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Published online by Cambridge University Press: 27 October 2017
‘That assessment of the extent of the risk [of persecution] must, in all cases, be carried out with vigilance and care, since what are at issue are issues relating to the integrity of the person and to individual liberties, issues which relate to the fundamental values of the Union.’
The case law of the Court of Justice of the EU concerning the Common European Asylum System (CEAS) is still limited. Nonetheless, even this limited case law already offers interesting insights into analysing the potential role of the Court of Justice of the EU in the development of the CEAS, and this jurisprudence is in any event likely to grow significantly, due to the fact that the provisions of the CEAS are the result of a political compromise and so lack clarity. This chapter examines the ruling delivered by the Court in the case of Elgafaji, which contains certain elements which address the interpretative difficulties raised by Article 15(c) of the Qualification Directive, and goes on to consider, through a discussion of the recent ruling in Abdulla, the extent to which the Court’s interpretation of those provisions of the CEAS which replicate the wording of the 1951 Convention will influence the interpretation of this international instrument, and the difficulties presented in this context. The extent of this influence remains to be seen, but it is clear in any event that the Court of Justice is likely to play a major role in the development of the CEAS. One amendment which may prove necessary is the modification of the Court of Justice’s procedural rules such that it can take into account the views of third-party organisations with a special expertise in this field.
1 Per the Court of Justice in Joined Cases C-175/08, C-176/08, C-178/08 and C-179/08 Salahadin Abdulla, judgment of 2 March 2010, nyr, para 90.
2 As emphasised by Labayle, the Common European Asylum System (hereafter referred to as the ‘CEAS’) was initially a political programme as it only appeared in the Conclusions of the Tampere summit of 15 and 16 October 1999 but not in the Amsterdam Treaty: Labayle, H, ‘LeBilan du mandat de Tampere et l’espace de liberté, sécurité et justice de l’Union européenne’ (2004) 5–6 Cahiers de Droit Européen 591, 612Google Scholar.
3 Art 78(1) TFEU provides that ‘the Union shall develop a common policy on asylum, subsidiary protection and temporary protection with a view to offering appropriate status to any third-country national requiring international protection …’ (emphasis added).
4 Directive 2004/83/EC on Minimum Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Refugees or as Persons Who Otherwise Need International Protection and the Content of the Protection Granted, [2004] OJ L304/12, para 6 of the Preamble (hereafter referred to as the ‘Qualification Directive’).
5 European Council, European Pact on Immigration and Asylum (Doc No 13440/08, 16 October 2008) 11.
6 Art 63(1) and (2) EC provided:
The Council, acting in accordance with the procedure referred to in Article 67, shall, within a period of five years after the entry into force of the Treaty of Amsterdam, adopt:
1. measures on asylum, in accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and other relevant treaties, within the following areas
(a) criteria and mechanisms for determining which Member State is responsible for considering an application for asylum submitted by a national of a third country in one of the Member States;
(b) minimum standards on the reception of asylum-seekers in Member States;
(c) minimum standards with respect to the qualification of nationals of third countries as refugees;
(d) minimum standards on procedures in Member States for granting or withdrawing refugee status;
2. measures on refugees and displaced persons within the following areas:
(a) minimum standards for giving temporary protection to displaced persons from third countries who cannot return to their country of origin and for persons who otherwise need international protection;
(b) promoting a balance of effort between Member States in receiving and bearing the consequences of receiving refugees and displaced persons.
7 Pursuant to Article 2(e) of the Qualification Directive, a person eligible for subsidiary protection is defined as ‘a third country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15, and to whom Article 17(1) and (2) do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country’.
8 This was acknowledged by the Member States themselves in the European Pact on Immigration and Asylum adopted by the European Council on 16 October 2008. In this document, the European Council observes ‘that considerable disparities remain between one Member State and another concerning the grant of protection and the forms that protection takes’ and considers that ‘the time has come to take new initiatives to complete the establishment of a Common European Asylum System … and thus to offer a higher degree of protection’: European Council, European Pact on Immigration and Asylum (Doc No 13440/08, 16 October 2008).
