CJEU, 9 November 2023, X, Y and their six minor children v. Staatssecretaris van Justitie en Veiligheid, C-125/22, EU:C:2023:843

Asylum – Immigration – Subsidiary Protection – Family Life – Children’s Rights.

In the present judgment, the Court of Justice of the EU establishes that personal circumstances may be relevant in the assessment of whether such a level of indiscriminate violence exists to give rise to a situation as envisioned in Article 15(c) of the EU Asylum Qualification Directive. If that is the case, a lower level of indiscriminate violence is sufficient to reach the required threshold. A combination of personal circumstances and indiscriminate violence may qualify as a real risk of serious harm. The personal circumstances that should be considered in this regard are factors specific to the applicant’s private, family, or professional life.

Mark Klaassen, assistant professor of immigration law at Leiden University[1]

A. Facts

The X, Y and their six minor children v Staatssecretaris van Justitie en Veiligheid case concerns a Libyan family with six children. In 2018, they applied for asylum in the Netherlands because they feared being subjected to serious harm as laid down in Article 15(b) and (c) of the EU Asylum Qualification Directive. The father of the family claims to have worked as a bodyguard for prominent politicians in Libya and that he was a victim of a shooting which occurred outside of his working hours. Additionally, he stated that he was under threat of militias over a dispute concerning a piece of land. Lastly, he claimed that his family left Tripoli because of the difficult living conditions, including the absence of fuel, drinking water and electricity.

The asylum application was rejected by the Dutch authorities because the threats to his life were not considered credible. For example, he could not substantiate that he was directly targeted in the shooting. Additionally, the Dutch authorities deemed that the applicants did not qualify for subsidiary protection based on the general security situation in Libya.

The referring court asked the Court of Justice whether personal circumstances and the general situation in the country of origin must always be examined and assessed under Article 15(c) of the Asylum Qualification Directive. This question originates from a long-standing discussion in Dutch asylum law about whether individual circumstances can play a role in the assessment of a situation that is covered by Article 15(c).

B. Preliminary Ruling of the Court of Justice

The EU Asylum Qualification Directive provides that subsidiary protection should be granted to a person who does not qualify as a refugee but who nevertheless faces a real risk of suffering serious harm in the country of origin. Serious harm, as defined in Article 15 of the Directive, consists of the death penalty or execution (a), torture of degrading or inhuman treatment (b) or a serious individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict (c).

In its ruling, the Court provides an overview of the different forms of serious harm that are listed in Article 15. For the first two limbs of that provision, the Court observes that there must be substantial grounds for believing that the applicant would be exposed specifically and individually (emphasis added) to a real risk of being subjected to the death penalty, execution, torture, or inhuman or degrading treatment or punishment (§ 38). In that assessment, elements concerning the general level of violence and insecurity must also be considered, as it provides context for the specific and individual risk (§ 39).

The Court finds that Article 15(c) provides for a “more general” risk of harm than points (a) and (b). Referring to the judgment in Elgafaji, the Court states that the real risk of serious harm under that provision is not conditional on the applicant proving that they are specifically affected by factors particular to their personal circumstances (§ 41). What is innovative in the Court’s reasoning is that personal circumstances may be relevant in the assessment of whether such a level of indiscriminate violence exists to give rise to a situation as envisioned in Article 15(c). If that is the case, a lower level of indiscriminate violence is sufficient to reach the threshold of Article 15(c) (§ 42). A combination of personal circumstances and indiscriminate violence may give rise to eligibility for subsidiary protection under Article 15(c).

The remaining question is: Which personal circumstances can lower the level of indiscriminate violence to find that there is a real risk of serious harm? The Court emphasizes that the Member State authorities must make an assessment on a case-by-case basis, considering any factors relating to the individual situation of the applicant liable to contribute to the materialization of the real risk. Member States must have regard to the level of indiscriminate violence in the country of origin. In that context, factors specific to the applicant’s private, family, or professional life may be presumed to increase the risk of serious harm (§ 67).

The Court of Justice considers that this reading of the Qualification Directive is fully compatible with the jurisprudence of the European Court of Human Rights on Article 3 ECHR. The Court states that Article 15(c) provides more extensive protection than Article 3 ECHR.

C. Ruling of the Referring Dutch Court

The referring court has published its ruling on 20 December 2023. In the judgment, the District Court of ’s-Hertogenbosch first determines whether the applicant family qualifies for subsidiary protection based on the specific and individual risk of serious harm (Article 15(a) and (b)) and on the basic assessment of the serious and individual threat because of indiscriminate violence (Article 15(c)). The District Court differentiates between the risk of serious harm because of their mere presence in Libya, and the risk of serious harm because of indiscriminate violence. This implies that the referring Court tests Article 15(c) twice.

