THE EUROPEAN DEFINITION OF REFUGEE AND SUBSIDIARY PROTECTION STATUS

THE EUROPEAN DEFINITION OF REFUGEE AND SUBSIDIARY PROTECTION STATUS
Presented by Boldizsár Nagy, Odysseus Summer School „European Union Policy and Law on Immigration and Asylum” Brussels, 1 July 2015

QUALIFICATION DIRECTIVE, 2011 DECEMBER
Problems identified in connection with the 2003 version: Symptoms Causes Divergent recognition rates Vague terms, different interpretation - actors of protection - internal protection - membership of a articular social group Remaining secondary movements Different standards of protection -Convention refugees – beneficiaries of subsidiary protection - Limited right to family unification Lack of integration __________________________________________________________________ Major adopted changes Restricted the broad interpretation of the concepts "actors of protection" and "internal protection” by specifying the criteria for assessing the accessibility and effectiveness of protection Ensured 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. Approximated the rights of beneficiaries of subsidiary protection to those of refugees by removing all differences regarding 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. Enhanced 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 programmes Enhanced 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. DIRECTIVE 2011/95/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast) Replaced 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 )

Qualification directive
Purpose Guaranteeing (a minimum) of protection Closing the protection gap concerning persons not threatened with Geneva Convention type persecution Prevention of asylum shopping and abuse of the asylum system Scope of application 25 Member states of the EU. The UK and Ireland who opted out (Denmark is not bound) UK and Ireland participated in the earlier (2004) version and are bound by it Minimum standards According to Art 3. states may introduce or retain more favourable standards. The directive represents the (bare) minimum The directive consists of 40 Articles occupies 12 OJ pages Two goals: -minimum comon content of defintions - Minimum common content of protection of the two categories

Major features of the QDs compared to earlier state practice and doctrine Introduction of „subsidiary protection” and identification of rights accompanying it. Non-state actors may qualify as persecutors in a Geneva Convention sense „Protection” is defined Internal relocation alternative is an exclusion ground. More emphasis on groups with special needs The directive consists of 40 Articles occupies 12 OJ pages CJEU procedures ending with condemnation of UK, Finland, Sweden and Spain for non or delayed implementation Two goals: -minimum comon content of defintions - Minimum common content of protection of the two categories

Relationship to the 1951 Geneva Convention
CJEU, Grand Chamber Judgment in the Bundesrepublik Deutschland v Y (C-71/11), Z (C‑99/11) cases (the Ahmadi case) Para 47: „the Geneva Convention constitutes the cornerstone of the international legal regime for the protection of refugees and … the provisions of the Directive … were adopted to guide the competent authorities of the Member States in the application of that convention on the basis of common concepts and criteria Para 48 „The Directive must, for that reason, be interpreted in the light of its general scheme and purpose, and in a manner consistent with the Geneva Convention and the other relevant treaties referred to in Article 78(1) TFEU. As is apparent from recital 10 in the preamble thereto, the Directive must also be interpreted in a manner consistent with the rights recognised by the Charter”.

Qualification directive (cont'd)
2 § Definitions: Application = seeking refugee or subsidiary protection status Refugee = GC definition applied to third country nationals „‘refugee’ means a third country national who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, is outside the country of nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country …” + to whom exclusion grounds do not apply Person eligible for subsidiary protection See next slide 96/196/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 13 UNHCR 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

Art 2 (f) „‘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 17 Exclusion 1. 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.

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. NEAIS: interpr. of Dir. 2004/83: Qualification I [art. 15(b)] CJEU C-562/13, Abdida, [18 Dec. 2014] ref. from 'Court du Travail de Bruxelles' (Belgium) Although the CJEU was asked to interpret art 15(b) of the QDir, the Court ruled on another issue related to the Returns Directive. To be read in close connection with C-542/13 [M’bodj] ruled on the same day by the same composed CJEU. It is clear from paragraphs 27, 41, 45 and 46 of the judgment in M’Bodj (C-542/13) that Articles 2(c) and (e), 3 and 15 of Directive 2004/83 are to be interpreted to the effect that applications submitted under that national legislation do not constitute applications for international protection within the meaning of Article 2(g) of that directive. It follows that the situation of a TCN who has made such an application falls outside the scope of that directive, as defined in Article 1 thereof.

