Presentation on theme: "The Qualifications Directive"— Presentation transcript:
1The Qualifications Directive PresentationbyBoldizsár Nagyat the CEU, 2011
2Qualifications Directive, 2004 April EC Council Directive 2004/83/EC of 29 April on Minimum Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Refugees or as Persons who otherwise need International Protection and the Content of the Protection granted (OJ L 304/12 of )
3Qualification directive PurposeGuaranteeing a minimum of protectionClosing the protection gap concerning persons not threatened with Geneva Convention type persecutionPrevention of asylum shopping and abuse of the asylum systemScope of application26 Member states of the EU, including the UK and Ireland who opted in (Denmark not)Minimum standardsAccording to Art 3. states may introduce or retain more favourable standards. This is the bare minimumMajor innovationsIntroduction of „subsidiary protection” and identification of rights accompanying it.Non-state actors may qualify as persecutors in a Geneva Convention senseInternal flight alternative is an exclusion ground.The directive not only offers detailed definition (as the common position of 1996), but also identifies the rights of the protected persons.The directive consists of 40 Articles occupies 12 OJ pagesTwo goals:-minimum comon content of defintions- Minimum common content of protection of the two categories
4Qualifications directive (cont'd) 2 § Definitions:Application = seeking refugee or subsidiary protection statusRefugee = GC definition + absence of exclusion grounds according to Art 12 of the D.Person eligible for subsidiary protectionSee next slide96/196/JHA: Joint Position of 4 March 1996 defined by the Council on the basis of Article K.3 of the Treaty on European Union on the harmonized application of the definition of the term 'refugee' in Article 1 of the Geneva Convention of 28 July 1951 relating to the status of refugeesOJ L 63/ március 13UNHCR welcomes the clarification that the Directive does not intend to replace, change or supplement the 1951 Convention but to provide guidance for its interpretation.One stop shop?Should all be investigated for from GC? (UNHCR so suggests)Refugee -refugee status = altter = recognized. UNHCR suggests: „asylum” for recognized
5Qualifications directive (cont'd) Art 2 (e) „‘person eligible for subsidiary protection’ means a third country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15, and to whom Article 17(1) and (2) do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country”Régi: 5 (2) § "Subsidiary protection shall be granted to any third country national or stateless person who does not qualify as a refugee, ...or whose application for international protection was explicitly made on grounds that did not include the Geneva Convention., and who, owing to a well-founded fear of suffering serious and unjustified harm set out in article 15, has been forced to flee or to remain outside his or her country of origin and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.Art 17: Article 17Exclusion1. A third country national or a stateless person is excluded from being eligible for subsidiary protection 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 crime;(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;(d) he or she constitutes a danger to the community or to the security of the Member State in which he or she is present.
6Qualifications directive (cont'd) Article 15: Serious harm Serious harm consists of: (a) death penalty or execution; or (b) torture or 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.Régi: 15 § The grounds for subsidiary rotection: In accordance with article 5 (2), Member States shall grant subsidiary protection to an applicant for international protection who is outside his or her country of origin, and cannot return there owing to a well-founded fear of being subjected to the following serious and unjustified harm:torture or inhuman or degrading treatment or punishment, or;violation of a human right, sufficiently severe to engage Member State’s international obligations or;a threat to his or her life, safety or freedom as a result of indiscriminate violence arising in situations of armed conflict,or as a result of systematic or generalised violations of their human rights.
7Qualifications directive (cont'd) Definitions: FamilySpouse+ unmarried partner, if stable relationship + territorial states recognizes such partnershipsChildren:minor, unmarried, dependentIf already a family in the country of origin + together present in the country of asylumRecast, 2009 intends to extend!(Married minor, sibling, parents even of minor married if in the best interest)COUNCIL DIRECTIVE 2001/55/ECof 20 July 2001 on minimum standards for giving temporary protectionArticle 151. For the purpose of this Article, in cases where families already existed in the country of origin and were separated due to circumstances surrounding the mass influx, the following persons shall be considered to be part of a family:the spouse of the sponsor or his/her unmarried partner in a stable relationship, where the legislation or practice of the Member State concerned treats unmarried couples in a way comparable to married couples under its law relating to aliens;the minor unmarried children of the sponsor or of his/her spouse, without distinction as to whether they were born in or out of wedlock or adopted; /Nincs benne: háztartásban élő/(b) other close relatives who lived together as part of the family unit at the time of the events leading to the mass influx, and who were wholly or mainly dependent on the sponsor at the time.UNHCR Unaccompanied – separatedElőbbinek senkije, utóübbi szüleitől saparated, de lehet vele felnőtt.
8Qualification directive Major themes Convention refugee statusWell founded fearEvidence, credibility, sur place, manufactured casesPersecutionActors, protection,Internal relocation alternative,Acts of persecutionThe five grounds (reasons)Cessation, exclusionProcedure, including revocation of statusSubsidiary protectionSerious harmCessation, exclusionProcedure, including revocation of statusContent of protectionNon refoulement, information,family unity, residence permits,travel document, employment,education, social welfare, health care, unaccompanied minors,accommodation, freedom of movement, integration, repatriation
9Qualifications directive Well founded fear = Assessment of applications for international protection (Chapter II) = objective theoryburden of proof: shared between applicant and assessing state;assessment: individual, based on the statement of the applicant + his documentscountry of origin: law and reality should be assessedopening for subjectivization (4§ (2. (c)) (Taking into account the „individual position and personal circumstances” of the applicant ...to assess whether the acts to which (s)he could be exposed amount to persecution)Past persecution /serious harm = serious indication of well-founded fear unless „good reasons to consider” that they „will not be repeated”.Credibility issues - see next slidethe individual position and personal circumstances of the applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant's personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harmUNHCR argues that past persectuion alone should be retained in national legislation. (See US law, eg. BN)
10Qualifications directive Well-founded fear (cont'd) Credibility /benefit of doubt „where aspects of the applicant’s statements are not supported by… evidence” these need no confirmation if: -applicant made genuine effort to substantiate - submitted all available evidence and explained the lack of others - the statement is coherent and plausible and does not contradict available information - the a. has applied „at the earliest possible time” unless good reason for not having done so - „the general credibility of the applicant has been established” (4§ 5. (e))
11Qualifications directive Well-founded fear (cont'd) Sur place refugees and manufactured casesGenuine sur place = changes at home„sincere” sur place = activities abroad which „constitute the expression and continuation of convictions or orientations held in the country of origin” (5§ 2.)Manufactured case:Subsequent applicationbased on circumstances the a. has created by his own decision may be denied refugee status_______________________________________Recast 2009: removes manufactured cases (for fear of discrimination)
12Qualifications Directive persecution (cont'd) Persecutor / serious harm doerthe State;parties or organisations controlling the State or a substantial part of the territory of the State;non-State actors, if the state or other agents are unable or unwilling to provide protectionProtectorthe State; orparties or organisations, including international organisations, controlling the State or a substantial part of the territory of the State.Protection means at least that- an effective legal system for the detection, prosecution and punishment of persecution or serious harm is operatedthe applicant has access to such protection._____________________________________________________________________Recast, 2009: Protection must be effective and durable and can only be provided by the above mentioned actors if they are willing and able to enforce the rule of law.„ national authorities interpreting broadly the current definition have onsidered clans and tribes as potential actors of protection despite the fact that these cannot be equated to States regarding their ability to provide protection. In other instances, authorities have considered non-governmental organisations as actors of protection with regard to women at risk of female genital mutilation and honour killings, despite the fact that such organisations can only provide temporary safety or even only shelter to victims of persecution” COM 551/2, p. 6.
