselves of the protection of the country of nationality; or
(vi)      being a stateless person with no nationality, they are able, because the circumstances in connection with which they have been recognised as a refugee have ceased to exist, to return to the country of former habitual residence;
In considering (v) and (vi), the Secretary of State shall have regard to whether the change of circumstances is of such a significant and non-temporary nature that the refugee’s fear of persecution can no longer be regarded as well-founded.’
 The dispute in the main proceedings and the questions referred for a preliminary ruling

17      OA is a Somali national, who originally resided in  Mogadishu (Somalia). He is a member  of the minority  Reer Hamar clan.

18      In the course of the 1990s, OA and his then wife  were  the victims  on a number of occasions  of  serious harm and violence  at the hands of the Hawiye militia  in Mogadishu. 

19      In  2001 they fled  Somalia  and travelled to Kenya. In the same year, OA’s then wife  entered  the United Kingdom and obtained  refugee  status  by reason of the persecution mentioned  in the preceding paragraph.

20      OA travelled to  the United Kingdom in 2003 and obtained  refugee status  there as  a dependent of his then wife.

21      On 8 July  2014 the Secretary of State  informed OA that she intended  to revoke his refugee status. 

22      By decision of  27 September 2016, the Secretary of State revoked  OA’s refugee status on the ground of a change in circumstances in his country of origin and declared him to be ineligible for humanitarian protection under the national immigration  legislation, while holding that  to return OA to  his country of origin would not be in breach of the obligations of  the United Kingdom  under  Article 3  ECHR.

23      OA brought an action before the First-tier Tribunal (Immigration and Asylum Chamber) (United Kingdom) against that decision. The initial judgment delivered by that court  dismissed OA’s action in its entirety;  after that  judgment was set aside by  the Upper Tribunal (Immigration and Asylum Chamber) (United Kingdom), the First-tier Tribunal delivered a second judgment partially dismissing that  action.

24      The Upper Tribunal (Immigration and Asylum Chamber) has set aside that second judgment and must now undertake a further examination  of  OA’s action. 

25      Before the referring court, the Secretary of State submits that she was entitled  to revoke  OA’s refugee status on the ground that there was a non-temporary  change of circumstances in his country of origin, pursuant to  Article 11(1)(e)  of Directive 2004/83, since, in her view, the minority clans are no longer subject  to persecution by the majority  clan in the  Mogadishu region, and since  the State offers  effective protection  in that region. In that regard, the Secretary of State  relies on the findings of fact made  in the  ‘Country Guidance’ judgment of the Upper Tribunal  of  3 October 2014, MOJ and Others (return to Mogadishu):
‘(ii)      Generally, a person who is “an ordinary civilian” (i.e. not associated with the security forces; any aspect of government or official administration or any NGO or international organisation) on returning to Mogadishu after a period of absence will face no real risk of persecution or risk of harm such as to require protection under Article 3  [ECHR] or Article 15(c) of [Directive 2004/83] …
…
(vii)      A person returning to Mogadishu after a period of absence will look to his nuclear family, if he has one living in the city, for assistance in re‑establishing himself and securing a livelihood. Although a returnee may also seek assistance from his clan members who are not close relatives, such help is only likely to be forthcoming for majority clan members, as minority clans may have little to offer. 
(viii)      The significance of clan membership in Mogadishu has changed. Clans now provide, potentially, social support mechanisms and assist with access to livelihoods, performing less of a protection function than previously. There are no clan militias in Mogadishu, no clan violence, and no clan based discriminatory treatment, even for minority clan members. 
…
(xi)      It will, therefore, only be those with no clan or family support who will not be in receipt of remittances from abroad and who have no real prospect of securing access to a livelihood on return who will face the prospect of living in circumstances falling below that which is acceptable in humanitarian protection terms.
(xii)      The evidence indicates clearly that it is not simply those who originate from Mogadishu that may now generally return to live in the city without being subjected to an Article 15(c) [of Directive 2004/83] risk or facing a real risk of destitution. On the other hand, relocation in Mogadishu for a person of a minority clan with no former links to the city, no access to funds and no other form of clan, family or social support is unlikely to be realistic as, in the absence of means to establish a home and some form of ongoing financial support there will be a real risk of having no alternative but to live in makeshift accommodation within an IDP camp [camp for internally displaced persons] where there is a real possibility of having to live in conditions that will fall below acceptable humanitarian standards.’

