What is wrong with the proposal to exclude some Ukrainians from temporary protection?

 

 

Dr. Meltem İneli Ciğer, Associate Professor of International Law, Suleyman Demirel University Faculty of Law, Türkiye; Honorary Fellow, School of Law and Social Justice, University of Liverpool

With comments from Professor Steve Peers, Law School, Royal Holloway University of London

 

Photo credit: President of Ukraine, via Wikimedia Commons

 

 

Nearly every year since I started teaching temporary protection and the Council Directive 2001/55/EC of 20 July 2001 (Temporary Protection Directive) at the Odysseus Summer School in 2022, a familiar pattern has emerged. Each year, while updating my PowerPoint slides, the European Commission adopts a proposal to extend the temporary protection regime implemented for Ukrainians fleeing the full-scale Russian invasion. I usually read and incorporate this new development, either the Commission Proposal or the adopted Council Implementing Decision, when I am flying to Brussels. This year is no exception.

 

This year’s Proposal for a Council Implementing Decision (COM(2026) 345 final) marks a departure from previous practice. Aside from proposing to extend temporary protection for an additional year, namely until 4 March 2028, the Commission is proposing, for the first time, to restrict the scope of temporary protection for a specific subset of newcomers. In particular, Article 2 of the Proposal targets newly arriving Ukrainian citizens who are subject to military service obligations under Ukrainian law and who lack explicit, official authorisation from the Ukrainian authorities to leave the country. By proposing this conditionality, the Commission is effectively linking eligibility for temporary protection to the enforcement of a home state’s conscription laws.

 

I have written here and here why I believe these yearly extensions run contrary to the Temporary Protection Directive itself and the risks they bring. This year, however, I will do something different. Since over the years, I have covered the legal problems with yearly extensions, I want to focus specifically on the legal questions brought by the new proposal, namely, those relating to the new restrictions it introduces.

 

Here, I will pose four main legal questions relating to these new restrictions and give my opinion on them. I should mention that the idea to write this post emerged from an exchange on LinkedIn, where I am a somewhat active user, and the comments I received from Steve Peers. I asked Steve to include his answers to these questions, to provide a ‘devil’s advocate’ perspective on some points. Finally, I should mention the sources that can help this analysis. You can watch the Commission’s official press conference video, where some similar questions were posed to the Commission. Additionally, a recent Council of Europe report explicitly warns about the human rights risks of the proposed restriction of scope. Of course, these legal questions will only arise if the proposal is adopted as it is. What are they?  

Question 1: Is restricting the scope of temporary protection and excluding newly arriving military-age men from Ukraine discriminatory?

Meltem: Yes, there is a very strong legal argument that this specific restriction is discriminatory under both EU and international human rights frameworks. First, let us look at who is excluded: Article 2 of the proposal explicitly targets newly arriving Ukrainian citizens who are subject to military service obligations under Ukrainian law and who lack official authorisation from the Ukrainian authorities to leave the country. Because martial law and mobilisation frameworks in Ukraine predominantly apply to adult males aged 18 to 60, this measure selectively excludes military-age men from receiving temporary protection in the EU in future.

Article 21 of the Charter of Fundamental Rights strictly prohibits any form of discrimination based on sex or nationality. By implementing a rule that disproportionately and systematically strips temporary protection eligibility away from mostly adult men, the proposal introduces a gender-discriminatory measure. Treating newly arriving men less favourably than women fleeing the same conflict zone creates direct friction with this principle of equal treatment. This is further reinforced by Article 14 of the European Convention on Human Rights (ECHR), which prohibits sex-based discrimination when read alongside the protection of fundamental rights under Article 3 or Article 8 ECHR (cf para 30 here). Of course, although these excluded individuals will retain their absolute right to apply for asylum under Article 18 of the Charter, this route opens up further complex legal questions. Most notably, what happens if their international protection claim is rejected?

If a Member State examines an individual’s asylum (ie international protection) claim (which can still be made, according to the temporary protection Directive, even if temporary protection is refused), and concludes that evading conscription under these specific circumstances does not meet the high threshold for refugee status or subsidiary protection, the individual is left in a dangerous legal vacuum. Because they are barred from registering as temporary protection beneficiaries by this new proposal, this may expose them to the immediate risk of a return decision. 

Steve: A devil’s advocate view: the Charter also provides for possible restrictions of Charter rights in its Article 52, which allows limitations on rights to support ‘objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others’. The argument here is that the EU is seeking to support the Ukrainian defence effort, which could be described either as an objective of general interest, or protection of the rights and freedoms of others. The measure is arguably proportionate as long as the return of each Ukrainian citizen in the individual case would not amount to non-refoulement (and only provided that any application for international protection they have made has failed on the merits; the concerns raised about human rights and conscription in Ukraine can obviously be argued in this context). Having said that, the Commission’s proposal can fairly be criticised for failure to make any specific reference to the possibility of applying for international protection instead.

Question 2: Does the Temporary Protection Directive give the Council the power to restrict its scope after four years of its activation?

Meltem: No, it does not. Neither Article 5 nor any other provision in the temporary protection Directive (TPD) grants any power to the Council to retroactively alter, narrow, or restrict the objective scope of who qualifies for that protection via a yearly implementing decision. Article 5 is invoked by the Commission in the Proposal to justify restricting the scope of the TPD’s application. However, if you look closely at the TPD, you will see Article 5 is intended to designate the specific categories of persons eligible for temporary protection at the very beginning, when there is a mass influx. It does not give the Council the power to dynamically designate or exclude different groups in subsequent yearly extensions. In my opinion, attempting to introduce new restrictions now is completely contrary to the TPD provisions. These new restrictions essentially introduce new exclusion grounds for temporary protection status. When looking at Article 28 of the Directive, which explicitly sets out the allowed exclusion grounds, it is clear that the new restrictions are also not permitted as additional exclusion grounds.

