Enhancing and diluting the legal status of subsidiary protection beneficiaries under Union law – the CJEU judgment in Alo and Osso

Dr. Louise Halleskov Storgaard, Assistant Professor, Aarhus University

Is it in accordance with the Qualification Directive (QD) to restrict the freedom of movement within the host country of beneficiaries of subsidiary protection (a form of protection parallel to refugee status) in receipt of social security benefits? This question was addressed by the CJEU in its ruling of 1 March 2015 in the Alo and Osso case. The Court’s answer and its reasoning is equally interesting, groundbreaking and controversial as it, on the one hand, strengthens the impact of the Geneva Convention (the United Nations Convention on the Status of Refugees) on the QD standards and the substantive content of subsidiary protection while it, on the other hand, creates uncertainty about the applicable non-discrimination standard in such cases.

Facts

Mr Alo and Mr Osso are Syrian nationals who, independently of each other, in 2012 were granted subsidiary protection status in Germany. German law prescribes that, where beneficiaries of subsidiary protection receive social security benefits, their residence permit is issued subject to a condition requiring residence to be taken up in a particular place of the country. This condition does not apply to third-country nationals legally residing in Germany on other grounds than international protection (ie, subsidiary protection or refugee status). Since both Mr Alo and Mr Osso had been in receipt of social security benefits since they arrived in Germany, their residence permits required them to take up residence in, respectively, a specific town and specific parts of a region in Germany. They both disputed this requirement and on appeal the Bundesverwaltungsgericht (German Federal Administrative Court) decided to stay the proceedings in both cases and ask the CJEU to clarify the conformity of the place-of-residence condition with the QD.

The relevant provisions of that directive read:

Article 29

Social welfare

1. Member States shall ensure that beneficiaries of inter­national protection receive, in the Member State that has granted such protection, the necessary social assistance as provided to nationals of that Member State.

2. By way of derogation from the general rule laid down in paragraph 1, Member States may limit social assistance granted to beneficiaries of subsidiary protection status to core benefits which will then be provided at the same level and under the same eligibility conditions as nationals.

Article 33

Freedom of movement within the Member State

Member States shall allow freedom of movement within their territory to beneficiaries of international protection, under the same conditions and restrictions as those provided for other third-country nationals legally resident in their territories.

Judgment

The CJEU started out by providing important new guidance on the interpretation of the QD. It reiterated the statements most recently made in El Kott concerning the necessity of ensuring consistency with the Geneva Convention and a full and inclusive application of that Convention. The CJEU then went one step further as it declared that the Geneva Convention is to be used as interpretative guidance also in cases involving subsidiary protection beneficiaries. To justify this approach the CJEU referred to statements made in the preamble about the European asylum system, as a whole, being based on the full and inclusive application of the Geneva Convention and about the intention of the EU legislature to establish a uniform status for all beneficiaries of international protection subject only to necessary and objectively justified derogations.

Against this interpretative backdrop the CJEU ruled that since Article 33 QD does not specifically allow for difference in treatment between refugees and subsidiary protection beneficiaries, and since Article 26 of the Geneva Convention on freedom of movement of refugees includes the right for refugees to choose their place of residence, the same must apply as regards Article 33 QD. Consequently, the place-of-residence condition constitutes a restriction with the freedom of movement guaranteed by Article 33 QD. Similarly, Article 29 QD was interpreted by the CJEU in light of Article 23 of the Geneva Convention leading to the conclusion that the place-of-residence condition also constitutes a restriction on the access to social welfare of beneficiaries of subsidiary protection when it is not also imposed on German nationals.

The CJEU continued to the question of whether these restrictions could be justified by the two aims put forward by the German authorities: 1) achieving an appropriate distribution of the burden of paying certain social benefits among the various institutions competent in that regard; and 2) preventing social segregation and its negative consequences for integration (integration policy considerations).

To that end the CJEU established a general test as it explained (para. 54): 

”[n]ational rules could legitimately provide for a residence condition to be imposed on beneficiaries of subsidiary protection status, without such a condition being imposed on refugees, third-country nationals legally resident in the territory of the Member State concerned on grounds that are not humanitarian or political or based on international law and nationals of that Member State, if those groups are not in an objectively comparable situation as regards the objective pursued by those rules.

