By Pieter Boeles, visiting professor
migration law, VU University Amsterdam, emeritus professor University Leiden
Introduction
The absolute
character of the principle of non-refoulement – the ban on removal to an unsafe
country – is widely acknowledged. Still, there is confusion and insecurity on
this point with regard to the Qualification Directive, which defines how to
determine if someone enjoys refugee or subsidiary protection status within the
EU. On 14 July 2016, a Czech Court (the Nejvyšší správní soud) asked
the Court of Justice EU whether Article 14(4) of the EU Qualification
Directive, allowing for revoking, ending or refusing to renew refugee
status for reasons of criminal behaviour or a security risk, is invalid in the
light of the principle of non-refoulement (Case C-391/16). In its explanation,
the Czech Court points out that ‘the binding nature of the prohibition on the
return of persons in contravention of the principle of non-refoulement forms
part of the obligation not to subject anyone to torture or inhumane or
degrading treatment or punishment under Article 3 ECHR and Article 4 and
Article 19(2) of the Charter, and it applies whenever there is a real risk of
such treatment occurring as a result of forced deportation or extradition’.
The question of the
Czech court is important. In my view, a well-reasoned answer can only be given
if the ambivalent structure of the Qualification Directive on this point is
acknowledged and addressed. In this
comment I will try to analyse the problems to be solved.
One sole principle of non-refoulement in EU law
Basically, the dogmatic
point of departure is simple: the EU principle of non-refoulement is anchored
in Article 19(2) of the Charter
of Fundamental Rights of the EU, which contains a prohibition to remove, expel
or extradite any person to a State where there is a serious risk that he or she
would be subjected to the death penalty, torture or other inhuman or degrading
treatment or punishment. The Charter should govern the uniform interpretation
of the principle of non-refoulement in Union law, both in the Treaties and in
secondary legislation (like the Returns
Directive and the Qualification Directive). As the prohibition of
refoulement is absolute in the ECHR, it should
universally be interpreted to be absolute regardless of the legal context of EU
law in which it appears. Article 19(2) of the Charter corresponds to Article 3
ECHR, and so must be interpreted the same way (Article 52(3) of the Charter). See
the ECtHR ruling in Chahal,
and more case law in Kees Wouters, International
Legal Standards for the Protection from Refoulement, Intersentia, 2009,
p. 307 – 314. The Court of Justice has recognized the absolute nature of the
rule in its judgment in Aranyosi
(paras 85-87).
Article 19(2)
Charter, derived from Article 2 and 3 ECHR, is not only relevant for persons with
subsidiary protection but equally for refugees. Refugees are protected against
a danger, formulated (in Article 1.A of the Refugee Convention, as well as
the EU Qualification Directive) as persecution on grounds of race, religion,
nationality, political opinion or membership of a particular social group. The
persecution feared must be of a certain level of severity, which will normally coincide
with death penalty, torture or other inhuman or degrading treatment or
punishment. Under the uniform meaning of non-refoulement in Article 19(2) of
the Charter, absolute protection against refoulement must be granted on an
equal basis to both refugees and subsidiary protected persons. As the principle
of non-refoulement is a prevailing general principle of EU law in the sense of
Article 6 TEU, secured by the Charter, it follows that the Qualification
Directive grants stronger protection to refugees than the Refugee Convention alone
does. This is also what the Czech court
asserts.
The stronger
protection does not undermine any of the rights for refugees granted in the Refugee
Convention. But it may mean that non-refoulement
has a wider meaning for refugees within the scope of EU law. Although the
wording of Article 14(4) of the Qualification Directive matches the exception
to the non-refoulement rule in the Refugee Convention, the Charter sets a
higher standard for non-refoulement (as confirmed by reference to Chahal).
This is not
unequivocally visible in the text of the Qualification Directive The seminal Article 21(1) of the Directive,
which deals with non-refoulement directly, does not say straightforwardly that
Member States shall respect ‘the absolute principle of non-refoulement’, or ‘the
principle of non-refoulement in accordance with Article 19(2) the Charter of
Fundamental Rights’. True, the present text of the first paragraph of this
article, stating that Member States shall respect the principle of
non-refoulement ‘in accordance with their international obligations’, can be
interpreted that way, especially because the ‘international obligations’ must
be deemed to include those under Article 2 and 3 ECHR. But if that is the
correct interpretation, it is difficult to understand what the reasonable
meaning can be of the second paragraph of Article 21, stating that refoulement
of a refugee is nevertheless allowed in some cases, ‘where not prohibited by
the international obligations’. In suggesting that refoulement would nevertheless
be allowed under certain conditions, Article 21(2) Qualification Directive is
confusing. Obviously, Article 21(2), like Article 14(4) of the Directive, implicitly
refers to the exception to the non-refoulement rule set out in Article 33(2) of
the Refugee Convention, as it is phrased nearly identically. Article 21 thus begs the question what must
be considered to be the prevailing norm
informing the ‘principle of non-refoulement’. The absolute norm of Article
19(2) in the Charter - or the non-absolute norm of the Refugee Convention?
