Penalising Refugees: when should the CJEU have jurisdiction to interpret Article 31 of the Refugee Convention?

Yewa Holiday

PhD Candidate at Queen Mary, University of London researching Article 31 of the Refugee Convention and prosecutions of asylum seekers and refugees in the UK.

The CJEU has held in  Qurbani (Case -481/13) that it does not have jurisdiction in relation to the interpretation of Article 31 of the 1951 Refugee Convention and its 1967 Protocol.  Article 31(1) states that refugees (which includes asylum seekers) must not be penalised by states which have ratified the Refugee Convention for entry or presence without authorisation if they ‘present themselves without delay to the authorities and show good cause for their illegal entry or presence.’ The article also requires that the refugee comes ‘directly’ from a country where his life or freedom was threatened in the sense of Article 1 of the Refugee Convention.[1] This cautious conclusion arose from the request by the Bamberg Higher Regional Court, Germany of a preliminary ruling under Article 267 TFEU in relation to criminal proceedings against Mr Mohammed Ferooz Qurbani for forgery of documents, illegal entry, unauthorised stay and unauthorised stay without a passport. It is arguable that Qurbani is a missed opportunity to address the questions raised by the Bamberg Higher Regional Court which demonstrate the importance and continuing relevance of Article 31(1) protection for asylum seekers and refugees.

Mr Qurbani is an asylum seeker from Afghanistan. He had used the services of a ‘human trafficker’ to travel through Iran and Turkey to Greece. He then flew on 17 August 2010, using a false Pakistani passport which he obtained from another ‘human trafficker’, to Munich where he was arrested when he presented the false passport. Mr Qurbani immediately claimed asylum (the application remains outstanding).  On 11 April 2011, the Warzburg Public Prosecution Service applied to the Local Court for a penal order against Mr Qurbani in relation to the above offences. The order was challenged by Mr Qurbani.  On 4 February 2013, the Local Court acquitted him of all charges and noted that the right of asylum, contained in the German constitution, prevented Mr Qurbani being convicted of unauthorised stay and unauthorised stay without a passport; and the exemption from penalties provided for in Article 31 of the Refugee Convention applied to the offences of unauthorised entry and forgery of documents. The Public Prosecution Service appealed on a point of law to the Bamberg Higher Regional Court arguing that Article 31(1) was not applicable because Mr Qurbani had not entered Germany from a state of persecution but had passed through another member state, namely Greece. It was also argued that Article 31(1) concerns only unauthorised entry and could not therefore deprive the German authorities of the possibility of punishing offences connected to that entry. The Higher Regional Court stayed the proceedings and referred three questions to the CJEU for a preliminary ruling. Firstly, the Bamberg Court wanted to know whether the suspension of penalties in Article 31(1) included offences which were additional to illegal entry, such as the forgery of a passport when the forged passport was not necessary to apply for asylum in Germany. The second question was whether the use of human traffickers precluded reliance on Article 31(1). The final question was whether the factual requirement in Article 31(1) of coming ‘directly’ from a territory where the life or freedom of the person concerned was threatened, was to be interpreted as meaning that that element was satisfied if the person concerned first entered another Member State (in this case, Greece) from where he continued to another Member State (Germany) in which he sought asylum.

