An Iraqi national applied for international protection in Austria on 16 May 2016 stating he had been employed as a guard in a prison near Baghdad where terrorists were incarcerated and was threatened by them. He suffers from a serious heart condition and other health problems. The Federal Office for Immigration and Asylum rejected his request on 16 December 2016. His appeal to the Federal Administrative Court was dismissed as unfounded except on the point concerning the permissibility of the applicant's deportation to Iraq, which was upheld. FAC noted that according to case law of the European Court of Justice and the European Court on Human Rights, deficiencies in the healthcare system could only lead to deportation constituting a violation of Article 3 ECHR under exceptional circumstances. FAC ruled that such exceptional circumstances existed in the case and that there was a real risk that given the current situation in Iraq, the applicant's most basic needs and the medical care absolutely essential for his survival would not be guaranteed. 

The decision was appealed to the Supreme Administrative Court. The court admitted the appeal noting that the decision from the Federal Administrative Court deviated from previous case law of the SAC on the requirements for subsidiary protection. The court also noted that there was lack on case law deciding whether in a case where the removal is not permissible on grounds to Article 3 ECHR and subsidiary protection is not to be granted, a return decision should be declared not permissible or a residence permit should be issued. 

SAC shed light on how to interpret Section 8 para. 1 of the Asylum Act 2005, transposing Article 15 (b) of the Qualification Directive 2004/83/EC. SAC noted that with regard to the Asylum Act 2005, the court has continued to base its decisions on the requirements for granting subsidiary protection on the standard of Article 3 of the ECHR, citing decision Ra 2018/01/0106 (6 November 2018) and Ra 2018/18/0021 (21 March 2018). Thus, according to SAC case law, the removal of a foreigner to their country of origin can also constitute a violation of Article 3 ECHR and justify the granting of subsidiary protection status if the person concerned finds no means of subsistence there i.e. their basic human needs cannot be met, or in the case of medical conditions, in exceptional cases in which a serious illness or a lack of actual access to the necessary treatment in the country of origin justify granting protection. Citing Paposhvili v Belgium (Application No 41738/10, 13 December 2016) the court clarified that a seriously ill foreigner does not have the right to remain solely for the purpose of receiving medical treatment and that in any case availability, accessibility including distance and cost to medication , as well as the existance of a social and family network must be assessed to determine whether the person would face a real risk of being subjected to a serious rapid and irreversible deterioration of their health, leading to intense suffering or a significant reduction in life expectancy. 

SAC noted that although FAC sought to assess the granting of subsidiary protection exclusively in accordance with Article 15 of the QD, this was contrary to national and European jurisprudence as the QD had not been fully or correctly transposed and it could not be applied to the detriment of the individual concerned. According to case law from the CJEU, in cases where a directive has not been properly transposed in national law by a Member State, state bodies should not benefit from the Member State's breach of EU Law. 

Next, looking at the wording of the provision, SAC held that for the granting of subsidiary protection status, any real risk of a violation of Article 3 ECHR would be in itself sufficient, irrespective of whether it is caused by actors or whether there is a threat in an armed conflict in the country of origin. Thus the court reaffirmed that Section 8(1) of the Asylum Act 2005 does not require that the decisive factor should be whether the serious harm results from the conduct of ‘actors'. 

SAC confirmed that the standard of review under Section 8 Paragraph 1 of the Asylum 2005 and Section 52 Paragraph 9 of the Foreigners Act (governing the prohibition on deportation) is identical and that a substantive divergence between decisions under both provisions is to be precluded.  

SAC clarified that from the perspective of the systematic relationship between the two provisions, there was no doubt that the legislature assumed that in proceedings concerning applications for international protection in cases where removal is not permissible under Article 3 of the ECHR, subsidiary protection must be granted to the person and nor merely ‘tolerated status'. The court held that this was also in line with national consitutional law and by Articles 4 and 19 of the EU Charter. 

SAC concluded that an interpetation of the requirements for granting subsidiary protection under Section 8(1) of the Asylum Act 2005 as understood by the CJEU interpreted the QD would exceed the limits of interpretation according to national rules of interpretation and lead to an interpretation contra legem – which is not required under EU law. Also, the court noted that such an interpretation would wrongly ascribe to the QD direct effect which does not belong in the given context. 

The court set aside the decision of the FAC concerning the denial of international protection.