What if a refugee allegedly supports terrorism? The CJEU judgment in T

Steve Peers

What happens if a refugee allegedly supports terrorism? The most obvious answer is that the person concerned might be excluded from getting refugee status in the first place, in accordance with Article 1.F of the Geneva (UN) Convention on Refugees, as reflected in the EU’s qualification Directive and interpreted in the CJEU’s B and D judgment of 2010. However, the situation is more complicated if the person already has refugee status, and his or her alleged support for terrorism begins or comes to light only later. This issue was addressed for the first time in today’s CJEU judgment in T.

Background

The qualification Directive offers three possible responses to a situation like this. First of all, a Member State may revoke refugee status where there are ‘reasonable grounds for regarding [a refugee] as a danger to the security of the Member State in which he or she is present’, or where the refugee was ‘convicted by a final judgment of a particularly serious crime’ so ‘constitutes a danger to the community of that Member State’. Secondly, it is possible to refoule a refugee (ie return the refugee to an unsafe country) on the same two grounds (which are also the exceptions to non-refoulement set out in the Geneva Convention), if that is not ‘prohibited’ by Member States’ international obligations. In that case, Member States may revoke or refuse to renew the refugee’s residence permit. Finally, Member States must issue refugees with a residence permit and renew it, ‘unless compelling reasons of national security or public order otherwise require’.

Also, a Member State is obliged to revoke refugee status if the refugee ‘should have been’ excluded from refugee status in the first place, but presumably this only applies where the activity justifying exclusion took place before the refugee status was granted. All of the same rules apply to the parallel status of ‘subsidiary protection’, which exists for persons who don’t qualify for refugee status but who otherwise need international protection because they are fleeing torture, the death penalty or a civil war.

Judgment

This case concerned a Turkish national who moved to Germany back in 1989 and obtained refugee status there in 1993, on the basis of his activities in support of the PKK, the Kurdish group which Turkey (and subsequently also the EU) regards as a terrorist organisation. However, those links later led to a conviction for supporting terrorism, due to his collection of money for the PKK and distribution of PKK literature. His residence permit was revoked but he retained refugee status, and he was not expelled from the country. Nevertheless, he still challenged the revocation of his residence permit.

The CJEU’s judgment considers the second and third of the two issues above: refoulement (which might lead to the loss of a residence permit) and the loss of the residence permit as such. First of all, the Court explains the relationship between these two overlapping rules. If the criteria to refoule a refugee are satisfied, a Member State can either (a) refoule the refugee; (b) expel the refugee to a safe country; or (c) allow the refugee to stay. In the event that Member States can refoule the refugee, then they can also revoke a residence permit. But conversely, if the criteria to refoule the refugee are not satisfied, then the Member State cannot withdraw a residence permit on this ground.

In that case, the Court ruled, the question arises whether the rules on granting residence permits apply. Those rules don’t expressly refer to revoking a permit which has already been issued, but the Court ruled that this possibility was implicit.

The Court then moved on to interpret the two sets of grounds for loss of a residence permit at issue in this case: the ‘reasonable grounds’ that the refugee is a security risk, and the ‘compelling reasons of national security or public order’. These concepts aren’t further defined in the Directive, and the language versions of the Directive differ. So the Court proceeded to interpret these rules in the overall context of the Directive – protecting human rights and developing a common policy. In the Court’s view, refoulement of a refugee is a ‘last resort’ in the event that there is no other option to protect national security or the public. Since it could have a ‘drastic’ impact on the refugee, it was subject to ‘rigorous conditions’.

In contract, the mere loss of a residence permit did not lead to refoulement, and so the threshold for the application of the relevant rules was lower. The rules on loss of a residence permit ‘only’ apply where the refugee’s actions ‘cannot justify loss of refugee status, let alone the refoulement of that refugee’, and so did not ‘presuppose the existence of a particularly serious crime’.

So does support for a terrorist group meet the threshold to be one of the ‘compelling reasons of national security or public order’? The Court ruled that the concept should be interpreted consistently with the public security exceptions in the EU’s citizens’ Directive, because ‘the extent of protection a company (sic) intends to afford to its fundamental interests cannot vary according to the legal status of the person that undermines those interests.’ So terrorism is covered by that concept, and there must be a ‘genuine, present and sufficiently serious threat affecting one of the fundamental interests of society’. Moreover, the EU has listed the PKK as a terrorist group, which is a ‘strong indication’ that must be ‘taken into account’. Since the CJEU had already ruled (in B and D) that terrorist acts could lead to exclusion from refugee status, it must follow that they could equally justify revocation of a residence permit.  

But that was not the end of the matter. The national court has to go on to a second step, to consider whether the specific actions of a refugee in fact constitute support for terrorism so as to justify revocation of a residence permit. Not all forms of support for an organisation which the EU considers to be terrorist can lead to revocation of a refugee’s residence permit. As with the exclusion clause (see B and D), it was necessary to look at the individual’s behaviour, examining ‘in particular whether he himself has committed terrorist acts, whether and to what extent he was involved in planning, decision-making or directing other persons with a view to committing acts of that nature, and whether and to what extent he financed such acts or procured for other persons the means to commit them’.

