Mr Bilali and the uncertain country of origin – statelessness and subsidiary protection in the CJEU case of Bilali C-720/17

What does the case of Bilali in the Court of Justice of the European Union tell us about the responsibility of states to deal appropriately and effectively with stateless people living within their borders?  This blog considers the non-binding opinion of the Advocate General of the Court of Justice of the European Union (CJEU) in the case of Bilali v Bundesamt für Fremdenwesen und Asyl C-720/17 ¹.

Could the applicant’s status been resolved much more effectively and speedily had Austria considered Mr Bilali’s statelessness before determining whether to award him refugee status or subsidiary protection.

 

Background to the case

The Austrian authorities revoked subsidiary protection status previously conferred on the applicant, Mr Bilali. Mr Bilali claims he is stateless.  Where a person does not qualify as a refugee under the provisions of the 1950 Convention relating to the Status of Refugees (“the Geneva Convention”) but will be at risk of serious harm on return to their country of origin, subsidiary protection can be given by the state.  Subsidiary protection is complementary and additional to refugee protection under the Geneva Convention ².

Subsidiary protection status was conferred on Mr Bilali under Article 18 of EU Directive 2011/95 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted ³.  The Directive introduces common criteria for the granting of subsidiary protection.  The criteria set out in Directive 2011/95 are drawn from international obligations under human rights instruments and practices existing in Member States.

 

Mr Bilali’s appeals

Mr Bilali sought refugee status in Austria in October 2009.  Austrian authorities determined his country of origin as Algeria, refused refugee status and subsidiary protection and sought to remove him to Algeria.

Mr Bilali appealed, and the Austrian Asylum court ordered that his application be reconsidered.  On reconsideration, he was again refused refugee status.  He was granted subsidiary protection, with his nationality not determined, but speculated, to be Algerian.

Mr Bilali again appealed against the refusal to grant him refugee status.  The Austrian Asylum court again ordered a reconsideration on the basis that only inferences, and no hard conclusions, had been reached about his country of origin.  The Austrian authority again reconsidered, but this time on the basis that Mr Bilali was possibly Moroccan.  On that basis, refugee status was again refused and his subsidiary protection status (which entitled the applicant to limited leave to remain in Austria) was also revoked.  Removal to Morocco was ordered.

That decision was appealed to the Administrative Tribunal which annulled the removal decision only.  On an application to the Administrative Court against the Tribunal’s decision, the Administrative Court expressed doubts about the revocation of the subsidiary protection status and referred the issue to the CJEU.

 

The question before the CJEU

The Austrian Administrative Court asked the CJEU was whether Article 19 allows for revocation of subsidiary protection status when the knowledge of the authorities changes, and there has been no dissembling on behalf of the applicant which affected the decision to grant the status.  A further question was whether Article 19 could be read as meaning that even without fraud by the applicant, the revocation could occur because he was deemed, coming from Morocco, to have no further need of the Article 16 protection.

 

The opinion of the Advocate General and the legal framework

Article 19 of Directive 2011/95 provides an exhaustive list of reasons for revoking or not renewing subsidiary protection.  It does not allow for revocation where an error is made by the national competent authority, even if the applicant benefited from the mistake.  Revocation is permitted if there is an objective change in circumstances and the subsidiary protection need no longer be given to the third country national or stateless person.  Alternatively, it can be revoked or not renewed if it was obtained through false information submitted or deliberate omission of information by the applicant.  The onus is on the member state to prove this, but there was no evidence submitted of the applicant doing so.

The Geneva Convention (in Article 1C and 1D to F) sets out reasons for revoking protection.  It does not set out the mechanisms for how that should be done.  That mechanism, at least for the European Union member states, and as it now applies to the revocation of subsidiary protection, is set out in Article 14-19 of Directive 2011/95.  Any interpretation of Article 19 of Directive 2011/95 must be in line with the Geneva Convention.  This means that a revocation of subsidiary protection on the basis of a change of circumstances must mean a change of objective circumstances and not as they are shaped by the knowledge of the competent authority.

It is noteworthy that despite this finding, the state and the competent authority are not precluded from taking away the applicant’s subsidiary protection status.  It is just that they cannot revoke it.  The Austrian authorities can still annul Mr Bilali’s status and treat it as if it had never been conferred on him.

 

The status of the Advocate General’s opinion

The Advocate General’s opinion, as with all Advocates General opinions ahead of a decision of the CJEU, is not binding on the court. However, it is often a good indication of what the court is likely to rule in due course.  It is also indicative of the issues which will be considered.  In this case, the focus will be squarely on the interpretation of Article 19.   It is yet to be seen if the court will comment on how Austria dealt with the applicant’s claim of statelessness and if it will make recommendations on that point.