Steve: Again, a devil’s advocate might argue the opposite here – that this is not an issue of a new exclusion from temporary protection (which would definitely need an amendment to the parent Directive to be created), but rather a narrowing of those included by temporary protection. The scope of people included by the current iteration of temporary protection is defined not by the parent Directive, but by the 2022 decision to trigger it in response to the main Russian invasion of Ukraine, which has been amended (to extend its duration) several times already. The parent Directive is silent on the issue of whether the scope of who is covered by temporary protection can be altered (either to narrow it or to widen it) after temporary protection is triggered, but perhaps the earlier CJEU judgment in Kaduna – which accepted that Member States could narrow the scope of any ‘optional’ temporary protection they initially offered on top of the EU minimum if they chose – applies by analogy to EU-wide temporary protection, ie the EU can narrow the scope of temporary protection it initially offered, as long as the parent Directive’s test for terminating temporary protection is met for the specific group of people being removed from the scope of that protection as regards future applications. That test is:

...the situation in the country of origin is such as to permit the safe and durable return of those granted temporary protection with due respect for human rights and fundamental freedoms and Member States' obligations regarding non-refoulement.

It might, of course, be argued that this test is not met for men of military age. In any event, the parent Directive’s guarantee that they can apply for international protection at any time, and the Return Directive’s guarantee that they cannot be refouled, have to be satisfied too, on an individual basis.

It might also be argued that since the parent Directive only sets minimum standards, it must remain open to Member States to grant temporary protection to military age men as an option, as long as they are fleeing Ukraine for the same reason as others seeking temporary protection (see the Kaduna judgment by analogy, as regards those who left Ukraine shortly before the main Russian invasion). This might be relevant in particular to Hungary, which has reportedly objected to this aspect of the proposal.

Question 3: What will happen to the family members of those who fall within the scope of temporary protection in line with Council Implementing Decision (EU) 2022/382 of 4 March 2022?  

Meltem: This raises a very messy legal question regarding family unity. Under the initial Council Implementing Decision (EU) 2022/382, family members of Ukrainian nationals, as well as those of third-country nationals holding refugee or equivalent protection status in Ukraine prior to the full-scale invasion, are explicitly included as a core category entitled to temporary protection alongside the principal applicant.  Article 15 of the Temporary Protection Directive sets out mandatory duties for Member States to reunite family members who were separated due to the circumstances of the mass influx. (cf. Milios’s contribution here) The new proposal creates a direct clash between Article 15 of the TPD and the proposed exclusion grounds. If a newly arriving, military-age man leaves Ukraine to join family members who have held temporary protection in the EU since 2022, his exclusion would directly undermine the right to family life and the obligations in the 2022 Decision and the Directive. Conversely, admitting him while excluding single men in identical circumstances introduces severe issues of differential treatment and discrimination.

Steve: here I think the devil’s advocate has no good argument to make. Family members of those with temporary protection are entitled to temporary protection, according to the 2022 Decision, and family reunion, according to the parent Directive, unless the criteria for exclusion set out in that Directive (ie security risks and serious crimes, defined similarly to the exclusion clauses in the Refugee Convention) apply. This route to temporary protection is most likely to be relevant to men whose wives or partners have temporary protection in the EU (for partners, this is subject to the criteria of having a ‘stable relationship’, and that the host Member State treats partners in a ‘comparable’ way to married couples). As Jane Austen might have said, “It is a truth universally acknowledged, that a single man seeking temporary protection from a Russian platoon, must be in want of a wife.”

Question 4: Is Recital 5 of the Proposal a mistake or a new interpretation of the Krasiliva case (C-753/23) by the Commission?

In the Krasiliva case (C-753/23), the Court of Justice of the European Union (CJEU) confirmed that displaced persons from Ukraine have a right to choose the Member State where they want to apply for temporary protection. However, the Court ruled that national authorities cannot declare a newcomer’s temporary protection registration and resident permit request inadmissible simply because they already applied for a permit in another Member State but have not received it. Interestingly, the Court left open the question whether a person who has received temporary protection status and a resident permit attached to this status in one Member State can apply and be granted temporary protection in another MS.

Recital 5 of the Commission Proposal notes “Given that a person can benefit from the rights attached to temporary protection in only one Member State at a time, to ensure that this is the case, and to avoid multiple registrations for temporary protection, Member States should reject residence permit requests made on the basis of Article 8(1) of Directive 2001/55/EC when it is apparent that the person concerned has already obtained a residence permit on that basis in another Member State and therefore is enjoying the rights attached to temporary protection therein, including social assistance. This would be coherent with the judgment of the Court of Justice of the European Union in case C-753/23 and in particular paragraph 30 thereof.”

Steve: To my mind, the Krasiliva judgment is ambiguous. The key para in the judgment says that it is “open to the authorities of a Member State to verify, in the course of examining” a temporary protection application, “whether those persons have already obtained a residence permit in another Member State”. This is not explicitly definitive either way. The important point here is the addition of the words in the Commission proposal: “and therefore is enjoying the rights attached to temporary protection therein, including social assistance”, which do not appear in the previous Council decision extending temporary protection. This suggests that if another Member State has granted temporary protection but has not done so correctly, ie does not extend the substantive rights set out in the parent Directive to beneficiaries in practice, another Member State is obliged to consider a temporary protection application from those persons. This would be consistent with CJEU case law on international protection (Ibrahim).

Meltem: I believe the Commission adopts a very restrictive reading of the Judgment by noting Member States should reject residence permit requests made on the basis of Article 8(1) of the Directive when it is apparent that the person concerned has already obtained a residence permit in another MS. However, as Steve pointed out, what happens if a person holds TP status in a Member State but is not enjoying the rights attached to temporary protection therein, including social assistance? Then can they apply for temporary protection in another Member State? I think the recital somehow supports this reading. Is this on purpose or a mistake we do not know.

Conclusion

In conclusion, although the Commission's proposal to restrict the scope of temporary protection to help Ukrainian allies is understandable from a policy point of view, it raises many serious legal problems. For the reasons I have outlined, ranging from discrimination and ultra vires overreach to the risk of creating a dangerous legal gap for those whose asylum claims might be rejected, I argue that the Commission proposal should not be adopted as it is.

The Aleb judgment on ‘safe third countries’ in asylum law: the CJEU’s answer to EU legislative amendments?