13Qualifications directive Persecution (cont'd) Internal relocation alternative (8§)- Optional! (MS „may” determine)In a part of the country of originthere is no well-founded fear of being persecuted / no real risk of suffering serious harmthe applicant „can reasonably be expected to stay in that part of the country”„Have regard” to –general circumstances +personal circumstances of the applicantIf no possibility to return for technical reasons, still applies!____________________________________________________________________________________________________________________________________________Recast, 2009:incorporates the 2007 Salah Sheek judgement of the ECtHR: legally travel there, gain admittance and setttle thereremoves the applicability even if technical obstaclesEstablishes obligation of authorities to have up-to-date infoApart from considering whether the applicant would not have a well-founded fear of persecution or would face serious harm in the area, it should also be considered whether the applicant could safely and reasonably relocate, without undue hardship.Subpara 3 - on technical obstacles: The effect of this provision is to deny international protection to persons who have no accessible protection alternative. In UNHCR’s view, this is not consistent with Article 1 of the 1951 Convention. An internal relocation or flight alternative must be safely and legally accessible for the individual concerned. If the proposed alternative is not accessible in a practical sense, an internal flight or relocation alternative does not exist and cannot be reasonable.  See also, UNHCR, Handbook, para. 91 and UNHCR, “Guidelines on International Protection: ‘Internal Flight or Relocation Alternative’ within the Context of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees”, HCR/GIP/03/04, 23 July 2003.
14Qualifications directive Persecution (cont'd) Acts of persecution(a) [„must be”] sufficiently seriousby their nature or repetitionas to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms;or(b) be an accumulation of various measures,including violations of human rights which issufficiently severe as to affect an individual in a similar manner as mentioned in (a).Acts: violence (physical, mental, sexual), discriminatory measures and punishment, prosecution for denial of military service in a conflict entailing crimes or acts justifying exclusion, gender specific or child-specific acts______________________________________________________________________________________________________________________________________________________________________Recast 2009: (amending 9§ (3)) nexus need not be with persecution may be with absence of protection.2. Acts of persecution as qualified in paragraph 1, can, inter alia, take the form of:(a) acts of physical or mental violence, including acts of sexual violence;(b) legal, administrative, police, and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner;(c) prosecution or punishment, which is disproportionate or discriminatory;(d) denial of judicial redress resulting in a disproportionate or discriminatory punishment;prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses as set out in Article 12(2);In accordance with Article 2(c), there must be a connection between the reasons mentioned in Article 10 and the acts of persecution as qualified in paragraph 1.UNHCR: conscientious objectors should also be included if the reasons for refusal to serve are based on deeply held moral, religious or political convictions_____________________________________________________________________Recast 2009: (amending 9§ (3)) nexus need not be with persectuin may be with lack of protection„In many cases where the persecution emanates from non-State actors, such as militia, clans, criminal networks, local communities or families, the act of persecution is not committed for reasons related to a Geneva Convention ground but, for instance, with criminal motivations or for private revenge. However, it often happens in such cases that the State is unable or unwilling to provide protection to the individual concerned because of a reason related to the Geneva Convention (for example religion, gender, ethnicity etc)” COM 551/2, p. 7-8
15Qualifications directive The reasons for persecutionImmaterial whether applicant possesses the characteristic or only the persecutor attributes to her/him.Race: includes colour, descent, or membership of a particular ethnic group;Religion: theistic, non-theistic and atheistic beliefs, the participation in, or abstention from, formal worship in private or in publicNationality: citizenship or lack thereof + membership of a group determined by its cultural, ethnic, or linguistic identity, common geographical or political origins or its relationship with the population of another State;Political opinion: opinion, thought or belief on a matter related to the potential actors of persecution and to their policies or methods, whether or not reflected in acts of the applicant.Particular social group: members of that group share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it,andthat group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society;In UNHCR’s view, the term “social group” should be interpreted in a manner open to the diverse and changing nature of groups in various societies and to evolving international human rights norms. Two main schools of thought as to what constitutes a social group within the meaning of the 1951 Convention are reflected in the Directive. The “protected characteristics approach” is based on an immutable characteristic or a characteristic so fundamental to human dignity that a person should not be compelled to forsake it. The “social perception approach” is based on a common characteristic which creates a cognizable group that sets it apart from the society at large. While the results under the two approaches may frequently converge, this is not always the case. To avoid any protection gaps, UNHCR therefore recommends that Member States reconcile the two approaches to permit alternative, rather than cumulative, application of the two concepts.States have recognized women, families, tribes, occupational groups and homosexuals as constituting a particular social group for the purposes of the 1951 Convention. To avoid misinterpretation, UNHCR would encourage Member States, to provide in their legislation for further examples of groups which can qualify for refugee status, beyond the example of “sexual orientation”. Other examples would be gender, age, disability, and health status.With respect to the provision that “[g]ender related aspects might be considered, without by themselves alone creating a presumption for the applicability of the article”, UNHCR notes that courts and administrative bodies in a number of jurisdictions have found that women, for example, can constitute a particular social group within the meaning of Article 1A(2). Gender is a clear example of a social subset of persons who are defined by innate and immutable characteristics and who are frequently subject to differentiated treatment and standards. This does not mean that all women in the society qualify for refugee status. A claimant must demonstrate a well-founded fear of being persecuted based on her membership in the particular social groupUNHCR Comment on Article 10(d): Even though less has been said in relation to the age dimension in the interpretation and application of international refugee law, the range of potential claims where age is a relevant factor is broad, including forcible or under-age recruitment into military service, (forced) child marriage, female genital mutilation, child trafficking, or child pornography or abuse. Some claims that are age-related may also include a gender element and compound the vulnerability of the claimant.
