When referred an application for subsidiary protection, the competent authorities of Member States must examine all relevant circumstances characterising the situation in the applicant’s country of origin in order to determine the intensity of an armed conflict and not just take the number of civilian casualties into account. This was the conclusion of the Court of Justice of the European Union (CJEU) in a judgment handed down on Thursday, 10 June, in case C-901/19.
The Higher Administrative Court of Baden-Württemberg (Germany)—which has to rule on the rejection of the asylum applications of two Afghan nationals—asked the CJEU for clarification regarding the interpretation of Directive 2011/95 on international protection and specifically on the criteria applicable in cases of “serious and individual threat” to the life of a civilian due to “indiscriminate violence in situations of armed conflict”.
This is a question on which the CJEU has not yet had the opportunity to hand down a specific ruling. Moreover, Member States’ case law in this area is inconsistent. While a comprehensive assessment is sometimes made based on all the circumstances of the case, other approaches are predicated on an analysis based primarily on the number of civilian casualties; this is notably the case in German law.
In its judgment, the CJEU considers that a national regulation according to which a finding of serious and individual threat depends on the condition that the ratio between the number of civilian casualties and the total number of individuals in the region in question reaches a certain threshold is not compatible with Directive 2011/95.
The court notably observed that the use of this quantitative criterion is at odds with the objectives of the directive and, in particular, with the need for all Member States to apply common criteria for the identification of persons genuinely in need of international protection.
It also notes that this could prompt applicants for international protection to travel to Member States that apply a lower casualty threshold, thus encouraging the practice of ‘forum shopping’.
Furthermore, the court judges that the concept of “serious and individual threat” must be interpreted broadly. It thus concludes that a comprehensive appraisal of all the relevant circumstances of the case in question, including those that characterise the situation in the applicant’s country of origin, is required.
See the judgment: https://bit.ly/3ziRG4o (Original version in French by Marion Fontana)