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 (UK) in 2003 and obtained refugee status there as a dependent of his then wife.

On 27 September 2016, the Secretary of State revoked OA's refugee status indicating 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 returning OA to his country of origin would not breach the UK’s obligations under Article 3 ECHR. Upon appeal, the Secretary of State argued that it relied on the fact findings in the Country Guidance judgment of the Upper Tribunal of 3 October 2014 which indicated a non-temporary change of circumstances in Somalia as a result of which minority clans were no longer persecuted by the majority clan in the Mogadishu region, state authorities could offer sufficient protection in the region, and protection could be supplemented by private actors such as the family and the clan. OA argued that state authorities would not be capable of protecting him from serious harm and the case law relied on by the State Secretary did not correctly understand state protection, as it was based on the availability of protection from family or other clan members and not state actors. The UK Upper Tribunal decided to stay the proceedings and refer the questions below for preliminary ruling to the Court of Justice of the European Union (CJEU):

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?'

The CJEU preliminarily observed that the referred court was highlighting that if no financial or other form of support would be provided by their family or by their clan, Somali nationals who would return to Mogadishu would have no real prospect of securing access to a livelihood and face the prospect of living in circumstances falling below that which is acceptable in humanitarian protection terms.

On questions 1 to 3, the court ruled that mere social and financial support made available to the third country national concerned is inherently incapable of either preventing acts of persecution or of detecting, prosecuting and punishing such acts. Thus, any social and financial support provided by private actors, for example by the family or the clan of the person concerned, cannot be regarded as providing the protection from acts of persecution within the meaning of Article 11(1) read together with Article 7(2) of the 2004/83 Directive (Qualification Directive). As a result, the court held that, such social and financial support is irrelevant in determining the effectiveness or the availability of protection provided by the State within the meaning of Article 7(1)(a) of the Qualification Directive, or whether there continued to be a well-founded fear of persecution. In this respect, the court noted that the conditions specified in Article 2(c) of the Qualification Directive in relation to fear of persecution and protection from acts of persecution are intrinsically linked, thus their examination cannot be subjected to a separate criterion protection, their assessment must be made in the light of the requirements of Article 7(2) QD.

Regarding question 4, the Court noted that Article 11(1)(e) of the Qualification Directive provides that third-country nationals cease to be refugees if they can no longer refuse the protection of their country of nationality because the circumstances for which they were recognised as refugees have ceased to exist. Thus, the crucial element in assessing the cessation of refugee status is the circumstances that demonstrate the countries of origin's ability or inability to provide protection against acts of persecution. The court held that the requirements of the protection justifying cessation must be the same as those within Article 7(1) and (2) of Directive 2004/83. In line with this, the court ruled that to conclude a refugee's fear of persecution is no longer well-founded, authorities must verify that protection actors have taken reasonable steps to prevent persecution, operate an effective legal system for detecting, prosecuting, and punishing acts of persecution, and that the third country national will have access to that protection if refugee status ends. The court relied on the considerations in Salahadin Abdulla and Others (C-175/08, C-176/08, C-178/08 and C-179/08, 2 March 2010) to reach this conclusion.