Integration as Exclusion: The Keren Case Revisited

 

Dr Sarah Ganty, LL.M. (Yale), Ph.D. (ULB); J.S.D. candidate, Yale Law School; F.N.R.S. Postdoctoral Fellow, UCLouvain; Research Visitor, Bonavero Institute of Human Rights (Oxford); Research Fellow, CEU Democracy Institute (Budapest); President of the YLS European Law Association

Photo: Raad van State (the referring court), via Wikimedia Commons

 

Last February, the Grand Chamber of the Court of Justice of the European Union (CJEU) delivered its ruling in the Keren case. The Court upheld the possibility for Member States (MSs) to impose civic integration examinations on the beneficiaries of international protection but introduced important limitations regarding the modalities, costs and sanctions attached to such requirements. Many EU migration lawyers and scholars on social media welcomed the judgment. By placing some constraints on the design and implementation of integration tests, the Court curbed what had become genuinely abusive and exclusionary practices towards the beneficiaries of international protection.

 

Yet the broad endorsement of the Keren ruling among legal practitioners and scholars reflects a deeper and more troubling trend: the growing normalisation and depoliticisation of integration requirements imposed on third-country nationals. In Keren the Court effectively reconciled what appeared irreconcilable – construing the right to access of integration programmes under Article 34 of the Qualification Directive as potentially entailing integration obligations. Such a reading would likely have provoked significant concern thirty years ago, when civic integration tests were still regarded as peripheral or ideologically motivated proposals originating from the political fringes. Today, however, these measures have become entrenched and largely uncontroversial features of EU migration governance. Their underlying normative, legal, human and social implications are rarely scrutinised. Only their modalities are. Crucially, this shift has occurred in the absence of compelling evidence to support the efficacy or necessity of such obligations. On the contrary, research increasingly indicates that integration requirements – regardless their modalities – besides being ineffective, tend to discriminate and exclude, rather than include or empower, those subject to them.

 

Following a brief contextual overview of the evolution of integration requirements within the EU (Section 1), this commentary sets out the factual and legal background of the case, summarising the Opinion of Advocate General (AG) Medina and the reasoning of the Grand Chamber (Section 2). It then argues that the Court largely reiterates the principles previously articulated in its case law on civic integration duties, including under the framework of EU migration law and the EU–Turkey Association Agreement (Section 3). While this continuity may appear doctrinally consistent, I contend that Keren merited a different outcome irrespective of the newly adopted 2024 Qualification Regulation, which was not applicable to the case (Section 4). In particular, Article 34 of the Qualification Directive should have been interpreted more protectively to reject the imposition of integration obligations and examinations altogether. This is particularly significant in light of the increasing instrumentalisation of integration requirements as mechanisms of exclusion – tools deployed to target those who, in Bauman’s terms, are rendered ‘strangers’ by a legal and political order that marks them as insufficiently aligned with the dominant cultural and social norms (Section 5).

 

1.      The Civic Turn: Context

 

Over the past twenty years, integration obligations have become increasingly prevalent across EU Member States (see here and here), frequently functioning as preconditions for access to legal status and social rights. Their proliferation is commonly framed in the literature as indicative of a broader civic – or even ideological – turn in European migration governance.

 

Although integration has long been addressed at the European level through soft law instruments, the EU’s competence in migrant’s integration remains limited by the Treaty on the Functioning of the EU (TFEU) (Article 79(4)). Nevertheless, the concept has found its way into EU secondary legislation through the EU’s immigration policies. Since the early 2000s, integration has featured in instruments, such as the Family Reunification Directive and the Long-Term Residence Directive. These instruments reflect an ongoing tension between two competing models: integration through rights versus integration through duties.

 

While the original proposals for both directives reflected a rights-based logic – conceiving secure residence as a means to facilitate integration – this approach was increasingly contested by certain MSs, notably Austria, Germany and the Netherlands (see e.g., here). These states had already implemented integration tests at various stages of the migration legal journey and actively advocated for their incorporation into the EU legal framework. Consequently, the final versions of the directives permit MSs to condition access to family reunification and long-term resident status on compliance with integration requirements.

 

Simultaneously, national integration requirements began to multiply and extend beyond the scope of these directives. For instance, in countries such as Germany, the Netherlands and Denmark, such obligations were applied in the context of the EU–Turkey Association Agreement (and the additional Protocol and decision of the Association Council) despite this regime traditionally falling outside the scope of EU immigration law.

 

With regard to the integration of the beneficiaries of international protection, the EU possesses broader legislative competence under Article 78 TFEU. Nonetheless, legislative activity in this area has remained relatively limited, with integration matters primarily addressed in Article 34 of the Qualification Directive, which affirms a right to access integration programmes. Until recently, EU law did not explicitly authorise MSs to impose integration obligations on the beneficiaries of international protection – unlike in the field of general migration directives. Despite this, several MSs, including the Netherlands, have introduced such requirements, notably through examinations, following the granting of protection status. It was in this context that a preliminary reference was submitted to the Court in Keren, essentially asking whether such integration requirements are compatible with Article 34 of the Qualification Directive and if so, under what conditions.

 

2.      The Keren case

 

Keren arose from the previous version of the Dutch Wet Inburgering, which mandates civic integration for non-temporary residents, including the beneficiaries of international protection. This requirement includes passing exams in language and societal knowledge within three years, subject to a limited extension. Failure results in financial penalties and a repayment obligation for state loans provided to support compliance. In casu T.G., an Eritrean national granted asylum in the Netherlands, failed to pass the relevant exams within the allotted timeframe and was fined EUR 500 and ordered to repay a EUR 10,000 loan. Even after being granted an exemption based on demonstrated effort, these penalties remained. The Dutch Council of State referred preliminary questions to the CJEU, asking whether such measures align with Article 34 of Directive 2011/95/EU (the Qualification Directive), which guarantees access to integration programmes for the beneficiaries of international protection.

