A Pyrrhic victory? The ECJ upholds the EU law on relocation of asylum-seekers

Professor Steve Peers

How should the EU deal with the perceived ‘migrant/refugee crisis’? It has done a number of things, but back in September 2015, when the numbers of arrivals were peaking, it did something truly remarkable – requiring Member States to relocate 160,000 asylum-seekers from the ‘frontline’ states of Italy and Greece, which were bearing most of the burden of new arrivals.

In fact, this took the form of two separate decisions, as I discussed in detail at the time. The first decision was relatively uncontroversial, since it concerned only 40,000 people and Member States had agreed to admit them by consensus. But the second decision, concerning the other 120,000 people, was adopted against the objection of several Member States and set out mandatory quotas for admission. This led to legal action by Slovakia and Hungary to challenge this decision before the ECJ (see discussion of the Slovak challenge here).

This week, the ECJ ruled against this legal challenge, following soon after the opinion of its Advocate-General, who took the same view. As we shall see, this case brings into sharp relief the conflict between effectiveness and legitimacy in EU law – and indeed between effectiveness as a legal principle and practical effect on the ground.

The Court’s judgment

The Court gathered the legal arguments into three main areas: the ‘legal base’ (ie whether the EU had the power to adopt the second relocation decision at all); the procedure followed to adopt the decision; and the substance of the decision, in particular as regards the principle of proportionality.

Legal base

The ‘legal base’ for the adoption of the decision was Article 78(3) of the Treaty on the Functioning of the European Union (TFEU). This clause has been around since the Maastricht Treaty, being amended by the Amsterdam and Lisbon Treaties; but it had never been used before September 2015. It says that if ‘one or more Member States’ face ‘an emergency situation characterised by a sudden inflow’ of non-EU citizens, the Council (Member States’ interior ministers) may ‘adopt provisional measures’ to benefit those Member States, on a proposal from the Commission after consulting the European Parliament (EP). The default rule of qualified majority voting in the Council implicitly applies. So do the opt-outs for the UK, Ireland and Denmark.

First of all, the Court rejected the argument that the relocation decision was a ‘legislative act’, sticking to the strict definition of legislative acts set out in the Treaties. In short, the decision was not a legislative act because the Treaty doesn’t define it as one. It followed from this that there was no obligation for the Council to consult national parliaments or to meet in public when adopting the decision.

Next, the Court ruled that it was possible for this non-legislative act to amend existing legislation, namely the Dublin III Regulation on responsibility for asylum-seekers. Taking a broad view of the power conferred by Article 78(3), ‘provisional measures’ could amend legislative acts for a limited period, as long as they do not amend legislation permanently. That was the case here, since the decision only applied for two years and related to a specified and limited number of people.

The Court also ruled that the decision was ‘provisional’ in that it only applied for two years. A shorter period might not have been enough time to address the crisis, and the previous limitation to six months had been removed when the Treaty was amended, suggesting an intention by Treaty drafters to give the EU more flexibility. While anyone who obtained refugee status would in principle keep that status after the decision ceased to apply, that did not mean the decision wasn’t provisional, since obtaining long-term status is inherent in the idea of asylum policy. The amount of time it might take to adopt legislation by comparison was irrelevant.

Then the Court ruled that the influx of asylum-seekers was sufficiently large to count as ‘sudden’ for the purposes of Article 78(3), and the link between the influx of people and the emergency was strong enough to say that that emergency was ‘characterised’ by the influx. 

Procedural issues

First, the Court rejected the argument that the decision breached the guidelines set by the European Council (Member States’ leaders), which have a specific power to set such guidelines as regards Justice and Home Affairs (JHA) law. It pointed out that those guidelines only related to the first, uncontested, relocation decision, then went on to point out that the European Council could not constrain either the Commission’s power to propose measures or the Council’s power to adopt them by a qualified majority. As for the alleged breach of the EP’s prerogatives, while it must be reconsulted if there is an essential change to the Commission’s proposal – and the removal of Hungary from the list of beneficiaries was such an essential change – it had been informed of that essential amendment to the text before it voted.

Moreover, the Commission had consented informally to the Council’s change to its text – which is a requirement for the Council to vote by qualified majority. Also, the Court took a flexible view of the rules on languages used in the Council. Only the main texts under consideration, not all amendments to them, need to be available in all EU languages.

Substantive issues

The Court rejected the arguments that the decision was not suitable to obtain its objectives. True, as Commission reports have pointed out, not many asylum-seekers have actually been relocated, but that could not be foreseen at the time – and that was implicitly partly the fault of the plaintiff Member States for not implementing the decision in practice. (The Advocate-General’s opinion dismisses this “I killed my parents, give me sympathy as a poor orphan” line of argument more bluntly).

In the Court’s view, the Council could not be limited to financial support alone and so had the power to set mandatory quotas against Member States’ wishes. Also the Court claimed that the EU’s existing temporary protection Directive (which was adopted in 2001 to deal with future crises, but never actually used) could not have worked as an alternative, since it only provided for protection where asylum-seekers are located – so implicitly did not provide for relocations between member States.

Next, the Court rejected Hungary’s argument that given the large numbers of asylum-seekers it was receiving, it should not have been allocated any more – given that Hungary had expressly argued that it did not want any relocation of asylum seekers from its territory, it was in effect estopped from arguing that it was overburdened that it could not accept any more of them. (The Opinion sets out the hilarious argument that while Hungary ‘continues to form part of the Member States that support’ Italy and Greece, it ‘does so in a different way from the other Member States’ by, er, not actually helping Italy and Greece at all.)

Furthermore, the Court rejected the argument that the EU rules violated the Geneva (Refugee) Convention by potentially forcing asylum seekers to leave the country where they were located, pointing out that this did not subject them to refoulement to an unsafe country but only changed which Member State their application for asylum would be considered by.

Finally, the Court rejected Poland’s arguments as an intervener. In particular, the argument that Member States which are ‘virtually ethnically homogeneous, like Poland’ should not receive migrants was rejected, both because it infringed the principle of solidarity and because considering ‘the ethnic origin of applicants for international protection’ would be ‘clearly contrary to EU law and, in particular, to Article 21 of the Charter of Fundamental Rights of the European Union’, which guarantees non-discrimination on grounds of (among other things) ethnic origin.

Comments

The Court’s judgment is suffused by the principle of solidarity between Member States on asylum and immigration matters, as set out in Article 80 TFEU (the Advocate-General’s opinion, even more so). To that end, it gives the EU broad powers, and wide discretion to use them, to address the perceived crisis. 

Most of the Court’s arguments are convincing. It would indeed be hard to address a large influx of people without amending EU legislation temporarily, given the wide scope of that legislation and the broader context of establishing a ‘common European asylum system’.  But the Court is right to ensure that this power is not unlimited, by insisting that any emergency measure can only be temporary and limited in scope. This means that any future measure more ambitious than the 2015 decision might be challenged for going beyond the limits set out by the Court. 

