EU refugee qualification directive: A brave new world?

International Journal of Refugee Law

Volumn 20, Issue 1, 2008, Pages 1-49

  Storey, Hugo ^a  

^a Asylum and Immigration Tribunal ^*  (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

ASYLUM SEEKER; EUROPEAN UNION; GUIDELINE; HUMAN RIGHTS; IMMIGRATION POLICY; POLICY IMPLEMENTATION; REFUGEE;

EURASIA; EUROPE;

EID: 47549114132     PISSN: 09538186     EISSN: 14643715     Source Type: Journal    
DOI: 10.1093/ijrl/een012     Document Type: Article

References (197)

1. In some EU states (e.g., Germany) the national legislation albeit incorporating ECHR guarantees does not refer to them as such. In other EU states, e.g., the UK, the national law expressly identifies 'human rights' claims and grounds of appeal by reference to the ECHR.
2. In fact only 6 out of the 24 Member States had implemented the Directive by this date: . On 4 July 2007, the Commission initiated second-stage infringement procedures against 13 states. However, in respect of one on that list, the UK, it appears that all that was involved was a failure to notify the Commission of transposition legislation and in respect of another, Germany, its transposition was completed in June 2007: See, 'Asylum in the European Union: A Study of the Implementation of the Qualification Directive', UNHCR, Nov. 2007 (hereafter 'Nov. 2007 UNHCR Study'), 21.
3. In this article the terms 'Refugee Qualifications Directive' or 'Qualification Directive' or 'the Directive' are all shorthands for 'EU Council Directive 2004/83/EC 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 L304/12 of 30 Sept. 2004'. The Directive implements point (1)(c), 2(a) and 3(a) of the first paragraph of Article 63 of the Treaty paragraph 38(b) (i and ii) of the Vienna Action Plan, Conclusion 14 of the Tampere European Council and relevant references in the Scoreboard. The Directive was adopted by unanimity in accordance with Article 67 TEC on 29 Apr. 2004.
4. See 17, IJRL 461-516 (2005) (McAdam (1)) and CUP 2007 (McAdam (2)) respectively. Apart from McAdam (1) and McAdam (2) other notable articles or studies include: N. Sitaropoulos, Entwurf einer 'EU Anerkennungs Richtlinie', (2003) 23 Zeitschrift fur Auslanderrecht und Auslanderpolitik, 379, 380,
5. cited in Klug, below, n. 105;
6. R. Piotrowicz and C. van Eck, 'Subsidiary Protection and Primary Rights' (2004) ICLQ 107;
7. S. Peers (1), 'Taking Rights Away? Limitations and Derogation' in Peers and Ward (eds.), The EU Charter of Rights: Politics, Law and Policy (Oxford, Hart, 2004) 154;
8. S. Peers (2), 'Human Rights, Asylum and European Community Law' (2005) 24 RSQ 24;
9. A. Klug, 'Harmonisation of Asylum in the European Union - Emergence of an EU Refugee System?' (2004) 47 German Yearbook of International Law (GYIL) 594-628;
10. UNHCR, 'Annotated Comments on the EC Council Directive 2004/83/EC of 29 April 2004', Jan. 2005;
11. G. Gilbert, 'Is Europe Living Up to its Obligations to Refugees?', 15 EJIL 980;
12. M. Verheij, 'Council Directive 2004/83/EC: A review and outlook', paper to IARLJ European Chapter Budapest Conference, Nov. 2005 (available from IARLJ);
13. N. Blake QC, 'The Impact of the Minimum Standards Directive 2004/83/EC on National Case Law' in The Asylum Process and the Rule of Law (Netherlands, IARLJ, 2006);
14. H. Battjes (1), 'Human Rights Protection in the EU's Legal Framework. The Relationship Between the European Court of Justice and the European Court of Human Rights', ELENA course on Subsidiary Protection, the EU and International Human Rights Law, 9-12 Feb. 2006;
15. H. Battjes (2), European Asylum Law And International Law (Leiden/ Boston: Nijhoff Publishers, 2006);
16. M. T. Gil-Bazo, 'Refugee Status and Subsidiary Protection under EC law: The EC Qualification Directive and the Right to be Granted Asylum' (revised version of a paper presented at the Conference 'How much freedom, security and justice? Developments in EU Asylum and Immigration Law' London, May 2005)
17. H. Lambert, 'The EU Asylum Qualification Directive, Its Impact on the Jurisprudence of the United Kingdom and International Law' (2006) ICLQ 184
18. G. Noll, 'Evidentiary Assessment in Refugee Status Determination and the EU Qualification Directive' (2006) 12 European Public Law 295
19. C. Costello, 'Subsidiary Protection Under the EC Qualification Directive', June 2006 (paper delivered to IARLJ/ILPA London seminar on the Qualification Directive, available from IARLJ (info@iarlj.nl))
20. K. Zwaan (ed.), The Qualification Directive: Central Themes, Problem Issues, and Implementation in Selected Member States (Nijmegen, 2007)
21. Seminar on Current Asylum, Issues and Human Rights, 17-18 Apr. 2007, Jablonna, Poland, ISBN 978-83-914939-4-6
22. J. Barnes, A Manual for Refugee Law Judges relating to the EC Qualification Directive and EC Procedures Directive (IARLJ, 2007)
23. Nov. 2007 UNHCR Study, above n.2
24. UNHCR Statement: 'Subsidiary protection under the EC Qualification Directive for people threatened by indiscriminate violence', Jan. 2008.