16Qualifications directive Cessation, exclusion Usual GC grounds (re-availement of protection, re-acquiring nationality, acquiring new nationality, re-establishment in country of origin, circumstances justifying ref. status cease to exist)The change of circumstances must be of such a significant and non-temporary nature that the refugee's fear of persecution can no longer be regarded as well-founded.___________________________________Questions:DurabilityJustified grounds to resist return solely for memories of past persecutionRecast, 2009: introduces to exception to ceased circumstances if „a refugee who is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself of the protection of the country of nationality”
17Qualifications directive Cessation, exclusion GC grounds:protection by other UN organ (UNRWA)enjoying rights equivalent to those of nationalscrime against peace, war crime, crime against humanitya serious non-political crime outside the country of refuge prior to the issuing of residence permit based on refugee status; particularly cruel actions, - even if committed with political objective - may be classified as serious non-political crimes;Acts contrary to the purposes and principles of the UN______________________________________Exclusion ≠ return: non refoulement may apply!UNHCR: It would not be correct to interpret the phrase “prior to admission …as a refugee” as referring to the time preceding the recognition of refugee status or the issuing of a residence permit based on the granting of refugee status. Given that the recognition of refugee status is declaratory, not constitutive, “admission” in this context includes mere physical presence in the country of refuge
18Qualifications directive Procedure, including revocation of refugee status MS must „grant” (i.e.: recognize) refugee status to those who qualify! (13 §)MS must „revoke, end or refuse to renew” refugee status if cessation grounds apply or „he or she should have been or is excluded from being a refugee” (14 § 3. (a)) or his or her misrepresentation or omission of facts, including the use of false documents, were decisive for the granting of refugee status.MS may „revoke, end or refuse to renew” status when GC exceptions to non-refoulement (33§ (2)) apply, i.e. national security or danger to the communityBurden of proof:cessation: MS „demonstrate” on an individual basisExclusion: „establish” _________________________________Confusion of cessation, cancellation and revocationCessation – normal end of status – changed circumstancesCancellation – should not have been recognizedRevocation – after recognition engages in 1 F (a) and (c) activitiesEnding status = in fact ending asylum, not refugee quality in the Geneva 33(2)casesUNHCR argument: 33 (2) means possibility to refouler, but not end of refugee status, so revocation of status may only mean that the rights accorded to refugees may be denied, but not the fatc that the person is threatened with persecution1 F (a) and (c) activites azért enged meg stáTsuz megvonást, mert az egyezmény sem tartalmaz időbeli vagy térbeli korlátot (háborús, emberiség elleni és béke elleni bcs, ill ENSZ célok és elvek elleni
19Qualifications directive Subsidiary protection See definition (2§ and 15§) above(death penalty, execution; torture, inhuman, degrading treatment, punishment; serious indiv. threat to life or person by reason of indiscriminate violence in armed conflict)Applies to anyone, not only to those who are threatened with the harm for the five groundsShould not be used to replace GC ref. statusIndividual threat in generalized violence? SeeElgafaji judgment, Case C-465/07, judgment of 17 February 2009What about non armed conflict situations?Elgafaji:On those grounds, the Court (Grand Chamber) hereby rules:Article 15(c) of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, in conjunction with Article 2(e) thereof, must be interpreted as meaning that:the existence of a serious and individual threat to the life or person of an applicant for subsidiary protection is not subject to the condition that that applicant adduce evidence that he is specifically targeted by reason of factors particular to his personal circumstances;the existence of such a threat can exceptionally be considered to be established where the degree of indiscriminate violence characterising the armed conflict taking place – assessed by the competent national authorities before which an application for subsidiary protection is made, or by the courts of a Member State to which a decision refusing such an application is referred – reaches such a high level that substantial grounds are shown for believing that a civilian, returned to the relevant country or, as the case may be, to the relevant region, would, solely on account of his presence on the territory of that country or region, face a real risk of being subject to that threat.