Note that the Court was not asked if Article 78(3) decisions can amend the Treaties temporarily, since the contested decision did not do so. The answer must surely be no, given the hierarchy of norms in EU law. So the general rules on EU asylum law set out in Article 78(1) TFEU – including the obligation to respect non-refoulement, the Geneva Convention, and other relevant (human rights) treaties – continue to apply when emergency measures are adopted. (This is implicitly confirmed by the Court’s willingness to consider the validity of the decision in light of the Geneva Convention). Article 78(3) cannot therefore be a route to address perceived crises by means of (for instance) detentions, interceptions or expulsions which would violate that Convention or the non-refoulement rule, or which would otherwise breach human rights law – including the EU Charter of Rights, which has the ‘same legal value’ as the Treaties.

Nor was the Court asked about the separate proposal to amend the Dublin III Regulation to set up a permanent system for addressing emergencies. This has a different legal base than Article 78(3), so perhaps an outvoted Member State could re-run the arguments that failed in this week’s judgments. However, the Advocate-General’s opinion supports the legality of this proposal too.

The Court’s rulings on the decision-making issues are also convincing, and are an implicit rebuke to those non-lawyers who argue that the European Council is the fount of all EU power. Then again, given Member States’ unwillingness to apply these decisions in practice, this saga confirms the argument that it is politically unrealistic for the EU to undertake very controversial ‘high politics’ policies – no matter how legally secure they are – without all participating Member States’ consent.

Odd as it may seem, there’s also a possible Brexit relevance to this judgment, since the EU’s negotiation position takes the form of guidelines adopted by the European Council and then negotiation directives adopted by the Council, and the Council ultimately concludes the withdrawal agreement by qualified majority. In the event that a Member State is outvoted when concluding the withdrawal agreement and so challenges the agreement arguing that the reference to the European Council requires acting by consensus, this judgment suggests by analogy that it’s the Council’s power to act by a qualified majority vote which is legally decisive.

On the substance of the legal challenge, it’s notable that the Court misinterpreted the temporary protection Directive, which does provide for potential transfers of beneficiaries between Member States. The real distinction between the two – as the Advocate-General’s opinion points out – is that the Directive makes such transfers conditional on the voluntary consent of Member States, whereas the contested relocation decision sets out mandatory quotas. In any event, there’s nothing in the decision to give priority to the ‘emergency’ route over the ‘temporary protection’ route: it’s the Council’s discretion which path (if any) to choose in the event of a perceived crisis.

It’s also striking that the Court rejected Hungary’s argument about the Geneva Convention, confirming judicially the view long implicit in EU legislation (but contested by some refugee advocates) that sending an asylum-seeker to another country which is sufficiently ‘safe’ to consider their application is not a breach of the Convention. (Cynics might suggest that Hungary advanced this argument in the hope that the ECJ would in fact reject it in these terms). Of course, this begs the question as to when a country is sufficiently ‘safe’ – an issue frequently litigated in the ECJ as regards other Member States but not (yet) as regards non-Member States.

That brings us to the Court’s response to the Polish intervention. The Court didn’t have to respond to that intervention, since it ruled that it was inadmissible. But it clearly wanted to, and did so in the strongest terms, ruling that Poland's argument would breach the principle of non-discrimination on grounds of ethnic origin. The Court’s approach comes across as a kind of ‘reverse dog whistle’ – saying “Get lost, you’re racist” as subtly as it could to a Member State. And it follows from the Court’s ruling on this point that any kind of Trump-like ‘Muslim ban’ would violate EU law too, since the Charter equally bans religious discrimination.

But such arguments won’t convince those with a frenzied obsession about ‘white genocide’, just as ruling that the quotas are legal won’t convince Member States (and not just the plaintiff Member States in this case) to apply the relocation decision, which is about to expire anyway. As noted above, this saga shows the tension between legitimacy and effectiveness in EU law sharply: the Court defends the decision’s legal legitimacy in light of the principle of effectiveness, but that decision’s political legitimacy has been ebbing away since it was first adopted. That latter form of legitimacy was not bolstered by adopting the decision against the opposition of several Member States – and indeed the Court’s ruling has now given them another stick with which to beat the EU in particular and ‘scary Muslim migrants’ more generally.  Meanwhile the EU has taken a different course towards the perceived crisis, working with Turkey and now Libya to reduce the numbers who reach the EU to start with – although nothing will satisfy those who believe that ‘none is too many’.

Barnard & Peers: chapter 26

JHA4: chapter I:5

Photo credit: Business Insider

The new EU law on refugees takes shape: More Harmonisation but Less Protection?

Professor Steve Peers

At the heart of the contested issue of asylum in the EU – including the current perceived ‘refugee/migrant crisis’ – is the definition of who is a ‘refugee’, or is at least entitled instead to a form of ‘subsidiary protection’ for those fleeing threats of ‘serious harm’. Refugees and people with subsidiary protection receive more legal protection and status than many other non-EU citizens, in particular irregular migrants.

Unsurprisingly then, the proposed revision of the EU legislation on this issue forms part of the broader overhaul of all EU asylum laws proposed in 2016, as a response to the perceived crisis. Recently the EU governments agreed their position on the proposal, which must now be negotiated with the European Parliament (its negotiating position is set out here).

Most of the other 2016 proposals are still under negotiation (I’ll discuss them as part of an update of recent EU immigration and asylum developments, coming soon). But since the ‘qualification’ rules are a cornerstone of EU asylum law, the latest development calls for a more in-depth analysis. In particular, will the new law meet the Commission’s objectives for dealing with the ‘crisis’: more harmonisation, an overall reduction in protection standards, and deterrents for ‘secondary’ movements between Member States?

The proposal aims to implement the UN Refugee Convention (which the EU refers to as the ‘Geneva Convention’) in more detail, as regards both the definition of ‘refugee’ and the rights which refugees receive. It also defines ‘subsidiary protection’ and sets out the rights which subsidiary protection beneficiaries are entitled to.

It will replace the existing EU law on the subject. As part of the ‘first phase’ of the Common European Asylum System (CEAS), an initial Qualification Directive was adopted in 2004. A ‘second phase’ Qualification Directive replaced it in 2011. (I analysed the negotiation of the latter Directive here; there’s also a lengthy analysis of it by Madeline Garlick and Violeta Moreno Lax in EU Immigration and Asylum Law: Text and Commentary). The UK and Ireland opted in to (and are still bound by) the first phase Directive, but not the second phase Directive or the 2016 proposal; Denmark is not bound by any of them. After Brexit, UK citizens will be able to apply for asylum in the EU.