Applying this test to the first aim invoked by the German authorities, the CJEU acknowledged that the movement of recipients of social security benefits or the fact that such persons are not equally concentrated throughout a Member State entails the risk of an uneven distribution of the financial burden. However, the Court pointed out that this risk relates not only to subsidiary protection beneficiaries but also to refugees and other third-country nationals residing legally in receipt of social benefits. For that reason the place-of–residence condition is in breach of Articles 29 and 33 QD.

Concerning the second aim relating to integration policy, the CJEU first explained that Article 29 QD is not relevant to consider because beneficiaries of subsidiary protection status and German nationals are not in a comparable situation as far as the objective of facilitating the integration of third-country nationals is concerned. As regards Article 33 QD, the CJEU left it for the Bundesverwaltungsgericht to assess whether beneficiaries of subsidiary protection status are in a situation that is, so far as concerns the integration aim, objectively comparable with the situation of third-country nationals legally residing in Germany on grounds that are not humanitarian or political or based on international law.

The CJEU offered some guidance as it explained that the Bundesverwaltungsgericht will have to determine whether the fact that the person receiving welfare benefits holds international protection, in this case subsidiary protection status, means that he or she will face greater difficulties relating to integration than third-country nationals holding another immigration status than international protection. That might particularly be the case if the latter group of persons are eligible for welfare benefits only after a certain period of continuous legal residence in the host Member State since it can (para. 63):

“be assumed from such a period of residence that the third-country nationals concerned are sufficiently integrated in that Member State and therefore would not be in a situation comparable with that of beneficiaries of international protection so far as the objective of facilitating the integration of third-country nationals is concerned.”

Comments

This is the CJEU’s first judgment on the revised “second-phase” QD. Four interrelated aspects of the case deserve particular attention:

First, the case cements the Geneva Convention’s function as a cornerstone of the Common European Asylum System (CEAS) measures by enhancing the strong link between that Convention and the QD. In that respect the Court’s extension of the applicability of the Geneva Convention to cases involving subsidiary protection beneficiaries is groundbreaking. One of the key features of the second-phase QD is precisely that it improves the substantive content of subsidiary protection, and by allowing for the Geneva Convention to function as the guiding standard to ensure equality of treatment between refugees and subsidiary protection beneficiaries when interpreting Chapter VII QD, the CJEU secures that Union law also in practice complements the ECHR and the Geneva Convention in this area. The CJEU’s reasoning on this point therefore illustrates the gradual EU law development towards an alignment of the two statuses of international protection which was fuelled by the Stockholm Programme and has been implemented not only in the QD, but also the second-phase Dublin and Eurodac Regulations and procedures and reception conditions Directives.

Second, unlike in the Bolbol and El Kott judgments concerning the first-phase QD, the CJEU did not justify the application of specific provisions of the Geneva Convention by the fact that the relevant text of the QD refers to these provisions. Instead, the CJEU referred to the preamble to the QD where it is stated that the directive responds to the Stockholm Programme’s call for a uniform international protection standard and that equality between the two statuses shall be granted as regards rights, benefits and conditions for eligibility “with the exception of derogations which are necessary and objectively justified”. To buttress the argument the CJEU referred also to Article 20 (2) QD, according to which Chapter VII QD (which concerns the content of status, ie what recognized refugees and people with subsidiary protection are entitled to) applies to both refugees and subsidiary protection beneficiaries unless otherwise indicated. As the Court’s reasoning on this point is not limited to cases involving Articles 29 and 33 QD, the Geneva Convention can be used as a yardstick for the interpretation of all provisions in Chapter VII QD. However, it remains to be seen whether the CJEU in future cases is willing to extend the applicability of the Geneva Convention to cases involving subsidiary protection beneficiaries beyond situations concerning the substantive content of this status – within or outside the QD. Since all second-phase CEAS directives contain elaborate references to the call for uniformity in the Stockholm Programme, there is some room for arguing that the Geneva Convention should also guide e.g. the interpretation of the Procedures Directive in cases involving procedural arrangements and status determination of persons eligible for subsidiary protection.