25. Joint Position defined by the Council of 4 Mar. 1996 on the basis of K3 of the Treaty of the European Union on the harmonised application of the definition of the term 'refugee' in Art. 1 of the Geneva Convention of 28 July 1951 Relating to the Status of Refugees, OJ 1996 L 63 (Joint Position').
26. [1997] Imm AR 568. There has also been reference to the draft Refugee Qualification Directive by the House of Lords in Sepet and Bulbul [2003] 1 WLR 856, dealing with conscientious objection to military service; in Hoxha [2005] UKHL 19, [2005] INLR 440 dealing with Art. IC of the Refugee Convention; in Zanuzi [2006] UKHL 5, dealing with internal relocation and in K & Fornah [2006] UKHL 46, dealing with particular social group.
27. The Convention Determining the State Responsible For Examining Applications For Asylum Lodged in One of the Member States of the European Community. Subsequently, amongst procedure-related asylum legislative measures adopted under Art. 63 TEC as part of the first phase of the Common European Asylum System (CEAS) (and so under the First Pillar), there has been Dublin II Regulation 343/2003, OJ 2004 L 261/24
28. Regulation 1560/2003 implementing Dublin II, OJ 2001 L 81/1 and Council Directive 2005/85/EC of I Dec. 2005 on minimum standards on procedures in Member States for granting and withholding refugee status (the 'Procedures Directive') [2005] OJ L326/13, implemented 1 Dec. 2007.
29. Measures adopted under Article 63 EC include: Regulation 2725/2000 establishing the Eurodac system of fingerprinting for the effective application of Dublin 11, OJ 2000 L 316/1, in operation on 15 Jan. 2003;
30. Regulation 407/2002 implementing Eurodac Regulation (OJ 2002 L 62/1)
31. Decision 2000/596/EC on European Refugee Fund (OJ 2000 L 252/12)
32. Decision on second European Refugee Fund (OJ 2004 L252/12)
33. Directive 2001/55 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons, OJ 2001 L212.12 in operation on 31 Dec. 2002
34. Regulation 407/2002 implementing Eurodac, OJ 2002 L 62/1
35. Directive 2003/9 on reception conditions, setting out the minimum standards for the conditions of reception for asylum-seekers, OJ 2003 L 31/18
36. Dublin II Regulation 343/2003, OJ 2004 L 261/24;
37. Regulation 1560/2003 implementing Dublin II, OJ 2001 L 81/1;
38. Council Directive 2005/85/EC of 1 Dec. 2005 on minimum standards on procedures in Member States for granting and withholding refugee status (the 'Procedures Directive') [2005] OJ L326/13.
39. See, Macdonald's Immigration Law and Practice (Butterworths, 5th Edn., 2001), chs. 18, 11 & 12.
40. For Procedures Directive, see above n. 8.
41. K. Hailbronner, 'Study on the single asylum procedure "one-stop shop" against the background of the common European asylum system and the goal of a common asylum procedure', European Communities 2003, http://ec.europa.eu/Justice_home/doc_centre/asylum/studies/docs/ study_one_stop_shop_en.pdf.
42. The first regional treaty to attempt something similar was the OAU Convention governing the Specific Aspects of Refugee Problems in Africa of 10 Sept. 1969. There is also within the Americas the non-binding Cartagena Declaration on Refugees of 22 Nov. 1984.
43. Bonger v. Netherlands ECtHR 15 Dec. 2005 (dec.) appl. no. 10154/04.
44. In certain respects the OAU Convention governing the Specific Aspects of Refugee Problems in Africa of 10 Sept. 1969 achieved something similar, but by adopting a broader definition of refugee.
45. A2 states 'For the purposes of this Directive: (a) "international protection" means the refugee and subsidiary protection status as defined in (d) and (f)'. Subparagraph (g) states: '"application for international protection" means a request made by a third country national or a stateless person for protection from a Member State, who can be understood to seek refugee status or subsidiary protection status, and who does not explicitly request another kind of protection, outside the scope of this Directive, that can be applied for separately'.
46. A2 (c), ch. V & ch. VI.
47. This Jurisdiction is not necessarily expressly identified in national legislation: E.g., the position under German and Swedish legislation.
48. Bulgaria and Romania having become Member States from Jan. 2007.
49. See, Home Office Immigration and Nationality Department (IND) website, under Asylum Policy Instructions: 'Refugee Leave'.
50. Not every Member State has identified subsidiary protection by this name. The UK implementing legislation has termed it 'humanitarian protection': See, 'The Refugee or Person in Need of International Protection (Qualification) Regulations 2006' (hereafter the 'Protection Regulations'); Statement of changes in Immigration Rules, Cm6918; 'Implementation of Council Directive 1004/83/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: A Public Consultation', June 2006, at para. 4.5: 'To minimise the changes to existing practice, subsidiary protection will be renamed humanitarian protection for the purposes of implementation. Consequently a "person eligible for subsidiary protection" is replaced by a "persons eligible for humanitarian protection". The definition of the term in the Regulations is linked to eligibility as set out in the immigration rules. The relevant provision in the immigration rules reflects the definition in the Directive'.