Conceptual scheme International protection Refugee status Subsidiary protection status means the recognition of a third country national or stateless person (Not EU citizen!) As a „refugee” as a „person eligible for subsidiary protection” Added by the recast

Definitions: Family (in so far as it already existed in the country of origin) Spouse + unmarried partner, if stable relationship + territorial states recognizes such partnerships Children (of the couple or of one of them): unmarried minor child Father, mother or another adult responsible for the unmarried, minor beneficiary of international protection Recast no longer „dependent” Added by the recast COUNCIL DIRECTIVE 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection Article 15 1. 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 – separated Előbbinek senkije, utóübbi szüleitől saparated, de lehet vele felnőtt.

Qualification directive Major themes
Convention refugee status Well founded fear Evidence, credibility, sur place, manufactured cases Persecution Actors, protection, Internal relocation alternative, Acts of persecution The five grounds (reasons) Cessation, exclusion Procedure, including revocation of status Subsidiary protection Real risk Serious harm Cessation, exclusion Procedure, including revocation of status Content of protection Non refoulement, information, family unity, residence permits,travel document, employment, education, social welfare, health care, unaccompanied minors, accommodation, freedom of movement, integration, repatriation Real risk: general circumstances + individual exposure (not in extreme cases)

Well founded fear = Assessment of applications for international protection (Chapter II) = objective theory burden of proof: shared between applicant and assessing state; assessment: individual, based on the statement of the applicant + his documents country of origin: law and reality should be assessed opening for subjectivization (4§ (3. (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 or serious harm) 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 slide the 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 harm UNHCR argues that past persectuion alone should be retained in national legislation. (See US law, eg. BN)

Qualification 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 relevant evidence and explained the lack of others - the statement is coherent and plausible and does not contradict available information - the a.s. 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)) A,B,C case Art 4(3)(c) must be interpreted as precluding.., the statements of that applicant and the documentary and other evidence submitted in support of his application being subject to an assessment by those authorities, founded on questions based only on stereotyped notions concerning homosexuals. Art 4 must be interpreted as precluding, in the context of that assessment, the acceptance by those authorities of evidence such as the performance by the applicant for asylum concerned of homosexual acts, his submission to ‘tests’ with a view to establishing his homosexuality or, yet, the production by him of films of such acts. CJEU C-148/13, A., B., C., Netherlands – how not to prove homosexuality

Qualification directive Well-founded fear (cont'd)
Sur place refugees and manufactured cases Genuine 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 application based on circumstances the asylum seeker has created by his own decision may be denied refugee status

Qualification Directive persecution (cont'd)
Persecutor / serious harm doer the 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 protection Protector the State; or parties 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 operated the applicant has access to such protection. _____________________________________________________________________ Protection must be effective and non-temporary 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. Effective and durable was the commission’s nproposal that was watered down to non-temporary Added by the recast

Qualification directive Persecution (cont'd)
Internal relocation alternative (8§) - Optional! (MS „may” determine) In a part of the country of origin there is no well-founded fear of being persecuted / no real risk of suffering serious harm The applicant has (actual) access to protection the applicant can „safely and legally” travel there and gain admittance and „reasonably be expected to settle in that part of the country” „Have regard” to – general circumstances + personal circumstances of the applicant Authorities must have up-to-date info Added by the recast incorpoating the Salah Sheek judgment of the ECtHR, 2007 Apart 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. [1] [1] 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. Added by the recast

Qualification directive Persecution (cont'd)
Acts of persecution (a) [„must be”] sufficiently serious by their nature or repetition as 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 is sufficiently 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 ______________________________________________________________________________________________________________________________________________________________________ Nexus (for reasons of) need not be with persecution It 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 Added by the recast

The reasons for persecution Immaterial 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 public Nationality: 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, and that 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.[2] 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 group UNHCR 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.