 

 

Tamta Gventsadze, PhD candidate in law, UNITUS

Photo credit: Mstyslav Chernov, via Wikimedia Commons

 

Introduction

On February 5, 2026, the Court of Justice delivered its judgment in Case C-718/24, Aleb concerning the interpretation of Articles 33(2)(c), 38 and 46 of Directive 2013/32 in the context of the ‘safe third country’ concept and the right to an effective remedy, Article 47 of the Charter of Fundamental Rights of the European Union.

This analysis examines the Aleb judgment in light of the ‘safe third country’ concept under Directive 2013/32 (Asylum Procedures Directive, APD) and its replacement by Regulation (EU) 2024/1348 (Asylum Procedures Regulation, APR) from 12 June this year. After mapping the factual background and the Court’s clarification of the cumulative safeguards governing the presumption of safety, it then considers the impact of the 2026 amendments and assesses their implications for judicial control and fundamental rights protection.

I. Facts of the Case

The applicant, NP, is a Syrian national and an unaccompanied minor who lodged an application for international protection in Bulgaria on 2 November 2023. During the interview conducted on 1 December 2023, he stated that he had lived in Aleppo (Syria) and had left two to three months earlier with his brothers because of the war. Before “illegally entering the Bulgarian territory” (para. 19), NP stayed in Türkiye for approximately one month, where his brothers remained with three of his sisters who already lived there.

By decision of 18 June 2024, the Chairperson of the Bulgarian National Refugee Agency rejected the application, refusing to grant him both refugee and humanitarian status. The authority accepted that Syria was affected by internal armed conflict and indiscriminate violence and acknowledged that the applicant was exposed to a real threat to his life or person. Nevertheless, it refused to grant protection on the ground that Türkiye constituted a ‘safe third country’ in which the applicant could seek protection. The decision relied, inter alia, on the fact that the applicant had already lived in Türkiye for about a month without suffering harm, had close family members there, and that Syrian nationals in Türkiye benefited from temporary protection and protection against forced return; finally, “their basic needs [were] satisfied” (para. 20).

The referring court expressed doubts as to the compatibility of this approach with Directive 2013/32, especially considering the absence of both a defined methodology for applying the ‘safe third country’ concept and the lack of explicit procedural guarantees under Bulgarian law allowing the applicant to challenge the existence of a sufficient connection with Türkiye (paras 24-26).

II. The Presumption of Safety under Article 38 of the Directive

The judgment deals with the legal nature and limits of the presumption underlying the ‘safe third country’ concept. The Court begins by recalling that the application of Article 33(2)(c) of the APD (ie, providing that asylum applications are inadmissible where the ‘safe third country’ principle is applied) is conditional upon strict compliance with the requirements of Article 38 thereof (ie the definition of ‘safe third country’ and the conditions related to it). In para. 48 of the judgment, it is expressly stated that the conditions laid down in Article 38 are cumulative, with the result that the inadmissibility ground cannot be applied where any one of those conditions is not satisfied.

This formulation makes clear that the presumption of safety is neither automatic nor self-standing, it is legally constructed and constrained by a series of substantive and procedural safeguards (para. 46). More precisely, Article 38(2) requires Member States to regulate the safe third country concept through national law and that the national rules ensure: (i) there is a sufficient connection between the applicant and the third country so that return there is reasonable; (ii) must define a methodology for applying the concept, which includes either a case-by-case safety assessment or the designation of generally safe countries; (iii) must guarantee an individual examination and allow the applicant to challenge both the safety of the third country in their specific circumstances and the existence of the required connection.

Therefore, the key requirement in the safe third country designation is the existence of a “connection” between the applicant and the third country. The Court emphasizes that Article 38(2)(a) obliges Member States to define in national law criteria enabling authorities to determine whether such a connection exists and whether return to that country is reasonable (paras 51–52). Since the Directive does not define “connection,” Member States retain discretion to specify the criteria, but within EU limits.

Importantly, the Court further reiterates its prior case law that mere transit through a third country cannot, on its own, justify the conclusion that return there is reasonable (para. 54). This statement substantially narrows the presumption. It prevents Member States from relying on minimal factual links and requires a qualitative assessment of the relationship between the applicant and the third country, considering factors such as duration and circumstances of stay and family ties. It is evident that the presumption cannot be based merely on the “transit” criterion. Even where national law relies on the notion of “stay,” national courts must assess, in light of all circumstances, whether that stay genuinely establishes a sufficient connection (para. 55).

The Court also addresses national lists of safe third countries. Member States may, in principle, designate safe third countries by general act. However, such designation does not dispense with the obligation to conduct an individual assessment. National law must provide a methodology for a case-by-case evaluation of both the country’s safety for the applicant and the existence of a sufficient connection (para. 65). The presumption must remain rebuttable, and the applicant must be able to challenge the existence of that connection.

The judgment firmly situates the safe third country concept within the framework of effective judicial protection. Article 38(2)(c) must be read in conjunction with the ‘effective remedy’ rights in both Article 46 of the Directive and Article 47 of the Charter (paras 69-74). Even if national law does not explicitly confer such power, a court hearing an appeal must verify whether a sufficient connection exists.

Accordingly, the Court recalls that Article 46(1) of the Directive guarantees a right to an effective remedy in asylum cases and that Article 46(3) requires a full and ex nunc examination of both facts and law in asylum appeals. This standard applies even in inadmissibility cases and does not necessarily require a substantive assessment of protection needs, but it does require full judicial scrutiny of admissibility conditions. Furthermore, Article 47 of the Charter enshrines the principle of effective judicial protection and is directly applicable, thereby requiring national courts to conduct comprehensive review consistent with EU fundamental rights standards.

Therefore, when reviewing a decision declaring an application inadmissible on ‘safe third country’ grounds, national courts must conduct a full and up-to-date examination of whether the third country is safe for the applicant and whether all cumulative conditions, including the connection requirement, are fulfilled (para. 75). The Court thus subjects the presumption of safety to meaningful judicial scrutiny grounded in Article 47 of the Charter.