9 In Asylum in the European Union A Study of the Implementation of the Qualification Directive (Geneva, November 2007) 13, the UNHCR noted: ‘For example, with regard to Iraqi applicants, during the first quarter of 2007, the percentage recognized as refugees in Germany at first instance was 16.3%, and those qualifying for subsidiary protection 1.1%. In Sweden, 73.2% of Iraqi applicants were granted subsidiary protection at first instance in the first quarter of 2007 and 1.7% were recognized as refugees. This contrasts sharply with the recognition rate for Iraqis of 0% in Greece and 0% in the Slovak Republic at first instance.’
10 UNHCR, Improving Asylum Procedures: Comparative Analysis and Recommendations for Law and Practice. Key Findings and Recommendations (Geneva, March 2010) 13.
11 Convention Relating to the Status of Refugees, 28 July 1951, United Nations Treaty Series, vol 189, 137, and Protocol Relating to the Status of Refugees, 30 January 1967, United Nations Treaty Series, vol 606, 267 (together referred to hereafter as the ‘1951 Convention’).
12 The equivalent new provision is Art 78(1) TFEU; see below, text to n 45.
13 Peers, S, ‘Legislative Update: EU Immigration and Asylum Competence and Decision Making in the Treaty of Lisbon’ (2008) 10 European Journal of Migration Law 219 CrossRefGoogle Scholar.
14 Pursuant to Art 68(1) EC, only the courts or tribunals of last resort were authorised to request a preliminary ruling to the Court of Justice on Title IV, which includes asylum.
15 See, inter alia, UNHCR, Asylum in the European Union A Study of the Implementation of the Qualification Directive (Geneva, November 2007) and UNHCR, Improving Asylum Procedures: Comparative Analysis and Recommendations for Law and Practice—Key Findings and Recommendations (Geneva, March 2010).
16 Case 133/06 Parliament v Council, judgment of 6 May 2008, nyr.
17 Case C-19/08 Petrosian and others, judgment of 29 January 2009, nyr; Case C-465/07 Elgafaji, judgment of 17 February 2009, nyr; Joined Cases C-175/08, C-176/08, C-178/08 and C-179/08 Salahadin Abdulla and others, judgment of 2 March 2010, nyr, para 90; and Case C-31/09 Bolbol, judgment of 17 June 2010, nyr. However, it should be highlighted that certain judgments of the Court of Justice relating to migration issues may impact the fate of asylumseekers. See, for instance, Case C-105/10 PPU Public Prosecutor v Malik Gataev, Khadizhat Gataeva, judgment of 25 February 2010, nyr.
18 The creation in 2008 of a new urgent reference procedure, which applies to referrals in the areas previously covered by Title VI TEU and Title IV, part III EC (now Chapter 2 of Title V TFEU), could be analysed in this context.
19 Reference for a preliminary ruling from the Tribunal administratif (Luxembourg) lodged on 5 February 2010—C-69/10 Brahim Samba Diouf v Ministre du Travail, de l’Emploi et de l’Immigration, [2010] OJ C100/27; Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 13 March 2009— C-101/09 Federal Republic of Germany v D, other parties: The Representative of the Federal Interest at the Bundesverwaltungsgericht, The Federal Commissioner for Asylum Matters at the Bundesamt für Migration und Flüchtlinge, [2009] OJ C129/7; Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 10 February 2009—C-57/09 Bundesrepublik Deutschland v B, Other party to the proceedings: Der Vertreter des Bundesinteresses beim Bundesverwaltungsgericht, [2009] OJ L29/3.
20 R Errera, The ECJ and Subsidiary Protection Reflections on Elgafaji—and After, paper presented at the European Academy Workshop of the European Asylum Law Judges Association on 19–20 October 2009, 17.