 

AG Medina found that Article 34 of the Qualification Directive only grants a right of access to integration programmes – implying ‘positive measures enabling refugees to integrate’ (§47). For the AG, this provision did not impose a corresponding obligation on the beneficiaries of international protection to participate in integration measures. Drawing on the principle of shared competence in EU law, he found that MSs retain discretion to determine whether participation in such programmes should be compulsory (§42). The Directive likewise does not preclude national legislation requiring the beneficiaries of international protection to undergo a civic integration examination. Nevertheless, MSs may not require refugees to attain a specific pass mark in such examinations as a condition or proof of integration. Moreover, Article 34 of the Qualification Directive precludes national legislation that imposes on refugees the obligation to bear excessive costs for participation in integration programmes, or conditions participation on passing an integration examination under the threat of financial sanctions, such as the obligation to repay a loan or pay a fine.

 

The CJEU largely accepted the AG’s approach, albeit following a different train of thought. Relying on a contextual and teleological interpretation of Article 34 – which concerns access to rights, the importance of integration measures, the expectation of long-term residence and the potential pathway to naturalisation – the Court found that ‘MSs enjoy a margin of discretion in deciding on the content of the integration programmes referred to in that article, as well as on the practical arrangements for the organisation of those programmes and the obligations that may be imposed on participants in that context’ (§ 62, emphasis added). In this way the Court effectively conflates the irreconcilable: the right to integration and the obligation to integrate.

 

On this basis, and in line with the AG, the Court held that national legislation requiring participation in integration programmes and successful completion of related examinations is compatible with Article 34, provided it is proportionate (§66) and takes into account the individual circumstances of each person through an individualised assessment (§§67–68). Differing from the AG on several points, the Court found that MSs may require refugees to achieve a pass mark in integration examinations, but the required level must remain elementary and proportionate to the goal of promoting integration (§73). Moreover, while the imposition of a fine for failure to pass the exam is not precluded, such penalties must not be automatic or systematic. They must be exceptional and based on objective evidence of a persistent and demonstrated lack of willingness to integrate (§74). Crucially, the Court held that Article 34 prohibits requiring the beneficiaries of international protection to bear the full cost of compulsory integration measures. Such measures should in principle be free of charge. Only beneficiaries with sufficient financial means may be required to contribute, and any such contribution must be reasonable (§§82–83).

 

3.      Limits of the limits set by the Court

 

The CJEU has long grappled with the legality of integration conditions. In European Parliament v. Council, the Court cautiously upheld the permissibility of such measures under the Family Reunification Directive, while emphasising compliance with fundamental rights.

 

Later, integration obligations featured prominently in the case law related to the EU–Turkey Association Agreement. Without rejecting the principle of integration requirements or examinations, the Court has consistently struck down national measures imposing such conditions on Turkish workers and their family members. These measures were found to breach the respective standstill clauses, as they introduced new, disproportionate restrictions. For instance, the Court struck down Danish rules requiring minors to demonstrate ‘sufficient ties’ to Denmark in Caner Genc, or spouses to prove stronger attachment to Denmark than to their country of origin in A. The imposition of language tests on Turkish workers sponsoring spouses in X or on the spouses themselves in Dogan was also deemed unlawful. A key concern in most of these cases has been the absence of individualised assessments.

 

This proportionality logic also informs the Court’s interpretation of EU secondary legislation – most notably the Family Reunification Directive and the Long-Term Residence Directive – both of which expressly allow MSs to impose integration ‘conditions’  or ‘measures’  as prerequisites for residence permits or visas. In rulings like K and A, C and A and P and S, the Court recalled the principle that integration conditions must serve the objectives of the directives – facilitating family life and supporting long-term integration. Civic knowledge and language acquisition, the Court argued, promote communication, social cohesion and access to employment and education. Hence, the Court concluded in the three cases – without offering further reasoning – that the requirement to pass an examination constitutes an appropriate means of achieving these objectives. However, the Court has consistently attached important caveats. It held that authorities must consider the efforts made by applicants, even if they ultimately fail the exam. Likewise, the implementation of integration measures must remain proportionate, including the scrutiny of the level of knowledge required, the accessibility of preparatory materials, the cost of registration and the imposition of fines. The Court has also highlighted the need to consider individual circumstances, such as age, illiteracy or educational background.

 

The Keren ruling builds on this existing case law, applying these principles mutatis mutandis to the beneficiaries of international protection. On its face, Keren aligns with the Court’s established approach: it limits disproportionate administrative sanctions while upholding the legitimacy of the integration obligations and examinations within the framework of the Qualification Directive. The judgment might even appear commendable for pushing back against the more punitive dimensions of national integration regimes.

 

But two critical concerns remain.

 

4.      Transforming a Right into Obligations

 

The Keren judgment raises a fundamental concern absent from other integration-related cases: the Court’s interpretation of Article 34 of the Qualification Directive, which stands out for its unique legal and normative framing. This provision, entitled ‘Access to integration facilities’, requires MSs to ensure access to integration programmes for the beneficiaries of international protection, with due regard to their specific needs.

 

Both the AG and the Court acknowledged that Article 34 establishes a right to access integration facilities. Logically, this should preclude the imposition of integration obligations, as rights by definition imply personal autonomy ‘as (part) authorship of one's life’. However, both concluded through distinct routes that the provision does not prevent such obligations.