In this case, Mr. T had participated in legal meetings, celebrated the Kurdish New Year and collected money for the PKK. The Court asserted that this ‘does not necessarily mean that he supported the legitimacy of terrorist activities’. Indeed, such acts ‘do not constitute, in themselves, terrorist acts’. The national court also had to consider the ‘degree of seriousness of danger’ Mr. T posed. It could take into account his criminal conviction but also had to consider that he was only sentenced to a fine. Also, the principle of proportionality (which the Court stated was not relevant when applying the exclusion clause, in B and D) was relevant here: the national court had to consider if Mr. T was still a threat to public security at the time the decision to revoke the permit was taken.

Finally, the Court ruled on the consequences of the loss of a residence permit. The person concerned retained refugee status and so was still entitled to all of the rights granted to a refugee, including access to employment, education, welfare, healthcare and housing. Although a clause in the preamble to the Directive stated that a residence permit could be made a condition of obtaining such benefits, the Court said that this clause was irrelevant since it was not reflected in the main text. Those rights could ‘only’ be restricted in accordance with the conditions in the Directive, and Member States ‘are not entitled to add restrictions not already listed there’. This was directly relevant to Mr. T, since Germany had indeed restricted his access to all of those benefits. But this is ‘incompatible’ with the Directive.

Comments

This was the first chance for the Court to rule on the status of refugees, ie the various benefits attached to refugee status, since its previous judgments on the qualification Directive have essentially concerned the definition of refugee or subsidiary protection status (or the linked issues of exclusion from or cessation of that status). Broadly speaking, the judgment does a good job clarifying the points which the Court set out to tackle – but inevitably the Court could not deal with every possible issue, and some of its answers raise further questions of their own.

First of all, the Court provides a useful clarification of the distinction between the non-refoulement rules and the rules on residence permits as such. The crucial point here is that the latter rules apply only when the former do not. While this makes the residence permit rules sound as if they have secondary importance, in fact the reverse is true. In practice, the residence permit rules are more important, since it is rarely if ever possible to refoule a refugee consistently with international obligations. This is because the case law on Article 3 of the European Convention on Human Rights (ECHR) makes clear that even if a person has done things awful enough to justify refoulement under the Geneva Convention, he or she cannot be removed to face a real risk of torture or inhuman or degrading treatment in violation of Article 3 ECHR – since that provision is not subject to any exception relating to the behaviour of the person concerned (or any other exception either). It was not necessary for the CJEU to rule on this point in the T case, since Germany was not seeking to remove him, but it would surely be willing to do so if the case arose (see the judgment in Abdida, discussed here, where the CJEU relied upon another strand of the Article 3 case law).

   

In the unusual event that refoulement might be possible, the CJEU’s ruling leaves some questions to ponder. It refers to the possible removal of a refugee to a safe third country. Presumably the criteria to determine the meaning of that concept are those in the asylum procedures Directive. It is also possible that the Court would be willing to rule on the interpretation of Article 32 of the Geneva Convention – which regulates the substance and procedure of the expulsion of refugees to safe countries (if the refugees are legally resident) – in this context. The CJEU might also be called upon to elaborate further what it means by saying that refoulement is a ‘last resort’ in the event that no other alternatives are available.

   

As for the main thrust of the Court’s ruling, on the ‘compelling reasons’ exception to the grant of residence permits, it is striking that the Court continues its recent trend of applying its case law on the EU citizens’ Directive to the ‘public policy’ clauses in EU immigration and asylum law. It did the same thing just a few weeks ago as regards the voluntary departure rules in the EU Returns Directive (see the Zh and O judgment, discussed here), and the broad wording of its judgment in Ton this point suggests that all public policy clauses (they appear in swathes of EU legislation in this area) should have the same meaning. Having said that, the Court clearly accepts that the threshold for refoulement of a refugee is higher than for the normal public policy exception.

The Court also borrows most of its prior reasoning on the exclusion clause (with the addition of a proportionality element) to make clear that broad support of a group which the EU considers to be terrorist is not enough: there must be an active participation in violent acts or the funding of those acts. Presumably there must be a direct link with the funding of those acts, since the Court finds that Mr. T’s participation in collecting money for the PKK generally is not enough. Implicitly the Court shows little sympathy with recent EU and national moves against ‘radicalisation’ of Islamic communities (as very broadly defined), and it makes no reference to the Council of Europe measure (reflected in EU legislation) which criminalises ‘public provocation’ of terrorism. But nor does it refer to the countervailing case law of the European Court of Human Rights on freedom of speech, which requires States to allow the free expression of radical political beliefs and allows limits on that expression only where there is a direct incitement to commit violent acts. Nevertheless, the Court’s approach fits squarely into that latter line of case law.

Finally, the Court’s ruling on the consequences of loss of a residence permit are highly relevant, especially in Germany and any other Member States which do indeed make the receipt of benefits, access to employment et al dependent upon holding a residence permit. In effect, the judgment means that for many refugees the loss of a residence permit, even if justified, will have no real impact on their day-to-day life. It will only have an impact as regards journeys within the Schengen area (since holding a residence permit or long-stay visa is a condition of freedom to travel), or travels to non-Schengen and non-EU countries (since the criteria to revoke a residence permit also apply to the travel documents which refugees obtain from their host States in lieu of passports). It would also have an impact upon those refugees who do not yet have family living with them, since the EU’s family reunion Directive requires a third-country national to have a residence permit as a condition for family reunion. But that doesn’t matter to Mr. T, since he is already surrounded by his very large family in Germany.  