Basic legal framework

To give effect to the objective of further harmonisation, the 2016 proposal will replace the 2011 Directive with a Regulation, with the consequence that EU law on this subject will be directly applicable, rather than applying through the medium of national legislation giving effect to a Directive. To the same end, the Regulation will also eliminate Member States’ power in the current law to set more favourable standards as long as they are compatible with the Directive – although this power has already been curtailed by the ECJ’s judgments in B and D and M’Bodj (the latter ruling is discussed here). The new Regulation will reflect that case law, by noting that Member States are free to retain or establish a separate status of humanitarian protection, as long as there is no confusion with the (EU harmonised) notions of refugee or subsidiary protection status.

This shift toward harmonisation is also manifested by a removal of most options under the Directive, with the effect of lowering standards overall, since most of the options are possibilities for Member States to offer less protection than under the standard rules. On the other hand, the Commission’s desire to have the new law play a role in immediate ‘crisis management’ would be thwarted by Member States, who want the law to apply in two years’ time – rather than the six months desired by the Commission. (Note that the EP wants it to apply even more quickly than the Commission, though).

Turning to the details of the proposal, there are four main elements to the law: common rules (applying to both refugee and subsidiary protection status); the definition of ‘refugee’; the definition of subsidiary protection; and the content of status (ie the benefits people with status receive).

Common rules

Family members of refugees and people with subsidiary protection will be given extra rights in the new law (see below), and they will be defined slightly more broadly. A ‘family member’ will now include relationships formed outside the country of refuge, not just those formed inside the country or origin. This means, for instance, that the spouse of a Syrian refugee who married him while in Turkey or Lebanon, and the children of that couple born in such countries, would now be defined as ‘family members’.

The rules on assessment of asylum applications will be extended to include refugees resettled directly from non-EU countries, assuming that a separate proposal on resettlement is agreed. It will now be mandatory, not optional, for the main burden of proof to rest upon the applicant to show why the claim for refugee or subsidiary protection status is justified; and a new clause in the preamble will reflect the ECJ’s 2014 case law (discussed here) which limits the intrusiveness of Member States’ questioning of the credibility of LGBTI asylum-seekers.  

Next, the new law will harmonise the use of an exception to the rules – and lower the standards of protection. While the Regulation will retain the notion of an application for refugee or subsidiary protection status ‘sur place’ – meaning the asylum seeker left the allegedly unsafe country of origin before it became unsafe – the exception to this rule will become mandatory. At present, this exception gives Member States an option to ‘normally’ refuse refugee status to an asylum seeker who has made a repeat application for asylum and created her own risk of persecution due to her activities after leaving the country of origin. The Commission proposal would extend this to subsidiary protection applications, and Member States want to go further – extending the (now mandatory) exception to initial applications as well, subject to a new threshold (the asylum-seeker’s activities were for the ‘sole or main purpose’ of making a claim for protection). For its part, the EP would keep the exception optional and limited to repeat applications, while also adding a safeguard for those asylum-seekers who (for example) ‘come out’ after arriving in the EU, having been previously afraid to express their sexuality.

Similarly, the option to refuse claims because the asylum seeker had an ‘internal flight alternative’ – ie he could have fled to a safe part of the country of origin, like a supposed ‘safe zone’ in Syria – would become mandatory. (The possibility of rejecting a claim because an asylum seeker would arguably have been safe in a different country is the subject of other proposals). The proposal makes this subject to safeguards: more elaborate explanation of the substance of the idea; applying the main rules on qualification first; shifting the burden of proof to the authorities; and not requiring the asylum seeker to show that he exhausted all possibilities to move within the country of origin. However, the Member States’ position would drop the latter two safeguards. For its part, the EP would keep this clause optional, drop the ‘sequencing’ rule, but add further safeguards.

Definition of ‘refugee’

The EU is bound by the Treaties to follow the UN Refugee Convention, so the proposed law retains the basic idea from that Convention that a ‘refugee’ is someone persecuted because of their race, religion, political opinion, nationality or particular social group, elaborating upon each of these concepts. The Commission proposal would clarify in the preamble that LGBT people can form part of a ‘particular social group’ (confirming ECJ case law), while the main text would confirm case law that asylum seekers can’t be expected to hide (for instance) their sexuality or religion in their countries of origin. The proposal would also tighten the definition of ‘particular social group’ in that asylum-seekers would have to show in all Member States that they both perceived themselves as part of a distinct group and were perceived as different by the rest of society. This would quash the discretion that Member States now have to set higher standards, so that only one of those elements is necessary to prove refugee status. Member States agree with this latter change, but the EP is resisting it.

As for exclusion from refugee status, where the current Directive elaborates a little on the relevant provisions of the Refugee Convention, the new Regulation would enshrine the basic elements of ECJ case law on the special status of some Palestinians (Bolbol and El Kott), and on the exclusion of persons strongly linked to terrorism (B and D; the preamble Member States’ version also takes account of the recent ECJ judgment in Lounani on the exclusion of foreign fighters, discussed here).

In contrast, the proposals on withdrawal of refugee status would tighten the existing law, making withdrawal mandatory in more cases and clarifying the link with similar provisions in the rest of the law (on that point, see the ECJ’s T judgment, discussed here). There would be a grace period to apply for another legal status and a mandatory review of status at least the first time a refugee’s residence permit came up for renewal. However, Member States reject the latter ideas (and the EP also rejects the review clause).

Definition of subsidiary protection

The core definition of subsidiary protection (a threat of serious harm deriving from the death penalty, torture or similar treatment, or facing a specified threat from armed conflict) would not be affected by the 2016 proposal – although the preamble would entrench the relevant ECJ case law (Elgafaji and Diakité). However, the rules on exclusion from and withdrawal of subsidiary protection status would be amended to (for the most part) match the parallel changes related to refugee status; and the Council and EP take a comparable view of these proposals. On one distinct point – withdrawing subsidiary protection status due to less serious crimes – the Member States reject the Commission’s proposal to make this ground mandatory, preferring to leave it optional for Member States.

Content of status

The 2016 proposal would make a number of interesting changes in this area. First of all, the Commission’s ambitious attempt to overturn the ECJ judgment in T, and make all benefits for refugees and persons with subsidiary protection contingent upon getting a residence permit, has been rejected by Member States and the EP.

Secondly, an amendment in the opposite direction: the family members of refugees or persons with subsidiary protection who don’t qualify themselves for international protection would be entitled to a residence permit. This would replace an ambiguous reference in the current law to preserving ‘family unity’. However, there are already special rules concerning the admission of family members of refugees set out in the EU’s family reunion Directive. So do two new sets of rules conflict? No, because a clause in the preamble to the agreed Qualification Regulation says that the family reunion Directive applies in the event of overlap (ie if the family member is ‘within the scope’ of the Directive).