X, Y and Z v Minister voor Immigratie en Asiel CJEU, C-199/12, C-200/12, C-201/12, Judgment of 7 November 2013 Facts: three men, all claim refugee status (between 2009 and 2011) for being persecuted for homosexuality in Sierra Leone, Uganda and Senegal. In each country homosexuality is a crime Their homosexuality and credibility not in dispute in front of the Raad van Staade Preliminary questions addressed to CJEU: 1. Do persons with a homosexual orientation form a particular social group? If they do: 2. Which homosexual activities fall within the scope of the Directive and (in case of persecution) can that lead to of refugee status? Subquestions: Punishment SL. Max 10 years, Uganada lifetime imprisonment („for carnal knowledge”), Senegal 5 years

X, Y and Z v Minister voor Immigratie en Asiel CJEU, C-199/12, C-200/12, C-201/12, Judgment of 7 November 2013 (a) Can homosexuals be expected to conceal their orientation from everyone in their [respective] country of origin in order to avoid persecution? (b) If not, can they be expected to exercise restraint, and if so, to what extent, when giving expression to that orientation in their country of origin, in order to avoid persecution? Moreover, can greater restraint be expected of homosexuals than of heterosexuals? (c) If a distinction can be made between forms of expression which relate to the core area of the orientation and forms of expression which do not, what should be understood to constitute the core area of the orientation and in what way can it be determined? 3. Do the criminalisation of homosexual activities and the threat of imprisonment in relation thereto, constitute an act of persecution? If not, under what circumstances would that be the case?’ Punishment SL. Max 10 years, Uganada lifetime imprisonment („for carnal knowledge”), Senegal 5 years

X, Y and Z v Minister voor Immigratie en Asiel, 2013
CJEU Interpretation of the QD should be in conformity with G51 and with the Charter of F.R. Well founded fear of „personally” being subject to persecution (§ 43) Ad Q 1 (Do homosexuals constitute a p.s.g.?) Homosexuality: protected characteristics, not to be renounced as it is „fundamental to … identity” (§ 46) Criminal punishment makes them perceived as a separate group Ad Q 3 (!) (Is criminalisation persecution?) Persecution = serious interference with human right Homosexual acts = family and private life = may be subject to derogation Mere criminalisation does not violate QD, but Long term imprisonment may be „disproportionate or discriminatory” (58) If such, it must be shown that applied in practice Yes! Yes! If actually applied So severe as to be discriminatory or disproportionate

X, Y and Z v Minister voor Immigratie en Asiel, 2013
Ad Q 2: (Should homosexuality be concealed or restraint exercised if no persecution before departure occurred? What is core area? ) „ sexual orientation cannot be understood to include acts considered to be criminal in accordance with national law of the Member States” (Universalist – relativist debate! - BN) No a contrario argument: „in public” mentioned in connection with religion but not with sexual orientation If a person can not be expected to renounce homosexuality then he can not be required to conceal it as that would be „incompatible” with the non-renunciation entitlement Assessment of risk of persecution is independent from restraint i.e. abstention from certain behaviour. No need to answer what is core. Anything should be allowed what is not prohibited in the EU Member States. No concealement or restraint may be required! . Article 10(1)(d) 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 must be interpreted as meaning that the existence of criminal laws, such as those at issue in each of the cases in the main proceedings, which specifically target homosexuals, supports the finding that those persons must be regarded as forming a particular social group. 2. Article 9(1) of Directive 2004/83, read together with Article 9(2)(c) thereof, must be interpreted as meaning that the criminalisation of homosexual acts per se does not constitute an act of persecution. However, a term of imprisonment which sanctions homosexual acts and which is actually applied in the country of origin which adopted such legislation must be regarded as being a punishment which is disproportionate or discriminatory and thus constitutes an act of persecution. 3. Article 10(1)(d) of Directive 2004/83, read together with Article 2(c) thereof, must be interpreted as meaning that only homosexual acts which are criminal in accordance with the national law of the Member States are excluded from its scope. When assessing an application for refugee status, the competent authorities cannot reasonably expect, in order to avoid the risk of persecution, the applicant for asylum to conceal his homosexuality in his country of origin or to exercise reserve in the expression of his sexual orientation. __________________________ Unversalism: Sharpstone, advocate general in this case: 41. Within the European Union, there has been a shift in approach in as much as legislation which criminalises and imposes sanctions for homosexual acts in private between consenting adults is now considered to be contrary to the ECHR. (32) It is plain therefore that across the Member States such measures would today constitute an infringement of an individual’s fundamental rights, whether they were actively applied or not. However, the goal of the Directive is not to grant protection whenever an individual cannot fully and effectively exercise the freedoms guaranteed by the Charter or the ECHR in his country of origin. To put the same point another way: the aim is not to export those standards. (33) Rather, it is to restrict the recognition of refugee status to those individuals who may be exposed to a serious denial or systemic infringement of their most fundamental rights, and whose life has become intolerable in their country of origin. OPINION OF ADVOCATE GENERAL SHARPSTON delivered on 11 July 2013 (1)