51. N. Sitaropoulos, above n. 4, cited in Klug, above n. 4, n. 105.
52. See also, R15, R19, A12(1)(a) (which refers to Art. ID of the Refugee Convention), A20(1) andA20(6).
53. Art. 42 of the Refugee Convention prohibits States from limiting the personal scope of Art. 1.
54. Given this obvious point, it is difficult to understand the argument raised by UNHCR and several commentators (including Peers (1) and (2), Klug, Gil-Bazo and Costello) that the Directive's more limited personal scope - applying only to third-country nationals and stateless persons - is contrary to Art. 42 of the Refugee Convention. It would only be contrary to Art. 42 if it sought to disapply the Refugee Convention to EU nationals, which it plainly does not: See, R13.
55. Furthermore Art. 307 (1) TEC establishes that the rights and obligations arising from international treaties concluded by Member States prior to the entry into force of the TEC or for acceding States before the date of accession, shall not be affected bythe provisions of the TEC: See, Case 812/79, Attorney-General v. Burgoa [1980] ECR 2787.
56. R11 states that the Directive is 'without prejudice to the protocol on asylum for nationals of Member States of the European Union as annexed to the Treaty Establishing the European Community'. Under current UK legislation there is no longer an in-country right of appeal in respect of such claims. Interestingly, the UK implementing legislation extends the provisions of the Directive to all non-UK nationals: See, '2006 Protection Regulations', Regulation 2; 'Implementation of Council Directive 1004/83/EC', above n. 20, para. 2.5.
57. The Directive does not cover all of the civil, political, social and economic rights contained in the Refugee Convention. Not included are provisions replicating Art. 3 (non discrimination), albeit, see, R11, Art. 4 (religion), Art. 6 (the term in the same circumstances), Art. 7 (exemption from reciprocity), Art. 8 (exemption from exceptional measures), Art. 10 (continuity of residence), Art. 11 (refugee seamen), Art. 12 (personal status), Art. 13 (movable and immovable property), Art. 14 (artistic rights and industrial property), Art. 15 (right of association), Art. 16 (access to courts), Art. 20 (rationing), Art. 25 (administrative assistance), Art. 27 (Identity papers), Art. 29 (fiscal charges), Art. 30 (transfer of assets), Art. 31 (refugees unlawfully in the country of refuge), Art. 34 (naturalisation) and Art. 35 (cooperation with UNHCR). See further, Klug, above n. 4.
58. Save for Denmark, which did not opt in.
59. Save for those relating to Art. 1D of the Refugee Convention: See, A12(1)(a).
60. Art. IF(b) states: '...he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee'.
61. Thus: A6 defines 'actors of persecution or serious harm'; A7 (which defines actors of protection) refers to protection being generally provided when the 'actors of protection take reasonable steps to prevent the persecution or suffering of serious harm...'; A8 (which deals with internal protection) states that Member States may determine that an applicant'is not in need of international protection if in a part of the country of origin there is no well-founded fear of being persecuted or...'; A10 deals with'Reasons for persecution (emphases added).
62. R16: '[m]inimum standards for the definition and content of refugee status should be laid down to guide the competent national bodies of member States in the application of the Geneva Convention'.
63. A12(3) states: 'Paragraph 2 applies to persons who instigate or otherwise participate in the commission of crimes or acts mentioned therein'.
64. See, Klug, above n. 4, 33.
65. However, even if the view that the Directive operates its own definition of refugee were correct, it would still be necessary to interpret that definition in a way that accorded so far as is possible with the provisions of Art. 1A(2) of the Refugee Convention, since the objects and purposes of the Directive so clearly stress the primacy of the Refugee Convention. That is to say, decision-makers would have to articulate and apply a principle of deference to the Refugee Convention in interpreting and applying the Directive. Nicholas Blake, above n. 4, refers to the need to ensure the EU's duty to conform to the Convention 'by reading the Directive compatibly with the Convention where it is possible to do so, and the Convention preamble and case law gives a clear indication of what is required'.
66. A6 states: 'Actors of persecution or serious harm include: (a) the State; (b) parties or organisations controlling the State or a substantial part of the territory of the State: (c) non-state actors, if it can be demonstrated that the actors mentioned in (a) and (b), including international organisations, are unable or unwilling to provide protection against persecution or serious harm as defined in Article 7'.
67. Except, as already noted, where the Directive does not cover situations governed by the Refugee Convention. For example, the Refugee Convention creates obligations in respect of all persons, whereas the Directive only accords them to 'third-country nationals and stateless person'. Thus, a person from an EU Member State who claims he has fled from it in fear of persecution and who then applies for refugee status in another member State will still be entitled to a decision under the Refugee Convention. As also noted earlier, the Directive does not cover all of the civil, political, social and economic rights contained in the Refugee Convention: See, above n. 27.
