Shajin Ahmed (Afghanistan) v Immigration and Asylum Office (HU, Bevándorlási És Állampolgársági Hivatal)
CJEU: The penalty provided for a crime under national law cannot be the sole criterion leading to exclusion from subsidiary protection
An Afghan national obtained refugee status in 2000 in Hungary on account of the risk of persecution that he faced in his country of origin. His refugee status was withdrawn by the Hungarian authorities in the course of criminal proceedings in 2014. He applied again in 2016 for refugee status and for subsidiary protection; Hungary noted that there was an obstacle to refoulement. He was not granted subsidiary protection due to the existence of a ground for exclusion (the commission of a ‘serious crime’ for which Hungarian law provides a custodial sentence of five years or more).
The Court ruled that the EU legislature intended to establish a uniform status for all beneficiaries of international and subsidiary protection. Any exclusion of a person from refugee status must be preceded by a full investigation into all the circumstances and cannot be taken automatically, it shall be a decision to exclude such person from subsidiary protection. EU law precludes legislation of a Member State pursuant to which an applicant for subsidiary protection is deemed to have ‘committed a serious crime’, which may exclude him from that protection, on the basis of the sole criterion of the penalty provided for a specific crime under national law. It is for the authority or competent national court ruling on the application for subsidiary protection to assess the seriousness of the crime at issue, by carrying out a full investigation into all the circumstances of the individual case concerned.
Afghanistan; Assessment of Application; Exclusion; Refugee Protection; Serious (non-political) crime;
European Union, Court of Justice of the European Union [CJEU], Shajin Ahmed (Afghanistan) v Immigration and Asylum Office (HU, Bevándorlási És Állampolgársági Hivatal), C‑369/17, ECLI:EU:C:2018:713, 13 September 2018. Link redirects to the English summary in the EASO Case Law Database.