26      OA disputes those findings of fact and argues  that he still has a well-founded fear  of persecution in  Mogadishu  and that the  State authorities in  Somalia  are not capable of protecting him from  serious harm. In that regard, he refers to the assessment made by the United Nations High Commissioner for Refugees (UNHCR), in June 2014, that, as regards the issue of the availability of State protection, the security situation in Mogadishu still gives rise to serious concerns and that the minority clans remain at a particular disadvantage,  in Mogadishu in particular. Further, he submits that  the ‘Country Guidance’ judgment, cited  in the preceding  paragraph, is the result of a misunderstanding of  State protection,  since it is based in part on the availability of protection from family or  other clan members, who are private, and not State, actors.

27      According to the information provided in the  request for a preliminary ruling, some courts in  the United Kingdom  consider  that the availability of  sufficient protection must be taken into account  both at the stage of assessing  the test of whether there is a  ‘well-founded fear of persecution’ and  at the stage of assessing the test of whether there is  ‘protection’  of which the applicant  is unable or unwilling to  avail himself or herself, but the requirements to be satisfied in those two stages need not, however,  be the same. Those courts consider that, while the second test  must be assessed  with regard to the  requirements stemming from  Article 7  of Directive  2004/83, those requirements are not, however, applicable  in the examination of the  first test, which may therefore take into consideration any form of protection and, in particular, the support provided by, among others, the family or clan of the person concerned.

28      As regards  OA’s situation following  a possible  return to  Mogadishu, the referring court considers that he would  have  some possibilities, albeit limited  because of his reduced mobility, of finding work in that  city. Further, OA could seek financial support from  his close family  living in that city, from his sister who has latterly been residing in Dubai (United Arab Emirates) and from members  of the  Reer Hamar clan residing in the  United Kingdom, at least until he is able to support himself in  Mogadishu.

29      In those circumstances the Upper Tribunal (Immigration and Asylum Chamber) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)      Is “protection of the country of nationality” within the meaning of Article 11(1)(e) and Article 2(e) of [Directive 2004/83] to be understood as State protection?
(2)      In deciding the issue of whether there is a well-founded fear of being persecuted within the meaning of Article 2(e) of [Directive 2004/83] and the issue of whether there is protection available against such persecution, pursuant to Article 7 of [Directive 2004/83], is the “protection test” or “protection inquiry” to be applied to both issues and, if so, is it governed by the same criteria in each case? 
(3)      Leaving to one side the applicability of protection by non-State actors under Article 7(l)(b)  [of Directive 2004/83], and assuming the answer to question (1) above is yes, is the effectiveness or availability of protection to be assessed solely by reference to the protective acts/functions of State actors or can regard be had to the protective acts/functions performed by private (civil society) actors such as families and/or clans? 
(4)      Are (as is assumed in questions (2) and (3)) the criteria governing the “protection inquiry” that has to be conducted when considering cessation in the context of Article 11(l)(e) [of Directive 2004/83] the same as those to be applied in the Article 7 context?’
 Consideration of the questions referred

 Preliminary observations

30      As a preliminary point, it must be observed that  while, according to the information provided in  the request for a preliminary ruling, OA was granted  refugee status  because he was the victim of  acts of violent persecution in the 1990s, as  a member  of a  minority clan in Mogadishu, at the hands of a militia  of the majority clan in that city, it appears from the information  provided that, following  changes  that have occurred in the meantime, ‘there are no clan militias in Mogadishu, no clan violence, and no clan based discriminatory treatment, even for minority clan members’. In that regard, that request  seems  to be based on  the finding that the  Federal Republic  of  Somalia  now offers, in principle, sufficient  protection from acts  of persecution, though that protection may be supplemented by  the protection provided by  private actors, such as the family and the clan. In that context, the referring court states that, if no financial or other form of  support is provided by their family  or by their clan, Somali nationals who  return to  Mogadishu  ‘have no real prospect of securing access to a livelihood on return [and] will face the prospect of living in circumstances falling below that which is acceptable in humanitarian protection terms’. 