Barnard & Peers: chapter 26

Photo credit: kufarooq93.wordpress.com

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Could EU law save Paddington Bear? The CJEU develops a new type of protection

 

Steve Peers

Many readers may already be familiar with Colin Yeo’s brilliant blog post, imagining Paddington Bear’s unpleasant encounter with British immigration law. But could EU law save Paddington Bear, in particular by creating a new form of protection for those who have to flee their country of origin?

Background

EU law has regulated in detail two forms of international protection: refugee status (based on the UN’s Geneva Convention) and subsidiary protection status, for those who don’t qualify for refugee status. (There’s also EU legislation providing for temporary protection, but the EU has never used it). But there are people who don’t qualify for either form of status. When do they have a right to stay?

This question is relevant in a number of cases. For instance, Paddington Bear could argue that he was an ‘environmental refugee’, fleeing catastrophic events in his country of origin that were not caused by humans (or even bears). (I’m converting Paddington into a human for the purpose of this blog post, just as Colin does in his). Others might lack a right to stay, but can’t be removed for practical reasons, for instance because they don’t have documents that prove their nationality, and so the country which they probably come from refuses to accept them back. Or they have a serious illness, but the developing country which they come from lacks the resources to treat it: so sending them back would, in practice, amount to a death sentence.

It’s the last of these scenarios which forms the subject of the CJEU’s two recent rulings in M’Bodj and Abdida. (Note that these judgments should be read in that order, and it would be highly misleading to read one but not the other). However, these judgments might well have implications for other groups of people as well – perhaps including even our marmalade-loving bear.

Judgments

In the M’Bodj case, a non-EU citizen, having failed in his requests for asylum and stay on medical grounds in Belgium, was then the victim of a violent attack there. So he requested a disability allowance that was only available, on the facts of his case, if he could show that he was eligible for subsidiary protection. According to the EU’s qualification Directive, subsidiary protection must be granted if the applicant is facing any one of the following three situations: (a) the ‘death penalty or execution’; (b) ‘torture or other inhuman or degrading treatment or punishment of an applicant in the country of origin’; or (c) ‘serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict’. (The EU has more recently adopted a revised qualification Directive, but it didn’t change this particular definition).

The CJEU has previously interpreted the third of these grounds, in its judgments in Elgafaji and Diakite. But it has not yet interpreted the first two grounds. Mr. M’Bodj argued that the second ground applies, on the basis that the European Court of Human Rights (ECtHR) has interpreted Article 3 ECHR, which equally bans ‘torture or other inhuman or degrading treatment or punishment’, to mean that, in exceptional cases, people who would die if they were sent back to their country of origin, due to the inadequate medical treatment there, cannot be sent back.

However, the CJEU rejected its arguments. In its view, since the qualification Directive listed specific human activities as the source of persecution or serious harm, this form of ‘serious harm’ had to be the result of ‘a form of conduct on behalf of a third party’, so ‘cannot therefore simply be the result of general shortcomings in the health system of the country of origin’. This interpretation was bolstered by the preamble to the Directive, which says in effect that the Directive does not apply to those allowed to stay ‘on a discretionary basis on compassionate or humanitarian grounds’. It did make an exception for cases where the person concerned had been intentionally deprived of health care. Just because the ECtHR interpreted Article 3 ECHR to mean that people in Mr. M’Bodj’s situation could not be removed to their country of origin, that did not mean that they were necessarily entitled to subsidiary protection under the EU Directive.

The Directive does state that Member States can have ‘more favourable standards’ as regards qualifying for refugee or subsidiary protection status than those set out in the Directive. But such higher standards have to be ‘compatible’ with the Directive. In the Court’s view, it would indeed be incompatible with the Directive to give subsidiary protection status to Mr. M’Bodj, since there would be ‘no connection with the rationale of international protection’.

Read in isolation, the M’Bodj case means that those facing awful conditions in their country of origin that were not caused by humans have no right to refugee or subsidiary protection status. Their legal position is governed only by the ban on removal to their country of origin, set out in ECtHR case law, along with whatever limited benefits they may have under purely national law. There are a wide variety of such national law rules, as documented in a study for the European Migration Network. For Paddington Bear, this would mean that he could be sent back to his country of origin, unless the conditions there breached Article 3 ECHR standards. In that case, he could remain in the UK, but probably could not expect a very nice life.

However, the Abdida case, decided on the same day by the CJEU, suggests that in some cases, those who are unable to qualify for subsidiary protection or refugee status can use the EU’s Returns Directive to obtain a different type of protection. Mr. Abdida had similarly claimed that he should receive leave to remain on medical grounds in Belgium, and was appealing against the refusal of this application. While the appeal was pending, he was refused social assistance, on the grounds that it was only available to those whose challenge to their removal had suspensive effect; his challenge did not have that effect under Belgian law.

