A.B., a third-country national, arrived in the Czech Republic in July 2006 and his stay was legal until the Czech authorities rejected the extension of his residence permit. He lodged an application for international protection in April 2019, which was rejected in February 2020 by the Ministry of the Interior. By judgment of 17 June 2021 of the Regional Court of Prague, the decision of the Ministry was annulled and the application was re-examined again by the Ministry and rejected a second time, by decision of 20 October 2022. By judgment of 17 May 2023, the Regional Court of Brno, the referring court, annulled the second negative decision. Both decisions were annulled by the courts due to the incomplete information gathered by the Ministry on the applicant’s private and family life, due to the insufficient examination of certain factors relating to private and family life, such as the length of his stay in the Czech Republic, his integration, his state of health, the death of his wife in the Czech Republic or his lack of social and family ties in his country of origin.

On 9 November 2023, the Ministry rejected for the third time the application arguing that A.B. had no strong social or private ties in the Czech Republic. A.B. appealed the decision before the Regional Court of Brno, which stayed the proceedings are referred questions to the CJEU for a preliminary ruling. 

The referring court noted that the interpretation of Article 14a(2)(d) of the Law on asylum, consistently followed by the Czech courts, which involved granting subsidiary protection to third-country nationals whose right to private and family life would be infringed in the event of removal from the Czech Republic. However, it also added that by order of 15 February 2024, the Supreme Administrative Court of the Czech Republic adopted a different interpretation holding that subsidiary protection could be granted based on that provision, to a third-country national only if removal would expose them in the country of origin, to a breach of the Czech Republic’s international obligations and so, subsidiary protection could no longer be granted on account of an interference with private or family life in the Czech Republic, in the event of removal.

The CJEU reformulated the questions addressed by the national court, to focus on the risk, for that applicant, of suffering a breach of his or her right to private life due to the severing of the links between that applicant and the Member State examining the application for international protection, in case of removal to that country. Thus, the court examined “whether Article 3 of Directive 2011/95 must be interpreted as precluding from being regarded as a more favourable standard, which may be adopted in accordance with that article, national legislation providing for the grant of subsidiary protection to a third-country national who, if removed to his or her country of origin, would face a real risk of suffering a breach of his or her right to private life on account of the severing of his or her links with the Member State examining the application for international protection.”

The CJEU agreed with the referring court that serious harm, justifying the grant of subsidiary protection under the recast Qualification Directive (QD), does not include infringement of the right to private life. However, it noted that under Article 3 of the recast QD, Member States may introduce or retain ‘more favourable standards for determining who qualifies as a refugee or as a person eligible for subsidiary protection, and for determining the content of international protection, in so far as those standards are compatible with [that directive]’. The CJEU noted that the more favourable standards may consist in relaxing the conditions under which a third-country national can enjoy subsidiary protection status, as long as they are connected with the rationale of international protection.

The CJEU further looked at the relevant provisions of the recast QD to determine whether the examination of an application for international protection should include the situation of the applicant in the Member State examining the application or the consequences of severing the links between the applicant and that Member State.

The CJEU noted that the purpose of international protection is to replace the protection of the country of origin where the applicant is unable or, owing to certain fears or risks, is unwilling to avail himself or herself of the protection of that country. In that regard, the assessment of the ability of the country of origin to provide protection from persecution must be based on an examination of the circumstances existing in the country of origin. Furthermore, the court noted that Article 4(3) of the recast QD does not mention the examination of the applicant’s situation in the Member State examining the application for international protection or the examination of the consequences of severing the links between the applicant and that Member State. However, that article requires an examination of all the relevant facts relating to the country of origin at the time of taking a decision on the application.

In addition, the court noted that Article 6 of the recast QD also concerns the country of origin as it identifies ‘actors of persecution or serious harm’ which are from the country of origin and not from the Member State examining the application for international protection.

As regards the reasons for persecution, the CJEU highlighted that the existence of a ‘social group’ under Article 10(1)(d) of the recast QD must be determined on the basis of the conditions prevailing in the country of origin. Similarly, the existence of political opinions and the causal link between them and the acts of persecution must be assessed in the light of the general context of the country of origin.

As regards serious harm, Article 15(b) provides that serious harm applies only where inhuman or degrading treatment takes place in the country of origin of the applicant for international protection.

Thus, the court concludes that a residence permit on a ground that does not relate to the situation in the applicant’s country of origin is unrelated to the rationale of international protection, and thus a Member State cannot grant subsidiary protection on that ground without infringing Article 3 of the recast QD.

While observing that the national court appeared to be in favour of granting subsidiary protection based on a ground that did not relate to the situation in the applicant’s country of origin, the CJEU pointed that a national court is required, when it applies domestic law which transposes the recast QD, to ensure that EU law is fully effective by interpreting the national law in conformity with EU law.

The CJEU further noted that a Member State may grant, solely based on its national law, a right to stay on humanitarian grounds if the return of a third-country national would infringe their right to private life, and provided that this cannot be confused with refugee status or subsidiary protection status, within the meaning of the recast QD.

Lastly, the CJEU noted that although Article 5 of the Return Directive does not mention private life among the factors which the Member States consider when implementing that directive, Member States must respect the fundamental rights granted by the EU Charter to third-country nationals and consequently, a return decision or a removal order cannot be adopted if it infringes on the right to respect for private life.

Thus, the CJEU concluded that Article 3 of the recast QD precludes national legislation which provides for the grant of subsidiary protection to a third-country national who, upon removal to the country of origin, would face a real risk of suffering a breach of private life due to the severing of links with the Member State examining the application for international protection.