 

The AG’s justification – that shared competence allows MSs to legislate in the absence of EU action – fails to account for the fact that Article 34 already expresses an exercised competence. Once the EU legislates a right, MSs should in principle not dilute it by imposing additional burdens. According to the AG’s logic, any right in a shared competence field could be mirrored by a corresponding obligation at national level, inverting the purpose of rights and leading to absurd, even unjust outcomes which are only partially contained by the proportionality principle.

 

The Court’s reasoning, to the extent that it is discernible, also fails to persuade. While it invokes the margin of discretion afforded to MSs, it remains entirely silent on how the imposition of mandatory integration exams can be reconciled with a provision that enshrines a right to access integration programmes. The normative shift is further compounded by the Court’s unacknowledged alignment (almost point-by-point) with Article 35 of the new Qualification Regulation, which explicitly allows integration obligations under certain conditions and will apply from July 2026. From a Rule of Law perspective, this implicit application of the new Article 35, which was not applicable to the case (and would not before 2026) is deeply problematic. The new Article 35 was not meant to clarify the current Article 34, but to replace and restrict it. Treating them as interchangeable – and in a non-explicit way – disregards both their legal and normative distinction and their temporal application.

 

Even accepting the legitimacy of integration obligations, it is striking that the Court never addresses the central question: whether integration can be more effectively achieved through voluntary participation – a consideration that any genuine proportionality test should require, especially if the Directive does not provide for compulsory integration. Nor does it examine whether such obligations, particularly exams, actually contribute to integration. As a matter of fact, the clues in evidence rather argue against integration requirements. Studies have shown that integration tests are often ineffective, legally misconstrued, misapplied and counterproductive. They dilute the protection that non-citizens enjoy under human rights law. Yet the Court continues to treat integration obligations, especially examinations, as self-evidently valid. It endorses the rationale as inherently positive, depoliticising and naturalising deeply normative questions about belonging, equality, hierarchy and oppression. The Court simply draws on axiomatic assumptions.

 

5.      Racialised and Colonial Logics of (Civic) Integration

 

Integration policies – and civic integration in particular – have long been subject to critique extending well beyond the legal domain, for being rooted in a colonial, oppressive and stigmatising rationale. Willem Schinkel highlights how it is never applied to white citizens, revealing its racialised function. Saskia Bonjour points to the paradox of civic integration policies that demand assimilation while reinforcing exclusion, echoing colonial ‘civilizing missions’. Tamar de Waal has described integration tests as symbolic hierarchies that reinforce precarious belonging. Adrian Favell observes that post-imperial states have used integration as a way to reframe their civilisational missions in a world marked by diversity. Dora Kostakopoulou has also criticised such policies as mechanisms of discipline and control – promoting a narrow, idealised national identity to which migrants must conform. These duties often construct belonging as conditional on civic and moral ‘worthiness’, marginalising those who do not fit the model. This trend is deeply concerning, not only normatively but also empirically, given the lack of any empirical evidence –so dear to the EU Commission in integration matters – demonstrating  that mandatory integration measures are effective in any way.

 

The content of integration tests further compounds these concerns. While the Court typically limits its scrutiny to language requirements, it has so far avoided addressing the societal knowledge components of civic integration exams, which constitute an important part of these requirements. Yet research has consistently shown that, beyond language testing, these tests are often filled with absurd, stigmatising or culturally loaded questions. Far from being neutral assessments, they are frequently imbued with racialised and colonial assumptions, functioning as instruments of symbolic exclusion and mechanisms of ‘othering’.

 

Moreover, the targets of these policies are not random. Integration obligations disproportionately affect migrants who are portrayed as ‘problematic’ – those regarded as non-Western, Muslim, socioeconomically disadvantaged, or with limited educational background, i.e. the so-called ‘Migrants with Poor Prospects’. Integration thus becomes a tool to discipline and stigmatise, rather than to support and empower.

 

In fact, rather than addressing structural inequalities through positive measures, many MSs have adopted punitive or conditional approaches through these civic integration programmes. This reflects a broader trend in which the rhetoric of integration has often served to legitimise an expanding array of exclusionary practices, including restrictions to fundamental rights. For instance, in the so-called Danish Ghetto case pending before the Court, urban gentrification of racialised neighbourhoods is presented as an integration strategy, generalising characteristics perceived as negative and unacceptable in Denmark and attributing them to all immigrants and their descendants from non-Western countries. Such highly questionable policies contribute therefore ‘to the perpetuation of that stereotyping and stigmatisation’ in the words of AG Ćapeta (§152).

 

Conclusion

 

While Keren curtails certain abusive practices, it simultaneously endorses the conditional logic of integration requirements for the beneficiaries of international protection, contributing to the broader normalisation of exclusionary and stigmatising measures. Civic integration requirements do not foster inclusion but rather reinforce hierarchies of belonging through symbolic and material harm. It is therefore imperative critically to examine the normative foundations of integration duties, particularly within legal reasoning, to prevent the entrenchment of exclusion under the rhetoric integration.