Article 31 does not find a direct counterpart anywhere in EU legislation. Article 14(4) and (5) of the 2004 EU Qualification Directive provides for situations where member States might revoke or decline to grant refugee status, such as if there are ‘reasonable grounds’ that the person is a danger to national security, and Article 14(6) provides that such persons are nevertheless entitled to the rights set out in the Refugee Convention, including Article 31. The CJEU also considered the relevant German law (paragraph 267(1) of the Criminal Code). The CJEU noted that there was no clause conferring jurisdiction on it by the Refugee Convention and the CJEU could only interpret Article 31 if this was covered by Article 267 TEU. However, the CJEU (citing TNT Express Nederland, paras. 58 and 59) could only provide interpretations by way of preliminary ruling if the law or rules were part of EU law. While international agreements concluded by the EU were thereby part of the EU legal order and could therefore be the subject of a preliminary ruling, the CJEU did not have jurisdiction to interpret, in preliminary ruling proceedings, international agreements concluded between member states and non member countries. The CJEU would only have jurisdiction to interpret such a convention where the EU had assumed the power previously exercised by the member states in the field in which the international agreement was concluded and therefore provisions of the convention would bind the EU. Although EU legislation had been adopted in the field to which the Refugee Convention applied as part of the implementation of a Common European Asylum System, member states had retained certain powers within this field, specifically, in relation to Article 31. The court therefore did not have jurisdiction to interpret Article 31 notwithstanding Article 78 TFEU and Article 18 of the Charter of Fundamental Rights of the European Union. The CJEU noted that while it accepted it had jurisdiction to interpret the provisions of the Refugee Convention to which EU law made reference (referring to Bolbol (C-31/09 EU:C:2010:351); and Abed El Karem El Kott and Others (C-364/11, EU:C:2012:826)), no reference to any rule of EU law had been made in Mr Qurbani’s case and his case did not raise any issue under Article 14 of the 2004 EU Qualifications Directive.  

Comment

It is disappointing that the court concluded that it did not have jurisdiction in relation to Article 31 in this case.  The CJEU recognised that it might have jurisdiction in a future case in relation to Article 31, for example, if issues were raised relating to article 14 of the 2004 EU Qualifications Directive. The second-phase reception condition Directive and the Dublin III Regulation both mention Article 31 of the Convention in their preambles. This is in the context of the detention of asylum-seekers which relates to Article 31(2) rather than Article 31(1). This suggests that Article 31 could also be interpreted by the CJEU in this context. However, it can be argued that Qurbani did have jurisdiction. Article 3a of the Schengen Border Code (in force 19 July 2013) refers to compliance with the Refugee Convention generally. Article 3 of the same Code applies to any person crossing an internal or external border of a state ‘without prejudice to:…(b) the rights of refugees and persons requesting international protection, in particular as regards non-refoulement.’  Article 5 refers to the requirement of valid documents and visas for third country nationals. Article 7 refers to the falsification of travel documents.  Article 4(3) refers to the imposition of penalties for the unauthorised crossing of external borders (although it adds ‘at places other than border crossing points or at times other than the fixed opening hours’).  It would seem to be at least implicit that Article 31 of the Refugee Convention would be relevant to the obligation in the Code to impose penalties for crossing the borders without authorisation.

The questions raised by the German court remain unanswered by the CJEU but I have provided some provisional answers below.  

Is Article 31(1) of the Refugee Convention applicable to the forgery of documents which take place when a forged passport is presented to a police officer on entry to Germany by air, when the forged passport is not necessary to apply for asylum?

It is not necessary to present a passport, forged or otherwise, to claim asylum. However, claiming asylum would be impossible for many if they did not have recourse to false documents. This was recognised in the 1949 UN Study on Statelessness and a 1950 Memorandum by the UN Secretary-General which both stated that refugees fleeing from their country were rarely in a position to obtain and use (genuine) passports or obtain visas into the country of refuge. The Secretary-General’s draft convention therefore contained the novel Article 24(2) which corresponded to what later became Article 31(1). Illegal entry includes the use of false or falsified documents while illegal presence includes, as noted by Goodwin-Gill, ‘the use of other methods of deception, clandestine entry (for example, as a stowaway), and entry into State territory with the assistance of smugglers or traffickers’. In the UK, it was accepted in Adimi, and subsequent cases such as Mateta, that the exemption from penalties in Article 31(1) applied to the use of false passports. Similarly, in Asfaw, the then House of Lords recognised that an offence of attempting to obtain services by deception (that is, when transiting the UK, trying to get on a plane to claim asylum elsewhere) was caught by Article 31(1) of the Refugee Convention. Article 31 is applicable to Mr Qurbani’s presentation of the forged passport at Munich airport (as indeed it would be to all the offences with which he was charged).

