Nigyar Rauf Kaza Ahmedbekova and Rauf Emin Ogla Ahmedbekov v Zamestnik-predsedatel na Darzhavna agentsia za bezhantsite.
Date: 2018-10-04
For the purposes of answering that question, it should first of all be noted that it is clear from Articles 13 and 18 of Directive 2011/95, read in conjunction with the definitions of ‘refugee’ and ‘person eligible for subsidiary protection’ set out in Article 2(d) and (f) thereof, that the international protection referred to in that directive must, in principle, be granted to a third-country national or stateless person who has a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, or faces a real risk of suffering serious harm, within the meaning of Article 15 of the directive.
Directive 2011/95 does not provide for the granting of refugee or subsidiary protection status to third-country nationals or stateless persons other than those mentioned in the preceding paragraph. It is, moreover, settled case-law that every decision on whether to grant refugee status or subsidiary protection status must be based on an individual assessment (judgment of 25 January 2018, F, C‑473/16, EU:C:2018:36, paragraph 41 and the case-law cited), which aims to determine whether, in the light of the applicant’s personal circumstances, the conditions for granting such a status are satisfied (judgment of 5 September 2012, Y and Z, C‑71/11 and C‑99/11, EU:C:2012:518, paragraph 68).
Second, in the light of the rule laid down in Article 31(2) of Directive 2013/32 that every assessment of an application for international protection must be concluded as soon as possible, and of the aim of that directive to ensure that applications for international protection are processed as soon as possible (judgment of 25 July 2018, Alheto, C‑585/16, EU:C:2018:584, paragraph 109), the assessment of a family member’s application should not lead to suspension of the assessment of another family member’s application such that the latter assessment cannot be conducted until the examination procedure of the first application has already been concluded through the adoption of a decision by the determining authority. On the contrary, in order to meet the objective of expediency and to facilitate maintaining family unity, decisions on related applications from members of a single family must be adopted promptly from one another.
The Court has previously held that the clarification contained in Article 3, according to which all more favourable standards must be compatible with Directive 2011/95, means that those standards must not compromise the general scheme or objectives of that directive. In particular, standards which are intended to grant refugee or subsidiary protection status to third-country nationals or stateless persons in situations which have no connection with the rationale of international protection are prohibited (see, in that regard, judgment of 18 December 2014, M’Bodj, C‑542/13, EU:C:2014:2452, paragraphs 42 and 44). This thus applies, inter alia, to standards which grant such status to persons falling within the scope of a ground for exclusion laid down in Article 12 of that directive (judgment of 9 November 2010, B and D, C‑57/09 and C‑101/09, EU:C:2010:661, paragraph 115).
For it to be found that there is a ‘social group’, within the meaning of that provision, two cumulative conditions must be satisfied. First, members of that group must share an ‘innate characteristic’, or a ‘common background that cannot be changed’, or share a characteristic or belief that is ‘so fundamental to identity or conscience that a person should not be forced to renounce it’. Second, that group must have a distinct identity in the relevant country, because it is perceived as being different by the surrounding society (judgment of 7 November 2013, X and Others, C‑199/12 to C‑201/12, EU:C:2013:720, paragraph 45). Subject to verification by the referring court, those cumulative conditions do not appear to be satisfied in the case in the main proceedings.
Article 46(3) of Directive 2013/32 defines the scope of the right to an effective remedy which applicants for international protection must enjoy, as provided for in Article 46(1) of that directive, against decisions concerning their application (judgment of 25 July 2018, Alheto, C‑585/16, EU:C:2018:584, paragraph 105). That article states that the Member States bound by that directive are to ensure, at least at first instance, that the court or tribunal in which the decision on the application for international protection is contested provides for ‘a full and ex nunc examination of both facts and points of law, including, where applicable, an examination of the international protection needs pursuant to Directive [2011/95]’.
In that regard, the expression ‘ex nunc’ points to the court or tribunal’s obligation to make an assessment that takes into account, should the need arise, new evidence which has come to light after the adoption of the decision under appeal. As for the word ‘full’, that adjective confirms that the court or tribunal is required to examine both the evidence which the determining authority took into account or could have taken into account and that which has arisen following the adoption of the decision by that authority (judgment of 25 July 2018, Alheto, C‑585/16, EU:C:2018:584, points 111 and 113).
Although it thus follows from Article 46(3) of Directive 2013/32 that the Member States are required to amend their national law in such a way that the processing of the appeals referred to includes an examination, by the court or tribunal, of all the facts and points of law necessary in order to make an up-to-date assessment of the case at hand (judgment of 25 July 2018, Alheto, C‑585/16, EU:C:2018:584, paragraph 110), it does not follow, by contrast, that an applicant for international protection may, without it being subject to a further assessment by the determining authority, modify the ground for his application and, thereby, the configuration of the facts of the case by relying, in an appeal procedure, on a ground for international protection which, whilst relating to events or threats which allegedly took place before the adoption of that authority’s decision, or even before the application was lodged, were not mentioned before that authority.
It must be stressed that the examination of the application for international protection by the determining authority, which is an administrative or quasi-judicial body with specific resources and specialised staff in this area, is a vital stage of the common procedures established by Directive 2013/32 and that the applicant’s right to obtain a full and ex nunc examination before a court or tribunal, laid down in Article 46(3) of that directive, cannot be interpreted to the effect of diminishing the obligation on the part of that applicant to cooperate with that authority (see, to that effect, judgment of 25 July 2018, Alheto, C‑585/16, EU:C:2018:584, paragraph 116).
Provided that as a result of that finding the court is able to incorporate that ground in its assessment of the action, it is for the court to ask the determining authority within a period of time in keeping with the objective of expediency pursued by Directive 2013/32 (see, in that regard, judgment of 25 July 2018, Alheto, C‑585/16, EU:C:2018:584, paragraph 109) for an assessment of that ground, the result and underlying reasons of which must be provided to the applicant and to the court before the court has interviewed the applicant and considered the case.