68. The Directive's provisions dealing with 'subsidiary protection' can be said to derive ultimately from the terms of the Art. 63(1) TEC obligation to achieve accordance with'...other relevant treaties'. R25 more specifically states: 'It is necessary to introduce criteria on the basis of which applicants for international protection are to be recognised as eligible for subsidiary protection. Those criteria should be drawn from international obligations under human rights instruments and practices existing in Member States'. R11 states: 'With respect to the treatment of persons falling within the scope of this Directive, Member States are bound by obligations under instruments of international law to which they are party and which prohibit discrimination'.
69. 'No one shall be subjected to torture or to inhuman or degrading treatment or punishment'.
70. Except that because the 13th Protocol has yet to be ratified by all of the 26 EU Member States it cannot be said that the prohibition on the death penalty applies irrespective of whether there is war or peace. In Ocalan v. Turkey, judgment of 12 Mar. 2003, paras. 195-8, judgment of 12 May 2005 (Grand Chamber) paras. 164-5, the Court made clear that until the 13th Protocol was established through wide ratification it may be prevented from finding that the death penalty is contrary to Art. 3.
71. 'means a request made by a third country national or a stateless person for protection from a Member State, who can be understood to seek refugee status or subsidiary protection status, and who does not explicitly request another kind of protection, outside the scope of this Directive, that can be applied for separately'.
72. As UNHCR notes, 'Annotated Comments' above n. 4, the need to consider refugee eligibility before subsidiary protection is implied by: (i) R3 which states that the Refugee Convention provides the 'cornerstone of the international legal regime for the protection of refugees'; (ii) the use of the word 'subsidiary'; (iii) the definition in A2 (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...');(iv) the internal ordering throughout the Directive which deals with refugee eligibility first; and (v) the wording of R24 which defines subsidiary protection as 'complementary and additional to' refugee protection.
73. It remains open to each Member State to take separate measures outside the scope of the Directive, based on the exercise of discretion on compassionate or humanitarian grounds: See, R9.
74. Compare, e.g., A24(1), which accords beneficiaries of refugee status with a residence permit valid for at least 3 years, with A24(2), which accords beneficiaries of subsidiary protection status a residence permit valid for at least one year.
75. The UK implementing legislation has chosen to apply more favourable standards (in accordance with A3) to beneficiaries of refugee status and subsidiary protection status in certain respects, so as to place them virtually on an equal footing: Both are granted 5 years leave to remain with immediate family reunion rights and the right to work and social security
76. see, 'Implementation of Council Directive 1004/83/EC', above n. 20.
77. However, some other countries have adhered to the differentials periods set out in A24(1) and (2), namely 3 years/1 year: See, e.g., the Swedish Inquiry report, June 2006 (Skyddsgrundsdirektivet och svensk ratt).
78. See, Januzi [2006] UKHL 5
79. AH(Sudan) [2007] UKHL 49.
80. Allowing for changes in the numbering of articles.
81. Contribution of the Legal Service to Asylum Working Party 14348/02JUR 449 ASILE 67 (15 Nov. 2002). Para. 7 states in full [with numbering changed to reflect changes made in the eventual final version: 'In Chapters I to VI of the proposed directive, there is a number of provisions defining the content of a number of notions which determine the scope ratione personae of the directive and which are fundamental not only for the directive in question, but also have a bearing on other areas, such as the notion of refugee status, which is pertinent also for the minimum standards on procedures for granting or withdrawing this status, to be adopted on the basis of Article 63(1)(d) EC. Hence, any deviation in national law from the definitions laid down in Artide 2 of the proposed directive and the relates articles ([6], [7],[9],[11],[12],[13],[15],[16],[17(l) and[2]) would be incompatible with the objective of harmonising the contents of those notions, unless the definition itself allows for the inclusion or exclusion of a certain group of person as part of a wider category' (emphasis added).
82. As summarised by McAdam ((2) 108-9), this background document sets out three main general principles governing the scope and application of A3: 'First, deviations in national law from definitions set out in A2 and related articles 6, 7, 9, 11, 12, 13, 15, 16, 17(1) and (2) would be incompatible with harmonisation unless the definition itself permits the inclusion or exclusion of a particular group of persons as part of a wider category. Secondly, "shall" or "may" roughly indicate whether or not a provision allows Member States to adopt or retain more favourable standards. Where "may" defines the "normative intensity" of a provision, it normally indicates that the provision is optional. In articles 5(1) and (2), "may" does not mean that those provisions are optional but rather defines specific aspects of the notions "well founded fear of being persecuted" and "real risk of suffering serious harm". Since these form part of the definitions in A2, no derogation from them is possible. Most of the provisions of the Directive use the term "shall", yet from their context it is apparent that they leave it open for Member States to grant more favourable treatment, since their objective is simply to set out minimum standards. Finally, provisions that incorporate the term "in particular" indicate that elements of the provision are not exhaustive, thus allowing Member States to take into account additional aspects in their national laws.'