20Issues raisedThe moral dilemma – is subsidiary protection of less moral value?Recent cases: „Elgafaji”, ECJ, „AH és QD v SSHD” Court of Appeal, UK, „Abdullah and others”, ECJ.Interpretations of § 15- is there a difference between a,b and c- the necessary individualisation- armed conflictConclusions
21Use of terms and the mo,al dilemma – is subsidiary protection of a lesser standing? Complementary – subsidiaryPreamble (24) :„Subsidiary protection should be complementary and additional to the refugee protection enshrined in the Geneva Convention”Is subsidiary protection of a lesser standing, do beneficiaries deserve less rights/protection?Qualification Directive (QD) Jane Mc Adam, UNHCR: noHungarian Office of ImmigrationAnd Nationality: YesJ.F. Durieux:Non Convention refugee = complementary,Excluded Convention refugee (1 F, 33 (2) = subsidiary"As a technical term, however, 'complementary protection' denotes protection granted to individuals on the basis of a legal obligation other than the principal refugee treaty. In contemporary practice it describes the engagement of states' legal protection obligations that are complimentary to those assumed under the 1951 Refugee Convention (as supplemented by its 1967 Protocol), whether derived from treaty or customary law"
22The moral dilemma – what is the basis of subsidiary protection? CompassionIntegrity, dignity and human rights of the human beingDifferentiation between Convention status and complementary protection is conceivableState discretion in granting or withholding itDifferentiation is unjustifiedThe state only recognises the necessity of protection"There is no legal justification for differentiating between convention refugees and the status of beneficiaries of complementary protection„(McAdam, 2007, p.1.)"There is not yet a consistent understanding of what the resultant legal status should entail although this book advances the argument that a status identical to Convention status ought to apply„ McAdam, 2007, 3.o.Playing God with sanctuary A study of Australia’s approach to complementaryprotection obligations beyond the Refugee Convention ,Current Australian law• Australia is now one of the few developed countries that has no formal system of complementaryprotection. Instead, Australia currently uses ministerial intervention powers as an informalmechanism.• Under current Australian law, all people seeking protection must file an application for refugeestatus with the Immigration Department even if they know from the outset that they will not fit thisdefinition of a refugee. The claim is assessed against the Refugee Convention but not against otherhuman rights treaties Australia has ratified, such as the Convention Against Torture (CAT).• Unsuccessful applicants can appeal the decision to the Refugee Review Tribunal (RRT) which canagain only review the application against the Refugee Convention. After a second negative decisionthe applicant may apply to the Minister for Immigration to assess their claim based on a muchbroader set of humanitarian criteria, which can include risk of torture or other claims under humanrights treaties Australia has ratified.• But the Minister does not have to intervene, no court can compel the Minister to intervene and s/heis under no obligation to give reasons for not intervening.• If the Minister does intervene, s/he does not have to give reasons for his/her decision and no courtcan review the decision. ibid,.
23The Elgafaji case – C-465/07 ECJ – Judgment, 17 February 2009 The case: Case C-465/07, Reference for a preliminary ruling under Articles 68 EC and 234 EC from the Raad van State (Netherlands), in the proceedings Meki Elgafaji, Noor Elgafaji v Staatssecretaris van Justitie . The Grand Chamber deciding, Netherlands and seven other MS (+ the Commission) making observationsImportance: clarifying what „individual” means in 15 § c; settling the relationship among a, b, and c by stating that c goes beyond a and b.Facts:Mr Elgafaji, is a Shiite Muslim his wife is Sunni. He had worked from August 2004 until September 2006 for a British firm providing security for personnel transport between the airport and the ‘green’ zone. His uncle, employed by the same firm, had been killed by a terrosrist act of the militia.Claimants’ reasons for believing that there was a serious and individual threat- The killing of the uncle- A short time later, a letter threatening ‘death to collaborators’ fixed to the door of their residence
24The Elgafaji case - Judgment, 17 February 2009 The question: do Article 15 § b and 15 § c require the same level of individualisation?Dutch first level decision: yes; second level: no Raad van State (Council of State) request to ECJ for preliminary ruling:Does Article 15(c), in comparison with Article 3 of the [ECHR], offer supplementary or other protection?If the answer is affirmative, when does a person run „a real risk of serious and individual threat by reason of indiscriminate violence”According to the Minister, the standard of proof required for the protection granted under Article 15(b) of the Directive is identical to that required for the protection granted under Article 15(c). ..Those provisions require applicants to show satisfactorily, in their individual circumstances, the risk of serious and individual threat to which they would be exposed were they to be returned to their country of origin._______________1. Is Article 15(c) of [the Directive] to be interpreted as offering protection only in a situation in which Article 3 of the [ECHR], as interpreted in the case-law of the European Court of Human Rights, also has a bearing, or does Article 15(c), in comparison with Article 3 of the [ECHR], offer supplementary or other protection?2. If Article 15(c) of the Directive, in comparison with Article 3 of the [ECHR], offers supplementary or other protection, what are the criteria in that case for determining whether a person who claims to be eligible for subsidiary protection status runs a real risk of serious and individual threat by reason of indiscriminate violence within the terms of Article 15(c) of the Directive, read in conjunction with Article 2(e) thereof?’„kérelmezők a súlyos és egyedi fenyegetettség veszélye tekintetében – amelynek a származási országukba való visszaküldésük esetén ki lennének téve – kötelesek megfelelően bizonyítani a személyes helyzetüket jellemző valós tényeket./???/”__________________„1) Úgy kell‑e értelmezni az […] irányelv 15. cikkének c) pontját, hogy e rendelkezés kizárólag olyan helyzetben biztosít védelmet, amelyre az [EJEE] 3. cikke – az Emberi Jogok Európai Bíróságának ítélkezési gyakorlata szerinti értelmezésben – is alkalmazandó, vagy úgy, hogy az az [EJEE] 3. cikkéhez képest kiegészítő (többlet, supplementary –NB) vagy másfajta védelmet biztosít?Supplementary – subsidiary!!!!2) Ha az irányelv 15. cikkének c) pontja az [EJEE] 3. cikkéhez képest kiegészítő (többlet . NB)vagy másfajta védelmet biztosít: ebben az esetben mely kritériumok alapján ítélhető meg, hogy a kiegészítő védelmi jogállásra való jogosultságára hivatkozó személy az irányelv 15. cikkének c) pontja értelmében – összefüggésben a 2. cikk e) pontjával – megkülönböztetés nélküli erőszak következtében súlyos és egyedi fenyegetettség tényleges veszélyének van‑e kitéve?”
25The Elgafaji case - Judgment, 17 February 2009 ECJ: Article 15 b corresponds to Art 3 of the ECHR,howeverArticle 15 c differs from it and needs to be interpreted independently (28. §)§ 15 b (and 15 a)„cover situations in which the applicant for subsidiary protection is specifically exposed to the risk of a particular type of harm.”butSee. NA v. UK, ECtHR, judgment of 17 July 2008, § 116Article 15(b) of the Directive which corresponds, in essence, to Article 3 of the ECHR. By contrast, Article 15(c) of the Directive is a provision, the content of which is different from that of Article 3 of the ECHR, and the interpretation of which must, therefore, be carried out independently,
26The Elgafaji case - Judgment, 17 February 2009 „By contrast, the harm defined in Article 15(c) of the Directive as consisting of a ‘serious and individual threat to [the applicant’s] life or person’ covers a more general risk of harm” (33. §)It does not refer to specific acts of violence, but to the threat of the applicant’s life and person.That threat is triggered by violence, which is indiscriminate (34. §)Indiscriminate: it extends to the person „irrespective of her/his personal circumstances” (34 §)Reference is made, more generally, to a ‘threat … to a civilian’s life or person’ rather than to specific acts of violence. Furthermore, that threat is inherent in a general situation of ‘international or internal armed conflict’. Lastly, the violence in question which gives rise to that threat is described as ‘indiscriminate’, a term which implies that it may extend to people irrespective of their personal circumstances.