I cannot help
suspecting that the Court of Justice was captured in this confusion, when earlier
answering the questions asked in the case of H.T. (C-373/13), discussed here.
The Court of Justice described the system of Article 21 Qualification Directive
in paragraphs 41 – 44 of that judgment. In that description any explicit referral
to the absolute character of the principle of non-refoulement is lacking.
Strictly, the Court says nothing wrong, stating in paragraph 42 that Article
21(2) Qualification Directive, ‘whose wording essentially repeats that of
Article 33(2) of the Geneva [Refugee] Convention, nevertheless provides for a
derogation from that principle, allowing Member States the discretion to
refoule a refugee where it is not prohibited by those international obligations
(…)’.
It may be
telling that the Court notes in para 65 that the principle of non-refoulement
is guaranteed as a fundamental right by Articles 18 and 19(2) of the Charter of
Fundamental Rights of the European Union. But the Court does not elaborate on
that. Then again, I do not understand the extensive attention drawn to the
alleged leeway granted by Article 21(2) of the Directive. Why suggest that
there can be meaningful room for refoulement at all? Why make mention of ‘Member
States, enjoying the discretion whether or not to refoule a refugee’ in
paragraph 43? Why talk of a ‘derogation’ in paragraphs 42, 55, from this
non-derogable principle? Why state in paragraph 72, that the consequences of
applying Article 21(2) may be “very drastic” because the refugee ‘might be
returned to a country where he is at risk’? Why keep secret that the whole
exercise of explaining Article 21(2) is essentially futile because of the
absolute character of the principle at stake?
Crucial impact of the case
The answer of
the Court of Justice to the Czech court’s questions will be crucial for the
future development of EU law. If the absolute character of the principle of
non-refoulement is not clearly upheld now, we might be witnessing a gradual
process of interpreting away the absolute character of non-refoulement. The
first step could be, to frame the refugee status in the Directive as the
primary status. The protection granted by Article 3 ECHR could then be
downgraded as subsidiary and less important and only to be used as a safety net
for persons who are not eligible for the first class protection. In such a
construction, it could be argued that the international obligations referred to
in Article 21 Qualification Directive are essentially obligations under Article
33 of the Refugee Convention. This would
grant Member States room for refoulement of refugees under Article 21(2) of the
Directive in cases of criminal behaviour or security risks. Then, if the ‘primary’ status would not be
deemed connected to an absolute protection of non-refoulement, it could be considered
weird to grant any better protection to the ‘lesser’ status.
On the other
hand, such a downgrading process may less easily develop if the importance of
Article 19(2) of the Charter in this respect is acknowledged. In that respect,
it is striking that the referral to the principle of non-refoulement in point 3
of the preamble of the Qualification Directive is solely linked to the Refugee
Convention and not to Article 19(2) Charter. It is further conspicuous that
point 16 of the Preamble mentions a whole range of relevant Charter provisions except
for precisely Article 19(2).
Complications: status, residence permit, expulsion
The discussion
on this topic is complicated by a number of circumstances. First, refoulement
only refers to deportation to the country where the person is in danger.
Non-refoulement as such does not stand in the way of expulsion to other
countries (as can be seen in Article 32 of the Refugee Convention allowing a
limited possibility of removals to other countries, even if a refugee is ‘lawfully
in [the] territory’). Further, the protection granted by the Qualification
Directive takes the form of issuing statuses and residence permits, among other
things, to protected persons. What
follows from this? Status and residence permit are two different things, as can
be seen in Article 24 Qualification Directive. Revoking a residence permit
cannot lead to the revocation of the refugee status (H.T. judgment, para. 74). Neither will the status of subsidiary
protection be affected by revocation of the residence permit. What does the
distinction between status and residence permit mean? And what is the
relationship between a status and the obligation of non-refoulement?