Bundesrepublik Deutschland v Y (C-71/11), Z (C‑99/11) – the Ahmadi (religion) case –Grand Chamber judgment of 5 September 2012 Facts: Y and Z Pakistani nationals members of the Muslim Ahmadiyya community. Arrive in Germany in 2004 and 2003 Claimed persecution: Y: beaten up in his village by non-state actors, stones thrown at place of prayer, death threats (and threat of reporting to the police) Z: mistreatment and imprisonment for his religious beliefs + Pakistani Criminal Code criminalises if Ahmadi people claim to be Muslim, describe their faith as Islam, preach or propagate their faith or invite others to accept it. Defiling the name of Prophet Mohamed entails serious punishment, even death penalty. Judgment para 33 „It is apparent from the orders for reference that Article 298 C of the Pakistani Criminal Code provides that members of the Ahmadiyya religious community may face imprisonment of up to three years or a fine if they claim to be Muslim, describe their faith as Islam, preach or propagate their faith or invite others to accept it. Moreover, under Article 295 C of that code, any person who defiles the name of the Prophet Mohammed may be punished by death or life imprisonment and a fine.”

Court’s answers No Yes Issues:
Bundesrepublik Deutschland v Y (C-71/11), Z (C‑99/11) – the Ahmadi (religion) case Issues: Is any interference with religious practices persecution? Can „core areas” and „external aspects” of religious freedom be separated (and only give protection to the core areas)? Are the nature of the repression inflicted on the individual and its consequences determinative of persecution? Should persons abstain from religious practices in public in order to avoid persecution? Court’s answers No Yes Judgment para 33 „It is apparent from the orders for reference that Article 298 C of the Pakistani Criminal Code provides that members of the Ahmadiyya religious community may face imprisonment of up to three years or a fine if they claim to be Muslim, describe their faith as Islam, preach or propagate their faith or invite others to accept it. Moreover, under Article 295 C of that code, any person who defiles the name of the Prophet Mohammed may be punished by death or life imprisonment and a fine.” … „79 It follows that, where it is established that, upon his return to his country of origin, the person concerned will follow a religious practice which will expose him to a real risk of persecution, he should be granted refugee status, in accordance with Article 13 of the Directive. The fact that he could avoid that risk by abstaining from certain religious practices is, in principle, irrelevant.

Qualification directive Cessation, exclusion
Usual GC grounds (re-availment 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: Durability Justified grounds to resist return solely for memories of past persecution 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” Added by the recast

Shepherd case C‑472/13, Judgment of 26 February 2015
Shepherd – US soldier (Volunteely enlisted for military service). After one term of serving in Iraq he deserts the US army and applies for refugee status in Germany. Claims that US is likely to commit war crimes in Iraq, so he is entitled to ref. status under article 9 (2) of the QD („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” consitutes persecution. He also claims that punishment for desertion is disproportionately severe, and therefore costitutes persectuion Judgment: If indeed the commisision of war crimes was highly likely, in an existing, concrete conflict, any personnel (even logistical) is entitled to ref status „if it is reasonably likely that, by the performance of his tasks, he would provide indispensable support to the preparation or execution of those crimes.” No need to prove that war crimes had been already committed

