In a ruling handed down on Thursday 13 September (Case C-369/17), the European Court of Justice considers that the granting of subsidiary protection cannot be refused if the person requesting it has "committed a serious crime" on the basis of the sole criterion of the penalty provided for under the law of the member state concerned.
In 2014, Shajin Ahmed, an Afghan national, had his refugee status withdrawn by the Hungarian authorities after he voluntarily informed the Hungarian consulate in Afghanistan that he was the subject of criminal proceedings in Hungary. Having contested this decision, he obtained the right to make a new request for refugee status and subsidiary protection.
His request for subsidiary protection was refused as the judicial authorities pointed to the existence of a ground for exclusion – namely the commission of a "serious crime" in the meaning of the directive (2011/95) governing the granting of international protection, and for which Hungarian law provides a custodial sentence of five years or more.
Ahmed again contested the dismissal decision before the Hungarian courts, arguing that the Hungarian legislation removes all discretion from the administrative bodies responsible for applying that law and from the courts responsible for reviewing the legality of administrative decisions.
When approached by Budapest's administrative and labour court, the European Court of Justice welcomed Ahmed's appeal.
The European judge points out the jurisprudence according to which any decision to exclude a person from refugee status must be preceded by a full investigation into all the circumstances of his individual case and cannot be taken automatically (Joined Cases C-57/09 and C-101/09). Such a requirement must be transposed to decisions to exclude a person from subsidiary protection, the European judge adds.
In these conditions, the European Court of Justice considers that even though the criterion of the penalty imposed under national criminal legislation is of particular importance for the purpose of assessing the seriousness of the crime justifying exclusion from subsidiary protection, the competent authority of the member state concerned can only reject an application for subsidiary protection after carrying out a full investigation into all the circumstances of the individual case concerned. (Original version in French by Mathieu Bion)