Status
Principally, a
status is recognition. Under Article 2(e) Qualification Directive, ‘refugee status’
means the recognition by a Member State of a third-country national or a
stateless person as a refugee, and under Article 2(g) ‘subsidiary protection
status’ means the recognition by a Member State of a third-country national or
a stateless person as a person eligible for subsidiary protection. As a status is equated with recognition, a
status can only be terminated together with the recognition. The status intrinsically
comprises recognition of the existence of an obligation of non-refoulement with
respect to the person concerned.
(When I use the
term ‘recognised refugee’ I am only dealing here with recognised refugees under
the Qualification Directive. A recognised refugee under the Qualification
Directive is in a different position from a person who is not recognised but
who might still be a refugee under the Convention of 1951. It is the
recognition under the Qualification Directive which puts beyond doubt that an
the absolute EU principle of non-refoulement is applicable to the refugee as
well).
Now, if a ‘status’
should be equated with ‘recognition’ of the danger threatening the person
involved, it would be an anomaly to revoke a status in cases where the danger continues
to exist, just because of criminal behaviour. That would amount to an arbitrary
refusal to acknowledge the real and continuing risk against which the person
seeks protection. More or less like revoking the medical acknowledgement of
pregnancy of a woman because she stole a book, not because the pregnancy was
over. However, under the Qualification Directive, termination of a status is
made possible in cases where it is not established that an absolute prohibition
of refoulement is no longer applicable to the person concerned. This is
especially so with refugees. On the same grounds as set out in Article 21(2), but
without the proviso of the ‘international obligations’ override, Article 14(4)
Qualification Directive allows for revoking, ending or refusing to renew a refugee
status.
The wordings of
Article 14(4) obviously refer to Article 33(2) Refugee Convention which also
inspired the creation of a possibility of ‘refoulement’ under Article 21(2). In
the beginning of my exploration, I stated that a correct interpretation of
Article 21(1) compels non-application of the second (and consequently the
third) paragraph. So, if the second and third paragraphs of Article 21 should
be declared ‘dead letters’, is there still room for applying Article 14(4)?
The answer may
depend on how consistency of the system of the Directive is valued. It is
strange to refuse or terminate a status on grounds that have nothing to do with
the danger against which the status is meant to offer protection. But, as long
as there is no refoulement, the refusal or termination of the refugee status as
cannot violate the principle of non-refoulement.
Residence permit
In the H.T. judgment, para. 95, it is claimed
that, even without his residence permit, the person concerned remains a refugee
and as such remains entitled to the benefits guaranteed by Chapter VII of
the Qualification Directive to every refugee, including protection from
refoulement, maintenance of family unity, the right to travel documents, access
to employment, education, social welfare, healthcare and accommodation, freedom
of movement within the Member State and access to integration facilities. The
same must be true for a person with the status of subsidiary protection
(Article 20(2)).
However I have
some difficulties with this passage. A number of rights mentioned in Chapter
VII – like travel documents for travelling abroad, freedom of movement within
the territory of the host state, access to employment - would, under the Refugee Convention only be
granted to ‘lawfully’ present refugees. I doubt it whether the Court took this aspect
fully into account. In Chapter VII no clear distinction has been made between
the rights correlating to the ‘status’ alone and rights specifically connected
to ‘lawful residence’.
I am therefore
not convinced that para. 95 of the H.T.
judgment is tenable. Is it really true that a ‘status’ alone already implies
lawful presence? Is it not rather so, that a ‘status’ differs from a ‘residence
permit’ precisely because a ‘status’ does not in itself regulate a right to
lawful presence on the territory?
Whatever the right
answer to that question is, even if we fully accept para. 95 of the H.T. judgment, a ‘status‘ only protects
against refoulement, not against any form of expulsion to a safe country. That
is why the residence permit offers more security. As long as a residence permit
is granted to a status holder, the Member State guarantees not only
non-refoulement to the country of origin but also non-expulsion to any other
country and a full right to inclusion in society. This applies both to refugees
and to subsidiary protected persons. With a residence permit the legal position
of the person may become stronger through time and eventually lead to a permanent
status or to nationality of the host state.
The principle of
non-refoulement is, at least in abstracto, reconcilable with revoking,
non-extending or refusing a residence permit.
Under Article 24 Qualification Directive, as explained in the H.T. judgment, a non-renewal or
revocation of a residence permit is possible both for a refugee and for a
subsidiary protected person in case of compelling reasons of national security
or public order, while the status remains unaffected. So, measures to protect
public order and public security may take the form of terminating or refusing a
residence permit, but they may, according to what I said above never lead to
refoulement as long as it is prohibited under Article 19(2) Charter.
