On 18 October, the Court of Justice of the European Union (CJEU) delivered its judgment on a preliminary reference submitted by the Slovenian Supreme Court, on the difference between refugee and subsidiary protection statuses.

The need for a preliminary ruling arose in the context of asylum proceedings, where a minor national of Afghanistan was granted subsidiary protection status, following several unsuccessful legal challenges. When the issue was brought before the Supreme Court of Slovenia, the domestic judges decided to refer a question to the CJEU regarding the admissibility of the applicant’s appeal against his subsidiary protection status in the context of sufficient interest, according to Article 46 (2) of Directive 2013/32/EU. The question was centred on the difference in cessation and duration requirements of the two statuses, as well as the ancillary rights thereof.

The Court first noted that the recitals of Directive 2011/95/EU indicate that EU legislators intended to establish an integral framework for all beneficiaries of international protection, save for objectively necessary exceptions for beneficiaries of subsidiary protection status. After analysing the content of Article 47 of the Charter of Fundamental Rights, the Court stated that this article sets a requirement for a restrictive interpretation of any exception from the right to an effective remedy before a court, such as the one introduced by the aforementioned article of Directive 2013/32/EU.

As such, for a subsidiary protection beneficiary’s action to be deemed inadmissible due to lack of sufficient interest, the rights and benefits granted must indeed be the same as those the applicant would enjoy if they held refugee status, even if the difference only encompasses ancillary rights. Moreover, a difference between the duration of the two statuses has to be regarded as difference in rights and benefits that justifies an admissible legal challenge.

Lastly, any relevant assessment on the existence of different rights and benefits for international protection beneficiaries should not depend on the appellant’s individual situation, but rather on an overall assessment of national legislation. According to the Court’s restrictive interpretation, this is dictated by the text of Article 46 (2), as well as the need for the predictability of this legal provision, which would vary unacceptably according to each applicant’s personal circumstances.