83. Verheij, above n. 4, gives several hypothetical examples of measures which would go outside the scope of the Directive: (i) a national provision according to which the Directive would also apply to forms of humanitarian status or compassionate grounds, which are outside the scope of the Directive (see, R9); (ii) a national provision which would broaden the definition of refugee, for instance by incorporating one or more grounds of A15 on subsidiary protection into the refugee definition; (iii) treating the provisions of A12 (which requires that a third country national or a stateless person 'is excluded from being a refugee if...') as discretionary rather than mandatory. This would be contrary to the scope since it would have consequences for other Member States.
84. Art. 63(2) TEC confers powers on the EC to adopt'measures on refugees and displaced persons within the following areas ... minimum standards ... for persons who otherwise need international protection'.
85. UNHCR, 'Annotated Comments'above n.4.
86. See, e.g., Peers (2), Gil-Bazo, Costello, Lambert, all above n 4.
87. See, UNHCR, 'Annotated Comments' above n. 4; and article by Klug, above n. 4.
88. 'UNHCR welcomes this provision which underlines that the Directive aims to set minimum standards which leave States free to retain or introduce higher standards of protection if they so choose', UNHCR Annotated Comments, ibid., 13.
89. The Council Legal Services apply this approach to Ch VII of the Directive which deals with the content of international protection. Thus at para. 8 it states: 'On the other hand, although most of the provisions laid down in Chapter VII of the proposed directive used the word "shall", it follows from their context that their objective is to lay down minimum standards as regards the rights and benefits to be granted to refugees and/or persons eligible for subsidiary protection which must be implemented by all Member States, while leaving it open for Member States to grant more favourable treatment to those persons'.
90. E.g., in Council Directive 2000/78/EC [2000] OJ L303/16 (on equal treatment in employment) and 2004/43/EC [2000] OJ L180/22 (on equal treatment irrespective of racial or ethnic origin).
91. Thus Battjes (1), above n. 4, states at ch. 10, 3.2: 'it follows from the case law of the European Court of Justice that minimum standards are rules that allow member states to deviate from directives to the benefit of the persons concerned, here: Asylum-seekers (cf.C-84/94, UK v. Council, para. 17;
92. C-2/97, Borsana, para. 35).
93. Art. 3 and [recital] 8 of the Preamble state so accordingly. Thus, the term "minimum standards" means that the Directive cannot address its subject matter exhaustively. For example if under the Qualification Directive a person does not qualify for refugee or subsidiary protection status, member states may nevertheless recognise his or her refugee status' (emphasis added). In the following paragraph Battjes adds: 'The minimum standards of the Qualification Directive may also fail to address a particular subject at all, or only partially, and in so doing set "lower" standards. For instance, the Qualification Directive does not address the issue of group persecution. It does not follow that the instrument is therefore in breach of the obligation of Art. 63(1) TEC to adopt measures "in accordance with the Refugee Convention". For as a minimum standard, it leaves the member states discretion to adopt more favourable standards, i.e., recognise the possibility of group persecution'. These examples reflect Battjes' view that the characterisation of EU measures such as the Qualification Directive as 'minimum standards' in Art. 63 TEC does not restrict the level of harmonisation; rather the characterisation as minimum standards addresses the division of powers between the Community and the Member States, not the content of the Community legislation: See further, Battjes (2), above n. 4, ch. 3, 214.
94. Lambert, above n. 4, 164: 'This wording is problematic because strictly speaking, "compatible" could be taken to mean consistency with the provisions in the Directive - in which case member States with less restrictive provisions would have to adopt the more restrictive Directive versions. Only if "compatible" is interpreted loosely, to mean matching or exceeding the minimum standards contained in the Directive provisions, may Member States that have them keep less restrictive provisions. In the absence of any ruling on this issue, the possibility of "compatible" to mean "consistent" must not therefore be dismissed outright'.
95. However, the reference procedure under Title IV is currently limited to courts or tribunals against whose decisions there is no judicial remedy. As Steiner, et al., Textbook on EC Law (OUP, 8th edn., 2003) notes at 573: 'Many important references under Art. 234 came from the lower courts; now these courts will, in this new area, be precluded from making references. Consequently, individuals seeking European ruling will be forced to litigate through the national appeal structure'. There was a Commission proposal to assimilate the Art. 68 procedure to the Art. 234 procedure with effect from 1 Jan. 2007: See, COM 2006 364 final: 'Adaptation of the provisions of Title IV of the Treaty establishing the European Community relating to the jurisdiction of the Court of Justice with a view to ensuring more effective judicial protection', but this appears to have stalled.
96. At the time of writing (Mar. 2008) the reference under Art. 68 in relation to this Directive was made on 10 Oct. 2007 by the Dutch Council of State, concerning the meaning of Art. 15(c) and its interrelationship with Art. 3 ECHR. The two questions referred to the ECJ were asked in the context of a case concerning the refusal of refugee status to two Iraqi nationals: A Shi'ite couple from Baghdad who were found not credible but who had contended they were nevertheless entitled to succeed in obtaining subsidiary protection under Art. 15(c). The questions asked were: (1) Whether Art 15(c) has to be considered applicable to the same situations as Art 3 ECHR as interpreted by the case law of the ECtHR, or if it offers a complementary or another form of protection. (2) Should this be the case, then what are the criteria to assess whether a person who claims to qualify for subsidiary protection status runs a real risk of a serious and individual threat as a consequence of indiscriminate violence as stipulated in Art 15(c) of the Directive when read in combination with Art 2(e) of the same Directive'. (Case C-465/07, M. and N. Elgafaji v. Staatssecretaris van Justice, 2008/C 8/08) OJ 12.1-2008). The second reference was made by the Administrative Court in Leipzig, Germany, on 7 Feb. 2008 and concerns the scope of A11 of the Directive (which contains a cessation clause). The case involves three Iraqis who had fled because of the Saddam Hussein regime, which no longer posed a threat to them (no OJ record available as yet).
