When assessing whether an applicant for subsidiary protection is a danger to society, it is necessary to assess all the individual circumstances of the case, including the applicant’s conduct

The Supreme Administrative Court of the Slovak Republic on June 30, 2025, under case file no. 6Sak/2/2025, pronounced a judgment in a case in which it assessed the legality of the refusal to grant asylum and the failure to provide subsidiary protection.

A foreigner from Afghanistan who has been living in Slovakia for eight years (he has a partner and a small child) justified his application for asylum or subsidiary protection primarily by the deaths of his father and uncle and also by the fact that he himself was shot as a young man, allegedly also by members of the Taliban movement. The Migration Office did not grant the foreigner asylum or provide subsidiary protection. The Administrative Court in Bratislava dismissed the foreigner’s administrative action against these decisions.

The Supreme Administrative Court assessed the decision of the Migration Office regarding the refusal to grant asylum as factually correct. The killing of the father and uncle of the foreigner was most likely related to their activities as soldiers carrying out military activities against the Taliban movement, and therefore the reaction of the Taliban movement consisting in their killing directly affected these persons. The killing of these persons fighting against the Taliban movement cannot be automatically linked to the political beliefs imputed to the foreigner. In this part, the justification of the fears of persecution for the reasons defined exhaustively in Act No. 480/2002 on asylum was not proven. In connection with the shooting of a foreign national, the court concluded that this incident was rather the result of the situation in the home country, which was (and still is) characterized by conditions fulfilling the conceptual elements of serious injustice as primarily defined in § 2 letter f, point three of Act No. 480/2002 Coll.; however, this fact cannot be classified as an asylum-relevant reason.

When assessing the (non-)granting of subsidiary protection, the issue was not whether serious injustice existed, but whether the foreign national, due to two convictions for committing criminal offenses, could pose a danger to society.

The Supreme Administrative Court, relying on the case law of the Court of Justice of the European Union, stated that a decision to deny subsidiary protection on the grounds that the foreign national poses a danger to society can only be made if the third-country national concerned represents a real, existing, and sufficiently serious threat to one of the fundamental interests of the Member State in which they reside. This threat must be genuine and current, and the migration authority must assess all circumstances of the case and obtain all relevant information. It is necessary to consider the past behavior of the third-country national concerned, and if the decision is made some time after a final conviction for a particularly serious crime, the development of behavior after committing such a crime must also be taken into account. The criterion of proportionality and the consideration of whether less rights-infringing measures could be used are also essential.

In the case at hand, the foreign national committed two criminal offenses for which he was lawfully convicted. Regarding the first conviction, the act was committed as a minor, and despite this conviction, the migration authority repeatedly decided in the past to grant and subsequently extend subsidiary protection. In other words, this conviction was not previously considered a reason to deny subsidiary protection to the foreign national and was not assessed as a reason for him to pose a danger to society.

As for the second conviction, the Supreme Administrative Court pointed out that in this case, the court applied the institute of extraordinary sentence reduction and the foreign national was conditionally released from serving his prison sentence. Conditional release is only possible if the convicted person has demonstrated improvement through fulfilling obligations and behavior during imprisonment, and it can be expected that he will lead a proper life in the future. Moreover, the criminal court imposed a probationary period upon conditional release, which may represent a mitigating measure. These circumstances should have been considered by the migration authority, which should also have examined the foreign national’s behavior during imprisonment.

Based on the above, the Supreme Administrative Court upheld the judgment of the administrative court as substantively correct in the part where it dismissed the administrative action against the migration authority’s decision not to grant asylum to the foreign national. However, regarding the decision not to provide subsidiary protection, the Supreme Administrative Court amended the judgment of the administrative court by annulling the migration authority’s decision and returning the case for further proceedings.

The Supreme Administrative Court adopted this judgment unanimously, and no appeal is admissible against it.

The decision was made by Panel No. 6 of the Supreme Administrative Court, composed of: President of the Panel JUDr. Viola Takáčová, PhD., LL.M., and panel members JUDr. Martin Tiso (judge rapporteur) and JUDr. Michal Matulník, PhD.