Usually, the two laws will not overlap, for several reasons. A) the family reunion Directive does not apply to family reunion with sponsors with subsidiary protection, at least if that protection was granted on the basis of national or international law (sponsors with subsidiary protection on the basis of EU law are not expressly excluded, however). B) that Directive in principle only applies to family members who are outside the territory, whereas the Regulation conversely will only apply to family members who are present on the territory. However, Member States have an option to apply the Directive where family members are already present; only in that case would there be an overlap, decided in favour of the Directive where the family members are within the scope of it.

Thirdly, the Commission aimed for more harmonisation of the rules on renewal of residence permits, although the Member States prefer to leave themselves with more flexibility. It will be expressly mandatory to use the EU’s standard residence permit format for refugees and others covered by the Regulation though.

Fourthly, there will also be more harmonisation of the rules related to travel documents, which are issued by Member States to beneficiaries of international protection in place of passports, given that it would probably be unsafe for them to contact officials from their country of origin. They will be valid for at least one year and will be expressly subject to the EU’s passport security rules.

Fifthly, the provisions on movement within the territory and benefits would be redrafted, to take account of the ECJ case law in Alo and Osso (discussed here), which permits a link between limiting movements and the grant of benefits in some cases.

Sixthly, the rules on access to employment are strengthened by an obligation to ensure equal treatment as regards work-related matters, including taking account of experience in an occupation obtained outside the country of refuge.

Finally, there are further changes designed to entrench control over beneficiaries of international protection: Member States may make integration measures compulsory, and any unauthorised movement between Member States can be punished by ‘resetting the clock’ on acquisition of long-term residence status under the relevant EU law. Both Member States and the EP aim to soften these proposals by ensuring that integration courses are accessible and by allowing Member States to make exceptions from the changes to the long-term residence rule.

Assessment

What impact will the agreed proposal (still subject to further negotiation) have on the perceived ‘refugee crisis’? Will it meet the objectives of deterring protection-related migration as well as secondary movements, while harmonising national law further?

Certainly there are significant steps towards harmonisation: the use of a Regulation; the removal of the right to set more favourable standards; the disappearance of many options; and the integration of relevant ECJ case law into the legislative text (making it more visible for national authorities, courts, and legal advisers). However, the European Parliament is still battling to keep some key rules optional, rather than mandatory.

This goes to the second point: will the new Regulation reduce standards as much as the Commission had hoped? Here, the result is a mixed bag: some of the changes in the definition of refugee will have that effect – unless the European Parliament successfully resists them. However, the idea of mandatory reviews of status has been dropped.

As for sanctioning secondary movements, the reset of the clock as regards obtaining long-term residence status might have some impact, although the main thrust of the planned sanctions against secondary movement are found in separate proposals for amendment of other asylum laws.

The deferral (at least by Member States) of the impact of the new law for two years means that the new law would (if this delay is accepted) have no immediate impact on the current perceived crisis. However, the changes it would make to the definition of refugee status may lead to fewer refugees being recognised – although again this is subject to the success or failure of the EP’s attempts to resist such changes. In any event, since many of the plans to deter both the initial and secondary movement of people arguably needing international protection appear in other 2016 proposals (on reception conditions, the Dublin system and procedural rules), the overall assessment of whether the EU is moving in a dramatically more restrictive direction as regards asylum law depends more upon what happens with those proposals over the months to come.

Barnard & Peers: chapter 26

JHA4: chapter I:5

Photo credit: Pinterest

*Disclaimer: I was an independent adviser for a consultancy advising the European Commission on the implementation of and possible amendment of the current Directive.

Court of Justice gives judgment on Irish procedure for determining claims for Subsidiary Protection

Shauna Gillan, Tribunal Member, International Protection Appeals Tribunal*
*The author is writing in a personal capacity

Introduction

The recent ruling of the Court of Justice (CJEU) of 9 February 2017  in  the  case  of M v Minister for Justice and Equality, Ireland and Anor in is the fourth time that Court has given judgment on Ireland’s  unique  and  evolving  procedure  for  determining  claims  for Subsidiary  Protection.  Subsidiary  Protection  is  a European Union law status provided  for  by  the Qualification Directive (originally Directive 2004/83, now Directive 2011/95 – although Ireland, like the UK, only opted in to the former version) that is designed  to  complement  the  protection  for refugees provided  by  the  1951 Refugee Convention.

Subsidiary Protection protects those who do not fit the strict definition of a refugee, but who are nonetheless at risk of serious harm in their home country. Ireland has up to now dealt with these two types of (similar, but not identical) claims via entirely separate decision-making processes.

The litigant (‘M’), a Rwandan national, brought test case litigation on the Irish procedure on 6 January 2011. At the time, all subsidiary protection applications were determined by the Minister for Justice in an administrative procedure that carried no right of appeal. The ensuing protracted  litigation  included  two  references  to  the  CJEU  from two different  Irish  Courts;  the  most  recent, a reference from the Supreme Court, is considered in the ECJ’s recent judgment.

The Irish system has undergone significant changes over the years during which M’s case has been in train, rendering the Court’s findings somewhat moot; however the case speaks to a fundamental principle of EU law: the right to be heard in matters that significantly affect one’s interests.

The facts of the case

M, a law graduate, made an asylum application in Ireland in May 2008. He was interviewed and his claim was rejected at first instance in August 2008.  M’s subsequent appeal to the Refugee Appeals Tribunal was refused, in October 2008. The appeal was on the papers: the first instance decision-maker had invoked a provision in Irish law that denied him an oral appeal (on account of his having delayed before making his asylum claim). M subsequently lodged a claim for subsidiary protection.

At that time, the Irish system was structured in such a way that individuals could not simultaneously claim both asylum and subsidiary protection.  Only  once  an  asylum  claim was finally determined, could a person  claim  subsidiary  protection  (or  indeed permission to remain on other  grounds).  All claims for subsidiary protection were decided by the Minister for Justice (as distinct from asylum claims, which were decided by an independent body). No personal interviews were carried out for these types of claim, and there was no right of appeal. In M’s case his claim for subsidiary protection was rejected in writing on 30 September 2010. The delay – of almost two years – was not uncommon. The Minister’s decision relied to a large extent on the two earlier decisions that had rejected M’s claim for asylum, and in particular the negative credibility findings therein.

M challenged the Irish procedure in the High Court, who referred the following question to the CJEU for a preliminary ruling:

‘In  a  case  where  an applicant seeks subsidiary protection status following  a refusal to grant refugee status and it is proposed that such  an  application  should  be  refused,  does the requirement to cooperate  with  an applicant imposed on a Member State in Article 4(1)  of … Directive 2004/83 … require the administrative authorities of  the  Member  State in question to supply such applicant with the results  of  such an assessment before a decision is finally made so as  to  enable  him  or her to address those aspects of the proposed decision which suggest a negative result?’