97. In K and Fornah [2006] UKHL 46 the UK House of Lords considered Art. 10 of the Directive dealing with 'Reasons for Persecution', Lord Bingham stating at para. 16 that if read literally it 'propounds a test more stringent than is warranted by international authority' and for that reason choosing a non-literal meaning. However, this was obiter and did not address the underlying question of whether this or other provisions of the Directive were mandatory.
98. See, e.g., Helene Lambert, above n. 4.
99. The UK government chose, however, to extend the scope to cover all non-UK nationals: See, '2006 Protection Regulations', Regulation 2.
100. UNHCR, 'Annotated Comments'above n.4.
101. A 14(3) is in mandatory terms, whereas A 14(4) and (5) are discretionary.
102. Verheij, above n. 4, 3.
103. Klug, above n. 4, 22-3.
104. M. Garlick, 'UNHCR and the Implementation of the Qualification Directive' in K. Zwaan (ed.), above n. 4, at 65.
105. See also, Klug, Lambert, and Gil-Bazo, all above n. 4.
106. See, e.g., Klug, Lambert, both above n. 4.
107. Gil-Bazo, above n. 4, 3.
108. Horvath [2001] 1 AC 489, [2000] Imm AR 552.
109. See, case law cited in IM (Sufficiency of protection) Malawi [2007] UKAIT 00071 (Asylum and Immigration Tribunal, UK).
110. Klug, above n. 4, 20-1.
111. Hoxha [2005] UKHL 19, [2005] INLR 440.
112. James Hathaway, The Rights of Refugees Under International Law (Cambridge University Press 2005), 919-53.
113. Macdonald's Immigration Law & Practice, (Butterworths, 6th edn., 2005), 721-2.
114. Blake, above n. 4. In the UK the A5(3) has not been implemented as it was seen to be unclear: See, 'Implementation of Council Directive 1004/83/EC', above n. 20.
115. Danian [2000] Imm AR 96.
116. E.g., in the UK, Danian [2000] Imm AR 96.
117. It would appear that some Member States have taken the view that this provision is not one which the Directive makes mandatory. However, whilst the article begins with the words, '... Member States may determine...', it is arguable that its effect is to prevent the processing of subsequent applications from failing to apply this presumption.
118. P. Craig and G. de Burca, EC Law: Text, cases, and materials (Clarendon Press, Oxford 1995) ch.4.
119. Some commentators, e.g., McAdam ((2) 81-84), have suggested there is a further point of narrowing in A15 consisting in the fact that it does not mirror the refugee definition as specified by A9 on the definition of 'Acts of persecution'. A9 encompasses not just acts which are '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 Art. 15(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms': see, (A9(1)(a). It also covers A9(1)(b): Acts which are '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).' By contrast, it is said, A 15(b) only covers the non-derogable right prohibiting torture and inhuman or degrading treatment or punishment. However, this concern has arguably been resolved by the analysis of the English House of Lords of Strasbourg ECHR jurisprudence, analysis which has accepted that it the scope of Art. 3 may extend to include 'flagrant violations' of derogable rights, e.g., Art. 6 ECHR: See, Ullah [2004] UKHL 26 [2004] 3 WLR 23.
120. See, A2(e).
121. The Directive also makes subsidiary protection subject to cessation clauses, but since nonderogable ECHR rights, Art. 3 in particular, are concerned only with current risk, it would seem that similar considerations apply.
122. A12(2) and (3) state:
123. A third country national or a stateless person is excluded from being a refugee where there are serious reasons for considering that: (a) he or she has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) he or she has committed a serious non-political crime outside the country of refugee prior to his or her admission as a refugee; which means the time of issuing a residence permit based on the granting of refugee status; particularly cruel actions, even if committed with an allegedly political objective, may be classified as serious non-political crimes; (c) he or she has been guilty of acts contrary to the purposes and principles of the United Nations as set out in the Preamble and Articles 1 and 2 of the Charter of the United Nations. Paragraph 2 applies to persons who instigate or otherwise participate in the commission of the crimes or acts mentioned therein. Note that this text is not wholly identical to Art. 1F of the Refugee Convention.
124. See, e.g., Chahal v. UK (1996) 23 EHRR 413, Saadi v. Italy App no 37201/06 [2008] ECHR 179, 28 Feb. 2008.
125. Klug, above n. 4, argues that all persons who are eligible under Art. 3 could have been given a status, even if it meant, for certain categories, being granted fewer rights and benefits.
126. In the UK implementing legislation this has been rendered as 'country of return': See, Statement of Changes to Immigration Rules CM6918 paragraphs 339C and 352G(b).
127. A15: '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 (emphasis added); 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.'