Setting Gender-Based Asylum Straight: The Court of Justice’s Landing Point

 

 

Salvo Nicolosi and Türkan Ertuna Lagrand, University of Utrecht

Photo credit: USAID, via Wikimedia Commons

 

Just a couple of weeks after the Taliban regime in Afghanistan announced a new decree prohibiting women from being heard when speaking outside their homes, on 4 October, the Court of Justice of the European Union (CJEU) delivered its judgment in the joined cases of AH and FN (C‑608/22 and C‑609/22). The ruling constitutes the landing point of a recent stream of case law through which the Court has developed a gender-sensitive approach to refugee protection. In this regard, it is worth recalling that in WS (C-621/21), the Court recognised that women in a country can be considered ‘a particular social group’, while in K, L (C-646/21), it emphasised the importance of gender equality in defining such group. In AH and FN, instead, the Court addressed the issue of whether women subjected to a series of restrictive, state-imposed or state-supported measures, solely based on their gender, could be granted refugee status without the need for an individual assessment of their personal circumstances.

This case law is of particular importance not only because, as recently highlighted by scholars, judgments of the Court of Justice addressing gender-related elements of asylum cases are scarce, but also for the impact that the progressive stance of the Court could have on national authorities and more broadly the development of international refugee law with reference to gender-based asylum claims. After a brief account of the facts of the case, this short blog post reviews the Court’s reasoning in an attempt to explain to what extent the Court has expanded substantially and procedurally the scope of international protection for women who are victims of systematic discrimination in their country of origin. 

The Factual and Procedural Background

AH and FN are two Afghan nationals who have applied for international protection in Austria. The Federal Office for Immigration and Asylum refused to recognise their refugee status, but granted the applicants subsidiary protection on the ground that they would face economic and social difficulties if they returned to Afghanistan. The applicants unsuccessfully appealed to the Federal Administrative Court of Austria, claiming first that they had adopted Western values and a Western-inspired lifestyle, and second, that after the Taliban regime came to power in 2021, women in Afghanistan have faced widespread persecution. Accordingly, the applicants appealed before the High Administrative Court arguing once more that the situation of women under the Taliban regime alone justified the recognition of refugee status. The High Administrative Court thus decided to refer two questions to the CJEU. The first question concerned the substantial aspect of whether the accumulation of the measures taken by the Taliban regime in respect of women is sufficiently serious to be classified as an ‘act of persecution’ within the meaning of Article 9(1)(b) of the Qualification Directive 2011/95. The second question, more procedurally, concerned whether an Afghan woman may be granted refugee status without an individual assessment of her situation being carried out, despite the fact that Article 4(3) of the Qualification Directive underlines that ‘the assessment of an application for international protection is to be carried out on an individual basis.’   

The Added Value of the Court’s Reasoning

The Court’s judgment in AH and FN followed the insightful Opinion of Advocate General Richard de la Tour, which we discussed in a previous post, as well as the previous rulings, which we also discussed here and here. Based on these judicial precedents, the Court’s reasoning provides an important interpretation of EU asylum law, particularly regarding the concept of systematic discrimination, as well as the procedural requirement of individual assessment.

Systematic Discrimination

As is known, the concept of ‘discrimination’ is of paramount importance to determine the existence of persecution to seek recognition as a refugee. However, not all discrimination amounts to persecution. In this regard, the Court follows a helpful explicative approach that will offer clear guidance to national authorities while implementing the relevant EU asylum rules. In its reasoning, the Court offers a nuanced interpretation of Article 9(1) of the Qualification Directive, distinguishing between discriminatory acts that, on their own, qualify as ‘acts of persecution’ under Article 9(1)(a), and those which, when considered cumulatively, meet the threshold of ‘acts of persecution’ under Article 9(1)(b).

To this aim, the Court indicates as examples of the first category of discriminatory acts measures such as forced marriages - which the Court compares to a form of slavery prohibited under Article 4 of the ECHR - or the lack of protection against gender-based violence and domestic violence - which the Court defines as a form of inhuman and degrading treatment prohibited by Article 3 of the ECHR (paragraph 43). In the second category of discriminatory acts the Court includes measures against women that restrict access to healthcare, political life and education and the exercise of professional or sporting activity, restrict freedom of movement or infringe the freedom to choose one’s clothing (paragraph 44).

In line with the Advocate General’s Opinion, the Court affirmed that while discriminatory measures against women in this second category may not individually qualify as persecution, their combined and systematic application does. Thus, when considered collectively, these measures reach the severity necessary to be classified as acts of persecution under Article 9(1)(b). From this perspective, the Court promotes the integration into EU asylum law of the notion of systematic discrimination. This notion is particularly supported by the Court’s view that those measures, as also stressed by the Advocate General, reflect the establishment of a social structure based on a regime of segregation and oppression in which women are excluded from civil society and deprived of the right to lead a dignified daily life as guaranteed by Article 1 of the Charter of Fundamental Rights of the EU (paragraph 46).

Individual Assessment 

Regarding the individual assessment, the Court’s reasoning is especially progressive because, following the suggestion of the Advocate General, it allows a gender-sensitive interpretation of Article 3 of the Qualification Directive, according to which Member States may adopt more favourable standards, including by easing the conditions for granting refugee status (paragraph 55). From this perspective, the Court essentially showed sensitiveness about an emerging national practice resulting in the recognition of women from Afghanistan as refugees without further examination of the individual situation.

As we previously noted,  Sweden announced in December 2022 that any asylum-seeking woman or girl from Afghanistan should be recognised as a refugee. Similarly, in Denmark, as of 30 January 2023 all women and girls from Afghanistan have been granted asylum solely because of their gender, while the Finnish Immigration Service announced in early 2023 that ‘all Afghan women and girls are granted refugee status.’ Domestic practices across Europe remain, however, inconsistent. For instance, the Federal Administrative Tribunal of Switzerland recently ruled that the collective persecution of women and girls cannot be presumed solely based on gender and that Afghan women do not face collective persecution giving rise to automatic recognition of refugee status. In this context, the Court’s judgment in AH and FN plays a crucial role in harmonising domestic practices within the EU, particularly regarding the recognition of refugee status for women who are victims of systematic persecution in their country of origin.