The CJEU, in its judgment of 22 November 2012, M. (C-277/11, EU:C:2012:744),  answered  this  question in the negative. However, somewhat unusually, the CJEU went on to consider a further question: whether M’s ‘right to be heard’ had been respected. The CJEU found that it had not: M should have been afforded an opportunity to make his views known before a decision was reached on his claim for subsidiary protection. The fact that M had had an interview for his earlier asylum claim was insufficient.

The case returned to the Irish High Court, who held on 23 June 2013 that the Minister for Justice had wrongly failed to afford M an effective hearing when his application for subsidiary protection was being examined. The Minister brought an appeal against that decision before the Supreme Court and M also brought a cross-appeal – neither party considered the High Court had correctly interpreted the CJEU judgment.

While that appeal was pending, on 14 November 2013, the Irish authorities changed the procedure to give effect to the High Court judgment. Personal interviews for applicants for subsidiary protection were introduced, as were full appeal rights to the Tribunal. However instead of fusing the decision-making process for the two claims (as is done in all other EU States) the new procedure dealt with the applications separately: one claim after the other. Applicants for international protection, if unsuccessful, were put through a near-identical process, twice: a personal interview, a first instance decision, an appeal to the Tribunal, another personal interview, another first instance decision and a further appeal. This process, naturally, gave rise to delays.

Meanwhile M’s test case litigation continued. The Supreme Court stayed the proceedings and on 24 November 2014 referred another question to the CJEU:

‘Does  the  “right to be heard” in European Union law require that an applicant   for  subsidiary  protection,  made  pursuant  to  Council Directive   2004/83/EC,   be   accorded   an  oral  hearing  of  that application,  including the right to call or cross-examine witnesses, when  the application is made in circumstances where the Member State concerned  operates two separate procedures, one after the other, for examining  applications  for  refugee  status  and  applications  for subsidiary protection, respectively?’

On 9 February 2017, the CJEU gave judgment. The Court held that, as Ireland was not operating a single procedure to determine asylum and subsidiary protection (the model employed by other European Union States), the Procedures Directive (Directive 2005/85; Ireland opted out of the later Directive 2013/32, which replaced it) did not apply to claims for subsidiary protection in Ireland.  This reiterated a point the CJEU had settled previously, and most recently restated last year (in another Irish case):  Danqua  v  Minister  for Justice and Equality Ireland [2016] EUECJ C-429/15.  The CJEU emphasised that the right to be heard was an important general principle of EU law. When making a decision that significantly affects  a  person’s interests (as here), the State must ensure that their  right  to  input  into  that  decision  is facilitated, so as to give full effect to the right to be heard.

The CJEU went on to discuss the scope of that right, finding that a personal  interview  would  not necessarily be required for all subsidiary protection claims, given that a substantive asylum interview would already  have  been  carried  out.  The Irish authorities had essentially played it safe after the CJEU’s first judgment in this case, by bringing in personal interviews across the board, for all subsidiary protection cases. The CJEU clarified that what it had meant was that there must be some way for an applicant’s views to be heard. This could be in writing or by personal interview – depending on the individual case. Some cases may require a fresh interview, and some may not.

The CJEU made clear that the Irish authorities are free to rely on the information gathered in the course of assessment of an asylum claim (including statements made in an interview or at a hearing) when it comes to assess the claim for subsidiary protection. The  critical matter is that the state must carry out  an  individualised  assessment  of  the  relevant  facts;  whether an interview is necessary so to do – in the particular situation of Ireland’s bifurcated  system  for  assessing  international protection  claims – is  fact-specific.

Further developments

The outcome of the CJEU decision has been overtaken by recent events. On 31  December  2016 a new procedure for international protection claims was brought  into  force  via  the  commencement  of  relevant sections of the International  Protection  Act  2015.  The Act provides for a new, fused ‘single procedure’ whereby asylum and subsidiary protection claims will be assessed at the same time and determined in one decision. That decision, if negative, can be appealed to the Tribunal on both asylum and subsidiary protection grounds (in the same hearing, for the first time). The introduction of a single procedure brings Ireland into line with the rest of the European Union. The new system, once fully up and running, is likely to result in a reduction of delays in what had developed over the years into an overly prolonged system for assessing international protection claims.

Barnard & Peers: chapter 26

JHA4: chapter I:5

Photo credit: smelltheroses blog

Foreign fighters' helpers excluded from refugee status: the ECJ clarifies the law

Professor Steve Peers

What if a person claiming to be a refugee is an alleged terrorist, or at least giving assistance to alleged terrorists? Can they still claim to be a refugee – and if not, how should we define ‘terrorism’ for the purposes of rejecting their claim to be one? Today’s judgment of the EU Court of Justice in the Lounani case usefully clarifies some aspects of this controversial and legally complex issue, but inevitably leaves some difficult questions open.

Legal framework

The starting point for this issue is the wording of the UN Refugee Convention, known by the EU as the ‘Geneva Convention’, which contains an ‘exclusion’ clause in Article 1.F:

F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.

The UN rules (which all EU Member States have signed up to) have been transposed, but with variations, in the EU’s Qualification Directive, which applies to every Member State except Denmark. (Technically the UK and Ireland are bound only by the first version of this Directive, but the rules on exclusion haven’t changed).  Article 12(3) of that Directive reads as follows:

2. A third-country national or a stateless person is excluded from being a refugee where there are serious reasons for considering that:

(a) he or she has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

(b) he or she has committed a serious non-political crime outside the country of refuge prior to his or her admission as a refugee, which means the time of issuing a residence permit based on the granting of refugee status; particularly cruel actions, even if committed with an allegedly political objective, may be classified as serious non-political crimes;

(c) he or she has been guilty of acts contrary to the purposes and principles of the United Nations as set out in the Preamble and Articles 1 and 2 of the Charter of the United Nations.

3. Paragraph 2 applies to persons who incite or otherwise participate in the commission of the crimes or acts mentioned therein.

It can be seen that the EU rules differ from the UN rules to the extent that: they add some wording on the timing and nature of ‘serious non-political crimes’; they clarify the reference to acts contrary to UN ‘purposes and principles’; and they apply the exclusion to those who ‘incite or otherwise participate’ in all three categories of acts leading to exclusion.

Despite this attempt at clarification, there will always be issues of interpreting these rules. The EU Court has ruled on them once before, in its judgment in B and D, when it stated that first of all that the second and third exclusion clauses can apply to terrorist offences.  However, exclusion must be assessed in each individual case, meaning that membership of a group listed as ‘terrorist’ in EU foreign policy sanctions against terrorists does not automatically trigger the exclusion clause, although it is a ‘factor’ to consider. Participating in a terrorist group, as defined by EU criminal law on terrorism, does not automatically trigger the exclusion clause either. Instead, there must be direct involvement by the person concerned in such offences, as further explained by the Court. Furthermore, there is no additional ‘proportionality’ or ‘present danger’ test for exclusion. Finally, the exclusion clause is mandatory: ie Member States cannot assert a right to apply higher standards and give someone refugee status if they fall within the exclusion criteria.