The national court asked the CJEU to interpret EU asylum legislation, and in light of its judgment in M’Bodj, the CJEU simply said that EU asylum law did not apply. While Member States have an option to apply EU legislation on reception conditions and asylum procedures to other types of applications for protection, Belgium has not chosen to do so.

The CJEU could have left the case there, but it didn’t. Instead, it decided to give the national court a detailed answer to questions it had never asked, on the interpretation of EU legislation that it had never referred to – the Returns Directive, which governs the process of removing irregular migrants from the territory.

First, the Court ruled on Mr. Abdida’s procedural rights. While the Returns Directive does not require legal challenges to removal to have suspensive effect, it was necessary to consider the impact of the EU Charter of Rights, Article 19(2) of which bans removals to States where the person concerned would face a serious risk of inhuman or degrading treatment. This had to be interpreted in light of the ECtHR case law on Article 3 ECHR discussed above, which bans removals on ‘medical grounds’ in exceptional cases.

How does this impact the interpretation of the Returns Directive? Article 5 of that Directive says that when they implement the Directive, ‘Member States shall take due account of: (a) the best interests of the child; (b) family life; (c) the state of health of the [person] concerned, and respect the principle of non-refoulement’. The CJEU ruled that Article 5, ‘taken in conjunction with Article 19(2) of the Charter’, means that Member States ‘may not…proceed with…removal’ where removal ‘would infringe the principle of non-refoulement’ on medical grounds.

This ban on removal had the consequential effect that the remedy against removal hadto be suspensive, despite the optional wording of the Directive on this point, because otherwise Mr. Abdida could suffer irreparable harm if sent back to his country of origin before his appeal was decided.   

Secondly, the CJEU ruled on his social rights. Article 14 of the Directive says that except where irregular migrants are in detention, where they are given a time for voluntary departure or their removal is postponed, Member States must ‘ensure that the following principles are taken into account as far as possible…: (a) family unity with family members present in their territory is maintained; (b) emergency health care and essential treatment of illness are provided; (c) minors are granted access to the basic education system subject to the length of their stay; and (d) special needs of vulnerable persons are taken into account’.

In the Court’s view, Mr. Abdida qualified for this treatment because his removal had to be postponed under the Directive, which requires postponement where suspensive effect of an appeal has been granted. Oddly, the Court did not mention that the Directive also requires postponement where removal would violate the principle of non-refoulement, although this rule was obviously relevant to Mr. Abdida as well.

It should be noted that the Directive gives an option to Member States to postpone removal in other cases, too. On that point it specifies that ‘Member States shall in particular take into account: (a) the third-country national’s physical state or mental capacity;’ and ‘(b) technical reasons, such as lack of transport capacity, or failure of the removal due to lack of identification’. In these cases, the persons concerned could also invoke the safeguards set out in Article 14, since that clause applies regardless of the reasons for postponement of removal.

Yet on the face of it, Mr. Abdida’s specific claim for social assistancecould not be successful, since such assistance is not mentioned in Article 14 at all. Indeed, the preamble to the Directive states that pending return, the ‘basic conditions of subsistence should be defined according to national legislation’. But the CJEU ruled that such legislation still had to be ‘compatible with the requirements laid down in’ the Directive. In this case, the right to the provision of health care would be ‘rendered meaningless if there were not also a concomitant requirement to make provision for the basic needs’ of the person concerned. However, that right only had to be provided ‘as far as possible’, on the condition that the person lacked the means to provide for his own needs; and it was up to Member States to ‘to determine the form’ which the provision of basic needs took.

 

Comments

At the outset, it should be noted that the qualification Directive and the Returns Directive have a different territorial scope. The former applies to all Member States except Denmark, but including the UK and Ireland. The latter doesn’t apply to the UK and Ireland, and it applies to Denmark and the non-EU Schengen associates (Norway, Iceland, Switzerland and Liechtenstein) only in certain cases.

So, in light of this recent CJEU case law, my advice to Paddington Bear would be to take the tube a few stops from Paddington to King’s Cross & St. Pancras station, and stow away again, this time on a Eurostar train to Brussels. (My apologies for facilitating a breach of immigration law, thereby infringing the EU’s Directive on that subject. And even greater apologies for inflicting upon the world the consequential change of name: it will be much harder to love ‘Gare du Midi Bear’.) Or alternatively, he could stow away on a train to Disneyland Paris – and create work for an army of copyright lawyers.

The Court’s judgments raise questions about the scope of international protection as defined by the qualification Directive, and about the new possibilities of protection arising under the Returns Directive. For the sake of brevity, let’s call that latter concept ‘alternative protection’ (technically, we should probably call it ‘Returns Directive protection’, but I can’t bring myself to use that term).

First of all then, the qualification Directive. The central point here is that there is no right to subsidiary protection merely due to the lack of decent health care in the country of origin, unless access to that health care has been blocked. The Court does not expand further on that exception, but presumably a parallel argument could be made for refugee status, where access to essential health care is blocked on one of the grounds (such as race, religion or political opinion) set out in the Geneva Convention, since that would surely constitute a form of persecution.