21 As in the other fields of EU law, this interpretative role of the Court of Justice may raise some difficulties. In this respect, the word of caution from A-G Poiares Maduro in Case C465/07 Elgafaji, Opinion of A-G Maduro of 9 September 2009, para 25, should be borne in mind: ‘Interpretation is not easy and is, to a large extent, open to debate, so much so that it is ultimately considered to be an art, hermeneutics.’
22 The other two grounds enshrined respectively in Art 15(a) and (b) read as follows: ‘(a) death penalty or execution; or (b) torture or inhuman or degrading treatment or punish ment of an applicant in the country of origin.’
23 Art 2(e) of the Qualification Directive defines the persons eligible for subsidiary protection.
24 QD (Iraq) v Secretary of State for the Home Department; AH (Iraq) v Secretary of State for the Home Department [2009] EWCA Civ 620 at [19].
25 Case C-465/07 Elgafaji, Opinion of A-G Maduro of 9 September 2009, para 31.
26 European Commission, Proposal for a Council Directive on minimum standards for the qualification and status of third country nationals and stateless persons as refugees or as persons who otherwise need international protection, 2 September 2001, COM(2001) 510 final.
27 UNHCR, Statement on Subsidiary Protection Under the EC Qualification Directive for People Threatened by Indiscriminate Violence, January 2008, 15–23. Jane McAdam also supports this approach and underlines that ‘for legal and logical consistency, subsidiary protection ought to protect persons fleeing individually or in small groups from situations which, in a mass influx, would result in protection’: McAdam, J, Complementary Protection in International Refugee Law (Oxford, Oxford University Press, 2007) 74 CrossRefGoogle Scholar.
28 These proposals were included in the Note of the Presidency, Doc No 12148/02, 20 September 2002.
29 The detailed account of the travaux préparatoires concerning Art 15(c) goes much beyond the scope of this chapter. For further details on this point, see McAdam, above n 27, 70–78.
30 European Council on Refugees and Exiles, Impact of the EU Qualification Directive on International Protection—Summary, October 2008, 27. It is also worth noting that the confusion about the scope of Art 15(c) is further strengthened by differences in translation. Unlike the English version, the French version does not require the indiscriminate violence to take place in a context of armed conflict.
31 The questions of the Dutch Council of State, [2008] OJ C8/5, read as follows:
—Is Article 15(c) of [the Directive] to be interpreted as offering protection only in a situation in which Article 3 of the [ECHR], as interpreted in the case law of the European Court of Human Rights, also has a bearing, or does Article 15(c), in comparison with Article 3 of the [ECHR], offer supplementary or other protection?
—If Article 15(c) of the Directive, in comparison with Article 3 of the [ECHR], offers supplementary or other protection, what are the criteria in that case for determining whether a person who claims to be eligible for subsidiary protection status runs a real risk of serious and individual threat by reason of indiscriminate violence within the terms of Article 15(c) of the Directive, read in conjunction with Article 2(e) thereof?
32 Recitals 25 and 26 of the Preamble read as follows:
(25) It is necessary to introduce criteria on the basis of which applicants for international protection are to be recognised as eligible for subsidiary protection. Those criteria should be drawn from international obligations under human rights instruments and practices existing in Member States.
(26) Risks to which a population of a country or a section of the population is generally exposed do normally not create in themselves an individual threat which would qualify as serious harm.
33 Case C-465/07 Elgafaji, Opinion of A-G Maduro of 9 September 2009, para 26.
34 Case C-465/07 Elgafaji, judgment of 17 February 2009, nyr, paras 17–18.
35 In this respect, it is worth underlining that the Member States limiting Art 15(c) to the scope of Art 3 relied on a contradictory argument. Indeed, since Art 15(b) already replicates the wording of Art 3 ECHR, Art 15(c) would be redundant. In order to solve this contradiction, Member States argued that Art 15(c) was intended to cover by anticipation a potential evolution of the case law of the European Court of Human Rights regarding Art 3, which was not fully established at the time of adoption of the Qualification Directive. This argument is not valid since it consists in dissociating in two separate provisions of EU law the wording of Art 3 of the ECHR on the one hand and, on the other hand, the related case law of the Strasbourg Court.