The judgment

What does today’s judgment add? The person concerned was convicted of participating in a terrorist group, but not of carrying out any terrorist acts as such. So is such a conviction sufficient to trigger the exclusion clause?

The EU court ruled that it was. First of all, the preamble to the EU Directive referred to UN Resolutions on ‘financing, planning and inciting’ terrorism; so the third exclusion clause goes beyond terrorist acts as such. Secondly, the EU legislature had not intended to match the exclusion clause in asylum law with the narrower definition of terrorism in (current) EU criminal law legislation.

Next, the EU court ruled that following a later UN Security Council Resolution, assisting with recruitment, organisation or transport of ‘foreign fighters’ could also fall within the scope of the exclusion clause. So could ‘participation’ in such activities, pursuant to Article 12(3) of the EU Directive. It was relevant that the group in question was listed as terrorist by the UN Security Council, and particularly relevant that the person concerned had been convicted of terrorist offences in Belgium.

Comments

The Court’s judgment asserts a broad scope of the exclusion clause, meaning that a degree of support for ‘foreign fighters’ will also result in exclusion from refugee status. In doing so, it answers the claims of those who believe that many refugees are ‘jihadists’. Simply put, anyone who has been directly involved in terrorist acts (B and D) or in facilitating the activities of ‘foreign fighters’ (today’s judgment) is not entitled to refugee status. Although the judgment does not mention it, this aligns the interpretation of the exclusion clause to some extent with recent developments in criminal law, namely the 2015 Protocol to the Council of Europe Convention on the prevention of terrorism, and the agreed revision of the EU’s anti-terrorism laws.

But the judgment cannot help leaving some difficult questions open. What if the asylum-seeker has not been convicted of terrorist offences anywhere, but there are allegations of such action? Since a conviction is particularly relevant to applying the exclusion clause, would a lack of such conviction conversely be particularly relevant in determining that the clause should not apply? Would that assessment be different if the person had been acquitted, or if an investigation or trial was pending? If the criminal law process was pending, should the asylum determination process be put on hold? What if the authorities had claimed to have information supplied from the security services, and were reluctant to bring criminal proceedings in order to preserve their sources and intelligence capability? 

What if there is a criminal conviction for terrorism from another country – particularly in the asylum-seeker’s country of origin, which might define criticism of the government as ‘terrorism’? Similarly what about ‘provocation’ to terrorism, which might include ‘glorification’ of terrorist acts, according to the revised EU criminal law? Here the question is to what extent freedom of expression, not directly connected to violent acts, might justify a refusal of refugee status. Recent acts remind us that as far as criminal law is concerned, terrorist acts – and the climate of hatred that surrounds them – are not confined to Islamist extremists, but stem also from those who fanatically hate minority groups as well.

Barnard & Peers: chapter 25, chapter 26

JHA4: chapter I:5, chapter II:5

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Non-refoulement: is part of the EU’s qualification Directive invalid?

By Pieter Boeles, visiting professor migration law, VU University Amsterdam, emeritus professor University Leiden

Introduction

The absolute character of the principle of non-refoulement – the ban on removal to an unsafe country – is widely acknowledged. Still, there is confusion and insecurity on this point with regard to the Qualification Directive, which defines how to determine if someone enjoys refugee or subsidiary protection status within the EU. On 14 July 2016, a Czech Court (the Nejvyšší správní soud) asked the Court of Justice EU whether Article 14(4) of the EU Qualification Directive, allowing for revoking, ending or refusing to renew refugee status for reasons of criminal behaviour or a security risk, is invalid in the light of the principle of non-refoulement (Case C-391/16). In its explanation, the Czech Court points out that ‘the binding nature of the prohibition on the return of persons in contravention of the principle of non-refoulement forms part of the obligation not to subject anyone to torture or inhumane or degrading treatment or punishment under Article 3 ECHR and Article 4 and Article 19(2) of the Charter, and it applies whenever there is a real risk of such treatment occurring as a result of forced deportation or extradition’.

The question of the Czech court is important. In my view, a well-reasoned answer can only be given if the ambivalent structure of the Qualification Directive on this point is acknowledged and addressed.  In this comment I will try to analyse the problems to be solved. 

One sole principle of non-refoulement in EU law

Basically, the dogmatic point of departure is simple: the EU principle of non-refoulement is anchored in Article 19(2) of the Charter of Fundamental Rights of the EU, which contains a prohibition to remove, expel or extradite any person to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment. The Charter should govern the uniform interpretation of the principle of non-refoulement in Union law, both in the Treaties and in secondary legislation (like the Returns Directive and the Qualification Directive). As the prohibition of refoulement is absolute in the ECHR, it should universally be interpreted to be absolute regardless of the legal context of EU law in which it appears. Article 19(2) of the Charter corresponds to Article 3 ECHR, and so must be interpreted the same way (Article 52(3) of the Charter). See the ECtHR ruling in Chahal, and more case law in Kees Wouters, International Legal Standards for the Protection from Refoulement, Intersentia, 2009, p. 307 – 314. The Court of Justice has recognized the absolute nature of the rule in its judgment in Aranyosi (paras 85-87).  

Article 19(2) Charter, derived from Article 2 and 3 ECHR, is not only relevant for persons with subsidiary protection but equally for refugees. Refugees are protected against a danger, formulated (in Article 1.A of the Refugee Convention, as well as the EU Qualification Directive) as persecution on grounds of race, religion, nationality, political opinion or membership of a particular social group. The persecution feared must be of a certain level of severity, which will normally coincide with death penalty, torture or other inhuman or degrading treatment or punishment. Under the uniform meaning of non-refoulement in Article 19(2) of the Charter, absolute protection against refoulement must be granted on an equal basis to both refugees and subsidiary protected persons. As the principle of non-refoulement is a prevailing general principle of EU law in the sense of Article 6 TEU, secured by the Charter, it follows that the Qualification Directive grants stronger protection to refugees than the Refugee Convention alone does.  This is also what the Czech court asserts.

The stronger protection does not undermine any of the rights for refugees granted in the Refugee Convention.  But it may mean that non-refoulement has a wider meaning for refugees within the scope of EU law. Although the wording of Article 14(4) of the Qualification Directive matches the exception to the non-refoulement rule in the Refugee Convention, the Charter sets a higher standard for non-refoulement (as confirmed by reference to Chahal).