128. J. McAdam, 'The Qualification Directive: An Overview' in K. Zwaan (ed.), above n. 4, at 19, notes the observation made during drafting at 12148/ 02 ASILE 43 (20 Sept. 2002): 'Consequently, to avoid the inclusion of such compassionate grounds cases [reference was made to D v. UK] under a subsidiary protection regime, which was never the intention of this Directive, the Presidency is suggesting to limit the scope of sub-paragraph (b) by stating that the real risk of torture or inhuman or degrading treatment or punishment must prevail in his or her country of origin'.
129. [2004] UKHL 26, [2004] 3 WLR 23.
130. A'foreign' case is one in which the conduct of the state in removing a person from its territory to another territory would lead to a violation of a person's Convention rights in that country (Lord Bingham, Ullah. A 'domestic case' is one 'where a state is said to have acted within its own territory in a way which infringes the enjoyment of a Convention right by a person within that territory' (Lord Bingham, Ullah, ibid. para. 7
131. and Baroness Hale, Razgar [2004] INLR 349 (HL), 41).
132. See, J [2005] EWCA Civ 629.
133. As contended by R. Bank, 'Transposition of the Qualification Directive in Germany' in K. Zwaan (ed.), above n. 4, 119. Specific reference was made in the drafting discussions to the case of D v. UK.
134. E.g., UNHCR, 'Annotated Comments' above n. 4, 42;
135. McAdam (2), above n. 4, 474;
136. Gil-Bazo and following.
137. See, n. 40.
138. Above n. 4.
139. UNHCR, Annotated Comments'above n. 4, UNHCR Statement: 'Subsidiary protection under the EC Qualification Directive for people threatened by indiscriminate violence', Jan. 2008.
140. See, e.g., McAdam, above n. 4.
141. (1991) 14 EHRR 248 at [13].
142. 12382/02 ASILE 47 (30 Sept. 2002 (4)).
143. This appears to be the view taken by K. Hailbronner, 'Asylum Law in the Context of a European Migration Policy' in N. Walker (ed.), Europe's Area of Freedom, Security and Justice (OUP, 2004), 65.
144. 12382/02 ASILE 47, 12199/02 ASILE 45 (n. 30).
145. Battjes (2), above n. 4, 239-40.
146. See, Nov. 2007 UNHCR Study, above n. 2.
147. (1991) 14 EHRR 248 ECtHR;
148. see also, Mamatkulov v. Turkey 00046827/99 (Feb 2003).
149. If, alternatively, the concept of 'indiscriminate violence' is construed as meaning violence which is random and haphazard, then it is difficult to see how, in relation to such, there could ever be a 'serious and individual threat'. Barnes, above n. 4, suggests that Art. 15(c) only makes sense if 'indiscriminate violence' is given an international humanitarian law meaning: I.e., violence which fails to distinguish between military and civilian targets and disproportionately harms civilians.
150. All these terms form part of treaty or customary IHL. In IHL the adjective 'indiscriminate' is used to designate attacks which fail to differentiate between military and civilian targets. It may be that the concept of 'indiscriminate violence' within A15(c) is likewise to be understood as depicting violence which, by virtue of failing to discriminate between military and civilian targets, violates peremptory norms of international humanitarian law. An IHL approach to Art. 15(c) has now been taken by a number of courts and tribunals in EU Member States: See, e.g., French Commission des Recours des Refugies (CRR) 22 Nov. 2005, MA); the Belgian court decision in VB/05- 5833/W12.182/SB5 (27 Oct. 2006); the Dutch Council of State judgment, Raad van Staat, 20-07-2007,200608939/1 LJN BB0917; the Swedish Migration Court of Appeal 2007.9 decision (UM 23-06); the Higher Administrative Court of Schleswig-Holstein (Northern Germany) judgment 21 Nov. 2007, 2 LB 38/07; the UK Asylum and Immigration Tribunal in HH & others (Mogadishu:armed conflict: risk) Somalia CG [2008] UKAIT 00022
151. and KH (Art. 15(c) - Qualification Directive) Iraq CG [2008] UKAIT 00023.
152. There is a wider definition given to protection to persons fleeing armed conflict or endemic violence in the Temporary Protection Directive of 2001 (Council Directive 2001/55/EC of 20 July 2001 on Minimum Standards for Giving Temporary Protection in the Event of a Mass Influx of Displaced Persons on Measures Promoting a Balance of Efforts between Member States in Receiving Such Persons and Bearing the Consequences thereof [2001] IJ L212/12). Art. 2(c) of this Directive protects persons: 'who have had to leave their country or region or origin or have been evacuated...and are unable to return in safe and durable conditions because of the situation prevailing in that country, who may fall within the scope of A 1A of the Geneva Convention or other international or national instruments giving international protection, in particular: (i) persons who have fled areas of armed conflict or endemic violence; (ii) persons at serious risk of, or who been the victims of, systematic or generalised violations of their human rights'.