 

Statelessness missing from the consideration of the Mr Bilali’s case?

The Advocate General’s opinion could have mentioned that the uncertainty and distress caused to the applicant came about because the state had not considered the Applicant’s statelessness claims fully and properly.  The opinion mentions that the authorities ‘speculated’ about the applicant’s country of origin.  That is surely not enough when it comes to the important decisions it has to make about the applicant.

Had the applicant benefitted from having his statelessness claim properly considered, he might have, first and foremost, had access to a range of rights and protections by virtue of that status.  This would surely have been better and more cost-effective for the Austrian competent authority than too-ing and fro-ing with plans to remove him to different North African countries.

 

Austria and statelessness

Austria is a party to the 1954 Convention relating to the Status of Stateless Persons and to the 1961 Convention on the Reduction of Statelessness.  As a party, it has committed to offering certain protections and basic rights to stateless persons within its borders.  Those rights include, among others, the right to employment (Article 17), housing (Article 21), education (Article 22), social security (Article 24), freedom of movement (Article 26), obtaining travel documents (Article 28) and to facilitated naturalisation (Article 32).

However, a 2017 report ‘Mapping Statelessness in Austria’ by UNHCR found that, despite accession to the 1954 Convention, there are still inconsistencies and gaps in the law, policies and practices of the Austrian authorities.  Such gaps significantly limit the enjoyment of the rights guaranteed by the 1954 Convention.  Not least because stateless people do not qualify for a residence permit in Austria by virtue of being stateless ⁴.  Stateless people in Austria are not issued with any identity documents, which confounds their precarious status and places them at heightened risk of detention and attempted removal, as happened to Mr Bilali.

The best that a stateless person, with no other leave to remain, can hope for is a form of ‘unsettled’ status or ‘tolerated stay’.  Such status brings very limited rights.  After one year of ‘tolerated stay’ more permanent status might be available.  But this depends, of course, on someone recognising that individual’s stateless status.

 

No statelessness determination procedure in Austria

Had Austria set up a statelessness determination procedure, it could have determined whether Mr Bilali was indeed stateless, and if he was not, what his nationality and country of origin might be.   It is correct that the judgment focuses on the revocation of Mr Bilali’s subsidiary protection, as that was the question asked by the referring court.  I have written previously about the importance of countries having a statelessness determination procedure here and here.

In essence, a statelessness determination procedure is a mechanism to identify stateless persons.  The need for states to make a determination is implied by the 1954 Convention ⁵, although no particular procedure is prescribed.  UNHCR, the UN agency with the mandate to act on statelessness, has given further detail in its Global Action Plan.  Action 6 of the Global Action Plan calls for a determination procedure to “Grant protection status to stateless migrants and facilitate their naturalization”.  The overall aim is for states to use the procedure to “Improve quantitative and qualitative data on stateless populations” ⁶.

 

A better way through a statelessness determination procedure

A statelessness determination procedure is important because it leads to identification and documentation.  These allow the stateless person to regularise their presence in the country, including through the eventual grant of nationality, in the host state.  Stateless people can access basic rights and fuller participation in and contribution to the society in which they live.  Identification of statelessness reduces the risk that stateless persons will be arbitrarily detained or spend prolonged periods in detention.  In summary, a statelessness determination procedure ensures the protection of stateless persons and their enjoyment of rights to which they are entitled under international law.

A properly engaged state will also ensure that anyone found to be stateless is given a residence permit and can access services, such as education or healthcare.  Without a statelessness determination procedure, UNHCR confirms, it will be very hard for Austria to comply with its obligations under the 1954 Convention ⁷.

Not only that, but the determination would have been more advantageous for Austria too.  If it had determined that the applicant was stateless in good time, Austria certainly would not have been before the CJEU on a question of whether its knowledge about the applicant’s country of origin was relevant to a revocation under Article 19.  If it had found that Mr Bilali was not stateless, then this would have focused the competent authorities’ mind.  Austria would have had the opportunity to determined Mr Bilali’s country of origin before making a refugee or subsidiary protection determination.

 

A limbo, but what kind?

The Advocate General’s opinion is not the final say on the matter and it may be that the CJEU decides the case differently.  Mr Bilali now has to await the decision of the CJEU, and then again the decision of the Administrative Court of Austria, to find out exactly what kind of limbo he will face.

More on this topic on The Torn Identity blog once the judgement of the CJEU is handed down.