Shepherd case C‑472/13, Judgment of 26 February 2015
If the armed intervention is based on a resolution adopted by that Security Council or on „a consensus on the part of the international community” that „offers, in principle, every guarantee that no war crimes will be committed”. Also if a state condemns and punishes war crimes, it is unlikely that it forces its forces to commit such acts. → Burden of proof shifts to the applicant The refusal of service must be the only means to avoid committing the prohibited acts. (If voluntary enlisted that may not be the case). If a procedure for obtaining conscientious objector status exists, it excludes any protection under Article 9(2)(e) _______________________________________________________________ If there was no right to refuse service then the next question relates to the consequences of unjustified refusal of service. Do the imposition of a prison sentence, dishonourable discharge from the army, and the ostracism and disadvantages associated therewith constitute acts of persecution? State have A legitimate right to maintain an armed force. Inprisonment for a maximum of 5 years is not disproportional. Ostracism is the consequence of the legitimate prosecution – therefore it is not persecution No need to prove that war crimes had been already committed

Qualification directive Cessation, exclusion
GC grounds: protection by other UN organ (UNRWA) enjoying rights equivalent to those of nationals crime against peace, war crime, crime against humanity a 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

Qualification directive Procedure, including revocation of refugee status
MS must „grant” (i.e.: recognise) 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 community Burden of proof: cessation: MS „demonstrate” on an individual basis Exclusion: „establish” _________________________________ Confusion of cessation, cancellation and revocation Cessation – normal end of status – changed circumstances Cancellation – should not have been recognized Revocation – after recognition engages in 1 F (a) and (c) activities Ending status = in fact ending asylum, not refugee quality in the Geneva 33(2) cases UNHCR 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 persecution 1 F (a) and (c) activites azért enged meg stá Tsuz megvonást, mert az egyezmény sem tartalmaz időbeli vagy térbeli korlátot (háborús, emberiség elleni és béke elleni bcs, ill ENSZ célok és elvek elleni

CJEU - C-57/09 and C-101/09 Bundesrepublik Deutschland v B and D – Grand Chamber judgment of 9 November 2010 Facts: Kurdish former PKK members, threatened with persecution upon return. Can they be excluded for non-political crimes or acts contrary to UN principles Is it a precondition of the exclusion that they present a danger to the host society? Should the threat of persecution be measured to the acts committed (Proportionality test)

CJEU - C-57/09 and C-101/09 Bundesrepublik Deutschland v B and D – Grand Chamber judgment of 9 November 2010 Judgment 1. Article 12(2)(b) and (c) of QD must be interpreted as meaning that: – the fact that a person has been a member of an organisation which, because of its involvement in terrorist acts, is on the list forming the Annex to Common Position 2001/931/CFSP on the application of specific measures to combat terrorism and that that person has actively supported the armed struggle waged by that organisation does not automatically constitute a serious reason for considering that that person has committed ‘a serious non-political crime’ or ‘acts contrary to the purposes and principles of the United Nations’; – the finding, in such a context, that there are serious reasons for considering that a person has committed such a crime or has been guilty of such acts is conditional on an assessment on a case-by-case basis of the specific facts, with a view to determining whether the acts committed by the organisation concerned meet the conditions laid down in those provisions and whether individual responsibility for carrying out those acts can be attributed to the person concerned, regard being had to the standard of proof required under Article 12(2) of the directive. 2. Exclusion is not conditional on the person concerned representing a present danger to the host Member State. 3. The exclusion is not conditional on an assessment of proportionality in relation to the particular case. 4. A Member States may grant a right of asylum under their national law to a person who is excluded from refugee status pursuant to Article 12(2) of the directive, provided that that other kind of protection does not entail a risk of confusion with refugee status within the meaning of the directive.

SUBSIDIARY PROTECTION
Problems identified in connection with the 2003 version: Symptoms Causes Divergent recognition rates Vague terms, different interpretation - actors of protection - internal protection - membership of a articular social group Remaining secondary movements Different standards of protection -Convention refugees – beneficiaries of subsidiary protection - Limited right to family unification Lack of integration __________________________________________________________________ Major adopted changes Restricted the broad interpretation of the concepts "actors of protection" and "internal protection” by specifying the criteria for assessing the accessibility and effectiveness of protection Ensured 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. Approximated the rights of beneficiaries of subsidiary protection to those of refugees by removing all differences regarding 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. Enhanced 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 programmes Enhanced 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. SUBSIDIARY PROTECTION

