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European Union
Country of Decision : European Union
Court Name : EU: Court of Justice of the European Union [CJEU]
Date of decision : 20/01/2021
Type : Judgment
ECLI : EU:C:2021:36
Case Number/Citation/ Document Symbol : C-255/19

Secretary of State for the Home Department [UK] v OA (Somalia)

CJEU: Interpretation of the Qualification Directive with regard to the possibility to avail oneself of the protection of the country of origin (Somalia)

OA, Somali national, fled in 2001 to Kenya because he and his wife were victims of serious harm and violence at the hands of the Hawiye militia in Mogadishu in the 1990s. OA’s wife entered in 2001 in the United Kingdom and obtained refugee status. OA travelled to the United Kingdom in 2003 and obtained refugee status there as a dependent of his then wife.

By decision of 27 September 2016, the Secretary of State revoked OA’s refugee status on the ground of a change in circumstances in his country of origin and declared him to be ineligible for humanitarian protection under the national immigration legislation, while holding that to return OA to his country of origin would not be in breach of the obligations of the United Kingdom under Article 3 ECHR. The decision was based on the fact that following changes that have occurred in the meantime, the state authorities in Somalia offer sufficient protection from acts of persecution and even more, protection can be supplemented by private actors. OA argued, on the contrary, that Somali nationals that return to their home country are facing living conditions under the level accepted for humanitarian protection in the United Kingdom.

OA actions against this decision were unsuccessful and the case reached the Upper Tribunal (Immigration and Asylum Chamber) who stayed the procedure and referred the following questions to the Court.

‘(1)      Is “protection of the country of nationality” within the meaning of Article 11(1)(e) and Article 2(e) of [Directive 2004/83] to be understood as State protection?

(2)      In deciding the issue of whether there is a well-founded fear of being persecuted within the meaning of Article 2(e) of [Directive 2004/83] and the issue of whether there is protection available against such persecution, pursuant to Article 7 of [Directive 2004/83], is the “protection test” or “protection inquiry” to be applied to both issues and, if so, is it governed by the same criteria in each case?

(3)      Leaving to one side the applicability of protection by non-State actors under Article 7(l)(b) [of Directive 2004/83], and assuming the answer to question (1) above is yes, is the effectiveness or availability of protection to be assessed solely by reference to the protective acts/functions of State actors or can regard be had to the protective acts/functions performed by private (civil society) actors such as families and/or clans?

(4)      Are (as is assumed in questions (2) and (3)) the criteria governing the “protection inquiry” that has to be conducted when considering cessation in the context of Article 11(l)(e) [of Directive 2004/83] the same as those to be applied in the Article 7 context?’

On questions 1 to 3, the Court noted that Article 11(1)(e) of Directive 2004/83, read together with Article 7(2), must be interpreted as meaning that any social and financial support provided by private actors, for example from family members or the clan of a third country national concerned, does not fulfil the requirements to be considered relevant in the assessment of the effectiveness or availability of the protection provided by the State within the meaning of Article 7(1)(a) of that directive, or to the determination, under Article 11(1)(e), read together with Article 2(c) of whether there continues to be a well-founded fear of persecution.

On question 4, the Court noted that the Article 11(1)(e) of Directive 2004/83 provides that a third country national is to cease to be a refugee if s/he can no longer, because the circumstances in connection with which he or she has been recognised as a refugee have ceased to exist, continue to refuse to avail himself or herself of the protection of the country of his or her nationality. The Court concluded that Article 11(1)(e) of Directive 2004/83 must be interpreted as meaning that the requirements to be met by the ‘protection’ to which that provision refers in relation to the cessation of refugee status must be the same as the requirements in relation to the granting of that status, from Article 2(c) of that directive, read together with Article 7(1) and (2) thereof.

Actors of protection; Cessation of protection; Country of Origin Information; Non-state actors;

Revised Qualification Directive (Directive 2011/95/EU on standards for the qualification of third-country nationals or stateless persons as BIP for a uniform status for refugees or for persons eligible for subsidiary protection- recast)/or QD 2004/83/EC;

EASO IDS

European Union, Court of Justice of the European Union [CJEU], Secretary of State for the Home Department [UK] v OA (Somalia), C-255/19, EU:C:2021:36, 20 January 2021. Link redirects to the English summary in the EASO Case Law Database.

https://caselaw.easo.europa.eu/pages/viewcaselaw.aspx?CaseLawID=1477