The applicants in this case are AA, Nigerian national holding a permanent residence permit in Ukraine, and BA, a Ukrainian national, and their four children, CA, DA, EA and FA, who are Ukrainian nationals, beneficiaries of temporary protection in Sweden. They also submitted applications for international protection, rejected by the Swedish Migration Agency (SMA) as unfounded with regard to their request for refugee status and either as inadmissible or left unexamined on the merits with regard to their request for subsidiary protection. The SMA stated that the national legislation did not allow persons enjoying temporary protection to apply for subsidiary protection status.

The applicants challenged the decision before the Administrative Court for Immigration Matters in Gothenburg, which referred several questions to the CJEU.

First and second question

The national court asked whether Articles 3, 17 and 19 of the Temporary Protection Directive, read in the light of the recast Qualification Directive and the recast Asylum Procedures Directive, must be interpreted as authorising a Member State to reject an application for international protection, in so far as it seeks to obtain subsidiary protection status, on the sole ground that the applicant enjoys temporary protection.

The CJEU noted that Article 17 of the Temporary Protection Directive provides that beneficiaries of temporary protection “must be able to lodge an application for asylum at any time and that the examination of any asylum application not processed before the end of the period of temporary protection must be completed after the end of that period.” In addition, in accordance with Article 19, another protection than asylum may be granted to persons enjoying temporary protection. Furthermore, the court noted that these articles do not refer to the way in which the procedure for obtaining subsidiary protection applies to a beneficiary of temporary protection, nor does any other provision of that directive. In addition, no provision provides that persons enjoying temporary protection may not be granted subsidiary protection. The court further noted that Article 33(2) of the recast APD, relating to inadmissible applications, sets out an exhaustive list of cases in which applications may be rejected as inadmissible without examining the merits and the fact that a person is a beneficiary of temporary protection is not one of these grounds of inadmissibility.

Thus, the CJEU concluded that “a Member State may not reject as inadmissible an application for international protection on the sole ground that it has been made by a third-country national or a stateless person who enjoys the temporary protection provided for by Directive 2001/55 and, second, that, before rejecting that application as unfounded, it is necessary to examine whether that applicant qualifies for refugee status or, if not, for subsidiary protection status, since the fact that he or she already enjoys temporary protection has no bearing in that regard.”

The CJEU ruled that a Member State may not reject an application for international protection, namely an application for subsidiary protection status, on the sole ground that the applicant enjoys temporary protection.

Third and fourth questions

The national court also asked whether Article 17(1) and Article 19(2) of the Temporary Protection Directive, read in conjunction with Article 10(2) of the recast APD, must be interpreted as having direct effect. The CJEU reformulated this question into whether the national court must disapply national legislation under which the competent national authority is required to consider that a third-country national or a stateless person may not be granted subsidiary protection, so long as he or she enjoys temporary protection, due to the incompatibility of that legislation with a provision of EU law with direct effect.

The CJEU first noted that in order to ensure the effectiveness of EU law, the primacy principle requires national courts to interpret, to the greatest extent possible, their national law in conformity with EU law which cannot, however, serve as a basis for an interpretation of national law contra legem. The CJEU noted that it is for the referring court to assess whether national legal provisions may be interpreted in line with EU law and should it find that it cannot be interpreted in conformity with EU law, the provisions of a directive, if unconditional and sufficiently precise, may be relied upon before the national courts by individuals against the State where the latter has failed to either implement the directive in domestic law by the end of the deadline or it has applied it incorrectly. The CJEU observed that Article 18 of the recast QD and Article 33 of the recast APD are unconditional and sufficiently precise to be regarded as having direct effect.

Thus, the CJEU ruled that if the referring court finds that it cannot interpret its national law in conformity with the requirements of Article 18 of the recast QD and Article 33 of the recast APD, it would be required to ensure judicial protection for individuals and to guarantee the full effectiveness of these two articles, if needed by disapplying national law.