36 Case C-465/07 Elgafaji, judgment of 17 February 2009, nyr, para 36.
37 UNHCR, Statement on Subsidiary Protection, above n 27, 5–6.
38 Case C-465/07 Elgafaji, judgment of 17 February 2009, nyr, para 28.
39 This particular notion does not exist in the case law of the Strasbourg Court, which rather speaks of situations of ‘general violence’.
40 ECtHR, NA v UK, App No 25904/07, judgment of 17 July 2008, nyr, para 115.
41 The Court of Justice founded its interpretation on the following elements: (1) A comparative analysis of the wording of the three types of serious harm contained in Art 15. It highlights the individual dimension of the grounds enshrined in Art 15(a) and (b), as opposed to the more general risk covered by Art 15(c), illustrated by the notions of ‘armed conflict’, ‘indiscriminate violence’ and ‘threat’. (2) The broad logic of Art 15, which the Court sees as confirming the exceptional nature of the situation covered by Art 15(c), and as justifying a reference to a certain degree of individualisation as a balancing factor. (3) A marginal reference to recital 26 of the Preamble of the Qualification Directive, to highlight that the interpretation chosen is not ‘invalidated by the wording’ of this recital.
42 The Dutch Council of State considered in its judgment in the Elgafaji case, on the basis of the Court ruling, that the exceptional threshold of indiscriminate violence was not reached in Iraq. See ECRE, ‘Dutch Council of State gives verdict in Elgafaji case’ ECRE Weekly Bulletin, 29 May 2009, 2–3.
43 Case C-465/07 Elgafaji, judgment of 17 February 2009, nyr, para 40.
44 Peers, above n 13, 233.
45 The implications of this formulation are manifold and go far beyond the scope of this chapter. They concern, inter alia, the status of the 1951 Convention in the EU legal order, as well as the possibility of invalidating an act or a provision of EU law which would contravene the 1951 Convention. It is worth recalling that in the absence of an explicit provision and when the European Union is not party to a treaty, the Court of Justice will examine the validity of EU secondary law with respect to this treaty only under strict conditions. On the one hand, the Court requires that all EU Member States have ratified the treaty in question (Joined Cases C-21/72, C-22/72, C-23/72 and C-24/72, International Fruit Company NV and others v Produktschap voor Groenten en Fruit [1972] ECR 1219, paras 10–18); on the other hand, competence must have been fully transferred to the EU in the field covered by the treaty (Case C-308/06 Intertanko and others v State Secretary for Transports, judgment of 3 June 2008, nyr, para 49).
46 A-G Mazák, Opinion of 15 September, Joined Cases C-175/08, C-176/08, C-178/08 and C-179/08 Salahadin Abdulla, judgment of 2 March 2010, nyr, para 43.
47 Ibid.
48 Art 11(1)(e) provides that ‘a third country national or a stateless person shall cease to be a refugee, if he or she can no longer, because the circumstances in connection with which he or she has been recognised as a refugee have ceased to exist, continue to refuse to avail himself or herself of the protection of the country of nationality’.
49 Ibid, para 53: the Luxembourg Court clearly emphasises that ‘the provisions of the [Qualification] Directive must … be interpreted in the light of its general scheme and purpose, while respecting the Geneva Convention and the other relevant treaties referred to in point (1) of the first paragraph of Article 63 EC [now Art 78(1) TFEU]’.
50 ‘See above n 48 for the wording of Art 11(1)(e) of the Qualification Directive.