27The Elgafaji case - Judgment, 17 February 2009 The key sentence…[T]he word ‘individual’ must be understood as covering harm to civilians irrespective of their identity, where the degree of indiscriminate violence characterising the armed conflict taking place … reaches such a high level that substantial grounds are shown for believing that a civilian, returned to the relevant country or, as the case may be, to the relevant region, would, solely on account of his presence on the territory of that country or region, face a real risk of being subject to the serious threat referred in Article 15(c) of the DirectiveThat interpretation, is not invalidated by the wording of recital 26 in the preamble to the Directive, according to which‘[r]isks to which a population of a country or a section of the population is generally exposed do normally not create in themselves an individual threat which would qualify as serious harm’.its wording ..allows – by the use of the word ‘normally’ – for the possibility of an exceptional situation which would be characterised by such a high degree of risk that substantial grounds would be shown for believing that that person would be subject individually to the risk in question.QD and AH on Elgafaji:Byusing the words “exceptional” and “exceptionally” it is simply stressing that it is notevery armed conflict or violent situation which will attract the protection of article15(c), but only one where the level of violence is such that, without anything to renderthem a particular target, civilians face real risks to their life or personal safety.
28Epilogue to ElgafajiOn 25 May 2009, the Dutch Council of State, the Netherland’s highest administrative court, gave an important judgment applying the recent European Court of Justice’s interpretation of the qualification directive.….The Dutch Council of State, taking into account the above ECJ interpretation, denied the request of the Elgafaji couple to remain in the Netherlands on the ground that there is no exceptional situation taking place in Iraq whereby any civilian is at risk through random acts of violence.(Source: ECRE Weekly Bulletin, xxx 2009)The Dutch Refugee Council expressed its disappointment regarding the court’s ruling and stated that people from Iraq should receive protection because the situation in the country still remains unsafe.
29QD (IRAQ) és AH (IRAQ v. SSHD The case: QD (IRAQ) Appellant and SECRETARY OF STATE FOR THE HOMEDEPARTMENT (Respondent) and AH (IRAQ) Appellant and SECRETARY OF STATE FOR THE HOME DEPARTMENT (Respondent) Court of Appeal judgment, 24 June  EWCA Civ 620 Case No: 1. C5/2008/1706 & No. 2. C5/2009/0251Importance: rejects the KH (Article 15(c) Qualification Directive) Iraq CG  UKAIT doctrine, according to which Article 15 c „is limited [to]… those who can show that as civilians they face on return a real risk of suffering certain types of serious violations of IHL caused by indiscriminate violence.”+ states that in interpreting „individual” threat Elgafaji sets the standard+ rules that , „armed conflict” has to be interpreted in extended fashion: there is no need to have to armed factions one is enough.Facts: QD comes from Samarra in the Salah Al-Din governorate of Iraq. Under the Saddam regime he was a Ba’ath Party member, and his expressed fear is of reprisals.AH, who has just turned 18, comes from Baquba in Iraq. He had moved with hisfamily to Kifri in the Diyala governorate.Past harm and feared harm:QD’s fear is of reprisals for his past party membership, AH fears the general violence
30QD (IRAQ) és AH (IRAQ v. SSHD Rules applicable to armed confict are not governingas their purpose is not the grant of refuge to people who flee armed conflict. A limitation to the victims would result in a too narrow interpretation of the QD, which goes far wider in its purposes than states of armed conflict„the Directive has to stand on its own legs and to be treated, so far as it does not expressly or manifestly adopt extraneous sources of law, as autonomous.” (§ 18)”This error led the UKAIT it led to construe “indiscriminate violence” and “life or person” too narrowly, to construe “individual” too broadly, and to set the threshold of risk too high. (18 §)(Article 17§ (1) /exclusion gorunds/ serves as an example of QD really incorporating extraneous sources of law)„We consider that the Directive has to stand on its own legs and to be treated, so far as it does not expressly or manifestly adopt extraneous sources of law, as autonomous.” (§ 18)
31QD (IRAQ) és AH (IRAQ v. SSHD Individual threatThe Court of Appeal literally quotes and approves §§ and 43 § of the Elgafaji judgment.Meaning of „armed conflict” (beyond international humanitarian law)„ If the overriding purpose of article 15(c) is to give temporary refuge to people whose safety is placed in serious jeopardy by indiscriminate violence, it cannot matter whether the source of the violence is two or more warring factions (which is what ‘conflict’ would ordinarily suggest) or a single entity or faction.” (§ 34)34 §
32Serious harm consists of The logic behind the different provisions of Article 15 and the preamble of the QDProvisionLevel of individualisationPreamblePara 24. Subsidiary protection should be complementary and additional to the refugee protection enshrined in the Geneva Convention.Article 15.Serious harm consists ofPara 25. The criteria should be drawnfrom international obligations underhuman rights instrumentsandand existing practices inMember States.death penalty or execution;„the applicant for subsidiary protection is specifically exposed to the risk of a particular type of harm.”(Elgafaji, § 32. )(b) torture or inhuman ordegrading treatment or punishmentof an applicant in the country of origin;Para 26.Risks to which a population of a country or a section ofthe population is generally exposed do normally notcreate in themselves an individual threat which wouldqualify as serious harm(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.Not specifically targeted by reason of factors particular to the personal circumstances– a mere presence on the territory entails a threat to life and person of civilians irrespective of their identity(Elgafaji, 35 és 43.pont)Elgafaji, 32 pont: in Article 15(a) and (b) of the Directive, cover situations in which the applicant for subsidiary protection is specifically exposed to the risk of a particular type of harm.H Storey on 15 A: as prot 13 is not yet in force in respect of all states, 15 a is be broader than Art 3 ECHR as it contains an absolute prohibition including war time. (p. 32)H Storey on Art 15 b – probably not broader than Art 3 ECHR –although Costello says: subsidiary: harm is less than persectuion HS- doubts.
