Mr. Bilali applied for international protection in Austria, which was rejected by the Federal Asylum Office (Bundesasylamt) on 15 March 2010. On 8 April 2010, the Asylum Court (Asylgerichtshof) remitted the case for re-examination. On 27 October 2010, the Federal Asylum Office refused Mr Bilali's application for refugee status but granted him subsidiary protection, noting that his identity had not been established and he was probably an Algerian national. Mr. Bilali appealed to the Asylum Court, which annulled the decision, noting that more than assumptions had been made about his nationality. On 24 October 2012, the Federal Asylum Office revoked on its own motion the subsidiary protection status granted and rejected the application on the grounds that Mr. Bilali was a Moroccan national, and adopting a return decision indicating Morocco as the country of destination. On 21 January 2016, the Federal Administrative Court (Bundesverwaltungsgericht) upheld the revocation of his subsidiary protection status but annulled the provisions of the decision ordering his return to Morocco. Mr. Bilali appealed to the Supreme Administrative Court (Verwaltungsgerichtshof).

The Supreme Court remarked that there was nothing to indicate that the delay in gathering information was attributable to Mr. Bilali; he had stated he did not have Algerian nationality and was stateless, and that the legally relevant facts did not appear to have changed since the applicant was granted subsidiary protection status. It noted that Article 19(3)(b) of the Directive 2011/95/EU (recast Qualification Directive) does not cover the revocation of subsidiary protection status merely because new information was obtained by the authorities, thus it might be inferred that status cannot be revoked if the factual circumstances remain unchanged and the beneficiary of status is not responsible for an error of the authorities. At the same time, the court noted that, under Article 19(1) recast QD, a change in the competent authority's knowledge would also result in the subsidiary protection status being extinguished.

In those circumstances, the court stayed the proceedings and referred for preliminary ruling to the Court of Justice of the European Union (CJEU) the following question:

‘Do the provisions of EU law, in particular Article 19(3) of Directive 2011/95, preclude a national provision of a Member State concerning the possibility of revocation of subsidiary protection status pursuant to which subsidiary protection status may be revoked without a change in the factual circumstances themselves which are relevant for the purpose of granting that status, but rather only where the state of knowledge of the authority in this regard has undergone a change, and, in that context, without either a misrepresentation or an omission of facts on the part of the third-country national or stateless person having been a determinant factor in the granting of the subsidiary protection status?'

The CJEU recognised, as apparent, that the Austrian authority had made a mistake in determining the nationality of the applicant, as well as that the applicant was never exposed to a real risk of suffering serious harm in the event of being returned to his country of origin or habitual residence.

Next, the court clarified that Article 19(3)(b) of the recast QD provides for the loss of subsidiary protection status only where there has been a misrepresentation or omission by the person concerned that was decisive for granting that status. At the same time, Article 19 of the recast QD did not expressly preclude losing subsidiary protection status where the host Member State realises that it has granted such status based on incorrect information that is not attributable to the person concerned.

The court then stated that to answer the question, it had to consider whether, taking into account the purpose and general scheme of the recast QD, one of the other reasons stated in Article 19 of the recast QD applied to the situation. One of those was previewed in Article 19(1), which provides that a Member State must revoke, end, or refuse to renew subsidiary protection to applicants if they have ceased to be eligible for protection in accordance with Article 16 of the recast QD.

The CJEU held that from a combined reading of Articles 16 and 19(1) of the recast QD, in light of the general purpose of that directive, where the host Member State has new information establishing that, contrary to its initial assessment of the situation of a third-country national or of a stateless person to whom it granted subsidiary protection, based on incorrect information, that person never faced a risk of serious harm, within the meaning of Article 15 recast QD, that Member State must conclude from this that the circumstances underlying the granting of subsidiary protection status have changed in such a way that retention of that status is no longer justified.

Reading the recast QD together with the Geneva Convention, the court stated that although there is nothing in that convention that expressly provides for loss of refugee status if it subsequently emerges that such status should never have been conferred, the United Nations High Commissioner for Refugees (UNHCR) in its Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees paragraph 117 nevertheless considers that, in such a situation, the decision granting refugee status must, in principle, be annulled. 

In conclusion, the CJEU held that Article 19(1) of Directive 2011/95, read in conjunction with Article 16 thereof, must be interpreted as meaning that a Member State must revoke subsidiary protection status if it granted that status when the conditions for granting it were not met, in reliance on facts which have subsequently been revealed to be incorrect, and notwithstanding the fact that the person concerned cannot be accused of having misled the Member State on that occasion.