Finally, the Court confirms that an application may be declared inadmissible on ‘safe third country’ grounds even where the applicant faces a real risk of serious harm in the country of origin (ie, as distinct from the ‘safe third country’). This confirms that the ‘safe third country’ concept functions as a jurisdiction-allocating mechanism rather than as a substantive denial of risk in the country of origin. Precisely because it allows displacement of protection despite such risk, strict compliance with Article 38 safeguards is imperative.

III. Relevant changes of legislative framework

It is further necessary to underline that while the Court has provided meaningful clarifications regarding safe third country concept and judicial protection in light of corresponding provisions under Directive 2013/32 in a few months’ time this instrument will be replaced by another secondary EU legislation in the form of Regulation (EU) 2024/1348 of the European Parliament and of the Council of 14 May 2024 establishing a common procedure for international protection in the Union and repealing Directive 2013/32/EU (already discussed in great detail here).

Upon a comparative assessment of these two contrasting instruments, several illustrative differences emerge between the provisions concerning safety presumptions, and those of appeals.

Article 33 of the APD addresses inadmissible applications, framing them as an exception to the obligation to examine the substance of an application, meaning that Member States are not required to assess the merits of qualification for international protection where one of the exhaustively listed grounds for inadmissibility applies. The list is limited: Art. 33(2) includes protection granted by another Member State, first country of asylum, ‘safe third country’, subsequent applications without any new elements, and applications lodged by dependents who had consented to be included in another application.

Article 38 of the APR restructures this framework, by separating the decision on admissibility from the decision on the merits. Article 39(3) explicitly governs rejection as unfounded following substantive examination pursuant to the ‘Qualifications’ Regulation (EU) 2024/1347. This structural clarification seems to strengthen the distinction between inadmissibility and unfoundedness, which had already been emphasized by the Court.

In addition, relevant to the current analysis, a notable development concerns the first country of asylum and ‘safe third country’ grounds of inadmissibility. In the APD, Article 33(2)(b) and (c) refer to Articles 35 and 38 without expressly conditioning inadmissibility on the likelihood of admission or readmission. The Regulation introduces an explicit safeguard, with Article 38(1)(a) and (b) essentially stating that inadmissibility may apply unless it is clear that the applicant will not be admitted or readmitted to the third country. Therefore, changes regarding admissibility grounds combine expansion with procedural tightening and partial codification of judicial safeguards.

To further detail the elements regarding the concept of ‘safe third country’, it seems clear that the evolution of the rules on this principle from Article 38 of the APD to Article 59 of the 2024 Regulation, especially as amended in 2026, reflects an apparent shift in structure and scope, even if several aspects remain unchanged.

First off, at the level of safety criteria, both instruments require absence of threats to life or liberty on Convention grounds, absence of serious harm, respect for non-refoulement, and protection against removal contrary to international law. The Regulation clarifies the content of “effective protection” through reference to Article 57 and to Regulation (EU) 2024/1347. As defined by Article 57, effective protection can be attained in a country that has ratified and respects the Geneva Convention on Refugee Status, within any permitted reservations or limitations. However, where a geographical limitation applies, or where the Convention has not been ratified, protection must be assessed against minimum criteria of permission to remain on the territory, access to sufficient means of subsistence to ensure an adequate standard of living, access to healthcare and essential treatment, access to education under general national conditions, and the availability of protection until a durable solution is found. Interestingly, these minimum criteria resemble those of subsidiary protection guarantees, but the context refers to international protection.

Secondly, additional significant changes concern Union and national designation mechanisms introduced by the Regulation. Article 59(2) and (3) of the Regulation, which have no previous equivalent in the Directive, allow partial designation for specific territorial parts or identifiable categories of persons and require reliance on a broad range of sources. Importantly, Art. 59(5)(b) explicitly maintained, that the ‘safe third country’ concept may only be applied where “there is a connection between the applicant and the third country in question on the basis of which it would be reasonable for him or her to go to that country” (the same standard of ‘reasonable’ connection as employed by the Court in Aleb).

However, the 2026 amendments substantially reshape the connection criterion, by removing it as a mandatory condition and introducing two additional bases. The concept may now apply where the applicant transited through the third country (explicitly opposing to what the Court prohibits in Aleb). It may also apply where an agreement or arrangement exists requiring the third country to examine protection claims. As already wittily named elsewhere, this ‘Rwanda clause’ permits transfer without prior connection or transit. Moreover, the removal of automatic suspensive effect in safe third country appeals in the 2026 amendments seem to further intensify a restrictive shift, although there is still a possibility for requesting a judicial suspension.

The most problematic aspect seems this possibility of transferring an individual to a state where they might have never even been to, but the secondary law would permit it solely due to the existence of an agreement (often in non-legally binding form of MoUs) between a EU Member State or the Union and possibly any third country. It is true that an applicant will maintain a possibility to appeal this decision, however, they might have to first ask for a suspensive effective of the appeal, which further complicates an already arduous procedure. In theory, a person might end up being transferred to such a supposedly ‘safe’ third country before a decision is made upon their request to remain, which could create a rather unclear legal consequence; would a person potentially have to be brought back, shall their appeal succeed? It is true that this particular scenario might be extremely rare in practice, but does this rarity allow for its legality?

Nevertheless, despite this expansion in scope, the APR maintains several core safeguards, explicitly stating that admission or readmission must be ensured and that individual assessment remains required (which could become more restricted in practice). Special guarantees also apply to unaccompanied minors, including best interests and prior assurances of protection; and the ‘Rwanda’ clause cannot apply to unaccompanied minors at all.

As confirmed by the Alace judgment, designations of ‘safe countries of origin’ must remain subject to judicial review under Article 47 of the Charter. The Court held that national courts must be able to examine compliance with material designation criteria and to rely on independent sources of information. This reasoning applies by analogy to ‘safe third country’ designations and considering that the Charter has the same legal value as primary EU law, legislative attempts to narrow judicial review cannot override it.

In this context, the Aleb judgment constitutes an additional message. It reaffirms that application of the ‘safe third country’ concept is subject to cumulative conditions and full judicial scrutiny. Even as the legislature broadens the concept and limits suspensive effect, the Court insists on effective judicial protection and strict assessment of safety criteria.