More broadly, the Court rules out a subsidiary protection claim unless the conditions in the country of origin have been caused by a ‘third party’ as defined in the Directive (namely the State, persons or groups controlling the State, or non-State actors). While the Court didn’t rule on this point as such, the logic of its judgment suggests that ‘non-State actors’ have to be humans. Also, it’s implicit that indirect causation isn’t sufficient. It could certainly be argued that the lack of sufficient health care in developing countries is ultimately the fault of corrupt dictators and elites who hoard those countries’ wealth, and/or the legacy of (neo-)colonialism and slavery. Equally, many believe that environmental displacement results from climate change caused by human activity. But it seems unlikely that the CJEU would accept this line of argument.

Furthermore, the Court has ruled out Member States using their power to apply more favourable rules for international protection in such cases. The CJEU had only ruled once before on this issue, in the case of B and D, when it ruled that States could not grant refugee status to persons who were excluded from that status. It was possible to interpret that judgment as meaning that Member States were only constrained from granting more favourable treatment when international law requiredthem not to do so. But the M’Bodj judgment goes much further than this. So the CJEU hasn’t just refused to raise the floor for international protection – it’s significantly lowered the ceiling.

It should be noted that the requirement that more favourable standards be compatible with EU law applies in all other EU asylum laws, as well as in some EU migration legislation, such as the Returns Directive. The M’Bodjjudgment might therefore have implications for these laws too. But the rule doesn’t apply to all EU immigration laws, and there’s no good reason to assume that a ‘compatibility’ requirement ought to apply in those cases where the EU legislature has deliberately decided not to insert one.

So what more favourable standards can Member States apply? In the case of the qualification Directive, the Court says that they must fall within the scope of international protection. It doesn’t elaborate further, but this presumably refers back to the key concept of persecution or serious harm caused by a ‘third party’. Higher standards can therefore apply only in relation to the Directive’s definition of ‘refugee’ and ‘subsidiary protection’. For instance, it should surely be open to Member States to grant subsidiary protection to persons fleeing indiscriminate violence even where the threat is not ‘individual’, or where the applicants are not civilians.

Secondly, what are the implications of the Abdida judgment for the new possibility of ‘alternative protection’? To understand this concept better, it should be compared to the elements of EU law governing international protection: the allocation of responsibility for an application (ie, the ‘Dublin rules’); the substantive grounds for protection; the procedures for determining whether there is a protection need; and the benefits which an individual receives during the determination process (and afterward, if his or her claim is successful).

Beforehand, though, some general points about the Court’s approach to the Returns Directive in Abdida.  When it was initially adopted back in 2008, that Directive was castigated by NGOs as the Devil incarnate, spurring on Member States to all sorts of inhumane treatment of irregular migrants. Over the years, the CJEU’s interpretation of the Directive has (generally speaking) ensured that irregular migrants are better treated than the Directive’s initial critics thought that they would be. The judgment in Abdidagoes even beyond this, and transforms an instrument of repression into (in some cases) an instrument for protection. It’s like going into a vegetarian restaurant, and being served a bacon sandwich.

For meat-eaters – with the obvious exception of Ed Miliband – that would be a pleasant surprise. So what’s the problem? The problem is that it’s difficult to take a law that was drafted to expedite the removal of migrants, and using it to help them instead. The CJEU tried to overcome this in the Abdidajudgment by performing a series of feats of legal alchemy: redrafting the national court’s questions from scratch; turning an obligation to ‘take due account’ of non-refoulement into a ban on removal; making an option to grant the suspensive effect of appeals into an obligation; transforming the ‘principle’ of obtaining health care into a rule; and adding social assistance to the list of benefits which Mr. Abdida has to receive.  Yet despite all this, a lot of effort will still be required to make the Returns Directive function as an instrument to grant individual protection.

To see why, let’s look at those elements of the protection process, starting with the allocation of responsibility for an application. There are no ‘Dublin rules’ applicable to alternative protection cases. So if Paddington Bear managed to make his way to Brussels or Paris, Belgium or France could not invoke formal rules requiring the UK to take him back. The position would be different though, if he had applied for asylum in the UK first, before making his way to another Member State. In that case, the Dublin rules would apply, so in principle the UK would have responsibility for him, since he crossed the UK borders without authorisation before he set foot in any other Member State. But this normal rule would have to be disapplied in his case, since unaccompanied minors can usually change the country which is responsible for their application (see the discussion here).

In fact, in real life, most of those using the ‘alternative protection’ route would likely have applied for asylum first (as is evident from the facts of the Abdida and M’Bodj cases), so the Dublin rules as such would apply to them. According to the CJEU, they could therefore only resist being sent back to the responsible Member State if there is a complete breakdown of the asylum system there. For Paddington, the demented attentions of Nicole Kidman’s character, or the grim reality of British immigration law as described in Colin Yeo’s blog post, would not meet that threshold.