51 The questions of the German Federal Administrative Court, [2008] OJ C197/3, read as follows:
—Is Article 11(1)(e) of Council Directive 2004/83/EC of 29 April 2004 to be interpreted as meaning that (…) refugee status ceases to exist if the refugee’s well-founded fear of persecution within the terms of Article 2(c) of that directive, on the basis of which refugee status was granted, no longer exists and he also has no other reason to fear persecution within the terms of Article 2(c) of Directive 2004/83?
—If Question 1 is to be answered in the negative: does the cessation of refugee status under Article 11(1)(e) of [the] Directive also require that, in the country of the refugee’s nationality,
(a) an actor of protection within the meaning of Article 7(1) of [the Directive] be present, and is it sufficient in that regard if protection can be assured only with the help of multinational troops,
(b) the refugee should not be threatened with serious harm, within the meaning of Article 15 of [the Qualification Directive], which leads to the granting of subsidiary protection under Article 18 of that directive, and/or
(c) security situation be stable and the general living conditions ensure a minimum standard of living?
—In a situation in which the previous circumstances, on the basis of which the person concerned was granted refugee status, have ceased to exist, are new, different circumstances founding persecution to be:
(a) measured against the standard of probability applied for recognising refugee status, or is another standard to be applied in favour of the person concerned, and/or
(b) assessed having regard to the relaxation of the burden of proof under Article 4(4) of [the] Directive.
52 A-G Mazák used this term in his Opinion to criticise the cessation of the refugee status pursuant to Article 11(1)(e) on the sole ground that the well-founded fear of persecution which led to the recognition as a refugee has disappeared: See above n 46, para 48.
53 See above n 46.
54 Ibid, para 47.
55 Ibid, para 60.
56 UNHCR, Statement on the ‘Ceased Circumstances’ Clause of the EC Qualification Directive, August 2008, 17.
57 Joined Cases C-175/08, C-176/08, C-178/08 and C-179/08 Salahadin Abdulla, judgment of 2 March 2010, nyr, para 73.
58 Art. 4(4) provides:
The fact that an applicant has already been subject to persecution or serious harm or to direct threats of such persecution or such harm, is a serious indication of the applicant’s well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated.
59 Recital 13 of the Qualification Directive.
60 UNHCR, Statement on the ‘Ceased Circumstances’ Clause, above n 55, 2.
61 Case C-31/09 Bolbol, judgment of 17 June 2010, nyr.
62 See ibid, para 34, where the Court indicates that: ‘As the Directive includes a reference to Article 1D of the Geneva Convention, the Court has jurisdiction to interpret the meaning of that article of the Convention. It is noteworthy to indicate that Article 11(1)(e) of the Qualification Directive does not include an explicit reference to Article 1(C)(5) of the 1951 Convention although, as emphasised above, the Court interpreted at least implicitly this provision of the 1951 Convention.’
63 Directive 2005/85/EC on Minimum Standards on Procedures in Member States for Granting and Withdrawing Refugee Status, [2005] OJ L326/13. It should be noted, however, that few articles of the Qualification Directive or of other instruments of the CEAS include references to specific provisions of the 1951 Convention.
64 According to its Statute, the UNHCR fulfils its mandate, inter alia, by ‘[p]romoting the conclusion and ratification of international conventions for the protection of refugees, supervising their application and proposing amendments thereto’. This supervisory responsibility is reiterated in Art 35 of the 1951 Convention and Art II of the 1967 Protocol relating to the Status of Refugees. For further details on how the UNHCR’s supervisory responsibility has been reflected in EU law, see UNHCR, Statement on the ‘Ceased Circumstances’ Clause, above n 55, 2–3.
65 UNHCR, Statement on the ‘Ceased Circumstances’ Clause, 8 and 14.
66 De Schutter, O, ‘Le tiers à l’instance devant la Cour de justice de l’Union européenne’ in Fabri, H Ruiz and Sorel, J-M (eds), Le tiers à l’instance (Paris, Pedone, 2005)Google Scholar.