“Everyone has the right to a nationality”

Unsettled Status – The CJEU’s judgment in Bilali C-720/17 on statelessness and subsidiary protection

22 November 2019 | Jo Venkov, Lawyer and writer on statelessness, identity, citizenship and belonging
Photo: Cédric - European Court of Justice - Luxembourg

This blog considers the judgment of the Court of Justice of the European Union (CJEU) in the case of Bilali v Bundesamt für Fremdenwesen und Asyl C-720/17. The decision of the CJEU is that subsidiary protection could be revoked even though the mistake lay with the Austrian authorities, and not with the Applicant. Austria does not have a statelessness determination procedure. If it had, Mr Bilali’s case might have been resolved much more speedily and effectively.

Background to the case and Mr Bilali’s appeals

You can find out more about Mr Bilali’s legal journey in my previous blog, but in summary, the Austrian authorities revoked subsidiary protection status previously conferred on the applicant, Mr Bilali. It was granted to the applicant on the basis that his nationality cannot be determined. Mr Bilali claims he is stateless.

Mr Bilali sought refugee status in Austria in October 2009. Austrian authorities determined his country of origin as Algeria, refused refugee status and sought to remove him to Algeria. He was then granted subsidiary protection on the basis that his nationality was not determined. Where a person does not qualify as a refugee under the provisions of the 1950 Convention relating to the Status of Refugees (“the Geneva Convention”) but will be at risk of serious harm on return to their country of origin, subsidiary protection can be given by the state. Subsidiary protection is complementary and additional to refugee protection under the Geneva Convention.

Subsidiary protection status was conferred on Mr Bilali under Article 18 of EU Directive 2011/95 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted.

During one of the appeal stages the Austrian Asylum court reconsidered his asylum case on the basis that he was Moroccan. The court again refused to grant him refugee status and decided to revoke his subsidiary protection status (which entitled the applicant to limited leave to remain in Austria). On an application to the Administrative Court against the Tribunal’s decision, the Administrative Court expressed doubts about the revocation of the subsidiary protection status and referred the issue to the CJEU.

The question before the CJEU

The Austrian Administrative Court asked the CJEU whether Article 19 allows for revocation of subsidiary protection status when the knowledge of the authorities changes, and there has been no dissembling on behalf of the applicant which affected the decision to grant the status. A further question was whether Article 19 could be read as meaning that even without fraud by the applicant, the revocation could occur because he was deemed, coming from Morocco, to have no further need of the Article 16 protection.

Ruling of the Court

The CJEU considered the general scheme and purpose of the Directive. Its finding was that where a member state has new information which contradicts its initial assessment whether a stateless person faced a risk of serious harm, then the member state must conclude that the circumstances which led to the grant of subsidiary protection have changed. The retention of status is no longer justified. The fact that the error is not attributable to the applicant cannot alter the fact that that person effectively never met the conditions for the grant of subsidiary protection under the Directive. In light of this reading of the Directive, a member state must revoke subsidiary protection if the status was granted when conditions for the grant were not met.

The Court noted that this does not affect the position that a member state adopts as to whether the loss of the subsidiary protection implies the loss of a right of residence. Nor does it stop the applicant from applying for another kind of protection which falls outside the scope of the Directive.

That the applicant had not sought to mislead the Austrian authorities was not relevant for the consideration of a grant of subsidiary protection. However, it could be relevant to any consideration of the applicant’s right to respect for his private and family life under Article 8 of the European Convention on Human Rights and Article 7 of the Charter of Fundamental Rights of the European Union.

The Court departs from the Opinion of the Advocate General

Article 19 of Directive 2011/95 provides an exhaustive list of reasons for revoking or not renewing subsidiary protection. Revocation is permitted if there is an objective change in circumstances and the subsidiary protection need no longer be given to the third country national or stateless person. Alternatively, it can be revoked or not renewed if it was obtained through false information submitted or deliberate omission of information by the applicant.

In contrast to the CJEU judges, the Advocate General found that Article 19 does not allow for revocation where an error is made by the national competent authority, even if the applicant benefited from the mistake. This is because revocation of subsidiary protection on the basis of a change of circumstances must mean a change of objective circumstances and not as they are shaped by the knowledge of the competent authority.

The key difference between the Advocate General’s Opinion and the final judgment of the CJEU is that the court considered the new information Austria had acquired went not just to their own knowledge of the situation, but to the very heart of the objective circumstances. And it is those objective circumstances, regardless of when they come to light, that determine whether subsidiary status should be granted.

Statelessness once again not considered by the Court

The judgment of the Court, like the Opinion of the Advocate General, is once again noteworthy for not giving consideration to how the Austrian authorities should have handled the applicant’s claim that he is stateless. There is no procedure in Austria to determine whether someone is stateless.

I have written previously about the importance of countries having a statelessness determination procedure here and here. Austria is a party to the 1954 Convention relating to the Status of Stateless Persons and to the 1961 Convention on the Reduction of Statelessness. As a party, it has committed to offering certain protections and basic rights to stateless persons within its borders. However, a 2017 report ‘Mapping Statelessness in Austria’ by UNHCR found that, despite accession to the 1954 Convention, there are still inconsistencies and gaps in the law, policies and practices of the Austrian authorities.

The CJEU finds that the applicant can apply for another kind of protection. Actually, the main avenue of assistance is cut off for Mr Bilali. First, there is no procedure to determine if he is indeed stateless and is therefore in need of protection. Secondly, in Austria, he would not qualify for a residence permit by virtue of being stateless. Nor are stateless people in Austria issued with identity documents.

Unsettled status

The challenge for Austria is not just to deal with Mr Bilali, but with the many people that fall in one of the three categories of ‘stateless’, ‘undetermined nationality’ or ‘unknown nationality’. According to UNHCR, figures for 2016 show that there are 4142 stateless people in Austria. 543 individuals are registered as ‘nationality unknown’ and 6943 are registered as ‘undetermined nationality’.

The best that a person with no other leave to remain, and who is registered as one of those three categories, can hope for in Austria is a form of ‘unsettled’ status or ‘tolerated stay’. Such status brings very limited rights. After three years of ‘tolerated stay’ more permanent status might be available. And in the meantime, with no residence permit, or any other identity documents, that person is also at risk of prolonged detention and removal attempts.

A statelessness determination procedure would be the first step. The second is treating a person found to be stateless in accordance with the state’s obligations under the Statelessness Conventions and giving them the rights guaranteed by those Conventions. Equally, if they are determined not to be stateless, then the Austrian authorities can assist that person by working with their state of origin to help them obtain identity documents from that state.

Unclear future

Following the judgment of the CJEU, a decision needs to be made by the Austrian courts on Mr Bilali’s status. It may have got a favourable ruling from the CJEU in this particular case, but as a party to the Statelessness Conventions Austria has obligations towards those living within its borders. A key part of that obligation is to ensure that it makes a concerted effort to find out, promptly and effectively, who within its borders is stateless.

The CJEU told Mr Bilali that, subject to Austrian laws and procedures, he may be able to apply for another kind of protection. After many court hearings, it seems that Mr Bilali’s journey to remain in Austria has only just began.

Jo regularly posts on legal aspect of identity such as statelessness, citizenship, documentation and belonging or not belonging on her blog The Torn Identity, where this piece was first published. You can also follow her on Twitter.

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