31      That said, it is apparent from the information provided that OA disputes the findings of  the referring court as summarised in the preceding paragraph, claiming that he still has  a well-founded fear of persecution in  Mogadishu  and that the State authorities  in Somalia are not capable of protecting him  from those  acts of persecution. Further, the French  Government submitted, at the hearing, that the findings of the referring court  concerning the protection provided by those authorities and the absence of a risk of persecution no longer  match the  current reality  in  Somalia. 

32      In those circumstances, it is for  the referring court to determine whether, if he were to return to  Mogadishu, OA is liable to run the  risk of being a victim of acts of  persecution.
 Question 4

33      By question 4, which should be examined  first, the referring court seeks, in essence, to ascertain whether  Article 11(1)(e)  of Directive  2004/83 must be interpreted as meaning that the  requirements to be met by the  ‘protection’  to which that provision refers  in relation to the cessation of  refugee status  must  be the same as those which  arise, in respect of the  granting of that status, from  Article 2(c) of that directive, read together with  Article 7(1) and (2)  thereof. 

34      In that regard, it is clear from the wording of  Article 11(1)(e)  of that directive that a  third country national  is to cease to be a refugee  if he or she can no longer,  because the circumstances in connection with which he or she has been recognised as a refugee have ceased to exist, continue to refuse to avail himself or herself of the protection of the country of his or her nationality. 

35      Article 11(1)(e) of that directive, in the same way as Article 1(C)(5) of the Geneva Convention, provides that a person is to cease to be classified as a refugee when the circumstances as a result of which he or she was recognised as such have ceased to exist, that is to say, in other words, when the  conditions for the grant of refugee status are no longer met. In so far as  Article 11(1)(e)  of Directive  2004/83 provides that  the third country national can ‘no longer  continue to refuse’  to avail himself or herself of the protection of the country of his or her nationality, that article implies that the  ‘protection’ in question  is the same as that  which was up to that point lacking, namely protection from  acts  of  persecution  for at least one of the five reasons specified in  Article 2(c)  of that directive (see, to that effect, 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, paragraphs 65  and 67). 

36      Thus, the circumstances which demonstrate the country of origin’s inability or, conversely, its ability to provide  protection from acts of persecution constitute a crucial element in the assessment which leads to the grant of refugee status, or, correspondingly, when appropriate, to the cessation of that status. Such cessation thus implies  that the change in circumstances has remedied the  reasons  which led to the recognition  of  refugee status  (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, paragraphs 68  and 69). 

37      Given the parallelism  established by Directive 2004/83 between the granting and the cessation of refugee status, the  requirements to be met by the protection which may preclude that status, in the context of  Article 2(c) of that directive, or  bring about its cessation, pursuant to  Article 11(1)(e)  thereof, must  be the same as those which  arise from, in particular, Article 7(1) and (2) of that directive.

38      In order to arrive at the conclusion that the fear of persecution of the  refugee concerned  is no longer well founded, the  competent authorities, in the light of  Article 7(2)  of Directive  2004/83, must verify, having regard to that  refugee’s individual  situation, that the actor or actors  in question  who are providing  protection, within the meaning of  Article 7(1), have taken reasonable steps  to prevent the  persecution, that they therefore operate, inter alia, an effective legal system  for the detection, prosecution and punishment  of  acts constituting  persecution  and that the third country national  concerned  will, if he or she ceases to have  refugee status, have access  to that protection (see, to that effect, 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, paragraphs 70  and 74). 