IV. Concluding Assessment

The Aleb judgment does not abolish the presumption of safety inherent in Article 38 of the Directive. However, it subjects the presumption to cumulative substantive conditions, mandatory individualized assessment, and full judicial review.

In more detail, the ECJ allows that the determining authority may apply the concept of ‘safe third country’ on the basis of information from publicly available sources and rely on a national list of safe third countries, if such exists, but this is only provided that national law also defines the methodology applicable for assessing, on a case-by-case basis, according to the particular circumstances of the applicant for international protection, whether the third country concerned satisfies the conditions for being regarded as safe for that applicant and the possibility for that applicant to challenge the existence of a connection, within the meaning of Article 38(2)(a).

Moreover, the Court’s insistence, particularly in paragraphs 48, 54 and 65 of the judgment, on the cumulative nature of the safeguards, the insufficiency of mere transit, and the necessity of a defined methodology, significantly limits the discretionary space of national authorities. The ECJ reinforces the procedural containment of the ‘safe third country’ mechanism, by linking these cumulative requirements to Article 46 of the Directive and Article 47 of the Charter, and by requiring national courts to verify the existence of a connection even where national law is silent in this regard.

Therefore, the Court ties the existence of the ‘safe third country’ presumption to two co-existing elements: clearly defined methodology underlining individual assessment (which includes the existence of “reasonable” connection between the applicant and the safe third country) and a possibility for judicial review of the connection requirement. It seems evident from this judgment, that the safety presumption, be it national or supranational level, would otherwise be invalid. In a way, Aleb strengthens the doctrinal link between inadmissibility decisions and effective judicial protection. The presumption of safety is permitted, per se, but only as a structured, reviewable and rebuttable legal construction embedded within the broader guarantees of EU fundamental rights law.

The combined effect of Alace and Aleb indicates that the Court of Justice does not seem to be prepared for relaxing the standards governing the designation and review of ‘safe third countries’. Nevertheless, it remains to be seen whether and how the Court will respond to the legislative changes, considering that they aim to abolish the mandatory connection element and restrict safeguards when challenging it.

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.

The right to perform secondary movements under international refugee law

 

Paolo Biondi

 

Photo credit: Mstyslav Chernov, via Wikimedia Commons

 

 

Introduction

 

The 1951 Refugee Convention is a pivotal document in international refugee protection, outlining the rights of asylum seekers and the responsibilities of states. Central to this convention is Article 31(1), which addresses the non-penalization of refugees for illegal entry or presence:

 

1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence

 

Traditionally viewed as a provision ensuring refugees are not penalised for illegal entry or presence if they present themselves promptly to authorities and have good cause for their illegal entry or presence, in my opinion Article 31(1) has broader implications. This blog post explores these implications, highlighting how Article 31(1) and related provisions within International Refugee Law (IRL) and International Human Rights Law (IHRL) should be interpreted to uphold human rights standards. By examining the negotiating history, authoritative interpretations and jurisprudential decisions, it suggests an unorthodox interpretation of Article 31 pointing to a wider interpretation of the right to perform secondary movements where effective compliance with human rights is essential for legitimately allocating of responsibility for asylum applications.

 

Understanding the Orthodox Interpretation of Article 31

 

Article 31(1) aims to address the practical realities of flight from persecution, acknowledging that refugees may have no choice but to enter or remain in a country illegally but, most importantly, implicitly regulates the right to perform secondary movements. During the drafting process, states, particularly France, expressed concerns about ensuring that refugees who had already found protection in one country would not move freely to others without adherence to border formalities. This debate underscored the tension between the humanitarian protection of refugees and states' sovereign rights to control their borders and regulate the distribution of refugees (responsibility sharing).

 

While Article 31(1) prohibits the imposition of penalties on refugees for their illegal entry or presence, it must be read alongside Article 32, which restricts protection from expulsion to refugees lawfully in the territory. This distinction highlights that the scope of penalties under Article 31(1) does not necessarily encompass removal to another country, as this could fall under the separate regime of expulsion under Article 32. Recent jurisprudence, such as rulings on the UK's Rwanda policy, suggests that removal to a third country may not always constitute a penalty under Article 31(1), provided the destination country is deemed capable of providing effective protection. However, international and regional jurisprudence also supports the view that measures resulting in effective penalties, such as removal without substantive guarantees of protection or the risk of refoulement, fall within the ambit of Article 31(1). The principle of non-penalization ensures that refugees are not disadvantaged due to the manner of their arrival, particularly when they lack viable alternatives to reach safety.

 

Two critical elements in the interpretation of Article 31(1) are the concepts of effective protection and meaningful connection. Effective protection refers to conditions in a country that ensure refugees' safety and access to basic human rights. Meaningful connection (e.g. family links) emphasize the importance of a reasonable connection with the transit or destination country. Effective protection is further elucidated in Article 33(1) of the Refugee Convention, which prohibits refoulement—returning refugees to territories where their life or freedom would be threatened. This principle extends beyond the country of origin to any territory where such risks exist, underscoring the necessity of ensuring that refugees are not merely safe but can live free from fear of persecution or other serious harm.

 

During the 1951 Convention negotiations, while Norway’s proposed amendment of Article 31(1)—replacing "coming directly" from a country of persecution with "any territory" where life or freedom is threatened—was not accepted, this rejection does not negate the principle's evolution. Subsequent jurisprudence and interpretations, such as those from the ECtHR, CJEU and the UNHCR, have expanded the understanding of effective protection (e.g. Dublin jurisprudence further below). These developments in essence reflect an acknowledgment that threats in transit countries or deficiencies in protection standards can also justify secondary movements. Yet, already during the negotiations. UNHCR stressed that transit and secondary movements are sometimes unavoidable due to the challenges refugees face in initial asylum countries. Historical examples, such as the flight of refugees during World War II informed this perspective. The experience of UNHCR officials (including the United Nations High Commissioner for Refugees Dr Van Heuven Goedhart) participating in the Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, who themselves had to transit through multiple countries during their own escapes, highlighted the practical realities faced by refugees.