The novelty of the Court’s ruling thus lies in the departure from a settled case law establishing, based on Article 4 of the Qualification Directive, that ‘every decision on whether to grant refugee status or subsidiary protection status must be based on an individual assessment.’ Such a departure is, nonetheless, operated by the Court through an appropriate systemic interpretation of EU asylum rules in light of international human rights law. This is confirmed by the Court’s strong reliance on the UNHCR Statement issued on 25 May 2023 in the context of these preliminary ruling proceedings, which emphasised the need for protection due to the persecutory measures imposed by the de facto authorities in Afghanistan, specifically targeting women and girls based on their gender. Additionally, the Court’s references to the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention) and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) further underscore the importance of these international treaties, which the Court recognises as ‘relevant treaties’ within the framework of Article 78(1) TFEU.

Concluding remarks

In this last episode of a series of developments towards a more gender-sensitive EU asylum law, the Court’s reasoning is particularly noteworthy for its significant broadening of protection standards under EU law. Notably, the Court emphasised that country of origin information may suffice as a basis for asylum determinations when discriminatory practices against women reach a point where they are effectively excluded from society and deprived of their right to a dignified life. In such cases, the Court considered it unnecessary to establish a specific and immediate risk of persecution for individual applicants (paragraph 57), underscoring a shift towards a more flexible and context-sensitive approach. This approach promises further progress in a wider spectrum of asylum claims where the applicant’s statements are not supported by evidence about their personal situation, which is often observed in applications based on sexual orientation and gender identity.

In sum, the Court’s case law has confirmed that women in a country can constitute a ‘particular social group’ that systematic persecution can arise from the cumulative impact of state-imposed measures infringing upon women’s fundamental rights and that, in such cases, no individual assessment of the applicant’s circumstances is required. By expanding refugee protection for women facing gender-based persecution, the Court not only offers significant guidance to national authorities but also contributes to the progressive evolution of international refugee law. Its approach underscores the need to integrate fundamental human rights principles, such as equality between women and men, as already emphasised in K, L (C-646/21), to ensure that women subjected to systematic oppression receive the protection they need.

It now remains for national authorities to apply the Court’s approach and ensure consistent protection across the EU for women fleeing the Taliban regime.

The New EU Asylum Laws, part 1: the Qualification Regulation

 

Professor Steve Peers, Royal Holloway University of London*

Photo credit: Ggia, via Wikimedia Commons

*sentences with an asterisk have been corrected or updated since the original publication of this post. Most recently updated 18 June 2024.  

Just before Christmas, the European Parliament and the Council (the EU body consisting of Member States’ ministers) reached a deal on five key pieces of EU asylum legislation, concerning asylum procedures, the ‘Dublin’ system on responsibility for asylum applications, the ‘Eurodac’ database supporting the Dublin system, screening of migrants/asylum seekers, and derogations in the event of crises. I’ve looked at this new legislation in a series on this blog, based on a forthcoming article.* The other blog posts are: Part 2 (on reception conditions); Part 3 (on the resettlement Regulation); Part 4, (Eurodac); part 5 (on the screening Regulation); part 6 (on Dublin), part 7 (on the asylum procedures Regulation); and part 8 (on the crisis Regulation, plus general comments).* These laws are intended to be part of a ‘package’ of new or revised EU asylum laws. (Update: the European Parliament voted for the changes to EU asylum laws in April 2024, the Council formally adopted them on 14 May 2024, and they were published in the EU Official Journal on 22 May 2024)* 

The 2024 legislation joins the Regulation revising the powers of the EU asylum agency, which was separated from the package and adopted already in 2021.* 

The qualification Regulation: background

There have been two previous ‘phases’ in development of the Common European Asylum System: a first phase of laws mainly adopted between 2003 and 2005, and a second phase of laws mainly adopted between 2011 and 2013. The 2024 package is in effect a third phase,* although for some reason the EU avoids calling it that.

In each phase, the law on qualification is central: defining what is necessary to obtain refugee status or subsidiary protection status (ie protection other than as a refugee), and setting out what rights people have if they obtain either status. The first phase Qualification Directive was adopted in 2004; the ‘second phase’ Qualification Directive replaced it in 2011. (I analysed the negotiation of the latter Directive here; there’s also a lengthy analysis of it by Madeline Garlick and Violeta Moreno Lax in EU Immigration and Asylum Law: Text and Commentary, and see also my asylum chapter in the latest edition of EU Justice and Home Affairs Law). The third phase, adopted in 2024, now includes a qualification Regulation.*  

There is CJEU case law on both the first phase Directive and the second phase Directive. It might be argued that the case law is still relevant to the new Regulation, unless the relevant text has been amended; in some cases the Regulation (or the preamble to it) reflects some of that case law.

The UK and Ireland opted in to the first phase Directive, but not the second phase Directive or the proposal for the 2024 Regulation. Of course, the UK is no longer bound by EU law, but Ireland is still bound by the first phase Directive. Denmark opted out of both.

Of course, none of the measures in the package can be fully understood without the context of all the others – which I discuss over the course of this series of blog posts.* For instance, it is possible that the effect of the other measures in the package will be to reduce the numbers of people who would otherwise apply for refugee or subsidiary protection status in the EU, or whose applications will be considered on the merits (the asylum procedures law provides that some applications can or must be considered inadmissible). The qualification law is only relevant to those who get to that stage. And for those who do obtain refugee or subsidiary protection status, they can eventually obtain EU long-term resident status, which inter alia provides for a limited prospect of movement between Member States – and that law is in turn being renegotiated too, separately from the asylum package (my comments on that renegotiation here).