Does the use of human traffickers preclude reliance on Article 31 of the Refugee Convention?

The use of false passports and travelling without a passport are inextricably linked with the use of smugglers and traffickers. The use of the term human traffickers by the German court is interesting. In the UK, the language used by the courts is usually ‘agent’. In reality, the term trafficker or smuggler is probably more appropriate. In some UK cases, the facts appear to raise issues that the asylum seeker has been trafficked (for example, Sadighpour) but it is rare for this to be raised in the court. In other cases (for example, Mateta), the refugee is under the control of an agent who decides on the route, the means of travel, when and where the person will stay and the country of asylum. Refugees do not usually have a choice in how they flee. To decide that refugees cannot rely on the prohibition in Article 31 if they rely on traffickers would therefore render Article 31 useless as a form of protection for asylum seekers and refugees.

Can a person who enters a first member State (Greece) but then goes on to apply for asylum in a second member state (Germany) come within the phrase coming ‘directly’ from a territory where the life or freedom of the person concerned was threatened in Article 31 of the Refugee Convention?

The short answer to the final question is ‘Yes!’ In considering a stay or transit in an intermediate country, what must be assessed is whether the asylum seeker or refugee is able to obtain protection there. The Conference of Plenipotentiaries which negotiated the Refugee Convention was particularly concerned with the subsequent movement of refugees after they had reached safety. However, this cannot be interpreted to mean that a refugee cannot move on subsequently if in fact he or she does not obtain protection in the country of first or subsequent stay. Mr Qurbani travelled via Iran and Turkey before reaching Greece. Iran has ratified the Refugee Convention. However, there are barriers to obtaining (and retaining) refugee status in Iran for Afghani asylum seekers. For example, Human Rights Watch has described in a 2013 report how it is ‘virtually impossible’ for newly arrived Afghan asylum seekers to lodge asylum claims in Iran. In any case, if Mr Qurbani was in transit under the control of an agent or trafficker, he would not have been in a position to claim asylum. Turkey has also ratified the Refugee Convention but it has limited its application to refugees coming from Europe. It has traditionally had a temporary protection refugee regime for non-European refugees, such as Afghanis, which runs parallel to UNHCR procedures. In April 2013, Turkey enacted a Law on Foreigners and International Protection. However, this maintains the geographical limitation. In relation to Greece, the CJEU, in NS & Others, held that EU Member States cannot return asylum seekers to countries, such as Greece, where they would be at risk of ill-treatment contrary to Article 3 of the ECHR. The ECrtHR, in MSS v Belgium and Greece held there to be deficiencies in the Greek examination of the applicant’s asylum claim and a consequent risk that he would be returned directly or indirectly to his country of origin; and the applicant was exposed to conditions of detention and living conditions which violated Article 3 of the ECHR. It would therefore appear that a country such as Greece cannot be said to be a place where an asylum seeker may obtain protection from persecution such as would preclude reliance on Article 31. This argument was accepted in cases such as Mateta and Jaddi. In Norway, following a judgment of the Norwegian Supreme Court (see also ECRE) on 24 June 2014, new guidelines exempt from prosecution refugees who have made necessary stops in other safe countries before reaching Norway. Previously, Norwegian police interpreted this as exempting from prosecution only those asylum seekers who had not passed through any other ‘safe country’ during transit.

            Prosecutions of asylum seekers and refugees occur in the UK, Germany and Norway (with local differences). There may be prosecutions in other countries. What Qurbani highlights is the restrictive interpretation being placed on Article 31(1) by European governments and the continuing relevance of Article 31(1).

Barnard & Peers: chapter 26

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[1] At the time it was drafted, this reference to Article 1 meant that it applied only to events occurring before 1 January 1951. The ‘coming directly’ phrase was inserted at the request of the French at a late stage because France was concerned that Article 31 would apply to others who had no connection with the events occurring before January 1951. It is debatable how relevant the phrase is after the coming into force of the 1967 Protocol which has removed this temporal limitation.