 

Thus, when refugees seek effective protection or a meaningful connection in a transit or destination country, such as family reunification among other compelling reasons, they may indeed have "good causes" for secondary movements under a modern interpretation of Article 31(1). This aligns with the broader human rights framework that underpins the Refugee Convention, ensuring that its protections remain relevant to contemporary challenges. While the effective protection and meaningful connection terms do not appear explicitly in the text of Article 31, they are crucial because they underpin the broader principles and objectives of the 1951 Refugee Convention.

 

 

 

Secondary Movements and Effective Protection: An Evolving Legal Framework

 

This section argues for a broader interpretation of "good cause" under Article 31(1) and the principle of non-refoulement under Article 33(1) of the 1951 Refugee Convention. It emphasizes that secondary movements can be justified by systemic deficiencies in transit countries, a lack of effective protection, or strong connections, such as family ties, with a destination country. These interpretations align with the Convention's humanitarian purpose, which prioritizes refugees' fundamental rights over rigid procedural constraints.

 

The criterion of "good cause" for illegal entry under Article 31(1) has been a point of contention. Traditional interpretations often limit "good cause" to the manner of entry, focusing on immediate justifications such as the urgency of escape from persecution. However, scholars like Goodwin-Gill advocate for a broader understanding of this concept. According to Goodwin-Gill, "good cause" can extend to reasons such as the presence of family members in a specific country or other genuine links that justify secondary movements. His interpretation aligns with the principle that refugees should not be penalized for seeking effective protection or family reunification, even when this necessitates onward travel. This broader interpretation underscores the humanitarian objectives of the 1951 Refugee Convention, emphasizing that "good cause" should accommodate the complex realities refugees face when fleeing persecution and seeking protection.

 

UNHCR and recent international court rulings have reinforced this expansive view of "good cause" under Article 31(1). For instance, systemic deficiencies in asylum procedures in transit countries—such as those identified in Greece in 2009 during the M.S.S. v. Belgium and Greece case, and in Italy in 2011 with Tarakhel v. Switzerland — demonstrate how inadequate protection can justify secondary movements. These deficiencies are considered violations of human rights, as they fail to meet the minimum standards of effective protection, thereby necessitating the right to seek protection elsewhere. Additionally, the interpretation of non-refoulement has evolved to encompass broader threats beyond persecution as narrowly defined in the 1951 Refugee Convention. This includes situations of generalized violence, systemic oppression, and serious human rights violations, as recognized in both international and regional jurisprudence. Such an expansive approach ensures that refugees are shielded from threats to their life or freedom, whether arising from persecution, armed conflict, or other severe risks, thereby reinforcing the principles of protection enshrined in the Convention.

 

A similar interpretation was upheld in 2014 by the German Federal Constitutional Court (GFCC), which considered the interaction between safe third country practices and Article 31(1). In that context, the court, referencing M.S.S. v. Belgium and Greece, concluded that while Greece was designated as a "safe country" under German law, systemic deficiencies in its asylum procedures rendered it unsafe at the time of entry. These deficiencies exposed applicants to risks of inhumane and degrading treatment, justifying their secondary movements. This interpretation aligns with the reasoning in subsequent decisions by the CJEU, such as in Ibrahim, where the principle of effective protection under the Dublin Regulation was applied to recognize systemic deficiencies as undermining safety. These cases confirm that the right to perform secondary movements is not necessarily linked to "persecution" in a third country; instead, deficiencies in asylum procedures can represent "good cause" and a human rights violation, entitling the applicant to seek protection elsewhere.

 

The absence of protection in third countries fundamentally alters the nature of an asylum seekers journey. What may initially appear as an indirect flight can transform into a direct flight under Article 31(1) when inadequate protection in a transit country prolongs or exacerbates the risk of persecution or other serious harm. This interpretation reflects a broader understanding of the Convention’s purpose: either (a) "good cause" can trump the "coming directly" requirement, encompassing the need to avoid a lack of effective protection en route, or (b) "coming directly" must itself be understood in light of the Convention’s object and purpose, which would exclude transit through countries where effective protection is not available.

 

Such an interpretation aligns with universal rules of treaty interpretation under the Vienna Convention on the Law of Treaties, which emphasize that the object and purpose of a treaty must guide its application. Moreno Lax has argued that unilateral designations of responsibility under the 1951 Refugee Convention or the Dublin system for the application of the Safe Third Country (STC) concept “must be rejected when they merely provide for a deflection mechanism incompatible with the realization of the object and purpose of the Refugee Convention.” While Moreno Lax's critique primarily addresses procedural responsibility mechanisms, the underlying principle she highlights—the necessity of ensuring mechanisms serve the Convention’s purpose rather than undermining it—is adapted here to support the argument against penalizing refugees for secondary movements where effective protection is absent.

 

Similarly, Lord Justice Simon Brown, in R. v. Uxbridge Magistrates’ Court, acknowledged that differing state responses to asylum requests create a rational basis for refugees to exercise some choice in where to seek asylum. While he rejected the idea of unconditional freedom to choose the country of asylum—a stance that might align with concerns over "forum shopping"—his judgment also recognized that there is no obligation under the Refugee Convention requiring refugees to apply for asylum in the first country they enter. This interpretation underscores that the Convention does not preclude secondary movements, especially when linked to legitimate causes such as seeking effective protection or family reunification.

 

Effective protection within the context of Articles 31(1) and 33(1) is crucial. The concept revolves around ensuring that a state can offer genuine safety and uphold the basic human rights of refugees. This includes protection from refoulement, access to fair asylum procedures, and the absence of persecution or inhumane treatment. The Safe Third Country (STC) and First Country of Asylum (FCA) concepts are often invoked in discussions about refugee movements. However, the distinction between these two is largely theoretical. Both concepts require that the third country or the first country of asylum offers effective protection. This means that in the third country concerned, refugees must not be subjected to refoulement or face threats to their life or freedom. The adequacy of protection in the third country must be assessed to ensure compliance with these core principles, ensuring that refugees are not transferred to situations where their fundamental rights may be at risk.