The legislative process leading to the 2024 qualification Regulation started with the Commission proposal in 2016,* as a response to the perceived refugee crisis, followed by EU governments agreeing their position on the proposal, which had to be negotiated with the European Parliament (its negotiating position was set out here). I compared the three institutions’ positions in a blog post here. But this blog post will compare the 2024 Regulation only to the 2011 Directive, although I have updated some of the discussion in my previous blog post where relevant.

Basic issues

The first key issue is the type of law used, which is linked with the degree of harmonisation which the EU seeks in this field. The first and second phase qualification laws were Directives, which mean that Member States were bound to achieve the outcome required but had a choice of form and method. The 2024 law is a Regulation,* which is binding in and of itself, without national transposition.

As for the level of harmonisation, the Directives set a form of minimum standards: Member States could have higher standards, as long as those standards were compatible with the Directives. So they set not only a floor, but also a ceiling: the CJEU judgments in B and D, M’Bodj (discussed here), Ahmedbekova and LW discussed the limits of the power to set higher standards. But this will soon be history: the 2024 Regulation removes the power to set higher standards even with a ceiling, providing instead for uniform standards in principle, although some national options will remain in the text.* (The same two basic changes were also made to the 2013 asylum procedures Directive).*

The new Regulation, reflecting that case law, notes that Member States are however free to retain or establish a separate status of humanitarian protection,* as long as there is no confusion with the (EU harmonised) notions of refugee or subsidiary protection status. People with such national status will largely fall outside the scope of any EU law, although the equal treatment provisions in the recent amendment of the EU single permit Directive (discussed here) will apply to them, and the resettlement Regulation applies aspects of the qualification Regulation to those admitted on a humanitarian basis under the EU resettlement law (see Part 3 of this series).*

In practice the shift toward harmonisation may lead to some lowering of standards overall, due to the absence of the possibility to have higher standards generally (even subject to a ceiling) and the removal of some options, to the extent that Member States are now obliged to (for instance) provide for an ‘internal flight alternative’ in their law,* and to require two criteria (not just one criterion) to be satisfied to apply the ‘particular social group’ ground of refugee protection. But the effect of such changes is qualified: for example, the requirement to apply the ‘internal flight alternative’ rule comes with additional safeguards attached to that rule, and Member States may have had less enthusiasm to apply higher standards for refugees, as compared to the options in EU law to have higher standards for (say) employment and environmental law.

The 2024 qualification Regulation provides that the previous Directive ceases to apply from 12 June 2026, while the new Regulation will apply from 1 July 2026.* There is no explanation of what happens between those two dates, and no transitional rule for applications pending, or status granted, before either of those dates.*  

The refugee parts of the Regulation (like the prior Directives) aim to implement the UN Refugee Convention (which the EU refers to as the ‘Geneva Convention’) in more detail, as regards both the definition of ‘refugee’ and the rights which refugees receive. The case law of the CJEU has often interpreted the Directive in light of the Convention, which seems likely to continue because the Regulation still makes many references to the Convention.

Turning to the details of the Regulation, there are five main elements to the law: common rules (applying to both refugee and subsidiary protection status); the definition of ‘refugee’; cessation, exclusion from and withdrawal of refugee status; the definition and cessation etc of subsidiary protection; and the content of status (ie the benefits people with status receive). This blog post mostly does not discuss the preamble, but keep in mind that the preamble adds some important detail to many of the points in the main text analysed here.

Common rules

Family members of refugees and people with subsidiary protection will be defined slightly more broadly. A ‘family member’ will now include relationships formed outside the country of refuge, not just those formed inside the country or origin. This means, for instance, that the spouse of a Syrian refugee who married him while in Turkey or Lebanon, and the children of that couple born in such countries, would now be defined as ‘family members’. It is still necessary for the family members to be present on the territory in connection with the asylum application, though (as confirmed by the recent CJEU judgment in Afrin – although note that in such cases, the separate EU law on family reunion applies for refugees). 'Family members' will now include dependent adult children.* A minor must be considered unmarried if the marriage would not have been allowed under the Member State’s national law, especially on grounds of age.

The Regulation ‘should’ apply to those covered by the planned new EU law on resettlement of refugees from non-EU countries (according to the preamble); the rules on assessment of asylum applications will expressly apply to them. (In fact, as discussed in Part 3 of this series, the resettlement Regulation will be clearer on this point).* As with the previous Directives – and unlike other EU asylum law measures – there is no provision on the territorial scope of the Regulation.

It will now be mandatory, not optional, for the main burden of proof to rest upon the applicant to show why the claim for refugee or subsidiary protection status is justified; and a new clause in the preamble will reflect the ECJ’s 2014 case law (discussed here) which limits the intrusiveness of Member States’ questioning of the credibility of LGBTI asylum-seekers.  The importance of the asylum seeker applying at the ‘earliest possible time’ will be de-emphasised.

