Article 19 - Protection in the event of removal, expulsion or extradition
Article 18 - Right to asylum
Key facts of the case:
This was a reference for a preliminary ruling concerning the interpretation of Article 15(c) 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.
The reference was made in the course of proceedings between Mr and Mrs Elgafaji, both Iraqi nationals, and the Staatssecretaris van Justitie (State Secretary for Justice) relating to his refusal of their applications for temporary residence permits in the Netherlands. The key point was the meaning of the Directive’s provisions as regards the scope of the risk of harm to be assessed when granting temporary residence in a state.
Results (sanctions) and key consequences of the case:
The ECJ held “that the existence of a serious and individual threat to the life or person of an applicant for subsidiary protection is not subject to the condition that that applicant adduce evidence that he is specifically targeted by reason of factors particular to his personal circumstances” and that “the existence of such a threat can exceptionally be considered to be established where the degree of indiscriminate violence characterising the armed conflict taking place – assessed by the competent national authorities before which an application for subsidiary protection is made, or by the courts of a Member State to which a decision refusing such an application is referred – reaches such a high level that substantial grounds are shown for believing that a civilian, returned to the relevant country or, as the case may be, to the relevant region, would, solely on account of his presence on the territory of that country or region, face a real risk of being subject to that threat.”
Interpretation of article(s) and implications for the resolution of the case:
FRC - Articles 18 and 19:
Applicants for asylum can in some circumstances claim that the overall violent conditions in a country to which national authorities propose they be returned should be taken into account in determining whether there is a risk that they will suffer inhuman or degrading treatment or that their life will be endangered. Applicants may not be required in these exceptional circumstances to prove these threats are specifically targeted at them.
