Abstract
While the profile of refugees sur place may be considered atypical, it does not set them apart from other persons in need of international protection and refugees sur place are subject to the same international protection regime. The Qualification Directive does not and cannot supersede the 1951 Convention and the EU Member States remain bound by their obligations under this instrument. It remains the case that asylum claims sur place based on post-departure actions arouse suspicion. The author argues that this suspicion pervades the Qualification Directive’s approach to these claims. Indeed the Directive places must emphasis on continuity and singles out manufactured asylum claims, thereby raising the issue of good faith. She concludes that the proposed approach to international protection needs sur place would render Articles 5(3) as well as Article 20(6) and (7) of the Qualification Directive redundant. It would also necessitate a redrafting of Article 5(2) with a view of removing the focus on continuity. It is the author’s view that the second phase of the CEAS provides the EU with a timely opportunity to reconsider its response to refugees sur place.
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- 1.
UNHCR 1992, paras 94–96.
- 2.
Infra Sect. 4.2.
- 3.
Council Directive 2004/83/EC of 29 April 2004 (OJ L 304/12 of 30 September 2004). The Directive was adopted as part of the five-year programme of EU legislation on asylum agreed by the Tampere Conclusions (European Community Tampere European Council Presidency Conclusions 15 and 16 October 1999, reproduced in (1999) 11(4) International Journal of Refugee Law, p. 738). The Directive was adopted on the basis of Article 63(1)(c) of the Treaty establishing the European Community. For a comprehensive analysis of the Qualification Directive, see Storey 2008 and Lambert 2006.
- 4.
See Sect. 4.2 infra. References to the 1951 Convention are understood to include the 1967 Protocol relating to the Status of Refugees.
- 5.
Council Directive 2004/83/EC of 29 April 2004 (OJ L 304/12 of 30 September 2004). The concept of ‘person eligible for subsidiary protection’ is defined in Article 2(e). It covers third country nationals who do not qualify for refugee status but who ‘would face a real risk of suffering serious harm as defined in Article 15’ if returned to the country of origin (Article 2(e)). On subsidiary protection, see McAdam 2005 and Piotrowicz and Van Eck 2004 (This article provides an analysis of subsidiary protection in the proposals for a Qualification Directive).
- 6.
Council Directive 2004/83/EC of 29 April 2004 (OJ L 304/12 of 30 September 2004) Rec. 6.
- 7.
These include the European Convention on Human Rights 1950 (ECHR) and the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1987 (CAT) Peers and Rogers 2006, p. 333.
- 8.
See Storey, supra n. 3, Sect. 4.1, pp. 7–8. The EU Member States remain equally bound by obligations arising from other relevant international instruments. See Peers and Rogers, supra n. 7, Sect. 4.1, p. 333.
- 9.
See supra n. 6 at Rec. 3. Emphasis added.
- 10.
See supra n. 6, Rec. 2.
- 11.
On the concept of ‘genuine European refugee’, see, for example, El-Enany 2008, p. 313.
- 12.
1951 Refugee Convention, Article 1(A)(2). ‘[i]nternational protection cannot come into play as long as a person is within the territorial jurisdiction of his home country’ UNHCR 1992, supra n. 1, Sect. 4.1, para 88. Goodwin-Gill and McAdam note that ‘(…) the fact of having fled, of having crossed an international frontier, is an intrinsic part of the quality of refugee, understood in the ordinary sense’ Goodwin-Gill and McAdam 2007, p. 63. The alienage requirement, however, has been called into question. According to Hathaway, ‘[t]here is nothing intuitively obvious about this requirement: many if not most of the persons forced to flee their homes in search of safety remain within the boundaries of their state’ see Hathaway 1991, p. 29. See also Shacknove 1985, pp. 274 and 277. In Hathaway’s opinion, three factors explain the inclusion of the alienage requirement in the Convention definition, namely limited resources, concern about state participation and respect for state sovereignty. See Hathaway 1991, pp. 29–33.
- 13.