Third, it is worth noting the road not taken by the CJEU. In his opinion, AG Cruz Villalón argued that the circumstances of the case warrant that Article 33 QD must be interpreted through the lens of the non-discrimination provisions in Article 21 of the EU Charter of Fundamental Rights and Article 14 ECHR in conjunction with the fundamental right to freedom of movement set out in international human rights law, including Article 2 of Protocol 4 to the ECHR. Since the AG too found that the place-of-residence condition constitutes a restriction on the right guaranteed by Article 33 QD, he assessed whether that condition could be justified under the general rule on limitations on Charter rights in Article 52 (1) of the Charter in light of the two aims referred to by the German authorities. The AG found both aims to be legitimate but when assessing the proportionality of the restriction, he concluded that the economic burden-sharing objective was not appropriate to this aim. The AG left it for the referring national court to assess whether integration policy considerations could justify the restriction.

Fourth, the AG’s reasoning is interesting because it may offer insight as to how the CJEU came up with the above-quoted “comparable-test”. Arguably, this test is not easily comprehensible and depending on how it is applied by national courts and by the CJEU in future cases, it can dilute some of the above-identified impact of the Court’s findings concerning the application of the Geneva Convention to subsidiary protection beneficiaries. The essence of the Court’s reasoning is (seemingly) that even though equality of treatment is the main rule, and even though a derogation is not explicitly provided for, then subsidiary protection beneficiaries can be treated differently than refugees as regards the rights guaranteed under Chapter VII QD, “if those groups are not in an objectively comparable situation as regards the objective pursued by those rules”. The same applies as regards difference in treatment compared to other legally resident third-country nationals and nationals.

There is no information in the judgment about the origins of this test. Unlike the AG opinion, the judgment does not contain any reference to non-discrimination provisions or other fundamental rights standards, and there is no indication as to whether it is a reformulation of the “necessary and objectively justified”-requirement listed in the Stockholm Programme either.

Still, it is safe to say that the Court’s reasoning bears resemblance to the non-discrimination test under Article 21 Charter and Article 14 ECHR (i.e. that difference of treatment of persons in comparable situations on account of a prohibited discrimination ground must be objectively and reasonably justified). It is therefore important to note that the CJEU links the fulfilment of the comparable situation-requirement under the QD to the objective of the disputed national provision, which is a different and (from an applicant’s perspective) less favourable approach than that applied by the ECtHR in non-discrimination cases. In the Hode and Abdi case (relied on by the AG), the ECtHR thus ruled that refugees who married after leaving their country were in an analogous position with refugees who married before this point in time as well as with third-country national students and workers solely because the immigration status held by all groups was of a limited nature. The ECtHR disregarded the UK Government’s objection concerning the purpose of the various immigration statuses being fundamentally different. In fact, from a non-discrimination perspective, the CJEU’s reasoning in Alo and Osso is entirely confusing since the assessment of both aims put forward by the German authorities is better characterised as a proportionality assessment (similar to the one conducted by the AG) than an assessment of the “objective comparability” of subsidiary protection beneficiaries with other groups of legally residing third-country nationals as regards the aims pursued by the place-of-residence condition. This is illustrated by the fact that the CJEU’s arguments concerning the economic burden-sharing aim in reality concerns whether the place-of-residence condition is an appropriate means to reach that aim.

Although it is far from certain that the CJEU intended to or even found it relevant to align the test developed under Articles 29 and 33 QD with that of Article 14 ECHR, the vocabulary chosen by the Court makes it reasonable to draw parallels and compare with that provision. And by departing from the approach of the ECtHR in a very similar case and leaving it for the referring national court to apply the test in practice in light of relatively abstract guiding criteria, the CJEU creates undue legal certainty about the applicable non-discrimination standard in cases involving difference of treatment of international protection beneficiaries.

Barnard & Peers: chapter 26

JHA4: chapter I:5

Photo credit: http://www.dw.com/en/german-interior-minister-de-maiziere-stands-by-plan-to-reduce-syrian-asylum-protection/a-18835570

The Refugee Crisis: What should the EU do next?

Steve Peers

Last week’s pictures of the tragic death of a refugee toddler brought into focus the ongoing crisis facing Syria and other conflict zones, which have given rise to increased numbers fleeing persecution worldwide, and in the European Union. The events of recent weeks (increasing numbers landing in Greece, the journey of many via the Western Balkans, Hungary and Austria to Germany) demonstrate that the Schengen and Dublin systems are coming under strain as a result.