39      In the light of the foregoing, the answer to the fourth question is that Article 11(1)(e)  of Directive  2004/83 must be interpreted as meaning that  the requirements to be met by the ‘protection’ to which that provision refers in relation to the cessation of refugee status must  be the same as those which  arise, in relation to the granting of that  status, from  Article 2(c) of that directive, read together with Article 7(1) and (2) thereof.
 Questions 1 to 3

40      By questions 1 to 3, which can be examined  together, the referring court seeks, in essence, to ascertain whether  Article 11(1)(e)  of Directive  2004/83, read together with Article 7(2) of that directive, must be interpreted as meaning that social and financial support that may be  provided by  private actors, such as the  family  or clan of the  third country national concerned, constitutes protection that meets the requirements arising from those  provisions and whether such  support  is of relevance to the assessment of the  effectiveness or availability  of the protection provided by  the State  within the meaning of  Article 7(1)(a) of that directive, or  to the determination, under  Article 11(1)(e)  of that directive, read together with Article 2(c)  thereof, of whether there continues to be a  well-founded fear of  persecution.

41      In that regard, it is necessary to examine, first, whether  social and financial support provided by private actors, such as the  family  or the clan of the  third country national concerned, can be held to constitute protection that meets  the requirements arising from  Article 11(1)(e), of Directive  2004/83, read together with Article 7(2) of that directive. 

42      In accordance with  Article 2(c)  of that directive, a  third country national  must, on account of circumstances existing in his  or her  country of origin, have a well‑founded fear of  being personally the subject of persecution  for at least one of the five reasons listed in that  provision. Such  circumstances  establish  that the  third country concerned  does not protect that  national  from acts  of persecution (see, to that effect, 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, paragraphs 56  and  57).

43      As the Advocate General stated, in essence, in  point 58  of his Opinion, and as has also been mentioned  in  paragraph 38  of the present judgment, the protection required  by  Article 11(1)(e)  of that directive is clarified in  Article 7(2) of that directive, which provides that  ‘protection  is generally provided  when the  actors  mentioned in  paragraph 1 [of  Article 7] take reasonable steps to prevent the  persecution  or suffering of serious harm, inter alia, by  operating an effective legal system  for the detection, prosecution and  punishment of  acts constituting  persecution  or serious harm, and the applicant has access  to such protection’.

44      In the light of that wording, the protection required  by  Article 11(1)(e)  of Directive  2004/83, read together with Article 7(2) of that directive, refers to the ability of the  third country of which the person concerned  is a  national  to prevent or to punish acts  of  persecution  within the meaning of that directive (see, to that effect, 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, paragraphs 59, 67 and 68). Further, Article 7(2)  refers to steps taken  to prevent  acts of  persecution  and the  existence of  an effective legal system for the detection, prosecution and punishment of such acts.

45      Article 9(1)  of Directive  2004/83, which specifies  the factors involved in the  classification of acts  as  persecution, states that the  relevant acts must be ‘sufficiently serious’ by their nature or repetition to constitute a ‘severe violation of basic human rights’, or be an accumulation of various measures that are ‘sufficiently severe’ to affect an individual in a similar manner to a ‘severe violation of basic human rights’. In accordance with Article 9(3) of the directive, there must be a connection between the reasons for persecution mentioned in Article 10 and the acts of persecution. 

46      Mere social and financial support, such as that mentioned in the request for a preliminary ruling, which is made available  to the  third country national concerned, is inherently incapable of  either preventing acts  of  persecution  or of detecting, prosecuting  and punishing  such acts  and, therefore, cannot be regarded as providing  the protection required  by  Article 11(1)(e)  of Directive  2004/83, read together with  Article 7(2) of that directive. That is particularly the case given that, in this instance, the objective of that  social and financial support  seems to be not  to protect OA from such acts, but  rather to ensure his reintegration  in  Mogadishu.

47      In those circumstances, social and financial support, such as that  mentioned by  the request for a preliminary ruling, provided by the  family  or the clan of the  third country national concerned, cannot be regarded as providing  protection from acts  of  persecution  within the meaning of those provisions.

48      Second, it follows  that such  social and financial support  is of no relevance  to the assessment of the  effectiveness or the  availability of the protection provided by  the State  within the meaning of  Article 7(1)(a)  of Directive  2004/83. 