153. Fadli [2001] 02 LSGaz R40,CA
154. Theodor Meron, Human Rights in Internal Strife (1987).
155. The UNHCR Statement on Subsidiary protection under the EC Qualification Directive for people threatened by indiscriminate violence, Jan. 2008, although not specifically advocating an IHL reading of the term 'indiscriminate violence' contains reasoning at 6, which supports such a reading. There it is stated: 'It would be incongruent if persons facing risk of violation of norms sanctioned by international criminal liability would be unable to claim protection from return to situations where such risk occurs'.
156. See, S. 60, para. 1, of the new Law on the Residence of Foreigners, (2004) I German Federal Law Gazette (BGBI), 1950;
157. cited in Klug, above n. 4, n. 41.
158. McAdam (2), above n. 4, 70.
159. For UK consideration of the draft directive, see, House of Lords Select Committee on the European Union, 'Defining Refugee Status and those in need of international protection' (2002), 54,
160. and House of Commons Select Committee on European Scrutiny, Fourth Report of Session 2002-3, HMSO, 6 Jan. 2003 and June 2006 Public Consultation document, above n. 20.
161. See, 'Implementation of Council Directive 1004/83/EC', above n. 20.
162. Two good examples of where the Directive definitions virtually mirrored existing UK case law are: (i) past persecution, A4(4) which reads: 'The fact that an applicant has already been subject to persecution or serious harm or to direct threats of such persecution or such harm, is a serious indication of the applicant's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated.'
163. Compare Dermikaya [1999] Imm AR 498 (see now, Statement of changes to Immigration Rules, Cm6918, para. 339K).
164. (ii) de facto state entities, A6 stipulates that
165. 'Actors of persecution or serious harm include: The State; parties or organisations controlling the State or a substantial part of the territory of the State; non-State actors, if it can be demonstrated that the actors mentioned in (a) and (b), including international organisations, are unable or unwilling to provide protection against persecution or serious harm as defined in Art 7'.
166. Compare GH (Former KAZ Country conditions Effect) Iraq CG [2004] UKIAT 00248
167. [2005] Imm 707
168. see now, 'Protection Regulations' SI/2525, Reg 4.
169. There was also an assessment based on Home Office policy of considerations akin to subsidiary protection, but this was not cast in the form of legal criteria.
170. See, e.g., Cm 6918 paragraph 3391.
171. And, very occasionally, to Art. 1D - 1F of the Geneva Convention.
172. Except for the rare situation where immigration legislation has defined what parts of the Refugee Convention mean: See, e.g., s. 72 of the Nationality and Immigration Act 2002, which stipulates how Art. 33(2) of the Geneva Convention should be construed and applied; and s. 54 of the Asylum and Nationality Act 2006, in relation to Art. 1F(c).
173. R. v. Immigration Appeal Tribunal ex parte Jonah [1985] Imm AR 7 (QBD, Nolan J).
174. [2001] 1 AC 489, [2000] Imm AR 552.
175. [2004] INLR 222.
176. See, e.g., GH (Former KAZ-Country conditions-Effect) Iraq GG [2004] UKIAT 00248 [2005] Imm AR 707.
177. For the Home Office explanation of why, see, the June 2006 Consultation Paper, above n.20, 5.13 (dealing with internal relocation) and 5.1-5.15 (dealing with sur place claims).
178. Januzi [2006] UKHL 5.
179. Januzi [2006] UKHL 5
180. see also, AH (Sudan) [2007] UKHL 49.
181. Kacaj* [2001] INLR 354.
182. [2005] UKHL 38, [2005] INLR 422, HL.
183. Of course, if Art. 8 or any other right other than Arts. 2 or 3 or that contained in the 6th and 13th Protocols is relied on, there would normally have to be a decision on that aspect of the human rights claim in any event.
184. McAdam (1), above n. 4, at 465.
185. V. Chetail, 'The Implementation of the Qualification Directive in France' in K. Zwaan (ed.), above n. 4, 89.
186. A17(1)(b) states that a third country national or a stateless person is excluded from being eligible for subsidiary protection where there are serious reasons for considering that 'he or she has committed a serious crime'.
187. See, Lois modifiant la loi du 15 decembre 1980 sur l'access au territoire, le sejour, l'établissement et l'eloignement des étrangers (15 Sept. 2006) new art. 48/4(2)(c).
188. Law on the Legal Status of Aliens (29 Apr. 2004) No IX-2206 (Official Gazette No 73-2539, 3 Apr. 2004) art. 87.
189. G. Noll, 'The Qualification Directive and its Transposition into Swedish Law' in K. Zwaan (ed.), above n. 4, 82-3.
190. For a critique, see, R. Bank, 'Transposition of the Qualification Directive in Germany' in K. Zwaan (ed.), above n. 4, 121.
191. This is the position taken by the French Commission des recours des refugies in CRR, 22 Nov. 2005, 538807, A. Ahmed (cited by V. Chetail, above n. 133, 93).
192. See, 2007 (UM 23-06).
193. Nov. 2007 UNHCR Study, 13.
194. Nov. 2007 UNHCR Study.
195. See also, M. Sperl, 'Fortress Europe and the Iraqi "intruders": Iraqi asylum-seekers and the EU, 2003-2007',
196. UNHCR, 'New Issues in Refugee Research', Research Paper No. 144, Oct. 2007.
197. Nov. 2007 UNHCR Study, 10.