How should the EU address this issue next? Should it abolish or reform the Schengen and/or Dublin rules? Are Member States complying with EU and international law in their response?

To answer these questions, I will examine in turn (a) the international law framework; (b) the EU law framework; (c) whether Schengen is at ‘fault’; (d) whether Dublin is at ‘fault’; and (e) what the EU should do next.  My main purposes are to explain the legal background, to point out some legal errors, and to suggest the best way forward in light of the international refugee law framework.

International law framework 

While it is often strongly asserted that 'international law requires refugees to apply for asylum in the first safe country they enter', in fact the position is rather vaguer than that. The United Nations (Geneva) Convention on the status of refugees does not contain any express rule to that effect in the rules on the definition of refugee, or on the cessation (loss) or exclusion from being a refugee, as set out in Articles 1.A to 1.F of that Convention.

However, there are some indirect suggestions in the Convention that the number of countries which a refugee has crossed through might be relevant. Article 31 of the Convention bans States from imposing penalties upon refugees for entering a country illegally - a rule which contradicts some of the rhetoric about refugees being 'illegal immigrants'. The drafters of the Convention clearly recognised that it might be necessary and legitimate in practice for a refugee to breach another country's immigration laws to escape threats to his or her life or freedom. So it is not necessary to be on the territory legally in order to qualify as a refugee.

This rule is, however, subject to several conditions - including the requirement that the refugees were 'coming directly' from the country which they had to flee. If that rule is interpreted narrowly, then refugees can only benefit from the exemption from penalties for breaching immigration law in neighbouring states, not states further afield. But refugees’ failure to satisfy this condition only permits States to prosecute them for breach of immigration law; it does not allow those States to exclude the refugees from protection. As I pointed out already, the rules on definition and exclusion of refugees in the Convention are quite separate from the rule on non-prosecution for breach of immigration law. And it is also possible to interpret this condition more generously - in the sense that the 'coming directly' requirement does not exclude all refugees who have merely transited through other countries, but only those who have stopped and obtained protection in another State already. 

Another relevant provision is the 'non-refoulement' rule in Article 33 of the Convention, which prevents States removing refugees to an unsafe State. But it does not prevent refugees from being removed to a safe State. Furthermore, the restrictions in the Convention on expelling refugees to any State, and many of the substantive benefits which the Convention gives to refugees (such as welfare and access to employment) are reserved for those who are lawfully resident or present in the territory; and the Convention does not require States to give refugees a lawful status under national immigration law.

So overall, the Geneva Convention gives States a degree of flexibility to insist upon a 'safe third country' requirement, but there is no absolute rule that refugees must always apply in a safe third country. If the Convention had intended to impose a firm rule in that regard, it would surely have said so expressly and provided for obligations for the first safe country to readmit the refugee. Moreover, the preamble to the Convention refers to the heavy burden which the grant of asylum may place upon some countries, and the need for international cooperation to avoid refugees becoming a source of tension between States. Taken as a whole, then, the drafters of the Convention recognized that a strict safe third country rule could impose undue burdens on countries neighbouring a conflict in some cases, but left it to States to work out the details of how to address such burdens when they occur. 

EU law framework 

The EU law framework consists first and foremost of the Schengen rules - which set out conditions for crossing external borders, in conjunction with no controls on internal borders. While some appear to assume that the Schengen rules require EU States to refuse entry to refugees at the external borders, that is clearly not the case. The Schengen Borders Code contains general exceptions relating to refugees and human rights, as well as specific asylum exceptions from the normal rules on the grounds for admission, and from the requirement to penalizing those who cross the external border without authorization. The latter exception obviously reflects Article 31 of the Geneva Convention, discussed above.

While Member States are generally obliged to ensure control of the external borders (just like non-Schengen States aim to control their borders), there is no specific requirement to build fences, as several Member States have done. Building fences is not ruled out by the Schengen rules, but it is Member States which decide to build the fences as a means of controlling the border, not the EU. And anyone who makes it to those fences and applies for asylum is entitled to be admitted to have their asylum application considered.