This is not unequivocally visible in the text of the Qualification Directive  The seminal Article 21(1) of the Directive, which deals with non-refoulement directly, does not say straightforwardly that Member States shall respect ‘the absolute principle of non-refoulement’, or ‘the principle of non-refoulement in accordance with Article 19(2) the Charter of Fundamental Rights’. True, the present text of the first paragraph of this article, stating that Member States shall respect the principle of non-refoulement ‘in accordance with their international obligations’, can be interpreted that way, especially because the ‘international obligations’ must be deemed to include those under Article 2 and 3 ECHR. But if that is the correct interpretation, it is difficult to understand what the reasonable meaning can be of the second paragraph of Article 21, stating that refoulement of a refugee is nevertheless allowed in some cases, ‘where not prohibited by the international obligations’. In suggesting that refoulement would nevertheless be allowed under certain conditions, Article 21(2) Qualification Directive is confusing. Obviously, Article 21(2), like Article 14(4) of the Directive, implicitly refers to the exception to the non-refoulement rule set out in Article 33(2) of the Refugee Convention, as it is phrased nearly identically.  Article 21 thus begs the question what must be considered  to be the prevailing norm informing the ‘principle of non-refoulement’. The absolute norm of Article 19(2) in the Charter - or the non-absolute norm of the Refugee Convention?

I cannot help suspecting that the Court of Justice was captured in this confusion, when earlier answering the questions asked in the case of H.T. (C-373/13), discussed here. The Court of Justice described the system of Article 21 Qualification Directive in paragraphs 41 – 44 of that judgment. In that description any explicit referral to the absolute character of the principle of non-refoulement is lacking. Strictly, the Court says nothing wrong, stating in paragraph 42 that Article 21(2) Qualification Directive, ‘whose wording essentially repeats that of Article 33(2) of the Geneva [Refugee] Convention, nevertheless provides for a derogation from that principle, allowing Member States the discretion to refoule a refugee where it is not prohibited by those international obligations (…)’.

It may be telling that the Court notes in para 65 that the principle of non-refoulement is guaranteed as a fundamental right by Articles 18 and 19(2) of the Charter of Fundamental Rights of the European Union. But the Court does not elaborate on that. Then again, I do not understand the extensive attention drawn to the alleged leeway granted by Article 21(2) of the Directive. Why suggest that there can be meaningful room for refoulement at all? Why make mention of ‘Member States, enjoying the discretion whether or not to refoule a refugee’ in paragraph 43? Why talk of a ‘derogation’ in paragraphs 42, 55, from this non-derogable principle? Why state in paragraph 72, that the consequences of applying Article 21(2) may be “very drastic” because the refugee ‘might be returned to a country where he is at risk’? Why keep secret that the whole exercise of explaining Article 21(2) is essentially futile because of the absolute character of the principle at stake?

Crucial impact of the case

The answer of the Court of Justice to the Czech court’s questions will be crucial for the future development of EU law. If the absolute character of the principle of non-refoulement is not clearly upheld now, we might be witnessing a gradual process of interpreting away the absolute character of non-refoulement. The first step could be, to frame the refugee status in the Directive as the primary status. The protection granted by Article 3 ECHR could then be downgraded as subsidiary and less important and only to be used as a safety net for persons who are not eligible for the first class protection. In such a construction, it could be argued that the international obligations referred to in Article 21 Qualification Directive are essentially obligations under Article 33 of the Refugee Convention.  This would grant Member States room for refoulement of refugees under Article 21(2) of the Directive in cases of criminal behaviour or security risks.  Then, if the ‘primary’ status would not be deemed connected to an absolute protection of non-refoulement, it could be considered weird to grant any better protection to the ‘lesser’ status.  

On the other hand, such a downgrading process may less easily develop if the importance of Article 19(2) of the Charter in this respect is acknowledged. In that respect, it is striking that the referral to the principle of non-refoulement in point 3 of the preamble of the Qualification Directive is solely linked to the Refugee Convention and not to Article 19(2) Charter. It is further conspicuous that point 16 of the Preamble mentions a whole range of relevant Charter provisions except for precisely Article 19(2).  

Complications: status, residence permit, expulsion

The discussion on this topic is complicated by a number of circumstances. First, refoulement only refers to deportation to the country where the person is in danger. Non-refoulement as such does not stand in the way of expulsion to other countries (as can be seen in Article 32 of the Refugee Convention allowing a limited possibility of removals to other countries, even if a refugee is ‘lawfully in [the] territory’). Further, the protection granted by the Qualification Directive takes the form of issuing statuses and residence permits, among other things, to protected persons.  What follows from this? Status and residence permit are two different things, as can be seen in Article 24 Qualification Directive. Revoking a residence permit cannot lead to the revocation of the refugee status (H.T. judgment, para. 74). Neither will the status of subsidiary protection be affected by revocation of the residence permit. What does the distinction between status and residence permit mean? And what is the relationship between a status and the obligation of non-refoulement?

Status

Principally, a status is recognition. Under Article 2(e) Qualification Directive, ‘refugee status’ means the recognition by a Member State of a third-country national or a stateless person as a refugee, and under Article 2(g) ‘subsidiary protection status’ means the recognition by a Member State of a third-country national or a stateless person as a person eligible for subsidiary protection.  As a status is equated with recognition, a status can only be terminated together with the recognition. The status intrinsically comprises recognition of the existence of an obligation of non-refoulement with respect to the person concerned.

(When I use the term ‘recognised refugee’ I am only dealing here with recognised refugees under the Qualification Directive. A recognised refugee under the Qualification Directive is in a different position from a person who is not recognised but who might still be a refugee under the Convention of 1951. It is the recognition under the Qualification Directive which puts beyond doubt that an the absolute EU principle of non-refoulement is applicable to the refugee as well).

Now, if a ‘status’ should be equated with ‘recognition’ of the danger threatening the person involved, it would be an anomaly to revoke a status in cases where the danger continues to exist, just because of criminal behaviour. That would amount to an arbitrary refusal to acknowledge the real and continuing risk against which the person seeks protection. More or less like revoking the medical acknowledgement of pregnancy of a woman because she stole a book, not because the pregnancy was over. However, under the Qualification Directive, termination of a status is made possible in cases where it is not established that an absolute prohibition of refoulement is no longer applicable to the person concerned. This is especially so with refugees. On the same grounds as set out in Article 21(2), but without the proviso of the ‘international obligations’ override, Article 14(4) Qualification Directive allows for revoking, ending or refusing to renew a refugee status. 

The wordings of Article 14(4) obviously refer to Article 33(2) Refugee Convention which also inspired the creation of a possibility of ‘refoulement’ under Article 21(2). In the beginning of my exploration, I stated that a correct interpretation of Article 21(1) compels non-application of the second (and consequently the third) paragraph. So, if the second and third paragraphs of Article 21 should be declared ‘dead letters’, is there still room for applying Article 14(4)?