Next, what are the substantive grounds for alternative protection? We know from the Abdidacase that they include at least non-refoulement, and crucially also that the concept of non-refoulement in the Returns Directive and the Charter is wider than the concept of international protection. It covers at least ‘medical cases’, and arguably also other cases that fall outside the scope of refugee and subsidiary protection status but within the scope of Article 3 ECHR (for instance, persons excluded from refugee status or subsidiary protection status). It could also be argued that it covers environmental cases, such as the fictional destruction of talking bears’ habitat, or the very real scenario of sinking islands. Article 5 of the Returns Directive also refers to the best interests of the child, the state of health of the person concerned and family life, so logically these could also potentially be grounds for alternative protection. But it’s not possible to claim alternative protection on the basis only that it’s impossible to carry out a return decision in practice: se the Mahdidecision earlier this year (discussed here).

Moving on to the procedures for determining whether there is an alternative protection need, there are three elements here: access to the process; administrative procedure; and judicial protection. There’s an obvious problem with access to the process, for the Returns Directive cannot be ‘accessed’ unless there is a pending returns decision. So we have the odd scenario where people facing expulsion (Mr. Abdida) are better off in terms of health care than those with residence permits (Mr. M’Bodj). The Returns Directive requires Member States to issue return decisions to those whose stay is not authorised, but it leaves them an option to allow people to stay if they wish; in that case, the return decisions must be rescinded. Otherwise, the Directive is silent on whether return decisions expire or can be renewed or rescinded. There’s no provision for an individual to ask for a return decision to be issued, even where it’s possible that it might make the person concerned better off.

Next, the administrative procedure during the returns process has been addressed in the CJEU recent judgments on the right to be heard in Returns Directive cases, discussed here. It’s notable that the judgment in Boudjlidaspecifically requires national authorities, before issuing a returns decision, to consider any issues related to Article 5 of the Returns Directive. However, on the whole the concept of the right to be heard in Returns Directive cases, as developed by the Court is significantly weaker than the rules on interviews, et al, set out in the asylum procedures directive.

Conversely, as for judicial protection, the suspensive effect of removals set out in the Abdida case is stronger than the equivalent provisions of the asylum procedures Directive. It’s not clear if this would apply to other cases where an ‘alternative protection’ argument might be made though. Article 13 of the Returns Directive also contains other rules, on: the independence and impartiality of the appeals body (which actually need not be a judicial body); requirement for a merits review; access to legal advice; and legal aid. It might be arguable by analogy with the suspensive effect point in Abdida,that at least in some cases, Article 47 of the Charter confers stronger rights than the Directive requires.

Finally, the benefits which an individual receives during the determination process, if his or her removal is postponed, are (as noted above) family unity, essential health care, education for minors, protection for vulnerable persons, and written confirmation of their status. We know from the Abdida judgment that this list of entitlements is not exhaustive, and can be extended to protection of basic needs in individual cases. In that case, the CJEU implicitly accepted that there would be no point providing health care for Mr. Abdida if, while he received it, he was being left to starve to death in the streets.  This is surely not the only type of case where basic needs have to be provided for: should an unaccompanied minor be left without food and shelter also?

What about the two provisos mentioned by the Court: a means test, and Member States’ power to ‘determine the form’ which provision of basic needs take? On the first point, it should be noted that the employer sanctions Directive (discussed here) gives Member States an option – but not an obligation – to permit irregular migrants to take up employment. Possibly Member States could take into account other income being provided by families, friends or charities. On the second point, Member States’ discretion does not extend to an absolute power to detain the people concerned, since the grounds for detention and conditions for detention set out in the Returns Directive would apply. But as regards other aspects of basic needs, Member States would surely be free to decide on the details of housing and financial support. So sadly, Paddington Bear could not insist on staying with Hugh Bonneville’s family – and would have to settle for marmalade from Aldi, not Marks & Spencer’s.

 

Barnard & Peers: chapter 9, chapter 26

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LGBTI asylum-seekers: the CJEU sends mixed messages

 

 

Steve Peers

 

Many countries worldwide still impose severe criminal sanctions and other forms of ill treatment on people who are gay, lesbian, transgender or intersex (LGBTI). Fortunately, according to the CJEU, any non - EU citizen suffering persecution on grounds of sexual orientation can seek asylum in the EU, claiming that they are part of a 'particular social group' being persecuted, in accordance with the EU's qualification Directive.
 

The Court's prior case-law (the X, Y and Z judgment of 2013) further clarifies that they do not have to keep their sexuality hidden in their country of origin in order to claim refugee status. But the mere existence of criminal law prohibitions in the country of origin doesn't necessarily mean that LGBTI asylum-seekers are being persecuted: the crucial question is whether such laws are actually being enforced.
 

Before getting to the issue of persecution, though, how can the authorities check whether asylum-seekers are gay or lesbian in the first place? In today's judgment in A, B and C, the CJEU rules out the most obnoxious forms of procedures to determine sexual orientation, but still leaves some leeway for dubious behaviour by national authorities.
 

The judgment
 

Asked by a Dutch court to clarify what national authorities can do to establish the sexual orientation of asylum seekers, the CJEU begins by stating that a mere self declaration by the asylum seeker is not sufficient. This is only the starting point of the assessment.
 

Although EU legislation does not address the issue of the credibility of asylum seekers in much detail, the CJEU states that the process of determining credibility must be consistent with the EU Charter of Fundamental Rights. In principle, the same rules apply to all categories of asylum seekers, but they can be adapted to particular groups.
 