33Problems related to Article 15 Possible answerExampleMultiplication of contingencies:real risk of suffering serious harm;serious harm = serious and individual threat.Art 2 and 15 read together (real risk of → a serious threat)QD and AH v SSHD: No double contingencies“Risk” in article 2(e) overlaps with “threat” in article 15(c)The latter reiterates but does not qualify or dilute the former.the placing of car bombs inmarket places; snipers firing methodically at people in the streets (QD and AH v. SSHD, § 27. )Contradiction:Indiscriminate violence --individual threatElgafaji:the existence of such a threat can exceptionally be considered to be established where the degree of indiscriminate violence …. reaches such a high level …that a civilian, …. would, solely on account of his presence on the territory of that country or region, face a real risk of being subject to that threat.See also NA v. United Kingdom, ECtHR Case No /07 § 115.Armed conflict – what does it mean?= two or more warring factions or= one actor using armed violenceCzech Adimistrative High Court: Geneva II. protocol + „Tadic”QD and AH v SSHD : Not humanitarian law. Independent meaningNA v UK, 114. pont … a general situation of violence will not normally in itself entail a violation of Article 3 in the event of an expulsion (see H.L.R., cited above, § 41). Indeed, the Court has rarely found a violation of Article 3 on that ground alone…115. From the foregoing survey of its case-law, it follows that the Court has never excluded the possibility that a general situation of violence in a country of destination will be of a sufficient level of intensity as to entail that any removal to it would necessarily breach Article 3 of the Convention. Nevertheless, the Court would adopt such an approach only in the most extreme cases of general violence, where there was a real risk of ill-treatment simply by virtue of an individual being exposed to such violence on return.116. Exceptionally, however, in cases where an applicant alleges that he or she is a member of a group systematically exposed to a practice of ill-treatment, the Court has considered that the protection of Article 3 of the Convention enters into play when the applicant establishes that there are serious reasons to believe in the existence of the practice in question and his or her membership of the group concerned (see Saadi v. Italy, cited above, § 132). In those circumstances, the Court will not then insist that the applicant show the existence of further special distinguishing features if to do so would render illusory the protection offered by Article 3. This will be determined in light of the applicant’s account and the information on the situation in the country of destination in respect of the group in question (see Salah Sheekh, cited above, § 148). The Court’s findings in that case as to the treatment of the Ashraf clan in certain parts of Somalia, and the fact that the applicant’s membership of the Ashraf clan was not disputed, were sufficient for the Court to conclude that his expulsion would be in violation of Article 3.117. In determining whether it should or should not insist on further special distinguishing features, it follows that the Court may take account of the general situation of violence in a country. It considers that it is appropriate for it to do so if that general situation makes it more likely that the authorities (or any persons or group of persons where the danger emanates from them) will systematically ill-treat the group in question (see Salah Sheekh, § 148; Saadi v. Italy, §§ 132 and 143; and, by converse implication, Thampibillai, §§ 64 and 65; Venkadajalasarma, §§ 66 and 67, all cited above)._________________________________QD és AH:In our judgment “risk” in article 2(e) overlaps with “threat” in article 15(c), so that the latter reiterates but does not qualify or dilute the former. As a matter of syntax this no doubt has its problems, but as a matter of law and common sense it does not. Tribunals will of course need to address them in the light of the ECJ’s ruling, but as a single, not a cumulative, contingency.
34The level of indiscriminate violence Low High The measure of individualisation and the level of violence Elgafaji, 39. pontIndividualisationHighLowThe level of indiscriminate violence Low High39 §In that regard, the more the applicant is able to show that he is specifically affected by reason of factors particular to his personal circumstances, the lower the level of indiscriminate violence required for him to be eligible for subsidiary protection.
35Elgafaji, 43 §„the existence of a serious and individual threat to the life or person of an applicant for subsidiary protection is not subject to the condition that that applicant adduce evidence that he is specifically targeted by reason of factors particular to his personal circumstances” (§ 43)Das Vorliegen einer ernsthaften individuellen Bedrohung des Lebens oder der Unversehrtheit der Person, die die Gewährung des subsidiären Schutzes beantragt, setzt nicht voraus, dass diese Person beweist, dass sie aufgrund von ihrer persönlichen Situation innewohnenden Umständen spezifisch betroffen ist.
36Individualisation, singling out Hathaway, 2003 on QD„There is no clear recognition [in the QD] that a well-founded fear of being persecuted does not require targeting or individualized risk, but may be established where the individual concerned demonstrates risk to a group of persons defined by a Convention ground of which he or she is found to be a member.” (14.o.)Hathaway says this on Convention status, but is no less true for subsidiary statusIn the 1996 European Union Joint Position, O.J. L63, 13 March 1996 (“EU Joint Position”), at Art. 2, it was expressly observed that “[i]n practise it may be that a whole group of people are exposed to persecution. In such cases, too, applications will be examined individually, although in specific cases this examination may be limited to determining whether the individual belongs to the group in question”.
37Individualisation ECtHR, NA Individualisation ECtHR, NA. v UK, No 25904/07 – Judgment of 17 July 2008„116. Exceptionally, however, in cases where an applicant alleges that he or she is a member of a group systematically exposed to a practice of ill-treatment, the Court has considered that the protection of Article 3 of the Convention enters into play when the applicant establishes that there are serious reasons to believe in the existence of the practice in question and his or her membership of the group concerned (see Saadi v. Italy, cited above, § 132). In those circumstances, the Court will not then insist that the applicant show the existence of further special distinguishing features if to do so would render illusory the protection offered by Article 3.”7. The applicant entered the United Kingdom clandestinely on 17 August 1999 and claimed asylum the next day. He stated that he feared ill-treatment in Sri Lanka by the Sri Lankan army and the Liberation Tigers of Tamil Eelam (“the LTTE”). He explained that he had been arrested and detained by the army on six occasions between 1990 and 1997 on suspicion of involvement with the LTTE. Following his last detention he went into hiding until his family managed to fund his journey to the United Kingdom. He feared the LTTE on account of their adverse interest in his father who had done some work for the army. They had also tried to recruit the applicant on two occasions in 1997 and 1998.__________________The Court has since applied Rule 39 in respect of three hundred and forty-two Tamil applicants who claim that their return to Sri Lanka from the United Kingdom would expose them to ill-treatment in violation of Article 3 of the Convention.(Miutána bság kérte a UK-t hogy fügesszék fel a kiutasításokat, de aUK nem tett eleget.
