The case concerned an Indian applicant who applied for international protection on 9 October 2019 on the grounds of political persecution in India. In addition, the applicant provided evidence to suffer from “Hodgkin's disease” which made him dependent from regular medical controls. By decision of 18 November 2019, the BFA rejected the application and issued a return decision. On 17 December 2019, the applicant appealed against this decision before the Federal Administrative Court. In the course of the oral hearing, the applicant withdrew his request for recognition of refugee status and limited his appeal to the granting of subsidiary protection.

The Federal Administrative Court referred to the case law of the CJEU on the granting of subsidiary protection, according to which a real risk of torture or inhuman or degrading treatment pursuant to Article 15(b) of the recast QD had to be linked to the behavior of an actor within the meaning of Article 6 of the recast QD. General inadequacies in the country of origin - such as in the healthcare system - which were not caused by third actors were not covered.

Contrary to the case law of the CJEU, the Federal Administrative Court referred to the case law of the Supreme Administrative Court, A.A. v Federal Administrative Court (Decision of December 5, 2018 , I403 2143815-1 / 17E), Ro 2019/19/0006, 21 May 2019, according to which such an interpretation was contra legem and could not be applied to the granting of subsidiary protection pursuant to Section 8(1) of the Asylum Act 2005. Therefore, according to the case law of the Supreme Administrative Court, subsidiary protection under Section 8(1) of the Asylum Act 2005 was also to be granted if the required real risk was not caused by the behavior of a third party or the threats in an armed conflict.

Based on this, the Federal Administrative Court examined the case law on the requirements of a serious risk to the applicant’s right to life due to illness and considered that while subsidiary protection should not be granted simply in order to receive medical treatment, a violation of Article 3 ECHR could occur if there was a real risk that a seriously ill person would be exposed to a serious, rapid and irreversible deterioration in their state of health due to the lack of (access of) appropriate treatment in the country of destination, leading to intense suffering or a significant shortening of life expectancy.

The Federal Administrative Court found that in the applicant’s case, the "exceptional circumstances" were present. The court noted that adequate medical care for the treatment of his illness could not be guaranteed with the necessary certainty in India within the framework of state healthcare in India and the applicant did not have sufficient financial resources to obtain private health insurance. The court therefore decided that due to the lack of access to medical care, the applicant faced a real risk of serious, rapid and irreversible deterioration of his health, leading to intense suffering or a significant shortening of life expectancy and constituting a violation of Article 3 ECHR.

Based on the above, the Federal Administrative Court annulled the decision of the BFA and granted the applicant subsidiary protection with regard to India.