Elgafaji v. Staatssecretaris van Justitie

Meki and Noor Elgafaji (plaintiffs) were Iraqi citizens who applied for temporary-residence permits in the Netherlands in 2006. The Elgafajis submitted evidence in an effort to prove a risk of serious harm if returned to Iraq. Mr. Elgafaji indicated that he and his uncle had worked for a British company in Iraq, transporting personnel from the airport to the green zone. Mr. Elgafaji’s uncle was killed by militia, who left a note on Mr. Elgafaji’s door threatening that all collaborators should be killed. The staatssecretaris van justitie (defendant) refused to grant the relief sought because the Elgafajis had not demonstrated that they were at risk of serious harm in the form of a serious and individual threat if returned. The Dutch authorities held that substantiating this risk required showing that the Elgafajis had been specifically targeted or singled out for harm, and that general dangers were not sufficient. Through appeals, the case made its way through to the Dutch legal system until the highest tribunal, the Council of State, made a referral to the European Union Court of Justice for its interpretation of the Qualification Directive, which had created subsidiary protection status in 2004. Subsidiary protection was granted to applicants if substantial grounds existed to believe that applicants would be subject to a true risk of serious harm if deported. Article 15(a)–(b) provided that serious harm included the death penalty, torture, and inhumane treatment and punishment. However, Article 15(c) provided that serious harm also consisted of serious and individual threats to life because of indiscriminate violence during times of war. The Dutch court asked the European Court of Justice whether the serious and individual threat to an applicant’s life in Article 15(c), in conjunction with Article 2, required evidence that the applicant had been singled out or specifically targeted.