Exclusion
A thorny issue
is how the concept of exclusion (as distinct from revocation of refugee status,
and/or a residence permit) must be positioned under an absolute norm of non-refoulement.
The exclusion
clauses of the Refugee Convention are transposed in Article 12 of the
Qualification Directive. Further, in Article 17 of the Directive, the concept
of exclusion is also applied to persons with subsidiary protection – a novelty.
According to the wording of the Directive, exclusion may mean something
different for refugees compared to subsidiary protected persons. In Article 12,
a third-country national or a stateless person is excluded from being a refugee. Thus, an excluded person ‘is’ not a
refugee. He is excluded from the
definition. In the wording of the Court of Justice in B
and D (paras 89, 91, 98, 100, 104 and 106), the person is excluded from
refugee status. In contrast, under Article 17, a third-country national or a
stateless person is excluded from being eligible for subsidiary protection.
Here, the person is excluded from the ’eligibility’ to be protected, which may
not be exactly the same as a status. However, for reasons of consistency with
the language of the B. and D.
judgment, it is perhaps preferable to see Article 17 as dealing with exclusion
of the status of subsidiary protection, just like Article 12 is about exclusion
from the status of refugee.
Anyhow, regardless
of the potential differences between the two provisions, their common effect is
that they prevent or undo the creation of a legal moment in which it must be
assessed under the Qualification Directive whether the person concerned is in a
situation where refoulement is prohibited, either because of well-founded fear
for persecution or because of a real risk for life or of torture, inhuman or
degrading treatment or punishment. Of course, non-assessment of a risk does not
mean that it does not exist. Therefore, exclusion under the Qualification
Directive leaves open that the principle of non-refoulement may still apply to
excluded persons. Under Article 5 of the Returns Directive they still are
protected against refoulement. So, it is not a priori allowed to send excluded persons back to their countries.
Above, I stated
that the status embodies a recognition of an obligation of non-refoulement with
regard to the person concerned. Accordingly, an exclusion from a status is
equivalent to exclusion from recognition of an obligation of non-refoulement. As
a consequence, there is no right to a residence permit either.
In fact,
excluded persons are thrown out of the field of application of the
Qualification Directive and are referred to the Returns Directive for further
protection against refoulement. In accordance with the Abdida judgment, Court of Justice 18 December 2014, C-562/13, para
50 (discussed here),
they must be able to avail themselves, in such circumstances, of a remedy with
suspensive effect, in order to ensure that the return decision is not enforced
before a competent authority has had the opportunity to examine an objection
alleging infringement of the principle of non-refoulement laid down in
Article 5 Returns Directive and Article 19(2) of the Charter.
Conclusions
In spite of its
confusing content, Article 21 Qualification Directive is not invalid because it
can be interpreted in accordance with the absolute prohibition of refoulement
thanks to the words ‘in accordance with their international obligations’ in the first section. The effect of the
correct interpretation is that refoulement of refugees is not allowed even in
the cases formulated in paragraph 2. Consequently, neither the third paragraph
of Article 21, dealing with revoking, ending or refusing to renew or to grant
the residence permit of (or to) a refugee to whom paragraph 2 applies, can ever
be applied. Correctly interpreted, the second and third paragraph of Article 21
must be regarded dead letters.
It is difficult
to conclude what the ‘dead letter’ position of Article 21(2)(3) means for the
validity of Article 14(4) which was based on the same Article 33(2) Refugee
Convention. At any rate, Article 14(4) is not invalid for violating the
absolute prohibition of refoulement as long as Article 21(2) is not applied.
Still, there is something anomalous about Article 14(4). It compels Member
States (‘shall’) to refuse or terminate a refugee status in cases where there
is still an obligation to acknowledge the absolute prohibition of refoulement. If
it would be accepted that a ‘status’ is equivalent to ‘recognition’, the
‘status’ should be maintained, also for persons committing crimes, as long as
the ‘recognition’ has solid ground.
In answering the
questions of the Czech Court, the Court of Justice may also have to clarify (as
it did in Abdida) how the protection against refoulement is divided between the
Qualification Directive and the Returns Directive. Exclusion in the sense of
Articles 12 and 17 of the Qualification Directive has the effect of throwing
the applicants out of the protection system of the Qualification Directive and
leaving their protection against refoulement to the Returns Directive, which
entitles them to a remedy with suspensive effect for the examination of a claim
of non-refoulement.
Barnard &
Peers: chapter 9, chapter 26
JHA4: chapter I:5
Photo credit:
Bryan Denton, New York Times
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