49      That is all the more true given that mere economic  hardship cannot, as a  general rule, be classified as  ‘persecution’, within the meaning of  Article 9  of Directive  2004/83, and consequently such  social and financial support  intended to  remedy such  hardship  should not, as a general rule, have any bearing on the assessment of the adequacy of State  protection from acts  of  persecution.

50      In this instance, since the documents before the Court  contain nothing to suggest that the  economic hardship which OA might face  on his return to Mogadishu  would constitute  a form of  persecution  within the meaning of Article 9  of that directive, that hardship cannot be classified as  ‘persecution’  within the meaning of that article such as to justify  the grant and the retention of  refugee status.

51      Further, while the French  Government  observed, at the hearing, that extreme destitution might be of relevance to  the granting of  subsidiary protection, it is, however, clear from what is stated in  the request for a preliminary ruling  that the dispute in the main proceedings  and the questions referred to the Court  are not concerned with  whether OA may be  granted the status conferred by  subsidiary protection, but with the cessation of his  refugee status. It must be added, in that  regard,  that the reference made in the questions submitted for a preliminary ruling to  Article 2(e) of Directive  2004/83, containing the definition of a  ‘person eligible for subsidiary protection’, must be understood, in the light of  clarification  provided by  the referring court  and taking into consideration all the  material in the file before the Court, as relating to  Article 2(c)  of that directive and thus as concerning  solely the cessation of the  refugee  status of the applicant  in the main proceedings.

52      Moreover, in so far as the  doubts expressed by  the referring court  were to be  understood as  being concerned with  establishing  whether, to the extent that  the clans in  Mogadishu  may, in addition to their  providing social and financial support, also provide protection in terms of security, such protection may be taken into account  in order to ascertain whether  the protection provided by  the State  meets the requirements  that arise, in particular, from Article 7(2)  of Directive  2004/83, it must be recalled that, for the purposes of determining  whether  a  refugee’s fear  of persecution  is no longer well  founded, the actor or  actors  of protection with respect to which  the reality of a change of  circumstances  in the  country of origin  is to be assessed are, in accordance with  Article 7(1)(a) and (b) of that directive, either  the State  itself, or the parties or organisations, including international organisations, controlling  the State  or a substantial part of the territory  of that State (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 74).

53      In accordance with the  requirements described in paragraphs 38  and  43  to  46  of the present judgment, any such protection in terms of security cannot, in any event, be taken into account  in order to ascertain whether State  protection meets the requirements  that arise, in particular, from Article 7(2)  of that directive.

54      Third, the referring court  asks the Court  whether  the existence of social and financial support  provided by the  family or  the clan of the  third country national concerned  may nonetheless be taken into account  for the purposes of determining, pursuant to  Article 11(1)(e)  of Directive  2004/83, read together with  Article 2(c)  of that  directive, whether there continues to be a  well-founded fear of persecution. On  such an interpretation, adopted by a  number of courts in the United Kingdom, social and financial support, provided by the family or the clan of the  third country national concerned, may be such, irrespective of the definition of  the protection that is required by  Article 11(1)(e), read  together with  Article 7(2) of that directive, as to exclude  such fear.

55      Under Article 2(c) of Directive 2004/83, the term ‘refugee’ refers, in particular, to a third country national who is outside the country of his or her nationality ‘owing to a well-founded fear of being persecuted’ for reasons of race, religion, nationality, political opinion or membership of a particular social group and is unable or, ‘owing to such fear’, unwilling to avail himself or herself of the ‘protection’ of that country. Where the  circumstances justifying such fear  have ceased to  exist, refugee status  may come to an end, under  Article 11(1)(e)  of that directive.

56      In that regard, it should  be observed that the conditions specified in  Article 2(c)  of Directive  2004/83, in relation to the fear of persecution  and  to protection, are intrinsically linked. Indeed, the protection to which that  provision refers  is, as is stated in  paragraph 47  of the present judgment, protection from  acts of persecution.