The answer may depend on how consistency of the system of the Directive is valued. It is strange to refuse or terminate a status on grounds that have nothing to do with the danger against which the status is meant to offer protection. But, as long as there is no refoulement, the refusal or termination of the refugee status as cannot violate the principle of non-refoulement. 

Residence permit

In the H.T. judgment, para. 95, it is claimed that, even without his residence permit, the person concerned remains a refugee and as such remains entitled to the benefits guaranteed by Chapter VII of the Qualification Directive to every refugee, including protection from refoulement, maintenance of family unity, the right to travel documents, access to employment, education, social welfare, healthcare and accommodation, freedom of movement within the Member State and access to integration facilities. The same must be true for a person with the status of subsidiary protection (Article 20(2)).

However I have some difficulties with this passage. A number of rights mentioned in Chapter VII – like travel documents for travelling abroad, freedom of movement within the territory of the host state, access to employment -  would, under the Refugee Convention only be granted to ‘lawfully’ present refugees. I doubt it whether the Court took this aspect fully into account. In Chapter VII no clear distinction has been made between the rights correlating to the ‘status’ alone and rights specifically connected to ‘lawful residence’.  

I am therefore not convinced that para. 95 of the H.T. judgment is tenable. Is it really true that a ‘status’ alone already implies lawful presence? Is it not rather so, that a ‘status’ differs from a ‘residence permit’ precisely because a ‘status’ does not in itself regulate a right to lawful presence on the territory?

Whatever the right answer to that question is, even if we fully accept para. 95 of the H.T. judgment, a ‘status‘ only protects against refoulement, not against any form of expulsion to a safe country. That is why the residence permit offers more security. As long as a residence permit is granted to a status holder, the Member State guarantees not only non-refoulement to the country of origin but also non-expulsion to any other country and a full right to inclusion in society. This applies both to refugees and to subsidiary protected persons. With a residence permit the legal position of the person may become stronger through time and eventually lead to a permanent status or to nationality of the host state.

The principle of non-refoulement is, at least in abstracto, reconcilable with revoking, non-extending or refusing a residence permit.  Under Article 24 Qualification Directive, as explained in the H.T. judgment, a non-renewal or revocation of a residence permit is possible both for a refugee and for a subsidiary protected person in case of compelling reasons of national security or public order, while the status remains unaffected. So, measures to protect public order and public security may take the form of terminating or refusing a residence permit, but they may, according to what I said above never lead to refoulement as long as it is prohibited under Article 19(2) Charter.

Exclusion

A thorny issue is how the concept of exclusion (as distinct from revocation of refugee status, and/or a residence permit) must be positioned under an absolute norm of non-refoulement.

The exclusion clauses of the Refugee Convention are transposed in Article 12 of the Qualification Directive. Further, in Article 17 of the Directive, the concept of exclusion is also applied to persons with subsidiary protection – a novelty. According to the wording of the Directive, exclusion may mean something different for refugees compared to subsidiary protected persons. In Article 12, a third-country national or a stateless person is excluded from being a refugee.  Thus, an excluded person ‘is’ not a refugee.  He is excluded from the definition. In the wording of the Court of Justice in B and D (paras 89, 91, 98, 100, 104 and 106), the person is excluded from refugee status. In contrast, under Article 17, a third-country national or a stateless person is excluded from being eligible for subsidiary protection. Here, the person is excluded from the ’eligibility’ to be protected, which may not be exactly the same as a status. However, for reasons of consistency with the language of the B. and D. judgment, it is perhaps preferable to see Article 17 as dealing with exclusion of the status of subsidiary protection, just like Article 12 is about exclusion from the status of refugee.

Anyhow, regardless of the potential differences between the two provisions, their common effect is that they prevent or undo the creation of a legal moment in which it must be assessed under the Qualification Directive whether the person concerned is in a situation where refoulement is prohibited, either because of well-founded fear for persecution or because of a real risk for life or of torture, inhuman or degrading treatment or punishment. Of course, non-assessment of a risk does not mean that it does not exist. Therefore, exclusion under the Qualification Directive leaves open that the principle of non-refoulement may still apply to excluded persons. Under Article 5 of the Returns Directive they still are protected against refoulement. So, it is not a priori allowed to send excluded persons back to their countries.

Above, I stated that the status embodies a recognition of an obligation of non-refoulement with regard to the person concerned. Accordingly, an exclusion from a status is equivalent to exclusion from recognition of an obligation of non-refoulement. As a consequence, there is no right to a residence permit either.

In fact, excluded persons are thrown out of the field of application of the Qualification Directive and are referred to the Returns Directive for further protection against refoulement. In accordance with the Abdida judgment, Court of Justice 18 December 2014, C-562/13, para 50 (discussed here), they must be able to avail themselves, in such circumstances, of a remedy with suspensive effect, in order to ensure that the return decision is not enforced before a competent authority has had the opportunity to examine an objection alleging infringement of the principle of non-refoulement laid down in Article 5 Returns Directive and Article 19(2) of the Charter.

Conclusions

In spite of its confusing content, Article 21 Qualification Directive is not invalid because it can be interpreted in accordance with the absolute prohibition of refoulement thanks to the words ‘in accordance with their international obligations’  in the first section. The effect of the correct interpretation is that refoulement of refugees is not allowed even in the cases formulated in paragraph 2. Consequently, neither the third paragraph of Article 21, dealing with revoking, ending or refusing to renew or to grant the residence permit of (or to) a refugee to whom paragraph 2 applies, can ever be applied. Correctly interpreted, the second and third paragraph of Article 21 must be regarded dead letters.

It is difficult to conclude what the ‘dead letter’ position of Article 21(2)(3) means for the validity of Article 14(4) which was based on the same Article 33(2) Refugee Convention. At any rate, Article 14(4) is not invalid for violating the absolute prohibition of refoulement as long as Article 21(2) is not applied. Still, there is something anomalous about Article 14(4). It compels Member States (‘shall’) to refuse or terminate a refugee status in cases where there is still an obligation to acknowledge the absolute prohibition of refoulement. If it would be accepted that a ‘status’ is equivalent to ‘recognition’, the ‘status’ should be maintained, also for persons committing crimes, as long as the ‘recognition’ has solid ground.    

In answering the questions of the Czech Court, the Court of Justice may also have to clarify (as it did in Abdida) how the protection against refoulement is divided between the Qualification Directive and the Returns Directive. Exclusion in the sense of Articles 12 and 17 of the Qualification Directive has the effect of throwing the applicants out of the protection system of the Qualification Directive and leaving their protection against refoulement to the Returns Directive, which entitles them to a remedy with suspensive effect for the examination of a claim of non-refoulement.

Barnard & Peers: chapter 9, chapter 26

JHA4: chapter I:5

Photo credit: Bryan Denton, New York Times