This is confirmed by the EU’s asylum legislation, which says that it applies to all those who apply at the border or on the territory.  There are some optional special rules for asylum applications made at the border, but there is no rule saying that an application must be refused because it was made at the border, or because the applicant entered the territory without authorization. Reflecting the interpretation of the Geneva Convention discussed above, the EU’s asylum procedures Directive states that an application might be inadmissible if the asylum-seeker gained protection in a ‘first country of asylum’, or has links with a ‘safe third country’.  The application of these rules doesn’t mean that the asylum-seeker is not a refugee; rather it means that another State is deemed responsible for resuming protection, or for assessing the asylum application.

The problem for refugees is reaching the territory in the first place. EU law imposes carrier sanctions on transport companies if they transport persons without visas, which explains why refugees do not buy relatively cheap tickets to travel instead of paying smugglers for unsafe journeys. Arguably the EU’s visa rules require Member States to issue special visas for those in need of humanitarian protection (see discussion here), but they rarely do so. Taken as a whole, then, the Schengen borders rules have a rather uneasy co-existence with asylum law: but they clearly allow for the admission of asylum-seekers who do reach the external borders of the EU.

There’s another uneasy relationship between the Schengen rules and the Dublin rules, ie the rules which require an asylum-seeker to apply usually in the first EU country which he or she reaches. That’s because it’s obviously harder in practice to enforce those rules without border controls between countries.

Is Schengen at fault?

As noted already, the Schengen system does not ban people from seeking asylum at EU borders, although it makes it harder for them to reach the territory and more likely to risk their lives trying. But there is nothing in EU law to prevent Member States from resettling large numbers of refugees directly from conflict zones if they wish to. The decision of most Member States to resettle few Syrians or others in need of protection is up to them alone.

While the Schengen rules logically make the Dublin system harder to enforce, this difficulty is relative: after all, if an asylum-seeker moves on from Greece, he or she will have to cross further borders anyway before reaching the rest of the Schengen area (Romania, Bulgaria, and Croatia are not in Schengen yet; and most asylum-seekers prefer instead to travel via the non-EU countries in the Western Balkans anyway).

And it is naïve in the extreme to assume that reimposing border controls would stop all movement of asylum-seekers between Member States. As discussed in Agnes Hurwitz’ book, the Dublin rules have their origin in Council of Europe discussions in the 1980s, and were not initially connected to the Schengen project. There was already a ‘refugees in orbit’ problem of refusal to take responsibility at that point – when border controls were still fully in place. Otherwise States would not have opened discussions on the issue. So clearly borders are permeable even when border controls exist, particularly the long land borders on the continent. Indeed, Germany last received huge numbers of asylum-seekers during the Bosnian war of 1992, again when the border controls were fully in place, which was years before countries like Hungary joined the EU (Austria was not yet a member either).

Does Schengen encourage asylum flows, as some claim? Looking at the statistics, it clearly does not. The flows of asylum-seekers last reached 2014 levels back in 1992 and then dropped off. There have been increases and decreases over the years, which can clearly be linked back to events in countries of origin (Bosnia, Kosovo, Syria, et al). If Schengen caused asylum flows, one would expect the numbers to increase after the borders were abolished in 1995, and again when the system was extended to Central Europe in 2008. But they did not. Nor did the numbers of irregular migrants.

Think about it. The asylum-seekers who reach the EU have often crossed many Asian or African borders already, and those arriving in Greece plan to cross some European borders anyway after they arrive, unless (improbably) Greece is their intended destination. They have fled poverty or persecution, paid smugglers a small fortune, often been ill-treated on the way to the EU, and endured an appalling and dangerous sea crossing. The EU’s assumption that withdrawing rescue vessels in the Mediterranean would deter them from coming proved to be tragically wrong. Compared to all that, why would the reimposition of Schengen border controls deter anyone who would otherwise come?

Conversely, is Schengen at fault for the treatment of asylum-seekers by Hungary? In principle, if third-country nationals do not (yet) apply for asylum, they are irregular migrants, and so Hungary had an obligation to remove them under the EU’s Returns Directive. But that Directive does allow Member States to apply higher standards, and it would have been foolish not to do so (as Hungary eventually did) in circumstances where Germany had already signalled its willingness to consider their planned asylum applications.