Qualification directive Subsidiary protection
See definition (2§ and 15§) above (death penalty, execution; torture, inhuman, degrading treatment, punishment; serious individual 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 grounds Should not be used to replace GC ref. status Individual threat in generalized violence? See Elgafaji judgment, Case C-465/07, judgment of 17 February 2009 What about non armed conflict situations? In Case C‑604/12, REQUEST for a preliminary ruling under Article 267 TFEU from the Supreme Court (Ireland), made by decision of 19 December 2012, received at the Court on 27 December 2012, in the proceedings H. N. v Minister for Justice, Equality and Law Reform, Ireland, Ireland: two separate procedures, H.N. only applied for subsidiary prot, without first applying to ref prot. According to Irish law subsid prot is only investigated after an application for ref prot is refused Judgment of 2014 may 8 „It is apparent from the foregoing considerations that an application for subsidiary protection should not, in principle, be considered before the competent authority has reached the conclusion that the person seeking international protection does not qualify for refugee status.” Applicant should have a right to start both procedures at the same time, and refusal in the ref procedure (if the applicant does not even claim to be a refugee) should come fast. On those grounds, the Court (Fourth Chamber) hereby rules: [the QD] the principle of effectiveness and the right to good administration do not preclude a national procedural rule, … under which an application for subsidiary protection may be considered only after an application for refugee status has been refused, provided that, first, it is possible to submit the application for refugee status and the application for subsidiary protection at the same time and, second, the national procedural rule does not give rise to a situation in which the application for subsidiary protection is considered only after an unreasonable length of time, which is a matter to be determined by the referring court. [Signatures]

Issues raised The moral dilemma – is subsidiary protection of less moral value? Complementary or subsidiary Preamble (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) (Original: yes, Recast: not really) Jane Mc Adam, UNHCR: no

The moral dilemma – what is the basis of subsidiary protection?
Compassion Integrity, dignity and human rights of the human being Differentiation between Convention status and complementary protection is conceivable State discretion in granting or withholding it Differentiation is unjustified The 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 complementary protection obligations beyond the Refugee Convention , Current Australian law • Australia is now one of the few developed countries that has no formal system of complementary protection. Instead, Australia currently uses ministerial intervention powers as an informal mechanism. • Under current Australian law, all people seeking protection must file an application for refugee status with the Immigration Department even if they know from the outset that they will not fit this definition of a refugee. The claim is assessed against the Refugee Convention but not against other human 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 can again only review the application against the Refugee Convention. After a second negative decision the applicant may apply to the Minister for Immigration to assess their claim based on a much broader set of humanitarian criteria, which can include risk of torture or other claims under human rights treaties Australia has ratified. • But the Minister does not have to intervene, no court can compel the Minister to intervene and s/he is 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 court can review the decision. ibid,.

The 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 observations Importance: 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 terrorist 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

The 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?”

ECJ: Article 15 b corresponds to Art 3 of the ECHR, however Article 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.” but See. NA v. UK, ECtHR, judgment of 17 July 2008, § 116 (stating that in exceptional cases no individualisation is needed) Article 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, NA : (Tamil man from Sri Lanka) v UK „ 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 illtreatment 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 illtreatment, 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….” Nav UK 2008 ECtHR, „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.”

„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.

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 Directive That 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: By using the words “exceptional” and “exceptionally” it is simply stressing that it is not every armed conflict or violent situation which will attract the protection of article 15(c), but only one where the level of violence is such that, without anything to render them a particular target, civilians face real risks to their life or personal safety.

Epilogue to Elgafaji On 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.

Serious harm consists of
The logic behind the different provisions of Article 15 and the preamble of the QD Provision Level of individualisation Preamble Para 24. Subsidiary protection should be complementary and additional to the refugee protection enshrined in the Geneva Convention. Article 15. Serious harm consists of Para 25. The criteria should be drawn from international obligations under human rights instruments and and existing practices in Member 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 or degrading treatment or punishment of an applicant in the country of origin; Para 26. Risks 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 (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.

Problems related to Article 15
Possible answer Example Multiplication 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 in market places; snipers firing methodically at people in the streets (QD and AH v. SSHD, § 27. ) Contradiction: Indiscriminate violence -- individual threat Elgafaji: 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 violence Czech Adimistrative High Court: Geneva II. protocol + „Tadic” QD and AH v SSHD, Diakité (CJEU): Not humanitarian law. Independent meaning NA 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.

