Secretary of State for the Home Department v O A.
Date: 2021-01-20
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).
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).
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).
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.
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).
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).