## Facts

- Meki Elgafaji and Noor Elgafaji, Iraqi nationals, applied in 2006 for temporary residence permits in the Netherlands seeking subsidiary protection based on risk of serious harm if returned to Iraq.
- Mr. Elgafaji worked in Iraq for a British security-related company transporting personnel between the airport and the Green Zone, which was viewed as collaboration with foreign forces.
- Mr. Elgafaji’s uncle, who performed similar work, was killed by militia, and a threat was left indicating that “collaborators” should be killed.
- Dutch authorities denied relief, concluding that although Iraq was generally dangerous, the applicants had not shown a “serious and individual threat” different from risks faced by the population at large.
- The Raad van State (Netherlands) referred questions to the Court of Justice of the European Union (Grand Chamber) on interpretation of Directive 2004/83/EC (Qualification Directive), particularly Articles 2(e) and 15(c).

## Issues

1. Whether Article 15(c) of Directive 2004/83/EC requires proof that an applicant is specifically targeted based on personal circumstances, or whether exceptionally high indiscriminate violence can itself create a “serious and individual threat” to a civilian.
2. How Article 15(c) relates to Article 15(b) (corresponding in substance to Article 3 ECHR), and whether Article 15(c) must be interpreted independently.

## Decision

- The CJEU held that Article 15(c), read with Article 2(e), does not require an applicant to prove specific targeting due to factors particular to personal circumstances in every case.
- The CJEU held that a “serious and individual threat” may be established where indiscriminate violence in an armed conflict reaches such a high level that a civilian would face a real risk of serious harm solely by being present in the relevant country or region.
- The CJEU explained that Article 15(c) has content different from Article 3 ECHR and Article 15(b), and must be interpreted autonomously within EU law while respecting fundamental rights.
- The CJEU did not determine whether the Elgafajis met the standard; it provided the governing interpretation for the national court to apply.

## Legal Principles

- Subsidiary protection under Article 15(c) is available without proof of individualized targeting when the intensity of indiscriminate violence in an international or internal armed conflict is exceptionally high.
- “Individual” in Article 15(c) can include risk affecting a civilian irrespective of identity where indiscriminate violence is so severe that presence in the area alone creates a real risk.
- The required assessment is contextual and prospective: decisionmakers must consider both the general security situation (including the level of indiscriminate violence) and the applicant’s personal circumstances.
- Article 15(b) corresponds in substance to Article 3 ECHR, but Article 15(c) addresses a distinct category of harm linked to indiscriminate violence during armed conflict and is not limited to Article 3 ECHR standards.
- The applicable standard is whether substantial grounds show a real risk of suffering “serious harm” within Article 15, as incorporated through Article 2(e).

## Conclusion

The CJEU interpreted Article 15(c) to allow subsidiary protection either where personal circumstances increase risk or, even absent such circumstances, where indiscriminate violence is so extreme that any civilian would face a real risk simply by being present; the national court was left to apply that test to the applicants’ situation.


Elgafaji v. Staatssecretaris van Justitie, Case C-465/07 (C.J.E.U. 2009)