Is Dublin at fault?

The Dublin system has undoubtedly shifted a significantly higher burden to certain Member States (Greece, Italy and Hungary at present), which is increasingly difficult to manage as migration flows have increased and the Greek economy in particular has suffered from austerity. It should be noted, however, that in principle the courts have ruled since 2011 that Greece is not responsible for all the asylum-seekers who come there. The normal assumption that each EU country is safe has had to be suspended, since the ECHR and the EU courts have ruled (in the cases of MSS and NS) that Greece is not safe, due to the collapse of the asylum system there.

So it’s clearly legally incorrect to claim that ‘Greece is safe’. Moreover, since the Dublin rules are effectively disapplied to Greece, asylum-seekers can’t be criticised for evading the Dublin system if they move on from that country. However, Greece still has the initial burden of dealing with the large number of asylum-seekers which reach its territory first; and it may be difficult in practice for those asylum-seekers to move on quickly to other Member States. It’s not clear if the first other Member State they reach after Greece then becomes responsible under the rules or not.

The large number of asylum-seekers moving in recent days has probably been partly affected by the German decision that it would not apply the Dublin rules to Syrians. Germany is legally entitled to do this: the Dublin Regulation has a sovereignty clause (allowing States to consider asylum claims that are not their responsibility) and the CJEU has ruled that there are no limits on how Member States may use that clause. This will undoubtedly exacerbate the burden on Germany in turn.

While it makes more sense from a burden-sharing perspective to allocate asylum-seekers between Member States more evenly, there are a number of political problems with that idea. Since Member States are not keen to have more asylum-seekers, the would-be net recipients always resist the suggestion. Various proposals for burden-sharing have repeatedly failed since the 1990s. The EU is on the brink of sharing burdens for the first time, by adopting a Decision on relocating some asylum-seekers from Greece and Italy to other Member States. But the number involved is modest (less than 40,000) and the offers to take asylum-seekers are voluntary. The Commission’s proposal was for 40,000 people distributed by a mandatory scheme, but Member States would not accept this.

This brings me to my next point: did ‘the EU stop the refugees coming’? Yes, to the extent that it did not give sufficient relief (in the form of relocation of refugees) to Greece and Italy; but the EU’s response on this was only insufficient because Member States, voting in the Council (made up of national ministers), blocked the EU from adopting even a modestly more ambitious relocation decision. As for refugees coming from outside the EU, as noted above the EU does make it hard for them to get here (because Member States want it to do so), but Member States are free to resettle people as much as they like. If the EU did not exist, would Member States really suddenly be willing to admit many more refugees?

The central issue then is the role of national politicians. While the European Parliament has a joint decision-making role on most asylum legislation (not a purely advisory role as some have claimed), it does not have that usual role when it comes to the relocation decision, since it is an emergency measure. And in turn, national politicians are not on an anti-refugee frolic of their own, but responding to the significant proportion of public opinion that still does not want to see significant numbers coming to stay in the EU (see this recent UK opinion poll, for instance). Those who want a more liberal approach to refugees and migration need to focus on convincing their fellow citizens, not blaming the EU.

What should the EU do next?

With all this in mind, what should the EU do next? As I upload this blog post, Commission President Juncker is about to make his ‘State of the European Union’ speech with new proposals. It seems likely that they will include some of the ideas already previewed in May, as part of the EU Migration Agenda (discussed here): a common list of ‘safe countries of origin’; the greater use of Frontex in returns procedure; and new rules on emergency exceptions from the Dublin rules. The latter will be much more ambitious than the first decision to this end (aiming for 120,000 more asylum-seekers relocated, according to reports), although whether Member States will accept this remains to be seen.

I will blog about the details of the new proposals when they emerge, but for now here’s an overview of what I think the priorities should be. (For other suggestions, which partly cross-over with mine, see the position of the UNHCR and Human Rights Watch. I agree with their suggestions to step up rescues and to ensure safe passage for more refugees, but I will elaborate here on some other ideas).