38The question to be raised to the applicant based on QD and AH v SSHD Is there in the country of origin or a material part of it such a high level of indiscriminate violence that substantial grounds exist for believing that the applicant would, solely by being present there, face a real risk which threatens his life or person? (point 40.)
39Interpretation of the term „armed conflict” Humanitarian lawWider meaningGeneva II. protocol, Art. 1. (2)shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflictsGeneva II. protocol, Art. 1. (1)Between forces of the state and „dissident armed forces” or other organised armed groupsUnder responsible commandControl over at least part of the countrySustained and concerted military operationsTadić criteriaThe existence of organised armed groupsProtracted armed conflict„[T]he phrase ‘situations of international or internal armed conflict’ in article 15(c) has an autonomous meaning broad enough to capture any situation of indiscriminate violence, whether caused by one or more armed factions or by a state, which reaches the level described by the ECJ in Elgafaji.”QD és AH v SSHD, § 351989. évi 20. törvényerejű rendeleta háború áldozatainak védelmére vonatkozóan Genfben augusztus 12-én kötött Egyezmények I. és II. kiegészítő Jegyzőkönyvének kihirdetésérőlII jkv 1 (2) shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts________________The Supreme Administrative Court of the Czech Republic has decided its first “Art. 15(c) case“. This decision should be referred to as Judgment of the Supreme Administrative Court of the Czech Republic of 13 March 2009, No. 5 Azs 28/2008. Ott: fegyveres konflikuts, mint baloldali dobozban___________________________________________The test for determining the existence of an armed conflict was set out by the Appeals Chamber in the Tadić Jurisdiction Decision:[A]n armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved. Until that moment, international humanitarian law continues to apply in the whole territory of the warring States or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place there.72 38. This test serves to distinguish non-international armed conflict from banditry, riots, isolated acts of terrorism, or similar situations.73 The Trial Chamber must determine whether (i) the armed violence is protracted and (ii) the parties to the conflict are organized.___________________________________________________We consider that the Directive has to stand on its own legs and to be treated, so far as it does not expressly or manifestly adopt extraneous sources of law, as autonomous. It is not necessary, this being so, to track in KH the effects of the AIT’s erroneous premise, but we accept broadly Mr Husain’s submission that it led them to construe “indiscriminate violence” and “life or person” too narrowly, to construe “individual” too broadly, and to set the threshold of risk too high. QD and AH, point 18 referring toUKAIT in KH
40Refugee Convention and QD § 15 (b) and (c) Summary Arguments agains the requirement of singling out or high level of individualisationRefugee Convention and QD § 15 (b) and (c)RC: Persecution of the group (a violation of basic /human/ rights) and membership in the group should amount to persecutioin HathawayQD 15 § (b) = ECHR Art 3. torture, inhuman or degrading treatment or punishment: In exceptional cases membership in a group suffering such treatment establishes protection need (prohibition of refoulement) if requiring indiviual distinguishing factors would render the protection illusory. (NA v UK, ECtHR and approvingly QD and AH v SSHD, Court of Appeal judgment)15 c: Serious and individual threat is present if the level of indiscriminate violence is so high, that the life or person of a human being is at real risk solely because of being present on the territory. (Elgafaji and QD and AH v SSHD, Court of Appeal judgment)
41Summary The wider meaning of the term „armed conflict” Subsidiary protection does not require that in the whole or material part of the country of origin an armed conflict – as understood in international humanitarian law - take place. There is not even a requirement that two or more parties in conflict be identifiable. One actor (the state or a faction challenging it) may alone create the situation amounting to armed conflict. (AH v SSHD, Court of Appeal judgment)The term „armed conflict” in Article is to be interpreted as to mean indiscriminate violence caused by one or more armed parties where the level of violence reaches the intensity identified in Elgafaji. (ibid)
42_____________________________________________ Qualifications directive Subsidiary protection: procedure, including revocation of statusMS must „grant” (i.e.: recognize) subsidiary protection status to those who qualify! (18 §)Cessation: A person shall cease to be eligible for subsidiary protection when the circumstances which led recognition have ceased to exist or have changed to such a degree that protection is no longer required.the change must be significant and of a non-temporary nature, therefore the person no longer faces a real risk of serious harm._____________________________________________Recast, 2009: here also exception to ceased circumstances? If compelling reasons to refuse protection, arising out of previous harm
43Qualifications directive: Subsidiary protection: procedure, including revocation of status (Cont’d) ExclusionA person „is excluded from being eligible for s.p. if 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,(b) he or she has committed a serious crime;(c) he or she has been guilty of acts contrary to the purposes and principles of the United Nations(d) he or she constitutes a danger to the community or to the security of the Member State in which he or she is present.Member States may exclude a person from being eligible for subsidiary protection, if prior to admission the person has committed one or more (non-serious) crime, punishable in the Member State concerned, and if the person left his or her country of origin solely in order to avoid sanctions resulting from these crimes.B pontnál nincs prior to admission!2. bek: normál bűnöző, akt mondjuk inhuman treatment fenyeget
44Qualifications directive: Subsidiary protection: procedure, including revocation of status (Cont’d) Compulsory OptionalrevocationCessation clauses - Fleeing prosecutionExclusion clauses: for - Smaller crimePeace, war, humanityserious common crimeUN principles,Misrepresentation of decisive facts
45Qualifications directive: substantive rights Without prejudice to GCSame rights to refugees and beneficiaries of subsid. prot - unless otherwise indicated!Specific attention to vulnerable groups + best interest of the childIn „manufactured cases” (refugee and subs. prot.) MS „may reduce the benefits”21 § confirms non-refoulement both for asylum seekers and recognized refugees
46Qualifications directive: substantive rights MS shall ensure family unity (23 §)(def – see there, unity and benefits according to national law)national security or public order: grounds for refusal, reduction or withdrawal of benefits from fam. membersMS may extend to other close relatives, who lived together and were dependent on the beneficiary of ref or subsid prot status before his/her departureResidence permits: min 3 years for refugees 1 year for subsid. prot.Travel document: refugees: as in GC, subsid. prot: „document” „at least when serious humanitarian reasons arise” (25 § (2) )_____________________________________________Recast,2009:Would abolish difference in benefits to family members between Convention status and subsid prot (23§ (2))Residence permit: 3 years for both statusTravel doc: no limitation to humanitarian reasons – generally accessibleMoreover, the current standards of the Directive regarding the rights to be granted to beneficiaries of international protection with a view to supporting their integration are also not adequate to ensure effective access to the rights guaranteed by the relevant international instruments in a consistent manner in all Member States. In the same vein, they are not adequate neither to achieve the Treaty objective of promoting social cohesion and the integration of legally residing third-country nationals nor to give effect to the integration mandate set by the Tampere and the Hague Programmes. These provisions of the Directive reflect the legal standards provided by relevant refugee law and human rights instruments. However, it appears, on the basis of extensive research, that they do not take sufficiently into account the specific practical difficulties faced by beneficiaries of international protection compared to other legally residing third-country nationals. As a result, they do not ensure the consistent and effective implementation of the relevant legal standards.Sec (2009)1373 FINAL (Impact assessment), p. 11.