 

Commentator Paul Weis, analyzing the travaux préparatoires of the 1951 Refugee Convention and Article 33(1), concluded that the words "in any manner whatsoever" indicate that Article 33(1) applies to non-admittance at the frontier. This interpretation underscores that an asylum seeker can claim protection under Article 33(1) if they fear persecution or if their physical safety or freedom is endangered in a country where they previously stayed, even before crossing the border. The non-refoulement applies universally, prohibiting rejection at the border in such cases.

 

This understanding is further supported by the absence in Article 33 of any requirement for lawful presence or explicit reference to illegal entry, distinguishing it from other provisions of the Convention, such as Article 31. The absence of such conditions highlights that the protection against refoulement applies broadly to all refugees, regardless of their mode of entry or presence. Other commentators such as Chetail agree with Weis, suggesting that protection against refoulement, grounded in positive obligations, may derive from the principle of non-refoulement itself. This principle obliges states to admit persons at immediate risk of fundamental rights violations, ensuring that non-admission does not have the same effect as refoulement.

 

While the 1951 Refugee Convention does not explicitly regulate access to asylum procedures or territory, the principle of non-refoulement inherently requires that refugees not be returned to situations where their life or freedom would be threatened. The refugee definition applies specifically to individuals outside their country of nationality. In contrast, IHRL imposes no such geographical limitation, and non-refoulement, from a human rights perspective, applies to any person under another state's effective control, regardless of location. While IRL and IHRL operate as distinct legal regimes, their objectives often intersect. For example, individuals may be protected from expulsion under human rights law without necessarily qualifying as refugees under the 1951 Refugee Convention. The extraterritorial application of the non-refoulement principle, recognized in both IRL and IHRL, extends states' obligations to prevent the return of individuals to harm, even when they are not within the state’s territory. This principle has been extensively developed in case law, particularly by the European Court of Human Rights (ECtHR) in cases such as Hirsi Jamaa v. Italy, where the Court confirmed that effective control triggers non-refoulement obligations.

 

 

Balancing 'Good Cause' and 'Coming Directly' Under Article 31(1)

 

This section expresses reservations about the 2017 UNHCR interpretation of "good cause" under Article 31(1) as narrowly focused on the nature of illegal entry, arguing that this view is inconsistent with the provision's negotiating history and broader judicial interpretations.

 

In 2017, UNHCR published a research paper that interprets the "good cause" criterion in Article 31(1) as primarily relating to the nature of illegal entry—specifically, the need to demonstrate a "good cause" for entering a country illegally. The publication argues that "the good cause requirement should not be used to rehearse arguments relating to safe third countries as these matters are examined under the ‘coming directly’ element." While this interpretation is plausible, it appears inconsistent with the negotiating history of Article 31(1) and with interpretations from international courts.

 

Authoritative figures, such as Goodwin-Gill, have challenged the conventional understanding of "good cause" in the context of irregular entry under Article 31(1). Goodwin-Gill argues that the "good causes" criterion should not be confined solely to the manner of illegal entry. Instead, it may encompass a broader range of reasons for seeking asylum in a particular country, including family reunification or systemic deficiencies in transit countries. These reasons reflect the Convention’s humanitarian purpose and recognize the complex realities refugees face during their flight to safety.

 

The relationship between "good cause" and "coming directly" has been a matter of debate. One interpretation is that these are separate, non-overlapping conditions, meaning "good cause" cannot override the "coming directly" requirement. However, according to me scholars like Goodwin-Gill argue that "good cause" should inform the application of "coming directly," allowing exceptions when transit countries fail to provide effective protection or there is no meaningful link. This perspective aligns with the Convention’s humanitarian objectives, ensuring that refugees are not penalized for seeking safety where protection was unavailable en route.

 

While Article 31(1) does not allocate responsibility for asylum applications, its principles shape the treatment of secondary movements. For example, family bonds or other relevant links in alternative destinations are recognized in regional frameworks, such as the EU’s Dublin Regulation, which prioritizes family links, and the "safe third country" concept, which requires a meaningful connection beyond mere transit. In 2020 in the FMS case the CJEU also clarified that mere transit cannot be intended as meaningful  connection for the purpose of STC concept application. These interpretations reinforce the need to assess secondary movements within a legal framework that respects refugees' rights. Most recently another key aspect was clarified in the CJEU judgment in Elliniko Symvoulio where it is established that if the third country designated as generally safe by a Member State does not in fact admit or readmit the applicants for international protection concerned, that Member State cannot reject their applications for international protection as inadmissible on the basis of Article 33(2)(c) of the Asylum Procedures Directive (APD).

 

Judicial decisions, such as FMS, provide critical clarification on the application of "good cause" and "coming directly," supporting broader interpretations that prioritize refugee rights and systemic fairness. Such decisions are all the more important during a time EU Member States are exploring the possibility to remove the meaningful connection requirement from the newly adopted Asylum Procedure Regulation. In the same vein, Prof. Steve Peers critiques the revised Dublin rules for narrowing the scope and effectiveness of appeal rights, which, as he notes, marks a shift 'towards a purely intergovernmental framework' rather than one that individuals can effectively engage with to enforce their rights. This procedural limitation highlights the systemic barriers refugees face in seeking fair assessments, particularly in the context of systemic deficiencies in transit countries. His critique underscores the necessity of maintaining procedural safeguards to ensure fairness and uphold refugees' rights under Article 31(1). The FMS ruling aligns with the notion of "good cause" under Article 31(1), which advocates for flexibility and fairness in determining when secondary movements are justified. It supports the argument that a lack of substantive ties in a transit country may justify onward movement. The FMS case underscores the importance of individual assessments and procedural safeguards. This aligns with the broader goal of ensuring that Article 31(1) is applied in a way that prioritizes fairness and refugees' rights. While FMS primarily interprets EU law, it indirectly supports a broader understanding of "good cause" and "coming directly" by emphasizing meaningful connections and rejecting procedural shortcuts like reliance on mere transit.