First of all, looking at the situation within the EU, it’s obvious that there needs to be some form of relief (far more than provided for in the relocation Decision about to be adopted) for the Member States bearing a very large share of the burden. As I pointed out at the outset, the concept of burden-sharing is intrinsic to international refugee law (see also the comments on this by my colleague Geoff Gilbert, and by Michael Ignatieff). It’s also recognized in EU law by Article 80 of the TFEU, which refers to the principle of solidarity between Member States.

On that point, it’s reported that a group of newer Member States is resisting not only the idea of relocating asylum-seekers, but even the compromise suggestion of making an extra financial contribution in lieu of this. This is a flagrant breach of the burden-sharing principles of international and EU asylum law. Moreover, since these countries have benefited enormously from their citizens’ refuge-seeking in and economic migration to other countries (both into and outside the EU) as well as a substantial inflow of EU funding, their position is morally untenable.

Secondly, it’s apparent that there needs to be more coordination of national policies within an overall EU framework. The overall impression given is shambolic, although this has not stopped some commentators from ascribing responsibility for every decision of the Hungarian government or even a non-EU state’s police (in the Former Yugoslav Republic of Macedonia) to the EU. Some new forum – perhaps a framework for ministers, civil servants and the heads of EU agencies to meet to discuss rapid reactions – needs to be established. Clearly the overall amount of humanitarian assistance for those reaching Member States’ shores also needs to be increased.

Thirdly, on a similar theme, the consistent interpretation of EU rules needs to be enhanced. There are too many examples of divergent approaches to EU law which should in principle be ‘uniform’ (although Member States have scope to apply higher standards). These sort of issues can partly be addressed through the coordination framework discussed above, but further measures are clearly necessary.

Let’s look at several examples. The Hungarian government has just passed a law to impose custodial criminal penalties upon those who cross its external borders fence. As we have seen already, refugees must be exempt from penalties for irregular border crossing, at least in some cases. Moreover, the CJEU has ruled that irregular migrants should not be subject to custodial penalties for unauthorised entry, since that delays their removal (for a summary of the case law to date, see the opinion in the pending case of Celaj).

Several Member States also have stated that they do not wish to take Islamic refugees. This is again a clear breach of international and EU law: the Geneva Convention specifically states that it applies without discrimination on ground of religion, while the EU Charter of Rights bans discrimination on grounds of religion when applying EU law (and the asylum process in all its aspects amounts to applying EU law). As for the bizarre argument that ‘our country doesn’t have a mosque’, it is in fact possible for Muslims to pray elsewhere. Refusing refuge to Muslims is not necessary to keep Europe Christian; rather It’s a Christian duty to offer refuge, as Pope Francis and the Archbishop of Canterbury have pointed out.

Also, there have been examples of individual mistreatment of groups of refugees and irregular migrants, in the form of police action or border guard pushbacks, or inadequate living conditions. While Member States’ border guards and military forces have surely rescued many more people than they have mistreated, there needs to be a commitment to ensure redress for the latter cases. Although the Schengen Borders Code generally requires border guards to behave courteously and fairly, it would be useful to agree common standards on prohibited behaviour.

On the living standards point, note that it is not accurate to say (on one journalist’s blog) that someone who applies for asylum in one Member State even though another Member State is responsible for their claim under the Dublin is a ‘migrant’. The CJEU expressly ruled in its judgment in CIMADE and Gisti that such a person is an asylum-seeker and is entitled to the relevant benefits until they are transferred to the responsible Member State under the Dublin rules, The same rule is now expressly set out in the preamble to the Dublin III Regulation.

More generally, the EU should reflect on whether more far-reaching moves to achieve more harmonisation in practice should be attempted: for instance, transforming the European Asylum Support Office into a body able to make decisions on asylum applications in ‘overflow’ cases (if need be, by seconding national officials for the duration), and/or creating a common European asylum appeal court. There are still wide differences in recognition rates of refugees between Member States, despite a common legal acquis: the low recognition rate of Eritreans in France as compared to other Member States may have contributed to the ‘Calais crisis’, for instance. In the meantime, the Commission needs to step up infringement actions for breaches of EU immigration and asylum law.

Fourthly, more generally, should Schengen survive? It follows from the analysis above that ending the Schengen system and reimposing internal border controls would likely have little impact on the overall flows of migrants and refugees coming to the EU. It might have a modest impact on restricting their movement between Member States, but the desirability of that outcome is tied up with the merits of the Dublin rules, to which I turn below.

