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 His refugee status was withdrawn by the Hungarian authorities during criminal proceedings in 2014. He applied again in 2015, his request was rejected, and he appealed it to the Budapest Administrative and Labour Court. The court upheld his appeal and ordered the authority to initiate a new administrative procedure. In the course of it, the authority dismissed Mr. Ahmed's new application and it 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). Mr. Ahmed appealed to the Budapest Administrative and Labour Court arguing that the expression ‘he or she has committed a serious crime' in Article 17(1)(b) of the recast Qualification Directive (QD) (Directive 2011/95) implies an obligation to assess al the circumstances of the individual case concerned. However, he submitted, by using as a ground for exclusion from subsidiary protection status the fact that a person has committed a punishable crime under Hungarian law, the national legislation removes all discretion from the administrative bodies responsible for applying that law and the courts responsible for reviewing the legality of the decisions made by those bodies. The court noted the criterion used by Hungarian law, consisting of taking into consideration the duration of the penalty provided did not make it possible to assess the seriousness of the crime committed. Against this background, the court stayed the domestic proceedings and referred a question for preliminary ruling to the CJEU.

The question concerned whether Article 17(1)(b) of the recast QD must be interpreted as precluding legislation of a Member State according to which the applicant for subsidiary protection is deemed to have ‘committed a serious crime' based on the sole criterion of the penalty provided for a specific crime under the law of that Member State.

The Court first observed that the concept of ‘serious crime' in Article 17(1)(b) of the recast QD is not defined in the directive, not does the directive contain any express reference to national law to determine the meaning and scope of that concept. The court recalled that in those cases the provision must be given an autonomous and uniform interpretation throughout the EU, and that interpretation must consider the context of that provision and the objective pursued by the rules of which it is part. The court observed that the content and structure of Article 17(1)(a) to(c) of the recast QD bear similarities to Article 12(2)(a) to (c). However, the scope of the ground for exclusion laid in Article 17(1)(b) is broader than that of the ground for exclusion in Article 12(2)(b), as it is neither limited territorially or temporally. Relying on its considerations in case B and D (C‑57/09, 9 November 2010), the CJEU held that the requirement that any decision to exclude a person from refugee status must be preceded by a full investigation into all the circumstances of the individual case and cannot be taken automatically must be transposed to decisions excluding a person from subsidiary protection.

Next, the court held that, as an exception from the general rule stipulated by Article 18 recast QD, Article 17 (1)(b) recast QD called for strict interpretation.

Moving onto the specific criterion in Hungarian law, the court ruled that while the criterion of the penalty provided for under the criminal legislation is of particular importance to assess the seriousness of the crime justifying exclusion from subsidiary protection, the competent authority of the Member State concerned may apply the ground for exclusion only after undertaking, for each individual case, an assessment of the specific facts brought to its attention to determine if there are serious grounds for considering that the acts committed by the person in question, who otherwise satisfies the qualifying conditions for the status applied for, come within the scope of that particular ground for exclusion.

Thus, the court concluded that Article 17(1)(b) recast QD precluded national legislation determining that an applicant has committed a serious crime solely on the basis of the penalty provided for such specific crime under national law.

The court relied for its conclusion on the EASO Exclusion: Articles 12 and 17 of the Qualification Directive (2011/95/EU) (January 2016) and the UNHCR Handbook on Procedures and Criteria for determining Refugee Status under the 1951 Convention (1992).