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Subsidiary protection status must be revoked if granted in error


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The Court of Justice of the European Union has confirmed that subsidiary protection status must be revoked by member states if they discover that it has been granted in error, even if the applicant did nothing to mislead the authorities. Case C‑720/17 Bilali v Bundesamt für Fremdenwesen und Asylis is about the interpretation of Article 19(1) of the 2011 Qualification Directive, which the UK did not participate in, but the provision is materially identical to the 2004 Qualification Directive which the UK is bound by. 

Mr Bilali had claimed to be stateless but was found to be Algerian by a court. He was granted subsidiary protection status on the basis that he would suffer inhuman and degrading treatment if returned, due to the general conditions prevailing in Algeria. When the authorities decided that he was in fact a Moroccan national they sought to revoke his subsidiary protection status.

The court went further and ruled that member states are required to withdraw subsidiary protection status if it was granted in error:

Article 19(1) of Directive 2011/95/EU… read in conjunction with Article 16 thereof, must be interpreted as meaning that a Member State must revoke subsidiary protection status if it granted that status when the conditions for granting it were not met, in reliance on facts which have subsequently been revealed to be incorrect, and notwithstanding the fact that the person concerned cannot be accused of having misled the Member State on that occasion.

The CJEU reached this decision by contrasting mandatory revocation of subsidiary protection status with discretionary exclusion from the Qualification Directive on the grounds of serious criminality. The court noted that although revocation is mandatory, member states retain a discretion not to revoke the residency status which was granted because of the grant of subsidiary protection status. It also hinted that revoking residence rights following the revocation of subsidiary protection status in such circumstances might breach Article 8 of the European Convention on Human Rights.

Making it mandatory to revoke subsidiary protection status granted in error is odd at first glance. But the decision says that it is in accordance with the general position in international refugee law that refugee status is declaratory, and the UN refugee agency’s view that refugee status granted in error should be annulled. The idea is that states do not have the power to create refugee status, but instead provide formal recognition of an individual’s refugee status.

The court’s interpretation of Article 19(1) is a reasonable one, but its hope that member states will apply common sense and maintain the residence rights of individuals who have had their subsidiary protection status revoked is probably misplaced.

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Alex Schymyck

Alex is a barrister at Garden Court Chambers