57      Accordingly, the Court  has previously held that  if the  national concerned  has, because of the  circumstances existing  in his or her country of origin, a  well-founded fear of being personally the subject of  persecution  for at least one of the five reasons  listed in  Article 2(c)  of Directive  2004/83, those  circumstances  establish that the  third country  in question  does not protect its  national  against acts of persecution (see, to that effect, 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, paragraphs 57  and 58). A  third country national  who is in fact  protected  against  acts of persecution  within the meaning of that  provision  cannot, for that reason, be regarded as having a  well-founded  fear  of persecution.  

58      Further, the same  circumstances  that establish  that  the third country  concerned  does not protect its national  against  acts of persecution  explain why it is impossible for that  national, or why he or she justifiably refuses, to avail himself or herself  of the protection of his or her country of origin  in terms of that provision, that is to say, in terms of that country’s ability to prevent or punish  acts of persecution (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 59). 

59      Consequently, for the purposes of determining whether the third country national concerned  has a well-founded fear  of persecution  in his or her  country of origin, within the meaning of Article 2(c)  of Directive  2004/83, account must be taken of whether there is or is not protection from  acts of persecution  in that third country. 

60      However, the existence of  protection from acts of persecution in a third country  can permit the inference that there is no  well-founded fear of persecution within the meaning of that provision only if that protection  satisfies the requirements  arising, in particular, from  Article 7(2) of that directive.

61      Since  the conditions specified in  Article 2(c) of that directive dealing with  fear  of persecution  and  protection from  acts of persecution  are, as is stated in  paragraph 56  of the present judgment, intrinsically  linked, their  examination cannot be subject to a  separate criterion of protection;  their assessment must be made in the light of the  requirements laid down in, inter alia, Article 7(2) of  that directive. 

62      Moreover, it follows, more specifically, from  Article 1  of Directive  2004/83 that  Article 7(2)  of that directive sets out  the minimum requirements in respect of protection against  acts of persecution existing  in the  third country  of origin  of the person concerned that is of a sort that may preclude, in certain cases, the grant to that person  of  refugee status. To adopt an interpretation to the effect that  the protection existing  in that  third country  may  rule out  a well-founded fear  of persecution  even  though that protection does not satisfy those  requirements  would be liable  to call into question  the minimum requirements laid down by  Article 7(2). 

63      In the light of the foregoing, the answer to questions 1 to 3 is that  Article 11(1)(e)  of Directive  2004/83, read together with  Article 7(2) of that directive, must be interpreted as meaning that  any  social and financial support provided by private  actors, such as the  family  or the clan of a  third country national concerned, falls short of  what is required under those provisions to constitute  protection and  is, therefore, of no relevance  either to the assessment of the  effectiveness  or  availability  of the protection provided by the State  within the meaning of  Article 7(1)(a) of that directive, or to the determination, under  Article 11(1)(e)  of that directive, read together with  Article 2(c)  thereof, of whether there continues to be  a  well-founded fear  of persecution. 
 Costs

64      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Second Chamber) hereby rules:
1.      Article 11(1)(e) of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, must be interpreted as meaning that the requirements to be met by the ‘protection’ to which that provision refers in respect of the cessation of refugee status must be the same as those which arise, in relation to the granting of that status, from Article 2(c) of that directive, read together with Article 7(1) and (2) thereof.

2.      Article 11(1)(e) of Directive 2004/83, read together with Article 7(2) of that directive, must be interpreted as meaning that any social and financial support provided by private actors, such as the family or the clan of a third country national concerned, falls short of what is required under those provisions to constitute protection and is, therefore, of no relevance either to the assessment of the effectiveness or availability of the protection provided by the State within the meaning of Article 7(1)(a) of that directive, or to the determination, under Article 11(1)(e) of that directive, read together with Article 2(c) thereof, of whether there continues to be a well-founded fear of persecution. 

Arabadjiev 

Lenaerts

Kumin

von Danwitz
 
Xuereb

Delivered in open court in Luxembourg on 20 January 2021.

A. Calot Escobar
 
A. Arabadjiev

Registrar
 
      President of the Second Chamber

*      Language of the case: English.