As before, the Regulation will retain the possibility of becoming a refugee or needing subsidiary protection ‘sur place’ – ie because of events which took place after the asylum seeker left his or her country of origin, or due to activities of the applicant since leaving that country. But the exception to this rule will remain optional (‘may’): where the applicant has created the circumstances for use of this provision, Member States may refuse protection. This exception will be widened in two ways (extending it to include subsidiary protection claims, and applying it to initial applications, not just repeat applications), but also subject to a new safeguard (the circumstances created by the applicant must be for the for the ‘sole or main purpose of creating the necessary conditions for applying for international protection’). (For the position under the 2011 Directive, see the recent judgment in Case C-222/22).*

On the other hand, the option to refuse claims because the asylum seeker had an ‘internal flight alternative’ – ie he could have fled to a safe part of the country of origin, like a supposed ‘safe zone’ in Syria – will become mandatory. (The possibility of rejecting a claim because an asylum seeker would arguably have been safe in a different country is the subject of the asylum procedures Regulation). However, there are new safeguards: a strong presumption that the concept cannot apply where the source of persecution is the State; applying the main rules on qualification first; shifting the burden of proof to the authorities, and obliging them to consider contrary arguments submitted by the applicant; more on the personal circumstances of the applicant; a requirement to consider whether the applicant could meet their basic needs; and a specific protection for unaccompanied minors. There is also a new requirement to consider the country of origin information supplied by the EU Asylum Agency. Note that although the CJEU has not yet interpreted the rules on the ‘internal flight alternative’ as such, it has recently ruled that differences in interpretation of the rule between Member States are not a good enough reason to refuse to transfer an asylum seeker to another Member State under the Dublin rules. In that context, it is possible that the additional provisions in the Regulation will lead to a more harmonised interpretation of the rule between Member States.

As for the sources of persecution or protection, the Regulation will retain the current rules in the Directive, replacing a reference to considering whether EU acts define a country as providing effective protection from persecution with a reference to considering country of origin information, including from the EU asylum agency where available.

Definition of ‘refugee’

The Regulation retains the basic idea from the previous Directives – and the UN Refugee Convention – that a ‘refugee’ is someone persecuted because of their race, religion, political opinion, nationality or particular social group, elaborating upon each of these concepts. The definition of ‘persecution’ will not change, but there are some changes to the text on ‘particular social group’: adding a reference to how the group is perceived, dropping a reference to criminal law, and adding a reference to ‘gender expression’. Furthermore, there are some new elaborations of the concept in the preamble, including a reference to the possibility of persecution on grounds of disability. As noted above, all Member States will also now have to require that asylum-seekers show that they both perceive themselves as part of a distinct group and are perceived as different by the rest of society, due to the loss of the capacity to set higher standards. (In the meantime, the CJEU has ruled for the first time on the position of women as part of a particular social group, with a judgment in January on domestic violence – see earlier discussion here – and also a pending case on Afghan women, discussed here).*

More generally, a new clause will provide that asylum seekers cannot be expected to hide their identity or beliefs, confirming case law as regards sexuality and religion.

Exclusion, cessation and withdrawal of status

The 2011 Directive elaborates on the Refugee Convention on exclusion, but the Regulation elaborates further.* First, the preamble to the new Regulation enshrines the basic elements of CJEU case law on the special status of some Palestinians (case law starting with Bolbol and El Kott; note also the recent Advocate-General’s opinion relating specifically to Gaza).* Secondly, a new provision on exclusion on grounds of terrorism states that no proportionality test is required in such cases, confirming the judgment in B and D; the preamble also takes account of the judgment in Lounani on the exclusion of foreign fighters, discussed here). Finally, another new provision will require consideration of whether a minor would be considered criminally responsible for acts under the law of a Member State, when considering if a minor would be excluded on grounds of war crimes, terrorism et al.

On cessation – loss of refugee status because, inter alia, the situation has improved significantly in the country of origin – the Regulation will provide again that account must be taken of country of origin information supplied by the EU asylum agency, or other sources.

As for the withdrawal of refugee status, withdrawal will be mandatory in more cases, now including where ‘there are reasonable grounds for regarding him or her as a danger to the security of the Member State in which he or she is present’ and where ‘he or she, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the Member State in which he or she is present’. Previously withdrawal of refugee status was only optional in some cases. The CJEU has recently interpreted the latter of the two newly mandatory exceptions (see the trilogy of judgments here, here and here). Also, the Court has more broadly ruled that even if refugee status is withdrawn, the person concerned remains a refugee, still benefiting from non-refoulement and the rights which the Refugee Convention sets out for refugees who are unlawfully resident.

Subsidiary protection

The core definition of subsidiary protection (a threat of serious harm deriving from the death penalty, torture or similar treatment, or facing a specified threat from armed conflict) will not be affected by the Regulation – although the preamble will entrench some of the relevant CJEU case law on how much violence against civilians, and what types of conflict, trigger the ‘armed conflict’ ground of subsidiary protection (Elgafaji and Diakité). The provision on cessation of subsidiary protection will refer to country of origin information, including from the EU Asylum Agency.

There will be some changes to the rules on exclusion from subsidiary protection (it will be necessary to show that there was a conviction for a ‘serious crime’, if committed after admission to the territory; the person concerned must be a danger to national security, not security generally); and the prospect of exclusion from subsidiary protection due to commission of less serious crimes will remain optional. As with refugee status, the rules on exclusion will now specify that no proportionality test is required, along with special provision for minors.

Rights of refugees and persons with subsidiary protection

The Regulation will change the provisions on the rights of those with refugee status or subsidiary protection in several ways. First, if a Member State has not issued a residence permit within 15 days, it must at least issue some provisional documentation so that access to rights is more effective. Secondly, the list of vulnerable people now includes parents of adult dependent children. Thirdly, there will be a common template for information to be given to people with refugee status or subsidiary protection, which will emphasise the limits on their movement to other Member States.