But if Member States are serious about ensuring that irregular migrants and asylum-seekers do not cross borders to flout the Dublin rules, they would have to bring back internal border controls with a vengeance, building fences and installing border guards across many thousands of kilometres of common borders.  Except for Malta, the Schengen states do not have the built-in border control that the UK, Ireland and Cyprus (also not in Schengen) have, for obvious geographic reasons. The likely outcome would be dozens of ‘Calais’ situations at the various internal borders of the Union.

Furthermore, the basic obligation to drop internal border controls is set out in the Treaties, and so a permanent suspension of Schengen would require a Treaty amendment. A reasonable compromise might be to amend the Schengen rules to allow for more temporary internal border checks whenever intelligence shared between Member States suggests that a large number of irregular migrants or asylum-seekers is likely to cross an internal border.

Fifthly, should Dublin survive? I will forego answering this question until we see whether Member States are willing to back a much more ambitious relocation system. If they are, then a significant chunk of the excess burden being borne by some Member States would be redistributed. Asylum-seekers would also benefit from better conditions and a fairer chance of getting protection as a result – although it would be best to take account of their preference in any relocation system as far as possible, so as to reduce ‘secondary movements’.

Sixth, the individual enthusiasm of refugee advocates should be harnessed as far as possible. Why not try to find money from the EU budget to pay those who are willing and able to give humanitarian or other support to refugees and asylum-seekers in an over-burdened Member State, or even a third State? (This would supplement the EU’s existing programmes for volunteers). Why not address a recommendation to Member States, encouraging private sponsorship of refugees to reduce the burden on taxpayers? As well as family and friends, corporations and NGOs should also be allowed to sponsor, and (for instance) universities could ask if students, staff and alumni wanted to sponsor refugees who would meet the criteria to enrol in courses.

Critics of refugee advocates often argue that those advocates should put refugees up in their homes – but many thousands of those advocates have in fact offered to do so. (For my part, let me reassure those panicking about the admission of refugees that I was not beheaded by my Middle Eastern refugee roommate at university).  But let’s turn this argument around: why don’t critics of refugees spend a year in Syria, or in the refugee camps which many Syrians have fled to, before they criticise the refugees for leaving or others for wanting to welcome them?

This brings me neatly to the international framework. To repeat, burden-sharing in refugee matters is not just an EU principle, it’s a requirement of international law too. As regards Syrians, the neighbouring States (Turkey, Egypt, Jordan, and Lebanon) have borne a far heavier burden than the EU or any other countries have done. So it is entirely right for the EU to assist them more with this burden than it is doing already (the EU and Member States already give significant financial assistance).

While refugees in those countries may be safe from immediate persecution, they face difficult living conditions: see the further analyses here of the position in Turkey and the nearby Arab States. Moreover, food support from UN agencies has just been halved. The EU’s further support for these States does not have to be solely in the form of admission of refugees: it could make a further financial contribution to increase the refugees’ living standards. Nor does the EU alone have to offer this assistance: the international law rules apply across the globe, and the nearby Gulf states and other wealthy or middle-income countries could do more by way of taking refugees and offering financial assistance.

In the medium term, some more imaginative solutions are possible. One problem facing Syrian refugees in Turkey is that they are technically not refugees there, since Turkey applies the optional geographical limitation to the Geneva Convention, applying it to European refugees only. This means that many Syrians are not allowed to work. The EU could offer to waive visa requirements for Turkey in return for it lifting the geographical limitation (along with other conditions).

Another idea is the creation of a UN agency with the remit of the Syrian refugee crisis. This would mean that a special regime in the Geneva Convention and EU law would apply: if the agency could not take adequate care of Syrian refugees for any reason, they would be fully entitled to refugee status. Otherwise, their applications could be refused (see further the CJEU judgment in El-Kott, on the application of these rules to Palestinians). At the very least, the EU needs to take the initiative to hold a major international conference on the Syrian refugee situation, in order to encourage and coordinate many other countries’ efforts to take efforts to take a greater share of the burden of relieving this unfolding human tragedy.

Barnard & Peers: chapter 26

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.