First of all, the CJEU states that questions 'based on stereotypical notions may be useful' to national authorities. But they cannot base their decisions purely on such notions, and the asylum seeker's inability to answer such questions cannot mean that he or she has no credibility.
 

Secondly, the CJEU rules against detailed questioning about asylum seekers' sex life, on the grounds that this would breach Article 7 of the Charter (the right to privacy). (On the questions which are asked in practice, see Colin Yeo's earlier post on the Free Movement blog).
 

Thirdly, the CJEU rules that LGBTI asylum-seekers should not perform sex acts, produce films of their sexual activities or undergo medical testing to prove their orientation. This would breach Article 1 of the Charter (the right to human dignity) as well as Article 7.
 

Finally, the CJEU rules that Member States cannot assume that LGBTI asylum-seekers lack credibility simply because they didn't raise the issue of their sexuality as soon as possible, in light of the sensitivity of the topic. However, the Court does not rule on some additional procedural issues considered in the Opinion of the Advocate-General.
 

Comments
 

The Court's judgment frees LGBTI asylum-seekers from many particularly obnoxious forms of testing and questioning. In particular, it frees them from phallometric testing. The Court didn't mention the details of this process, but suffice it to say that it involves examining men's physical reaction to viewing pornography. The judgment should have added that this process is also a breach of Article 4 of the Charter, as a form of degrading treatment.
 

As for producing films or engaging in sex acts, the Court was right to rule out implicitly the possible waiver of privacy rights on the grounds that other asylum-seekers would be pressured to do the same thing.
 

The ruling also usefully clarified that LGBTI asylum-seekers do not need to declare their sexual orientation as soon as possible. This takes account of the social reality for people who have just fled countries where their personal identity is taboo.
 

On the other hand, today's judgment is unhelpful to the extent that it refers to the possibility of 'useful stereotypes' when questioning LGBTI asylum-seekers. Although the Court only refers in this context to questions about the existence of NGOs supporting LGBTI individuals, many other stereotypes exist. The Court ruling might be interpreted to endorse assumptions that (for instance) gay men don't like sports, or that lesbians have short hair. Such stereotypes might be only mildly annoying on a day - to - day basis. But if they are used in order to reject an asylum claim, they could be fatal to the person concerned.
 

Admittedly, the Court rules out relying on the answers to such questions as the sole basis for denying asylum. Nor is it possible to decide that an asylum seeker who can't answer such questions has no credibility. But it is still possible that an asylum seeker will lose credibility if he or she gives the 'wrong' answer to these questions; and those answers can form part of the assessment of credibility.

More broadly, the Court's approach fails to take sufficient account of the wide diversity of the expression of human sexual identity, especially in countries where homosexuality is taboo.
 

While some questions relating to LGBTI asylum-seekers' credibility must be acceptable, given that the Court ruled out self - declaration as an automatic route to establish such credibility, the Court could surely have found a better form of words than 'useful stereotypes'. It could, for instance, have endorsed the relevant UNHCR guidelines discussed in the Advocate-General’s opinion.

Although there are many positive aspects of today's judgment, the CJEU's unjustified aversion to human rights soft law may cause problems for many LGBTI asylum-seekers in practice.

Barnard and Peers: chapter 26

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Procedural rights and subsidiary protection

By Steve Peers

The first phase legislation of the Common European Asylum System (CEAS) set out a definition of ‘subsidiary protection’ (protection for those individuals who did not qualify for refugee status, but who still should not be sent back to their country of origin) in the Qualification Directive. However, other first phase CEAS legislation, most notably the asylum procedures Directive, did not apply to those applying for subsidiary protection. Nor did that legislation expressly regulate the relationship between refugee and subsidiary protection status.

This rather peculiar gap has been filled in several ways. First of all, as for the future, the second-phase CEAS legislation applies fully to applicants for subsidiary protection, and also regulates the relationship between refugee and subsidiary protection status. However, some of that legislation will not apply until July 2015; most notably, the Directive on international protection procedures (which replaces the asylum procedures Directive) will only apply to applications made after that point.

Secondly, a large majority of Member States already have a ‘one-stop shop’ procedure, in which applications for subsidiary protection are considered along with applications for refugee protection. In that case, the rules in the asylum procedures Directive apply to the whole procedure.

Thirdly, where Member States do not have such a procedure, the CJEU ruled in the M judgment that the general principle of EU law, set out in Article 41 of the EU Charter of Fundamental Rights, on the ‘right to good administration’, applied to the national process of considering subsidiary protection claims, even though the wording of the Charter restricted that right to EU bodies (as distinct from national administrations).

Today’s judgment in HN raises further questions about the nature of the procedure for deciding on subsidiary protection claims in Member States which do not have a ‘one-stop shop’. Furthermore, it has broader relevance beyond such situations. Like the M case, the HN case concerns a subsidiary protection application made in Ireland. Irish law not only requires two separate procedures for examining refugee and subsidiary protection status, but also requires the first issue to be resolved before the second one is. Mr. HN, who considered that he had no chance of success as regards refugee status but a good argument for subsidiary protection status, argued that these rules breached EU law.