Fourthly, due to the abolition of the right for Member States to set higher standards where compatible with the qualification law, it will no longer be possible for them to give refugee or subsidiary protection status automatically to family members who do not qualify separately for refugee or subsidiary protection status in their own right (see Ahmedbekova). On the other hand, there is still an obligation to extend the same rights in the law to family members covered by it, even if they will not have refugee or subsidiary protection status as such. This will include having a residence permit with the same date of expiry as the person with refugee or subsidiary protection status, which is an improvement on the current Directive. But the Regulation precludes a residence permit being issued to a spouse or unmarried partner ‘where there are strong indications that the marriage or partnership was contracted for the sole purpose of enabling the person concerned to enter or reside in the Member State’.

Fifthly, there will be more harmonisation of the rules on residence permits, as regards fees, an explicit requirement to use the EU uniform format, an obligation to issue a permit within 90 days, and a requirement not to leave people with gaps between permits when they are renewed. The prospect for non-renewal of permits will now be linked to withdrawal of status (compare with the T judgment on the current law, discussed here).

Sixthly, there will be parallel harmonisation of the rules related to travel documents, which are issued by Member States to beneficiaries of international protection in place of passports, given that it would probably be unsafe for them to contact officials from their country of origin. (In the case of refugees, this supplements the rules already set out in the Refugee Convention). They will be valid for more than one year and will be expressly subject to the EU’s passport security rules.

Seventh, the provisions on movement within the territory will be redrafted to add the proviso that equal treatment with other non-EU citizens applies where they are ‘generally in the same circumstances’. This may be an attempt to confirm the case law in Alo and Osso (discussed here), which permits a link between limiting movements and the grant of benefits in some cases.

Eighth, there will be a new rule emphasising that refugees and people with subsidiary protection do not have the right to move between Member States – unless they are allowed to stay on the basis of national or other EU law, and subject to the right to make short-term visits under the Schengen rules. As noted already, the EU rules in question include a limited right to move between Member States under the EU long-term residence Directive, which is also being renegotiated. Any unauthorised movement between Member States can be punished by ‘resetting the clock’ on acquisition of long-term residence status under that law. However, Member States will have to fully count the time spent as an asylum-seeker when determining if a refugee or person with subsidiary protection has spent five years’ legal residence in order to qualify as an EU long-term resident under that Directive.

Ninth, the rules on integration will be amended by an obligation to ensure equal treatment as regards work-related matters, including taking account of experience in an occupation obtained outside the country of refuge. The rules on education will provide for equal treatment for adults (subject to an optional exception for loans and grants) and an express right to finish secondary school after the age of majority. Social assistance benefits can be linked to compulsory integration courses, and it will still be possible for Member States to limit beneficiaries of subsidiary protection to ‘core benefits’, which will now be listed in the main text instead of the preamble (adding housing benefits, which takes account of analogous case law). It will also now be explicit that Member States may make integration measures compulsory, subject to provisions on fees and accessibility. Finally, there will be new provisions on the guardians of unaccompanied minors.

Assessment

To what extent will the Regulation achieve the objectives which it sets out in its preamble?

To ensure harmonisation and more convergence in asylum decisions and as regards the content of international protection in order to reduce incentives to move within the […] Union, encourage beneficiaries of international protection to remain in the Member State that granted them protection and ensure an equality of treatment of beneficiaries of international protection

The assumption that harmonisation of refugee decisions deters movements within the EU is often questioned, but in any event the Regulation should in principle increase harmonisation of decision-making somewhat. This stems not only from converting a Directive into a Regulation and removing the qualified option to have higher standards, but also from removing some of the options in the main part of the law, and providing more details of how the common rules must be interpreted – for instance, as regards sur place applications, the internal protection alternative, and the definition of ‘particular social group’.* Note that in some cases this takes the form of integrating the case law into the main text or preamble, thereby making it more visible – and this blog post only mentions some of the new details which will be added to the preamble.

On discouraging movements between Member States, the sanction of restarting the clock on EU long-term residence status for those who move without authorisation, plus allowing easier access to that status for those who stay put, aims to provide a simultaneous carrot and stick. Awkwardly the Regulation does not provide for the situation, recognised by the case law (albeit subject to a very high threshold), when it is legitimate for a refugee or person with subsidiary protection to move to another Member State because the conditions in the Member State which extended them protection have deteriorated to the point where they breach the EU Charter of Fundamental Rights.

As for equality of treatment of those with international protection, the changes in the rules on the rights after obtaining refugee or subsidiary protection status appear liable to reduce differences between Member States – if that is the issue of equal treatment being referred to. On the other hand, some differences between refugees and people with subsidiary protection (as regards social assistance, and being covered or not by the family reunion Directive, which will be particularly relevant where family members are not already present) will remain.  

More fundamentally, as noted already this Regulation will form part of a broader package aiming at the same objectives; in particular the new Regulation on asylum procedures will in parallel harmonise the law on the procedural side, and changes to the law on reception conditions will also aim to discourage movements between Member States. And going beyond this, the bigger impact of the asylum package may come not from this Regulation, but from the new constraints planned on asylum seekers’ applications being considered on the merits in the first place – potentially leaving the EU law on qualification for refugee and subsidiary protection status, whatever its form or legal content, as a form of Potemkin village less frequently accessible in practice. Some of the other blog posts in this series will examine the extent to which the new asylum package could lead to this result.

 

Barnard & Peers: chapter 26

JHA5: chapter I:5

**Disclaimer: I was an independent adviser for a consultancy advising the European Commission on the implementation of and possible amendment of the current Directive.