CJEU: Judgment in case C-369/17 on exclusion from subsidiary protection

Thursday, September 13, 2018

On 13 September, the Court of Justice of the European Union delivered its judgment on a request for preliminary ruling by the Budapest Administrative and Labour Court. The case concerned an Afghan national whose refugee status had been withdrawn by the Hungarian authorities, after he requested that the consulate of Afghanistan be informed of criminal proceedings brought against him.

During a second procedure for refugee status determination, his application was dismissed by the Hungarian authorities, as the applicant was found to fall under the exclusion clause due to the criminal case brought against him. In particular, the basis for exclusion was a provision under Hungarian law regarding the commission of a serious crime that entailed a sentence of five years or more. The applicant challenged that decision, arguing that the characterisation of a crime as serious, in the context of Directive 2011/95/EU, required the authorities to assess the applicant’s case in an individual and comprehensive manner.

The Budapest Court requested a preliminary ruling from the CJEU on whether the penalty reserved for a specific crime could be the only criterion in the assessment of this crime as serious, in the context of the Directive provisions for exclusion from refugee status. The European Court cited its own case law on refugee status (joined cases C‑57/09 and C‑101/09), applying it by analogy to subsidiary protection cases, and confirmed that any decision on the exclusion from international protection cannot be automatic, but should involve a well-rounded assessment of each case.

As a result, the CJEU found that national legislation stands in contrast with EU law, where it provides that a crime’s penalty is the sole criterion in deciding its seriousness as a ground for exclusion from international protection. Instead, a full investigation into the factual circumstances that constitute the serious crime should always be carried out.

This item was reproduced with the permission of ECRE from the weekly ELENA legal update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.



Exclusion from protection
Individual assessment
Serious non-political crime
Subsidiary Protection