 According to the CJEU, they did not. First of all, in light of the pre-eminence of Geneva Convention refugee status in the Treaties and secondary EU law, subsidiary protection is ‘intended for third country nationals who do not qualify for refugee status’. It followed that ‘an application for subsidiary protection should not, in principle, be considered before’ an authority concludes that an application for refugee status is unfounded. So the national law could not be criticised on that ground.

The CJEU also considered two other aspects of EU law: the principle of effectiveness and the right to good administration. As regards effectiveness, while Member States have some discretion to regulate the subsidiary protection process unless they have a ‘one-stop shop’ in place, such discretion is not unlimited. Since a two-step process delays the application process, it must be possible to make an application for both types of status at the same time, and to consider the subsidiary protection claim ‘within a reasonable period of time’, taking account also of the time taken to decide on the refugee claim first.

As for the right to good administration, the CJEU confirmed that Article 41 of the Charter was applicable to national proceedings linked to EU law. In this case, the relevant provisions were the right to an impartial decision, and the right to a decision within a reasonable time. The ‘reasonable time’ rule applied in the same way as the principle of effectiveness. Furthermore, the principle of impartiality was not violated simply because the applicant had been told, due to the failure of his refugee claim, that he might be deported, even before the subsidiary protection application was decided.

Comments

There are a number of broader implications of the Court’s ruling. First of all, its confirmation that Article 41 of the Charter applies to all national proceedings within the scope of EU law is relevant well outside the scope of asylum law, and is therefore important given the large role that national administrations have in implementing EU law. For instance, the finding could be relevant as regards immigration, free movement or tax decisions (along with many others).

Secondly, while the Court’s judgment refers specifically to the right to an impartial decision, and to a decision within a reasonable time, there are several other aspects of Article 41 which must be equally applicable to national administrative decisions linked to EU law. In the M judgment, the CJEU already referred to the right to be heard. Article 41 also refers to fair administration, access to the file, the obligation to give reasons for decisions, a right to damages and linguistic communication rights.

As for the issues specific to asylum law, the Court’s judgment must logically mean that Article 47 of the Charter (the right to a court and an effective remedy) is also applicable to subsidiary protection claims by analogy, even in Member States without a one-stop shop. Arguably the EU Charter’s rights to dignity and social protection are also applicable to applicants for subsidiary protection in such Member States.

The Court’s approach in the M and HN cases is also relevant by analogy to cases where people apply for refugee or subsidiary protection in Member States from outside EU territory, after interception on the high seas for instance. While the asylum procedures Directive does not apply outside EU territory, there is no such geographic limit on the scope of the qualification Directive. So logically, the latter Directive applies to claims made outside of EU territory to Member States, and the Charter applies as regards procedural rights in such cases.

The Court’s approach to the relationship between refugee applications and subsidiary protection applications will make it more difficult for applicants to avoid the imposition of the EU’s ‘Dublin’ rules on allocation of asylum cases simply by means of withdrawing a refugee application, but simultaneously making or maintaining a subsidiary protection application. But this point is only relevant to applications made before the start of 2014 anyway, since as from that date the Dublin III Regulation applies, and that Regulation has extended the ‘Dublin’ rules to cover subsidiary protection applications.

What about the relationship between refugee status and purely national forms of protection outside the scope of the qualification Directive? There is nothing in the Court’s ruling today that addresses the relationship between such national forms of protection, which have not been harmonised by EU law at all, and the qualification Directive (or other EU asylum law, such as the Dublin rules). So it is still open to argue, for instance, that the Dublin rules cannot apply if a person is expressly applying only for a national form of protection. Conversely, it might be desirable to argue that the HN judgment applies by analogy if a Member State awards an applicant for refugee and/or subsidiary protection a purely national form of status, which gives that person fewer rights, without considering the former claims on the merits.

It is clear from this judgment that a claim for refugee status must always be refused before the possibility of subsidiary protection can be examined. This rule applies even before the second-phase procedures Directive sets it out expressly in EU law, and so applies to applications made before July 2015, including pending applications. Arguably, a Member State which has already awarded a person subsidiary protection without considering the merits of a refugee application can be called upon to reopen that process. However, it might be necessary for further case law to clarify the position where a person wishes to appeal the decision to refuse refugee status while the consideration of the subsidiary protection claim is ongoing.

Finally, it should be noted that even though the UK and Ireland have opted only into the first-phase qualification and procedures Directives, some key rules in the second phase legislation nevertheless apply to them, as a result of the CJEU’s interpretation of the first phase rules in its case law. In particular, they are bound by some basic procedural rules as regards subsidiary protection applications; they must consider a refugee claim before a subsidiary protection claim; and they must decide those claims within a reasonable time (although that rule is less precise than the precise time limits in the second-phase procedures Directive). So just because a rule appears expressly in the second-phase asylum law, but not in the first-phase asylum law, it doesn’t necessarily mean that the UK and Ireland are not bound by it; it is still possible that the first-phase legislation contains that rule implicitly. Of course, this is only one of the many legal complications arising from the complex system of opt-outs from EU law.


Barnard & Peers: chapter 8, chapter 26

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