The case concerned an Iranian national whose initial application for international protection was dismissed by the Austrian authorities and who lodged a subsequent application for international protection on the ground that he had in the meantime converted to Christianity and, on that ground, feared persecution in his country of origin.

The Austrian authorities granted him subsidiary protection status and a fixed-period residence permit but refused to grant him refugee status. According to Austrian law, the status of refugee can only be recognized following a subsequent application if the new circumstance which the applicant has created by his or her own decision constitutes the expression and continuation of convictions held in the country of origin.

The Court of Justice today in its judgment ruled that Article 5(3) of Directive 2011/95/EU must be interpreted as precluding national legislation which makes the recognition of the status of refugee following a subsequent application based on a risk of persecution arising from circumstances which the applicant has created by his or her own decision since leaving his or her country of origin, subject to the condition that those circumstances must constitute the expression and continuation of convictions held by the applicant in that country.

The Court further noted that Article 5(3) of Directive 2011/95 cannot be interpreted as meaning that it allows the Member States to introduce a legal presumption that any subsequent application based on circumstances which the applicant has created by his or her own decision since leaving the country of origin prima facie stems from abusive intent and abuse of the procedure for the grant of international protection. In this case, the applicant had credibly demonstrated that he had converted to Christianity “out of inner conviction” and actively practiced that faith, which rules out the existence of abusive intent or abuse of the applicable procedure. Therefore, if the other relevant conditions provided by the directive are fulfilled, he must be granted refugee status.

In cases where it is found that there is abusive intent or abuse of the applicable procedure, the Court clarified that Article 5(3) of Directive 2011/95 allows the Member State concerned to provide, in principle, for that applicant not to be granted refugee status, even when the applicant has justified fears of being persecuted in his or her country of origin as a result of circumstances created by his or her own decision. In that case, he or she nevertheless qualifies as a ‘refugee’ within the meaning of Article 1(A) the Geneva Convention and Article 2(d) of Directive 2011/95. As a consequence, he or she can benefit, in the Member State concerned, from the rights guaranteed by the Geneva Convention, including the right not to be expelled or returned to the frontiers of territories where his or her life or freedom would be threatened on account of, inter alia, his or her religion.

For further details, please read the judgement of the Court and the press release of 29 February 2024.