The District Court first establishes that the applicants are not at risk of the serious harm described in Article 15(a) and (b) because of their specific and individual situation. The District Court finds that the threshold to establish serious harm on these provisions is not lowered by indiscriminate violence in the country of origin. After that, the District Court observes that the basic assessment of Article 15(c) does not reveal a need for subsidiary protection. In this regard, the District Court cites the ruling of 30 August 2023 of the Dutch Council of State – the court of the highest instance in Dutch immigration law – in which it was held that the security situation in Libya does not reach the required threshold of indiscriminate violence.

Subsequently, the District Court identifies which elements should be considered to determine whether individual circumstances nevertheless give rise to a real risk of serious harm based on Article 15(c). In the present case, the Immigration and Naturalisation Service (INS) holds that the level of indiscriminate violence in Libya is such that it never warrants the conclusion that Article 15(c) is applicable, as no specific and individual circumstances can lead to the opposite conclusion. The District Court does not follow this. From country-of-origin information and the cited recent decision of the Council of State, it appears that there still is a significant level of violence in Libya. Based on the judgment of the Court of Justice, the District Court holds that in determining the real risk of serious harm, the elements that should be considered include the applicants” private, family and professional life. In this regard, the applicants hold that the INS should consider the applicant’s former job as a bodyguard for politicians and the young age of the six children. On the issue of the applicant’s job as a bodyguard, the District Court holds that the INS should consider whether the serious risk the applicant faces is only the result of the nature of his profession – to be considered in the risk assessment under Article 15(b) – or is also the result of the level of indiscriminate violence. It should be considered under Article 15(c) in the latter case. Considering the young age of the applicant’s children, the District Court holds that the nature of the indiscriminate violence should be considered in combination with their age. The District Court believes that children can understand the danger of gunfights and the need to avoid such situations but that it is more difficult for children to recognize dangerous situations that are not immediately observable. Besides that, the District Court establishes the need to recognize that in the case of an outburst of violence, it is more difficult to find safety for a family with young children. The District Court concludes that the INS has not sufficiently assessed the need for subsidiary protection based on a real risk of serious harm based on Article 15(c).

D. Discussion

The present judgment expands the scope of Article 15(c). Previously, it was believed that the scope of this provision was limited to situations where the level of indiscriminate violence was too low to qualify as a real risk of serious harm. With the present judgment, it has become clear that the Article 15(c) threshold is flexible. Personal circumstances should be considered in the risk assessment under this provision, meaning that the level of indiscriminate violence does reach the required threshold for some, whilst not for others. By its reasoning, the Court of Justice has settled the discussion that Article 15(c) is not dichotomous but works with a sliding scale.

The difference between Article 15(b) is that under that provision, an asylum applicant must prove that they individually face a real risk of serious harm, possibly as a result of belonging to a certain group. The personal circumstances that determine whether the applicant is at risk relate to the risk assessment of how the applicant would be treated in the country of origin. Whereas with Article 15(c), an asylum applicant does not need to substantiate the individual risk with personal circumstances but should argue that because of such circumstances, the lower level of indiscriminate violence is sufficient to assume a real risk under that provision.

It remains to be seen what the legal and practical consequences of the ruling will be. The degree to which there is indiscriminate violence in the country of origin already plays a role in the assessment of whether an applicant is individually or as part of a group at risk of serious harm under Article 15(b). The present ruling offers additional guidance to the assessment under Article 15(b), but as the Court recognizes that there is no hierarchical order between the various types of serious harm, and that an applicant may be exposed to several types of serious harm, there can be an overlap between Article 15 (b) and (c).

In the Dutch implementation and application of Article 15(c) before this ruling, the family would not qualify for subsidiary protection since the level of indiscriminate violence in Libya is not considered to reach the threshold required for Article 15(c), as was recently upheld by the Dutch Council of State. After the present ruling, the District Court has confirmed that it is no longer sufficient to hold that the situation of indiscriminate violence in Libya is not severe enough. It must now also be determined whether, because of indiscriminate violence, this family with six minor children, whose father worked as a bodyguard for government officials, faces a real risk of serious harm. The District Court acknowledged that this does not mean that all children from Libya qualify for subsidiary protection. But it does mean that the specific position of children should be considered when establishing whether the level of indiscriminate violence gives rise to a real risk of serious harm.

E. Suggested Reading

To read the case: CJEU, 9 November 2023, X, Y and their six minor children v Staatssecretaris van Justitie en Veiligheid, C-125/22, EU:C:2023:843.

Case law:

• CJEU, 17 February 2009, Elgafaji, C-465/07, EU:C:2009:94.
• Council of State (Netherlands), 20 August 2023, NL:RVS:2023:3278.
• District Court of ’s-Hertogenbosch, 20 December 2023, NL:RBDHA:2023:20195.

To cite this contribution: M. KLAASSEN, “The sliding scale of Article 15(c) of the Asylum Qualification Directive: an analysis of X, Y and their six minor children (C-125/22)”, Cahiers de l’EDEM, December 2023.