47Qualifications directive: substantive rights Employment, self employment, vocational (further) training:Refugees: subject to rules applicable to the professionSubsidiary protection beneficiaries: the same+ examination of the labour market situation+ limited period access+ vocational training: state’s discretionEducation: Minors: full access; adults: as third country nationals.________________________________________________Recast, 2009:eliminates difference between ref prot and subsid prot in employmentNew:MS must facilitate (by grants and loans) access to employment related education and trainingNew article (28) on access to procedures for recognition of qualificationsUNHCR advocates equal treatment:-access to labour market:tool for integrationless burden on social services_______________________„Member States shall endeavour to ensure that beneficiaries of internationalprotection who cannot provide documentary evidence of their qualifications haveaccess to appropriate schemes for the assessment, validation and accreditation oftheir prior learning.” Recast, COM 551/2 new §28 (2).
48Qualifications directive: substantive rights Social welfare and health care:national treatment, but for subsid. prot. beneficiaries MS may limit to core benefitsAccommodation:As legally resident third country nationalsIntegration: MS must create programs but subsid. prot. beneficiaries only get access to them „where it is considered appropriate by MS” (33 §)Repatriation: MS may provide assistance to voluntary return.Unaccompanied minors: 30 § details the protection of their special interests_______________________________________________Recast, 2009: equal treatment of Conv ref and subsid prot in matters of socail welfare, health care and integration
49Qualification directive Final provisions Entry into force: 20 October 2004Transposal: by 10 October 2006.Proposal for amendment – „Recast” published on 21 October 2009
50Divergent recognition rates Vague terms, different interpretation Recast of the Qualification Directive, (COM (2009) 551 and related documents)Problems identified:Symptoms CausesDivergent recognition rates Vague terms, different interpretation- actors of protection internal protection- membership of a prticular social groupRemaining secondary Different standards of movements protection-Convention refugees – beneficiaries of subsidiary protection- Limited right to famuly unificationLack of integrationSource SEC 1374 final , p.2-3 summary of impact assessment__________________________________Studies evaluating the QD:UNHCR, "Asylum in the European Union, A study on the implementation of the Qualification Directive", November (the "UNHCR study");ELENA/ECRE, "The impact of the EU Qualification Directive on International protection", October 2008, ("ECRE study");France Terre d'Asile, "Asile La protection subsidiaire en Europe: Un mosaïque de droits", Les cahiers du social no 18, Septembre 2008;Dutch Refugee Council/ECRE, ‘Networking on the Transposition of the Qualification Directive’, December 2008,Nijmegen University, "The Qualification Directive: Central themes, Problem issues, and Implementation in selected MS", Karin Zwaan (ed), 20077Odysseus Network study Available atGHK, Impact assessment studies on The future development of measures on the qualification and status of third country nationals or stateless persons as persons in need of international protection and on the content of the protection granted, based on Council Directive 2004/83/EC and The future development of measures on procedures in MS for granting and withdrawing refugee status, based on Council Directive 2005/85/EC, Multiple framework service contract JLS/2006/A1/004.
51Suggested changes to QD Restrict the broad interpretation of the concepts "actors of protection" and "internal protection” by specifying the criteria for assessing the accessibility and effectiveness of protectionEnsure a more inclusive interpretation of the concept "particular social group" in line with the standards of the Geneva Convention, by better defining the significance to be attached to aspects arising from the applicants' gender and thus enhancing access to protection in particular for women.Approximate the rights of beneficiaries of subsidiary protection to those of refugees by removing all differencesregarding the duration of their residence permit;access to employment and employment-related education activities;access to social welfare, health care and to integration facilities;access to benefits for their family members.Actors: states and organosations only – if able and willing to enforce the rule of law. - NGO-s clans, tribes are excludedInternal flight alternative: legal travel, admittance, settle there (§ 8)Gender: now: might be considered, but not enough alone: recast” should be given due consideration for the purposes of determining membership of a particular social group or identifying a characteristic of such a group” (10 (1) d.)Cessation clause exception – if compelling reasons arising from past persecution to refuse the protection GC only had that for interwar refugees including II WW.Closing the gap between rights: Social welfare, health and integration – same rights for ref and b of sp.Family members: married minors, nay minor even if not dependent, siblings, parents of even married minors
52Suggested changes to QD Enhance the integration of beneficiaries of protection taking into account their specific needs:enhance recognition of their qualifications;vocational training and employment support;accommodation and integration programmesEnhance respect the protection to family life: broaden the definition of family members so as to address the case where a beneficiary is a minor and the wide range of situations where a minor might be considered dependent, while ensuring the best interest of the child.
53Central European University Thanks!Boldizsár NagyCentral European UniversityBudapest