The level of indiscriminate violence Low High
The measure of individualisation and the level of violence Elgafaji, para 39. Individualisation High Low The level of indiscriminate violence Low High 39 § 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.

Interpretation of the term „armed conflict”
Humanitarian law Wider meaning Geneva 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 conflicts Geneva II. protocol, Art. 1. (1) Between forces of the state and „dissident armed forces” or other organised armed groups Under responsible command Control over at least part of the country Sustained and concerted military operations Tadić criteria The existence of organised armed groups Protracted 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 and AH v SSHD, § 35 1989. évi 20. törvényerejű rendelet a háború áldozatainak védelmére vonatkozóan Genfben augusztus 12-én kötött Egyezmények I. és II. kiegészítő Jegyzőkönyvének kihirdetéséről II 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

CJEU C-285/12, Diakité, [30 Jan. 2014] On the notion of internal armed conflict: key question is it the same as in international humanitarian law the notion of armed conflict not of an international character. Answer: no. It has an independent meaning derived from the directive’s context. „ On a proper construction of Art. 15(c) and the content of the protection granted, it must be acknowledged that an internal armed conflict exists, for the purposes of applying that provision, if a State’s armed forces confront one or more armed groups or if two or more armed groups confront each other. It is not necessary for that conflict to be categorised as ‘armed conflict not of an international character’ under international humanitarian law; nor is it necessary to carry out, in addition to an appraisal of the level of violence present in the territory concerned, a separate assessment of the intensity of the armed confrontations, the level of organisation of the armed forces involved or the duration of the conflict.” The case concerns the application of a Guinean national for international protection in Belgium, on account of repression and violence endured during his participation in protest movements against the ruling regime. Under Article 2(e) of the Qualification Directive, subsidiary protection applies if there are ‘substantial grounds for believing that’, if returned to their country of origin, an applicant faces a ‘real risk of suffering serious harm’. Serious harm includes death, inhuman treatment, or a ‘serious and individual threat to a civilian's life … by reason of indiscriminate violence in situations of international or internal armed conflict’ (Article 15(c)). The applicant was refused protection in Belgium because the situation in Guinea was not regarded as constituting ‘armed conflict not of an international character’ under international humanitarian law. The applicant appealed, arguing that he had sought protection under EU law, and international humanitarian law was irrelevant. The highest court in Belgium asked the CJEU to clarify what the Qualification Directive means by ‘internal armed conflict’. Consideration of the questions referred Regarding the first question, the CJEU ruled that ‘internal armed conflict’ has a definition independent of international humanitarian law. The Court accepted the argument in Advocate General Mengozzi’s Opinion [66-67] that international humanitarian law and the Qualification Directive pursue different aims and establish distinct protection mechanisms. The former provides protection for civilian populations in a conflict zone by restricting the effects of war, whereas the latter protects certain civilians who are outside the conflict zone. The definition of armed conflict in international humanitarian law is not designed to identify situations in which international protection is necessary. Therefore, eligibility for subsidiary protection due to ‘internal armed conflict’ cannot be subject to conditions in international humanitarian law. On the second question about defining ‘internal armed conflict’, the CJEU gave it the ‘usual meaning in everyday language’ [28]: armed groups confronting each other or the State armed forces. Not all ‘internal armed conflicts’ will warrant subsidiary protection. Applying the reasoning in paragraph 43 ofCase C-465/07 Elgafaji, and noting the wording in Articles 2(e) and 15(c) of the Qualification Directive, the Court noted that only those conflicts where there are ‘substantial grounds’ for believing that the applicant if returned would face a ‘real risk’ of being subjected to ‘a serious and individual threat’ to their life will attract protection. Given this existing requirement, the CJEU held it unnecessary to impose extra conditions relating to the intensity, level of organisation and duration of the relevant conflict. Such conditions would not help the aim of the Qualification Directive to aid the identification of persons genuinely in need of international protection.