 

 

 

Protecting Family Unity in the Context of APD and Dublin Regulation Interplay

 

Now, we turn to the interplay between EU asylum law and IRL, particularly how they address family unity, meaningful connections, and procedural safeguards in allocating responsibility for asylum seekers. The EU asylum system closely reflects the principles of IRL, especially those enshrined in the 1951 Refugee Convention. This alignment provides a valuable framework for examining how EU rules incorporate and interpret these international standards, with a particular focus on family links and responsibility allocation.

 

Article 38(2)(a) of APD stipulates that the application of the safe third country concept must consider a connection between the asylum seeker and the third country. This connection, which could include family ties, must be reasonable for the applicant to relocate to that country. The directive itself explicitly states that the presumption of safety in a third country can be rebutted by the applicant, emphasizing the importance of individual assessments to ensure access to asylum procedures. Misapplication of admissibility rules could unjustly deny access to appropriate asylum procedures, thereby impacting the applicant's fundamental rights.

 

The Dublin Regulation, referenced by Article 38 of the APD, assigns responsibility for examining asylum applications through a comparative test. This test prioritizes family links and other meaningful connections to determine the most suitable EU Member State to handle the asylum claim. However, the regulation also considers other factors, such as the first EU state of entry, which can play a significant role in responsibility allocation. According to EU law, family unity remains a crucial factor, and decisions should aim to preserve these ties wherever possible.

 

The application of the APD procedure, particularly the "safe third country" rule under Article 33(1), has been interpreted differently in recent case law. On 17 March 2016, the CJEU in the Mirza case addressed the interplay between the STC rule under Article 33 of the recast APD and the Dublin Regulation. The Court ruled that a Member State may apply the STC rule to declare an application inadmissible, even if it is not the Member State responsible for examining the claim under the Dublin Regulation. This judgment reflects an interpretation of the Dublin Regulation’s explicit provisions regarding STC rather than a general approach to inadmissibility.

 

While the Mirza judgment interprets EU law as it stands, in my view concerns remain about its implications for procedural fairness and fundamental rights. For example, the judgment permits Member States to invoke the STC rule without fully determining responsibility under the Dublin Regulation, which could undermine the structured allocation of responsibility designed to safeguard family unity and other meaningful connections. EXCOM Conclusion 15 emphasizes that asylum should first be requested in a state where the applicant has a connection, such as family ties, and this requires a comparative test, not a non-contextual application of inadmissibility rules. Similarly, Article 31(1) of the 1951 Refugee Convention recognizes family links as a "good cause" for onward movements, highlighting that strict and non-comparative procedures risk penalizing refugees contrary to international law.

 

In my opinion, the Mirza judgment illustrates a tension between procedural flexibility for Member States and the need for structured, rights-based responsibility allocation. While the judgment aligns with EU law’s textual framework, the absence of a comparative test in applying the STC rule risks decisions that fail to account for family unity or systemic deficiencies in protection. To strengthen procedural safeguards, inadmissibility decisions under Article 33(1) APD should ideally follow responsibility determinations under Article 3 of the Dublin Regulation. Although this sequencing is not explicitly required by the regulation, it reflects a normative approach that aligns better with the principles of family unity and effective protection embedded in both EU law (Fundamental Rights Charter) and IRL.

 

This cross-referencing aims not to override the Dublin responsibility criteria, principally to safeguard family unity (Art. 8 DRIII) criteria or the humanitarian clause (Art. 17 DRIII), which can and should be used to ensure family unity once a person gains access to the EU. The ECtHR has affirmed the proactive obligations under Article 8 ECHR in cases such as Senigo Longue and Tanda-Muzinga, which must be read in conjunction with the primacy of the Best Interests of the Child and the respect of family unity. This reiterates the positive duties of states to proactively and expeditiously comply with the procedural and substantive elements of Article 8 ECHR, both as an autonomous right and as part of an instrument of secondary legislation. Doing otherwise would undermine family unity (including for dependency reasons), with inadmissibility taking precedence over it.

 

Currently, it is possible for the principle of non-penalization under Article 31(1) of the 1951 Refugee Convention to be undermined in the EU context. Article 38(1)(e) of the recast APD allows an applicant to be sent to a third country outside the EU where there is a "possibility" to request refugee status. However, the directive requires that a connection between the applicant and the third country be established, as outlined in Article 38(2)(a). Case law further clarifies that mere transit through a third country is insufficient to meet this requirement, emphasizing the need for a meaningful connection.

 

Additionally, the Dublin Regulation governs responsibility allocation for examining asylum claims among EU Member States and does not directly apply to transfers to third countries under the APD. While the Dublin Regulation does not explicitly mandate a "comparative test," its criteria prioritize factors such as family unity and the applicant’s meaningful links to a Member State. A rigorous application of these principles ensures that inadmissibility decisions under Article 33(1) of the APD do not override the safeguards enshrined in the Dublin Regulation and EU asylum law as a whole.

 

 

Conclusion: Balancing Control and Protection

 

Article 31(1) of the 1951 Refugee Convention does not prohibit the diversion of asylum applications to third countries willing and able to provide effective protection, even in the absence of significant links to those countries. However, EXCOM Conclusion 15 and UNHCR guidelines emphasize that the principle of non-penalization under Article 31(1) limits such transfers when meaningful connections or effective protection are lacking. Justifications for secondary movements include insufficient protection in transit countries, refusal of protection, or strong family links in another state, which are recognized as "good cause" for onward movement.

 

A comparative test is necessary to evaluate the applicant’s connections to third countries versus their ties to other states, including within the EU under the Dublin Regulation. Effective protection, meaningful links, and family unity extend beyond non-refoulement, shaping a state's discretion in allocating responsibility for asylum claims. While Article 31(1) does not establish a positive obligation to admit or always justify secondary movements, it imposes constraints on measures that ignore these factors, as such restrictions may constitute penalties or harm integration prospects.

 

The interpretation of Article 31(1) requires a balance between state sovereignty and refugee protection. States have the right to control borders but must also honour international obligations, ensuring access to effective protection and family unity. Refugees should not face penalties for irregular entry or secondary movements driven by genuine humanitarian reasons. By applying Article 31(1) with sensitivity to these realities, states can uphold the 1951 Refugee Convention’s principles while maintaining humane and just asylum policies.