Summary Arguments against the requirement of singling out or high level of individualisation
Refugee 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 persecution Hathaway QD 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 individual 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)

Summary 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, Diakité, CJEU) The term „armed conflict” in Article 15 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)

Qualification directive Subsidiary protection: procedure, including revocation of status
MS 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. If compelling reasons to refuse protection, arising out of previous harm Added by the recast

Qualification directive: Subsidiary protection: procedure, including revocation of status (Cont’d)
Exclusion A 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 by imprisonment 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

Qualification directive: Subsidiary protection: procedure, including revocation of status (Cont’d)
Compulsory Optional revocation Cessation clauses - Fleeing prosecution Exclusion clauses: for smaller crime Peace, war, humanity serious common crime UN principles, Misrepresentation of decisive facts Proof: MS must „demonstrate” „on an individual basis” that revocation, ending or non-renewal is applicable

SUBSTANTIVE RIGHTS OF THE INTERNATIONALLY PROTECTED
Problems identified in connection with the 2003 version: Symptoms Causes Divergent recognition rates Vague terms, different interpretation - actors of protection - internal protection - membership of a articular social group Remaining secondary movements Different standards of protection -Convention refugees – beneficiaries of subsidiary protection - Limited right to family unification Lack of integration __________________________________________________________________ Major adopted changes Restricted the broad interpretation of the concepts "actors of protection" and "internal protection” by specifying the criteria for assessing the accessibility and effectiveness of protection Ensured 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. Approximated the rights of beneficiaries of subsidiary protection to those of refugees by removing all differences regarding 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. Enhanced 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 programmes Enhanced 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. SUBSTANTIVE RIGHTS OF THE INTERNATIONALLY PROTECTED

Qualification directive: substantive rights
Without prejudice to GC Same rights to refugees and beneficiaries of subsid. prot - unless otherwise indicated! Specific attention to vulnerable groups + best interest of the child 21 § confirms non-refoulement both for asylum seekers and recognized refugees

Recast removed difference b/ween family members of refugees and of b. of s.p. MS shall ensure family unity (23 §) (definition – see there, unity and benefits according to national law) national security or public order: grounds for refusal, reduction or withdrawal of benefits from fam. members MS may extend to other close relatives, who lived together and were dependent on the beneficiary of ref or subsid prot status before his/her departure Residence permits: min 3 years for refugees 1 year for subsid. prot. Travel document: refugees: as in GC, subsid. prot: „document” which enables travel outside MS territory Moreover, 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. On renewal: 2 years for b. of s.p. Recast extended travel doc rights of b. of s.p.

Employment, self employment, vocational (further) training: Refugees: subject to rules applicable to the profession Subsidiary protection beneficiaries: the same Education: Minors: full access; adults: as third country nationals. MS must facilitate (by grants and loans) access to employment related education and training Access to procedures for recognition of qualifications of those, who do not have documents to prove it Recast removed difference. Earlier: B.of S.P. examination of the labour market situation limited period access vocational training: state’s discretion Compilsorily extended to b. of s.p. UNHCR advocates equal treatment: -access to labour market: tool for integration less burden on social services _______________________ „Member States shall endeavour to ensure that beneficiaries of international protection who cannot provide documentary evidence of their qualifications have access to appropriate schemes for the assessment, validation and accreditation of their prior learning.” Recast, COM 551/2 new §28 (2). Added by the recast

Social welfare and health care: national treatment, but for subsid. prot. beneficiaries MS may limit to core benefits Accommodation: As legally resident third country nationals Allowing „national practice of dispersal” Freedom of movement: As legally resident third country nationals Integration: MS must create integration programmes. Access may be dependent on pre-conditions Repatriation: MS may provide assistance to voluntary return. Unaccompanied minors: 31 § details the protection of their special interests _______________________________________________ Entry into force: 10 January 2012 Transposition: by 21 December 2013. Added by the recast Recast removed difference b/ween refugees and of b. of s.p. Recast reinforced family tracing duty (not enough „to endeavour”)

Central European University and Eötvös Loránd University
Thanks! Boldizsár Nagy Central European University and Eötvös Loránd University Budapest

THE EUROPEAN DEFINITION OF REFUGEE AND SUBSIDIARY PROTECTION STATUS

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THE EUROPEAN DEFINITION OF REFUGEE AND SUBSIDIARY PROTECTION STATUS

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Presentation on theme: "THE EUROPEAN DEFINITION OF REFUGEE AND SUBSIDIARY PROTECTION STATUS"— Presentation transcript:

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