UNHCR 1992, supra n. 1, Sect. 4.1, para 94.
- 14.
For example, from the time the 1951 Convention entered into force, the French Commission des Recours des réfugiés (CRR) found that well-founded fear of being persecuted could arise post-departure (CCR, Nejad Nehmed, 662, 4 November 1954, referred to in Tiberghien 1988, p. 389. Refugee status, however, was refused in this case. The CCR took the view that the form of prosecution that the asylum seeker was likely to face upon return to his country of origin owing to political activities carried out in France did not amount to persecution within the meaning of Article 1(A)(2) of the 1951 Convention. See also Danian v. Secretary of State for the Home Department [2000] Imm AR 96 (English Court of Appeal).
- 15.
See supra n. 6, Sect. 4.1, Rec. 18 and Article 5.
- 16.
Ibid., Article 5(1) and (2).
- 17.
UNHCR 1992, supra n. 1, Sect. 4.1, paras 95 and 96.
- 18.
See supra n. 6, Sect. 4.1, Article 5(1). This in line with para 95 of the UNHCR Handbook (supra n. 1).
- 19.
- 20.
See supra n. 6, Sect. 4.1, Article 5(2). This is consistent with para 96 of UNHCR 1992, supra n. 1, Sect. 4.1.
- 21.
Ibid., para 96.
- 22.
R. v Secretary of State for the Home Department Ex p. Mbanza (1996) Imm AR 136. The UK Government adopted a non-returns policy for Zimbabwean nationals in January 2002 (Home Office press notice STAT001/2002, Home Secretary Suspends Removals to Zimbabwe, 15 January 2002). The policy ended in November 2004. The UK Government considered that it acted as an incentive to come to the UK for people who were not in need of international protection (HC Deb 16 November 2004 c78-WS). Removals to Zimbabwe resumed immediately but were subsequently suspended until the hearing of a test case (G. Garton Grimwood, Asylum Seekers from Zimbabwe, SN/HA/3391, Home Affairs Section, House of Commons Library, 13 March 2009, p. 3-13). The UK Asylum and Immigration held that failed asylum seekers did not as such face a real risk of being subjected to persecution or ill-treatment if returned to Zimbabwe (HS (returning asylum seekers) Zimbabwe CG [2007] UKAIT 00094; AA (Risk for involuntary returnees) Zimbabwe CG [2006] UKAIT 00061; and SM and Others (MDC –internal flight—risk categories) Zimbabwe CG [2005] UKAIT 00100). The Tribunal, however, identified risk categories; these include: persons who are or suspected of being politically active in opposition to the regime in place (SM and Others (MDC –internal flight—risk categories) Zimbabwe CG [2005] UKAIT 00100, paras 42–43), including anyone who cannot demonstrate positive support for Zanu-PF or alignment with the regime (RN (Returnees) Zimbabwe CG [2008] UKAIT 00083, para 216); ‘those whose military history discloses issues that will lead to further investigation by the security services upon return to Harare Airport’ (AA (Risk for involuntary returnees) Zimbabwe CG [2006] UKAIT 00061, para 72); ‘those in respect of whom there are outstanding and unresolved criminal issues’ (AA (Risk for involuntary returnees) Zimbabwe CG [2006] UKAIT 00061, para 72); and ‘those seen to be active in association with human rights or civil society organisations where evidence suggests that the particular organisation has been identified by the authorities as a critic or opponent of the Zimbabwean regime’ (HS (returning asylum seekers) Zimbabwe CG [2007] UKAIT 00094, para 51). In February 2009, the Parliamentary Under Secretary of State at the Home Office declared that, although returns to Zimbabwe were not currently enforced, failed asylum seekers who were not in need of international protection could expect to be returned (HL Deb 23 February 2009 Col WA7). In respect of failed asylum seekers’ removals to the Democratic Republic of Congo, the UK Asylum and Immigration Tribunal found that there was insufficient evidence that they constituted a risk category (BK(DRC CG)[2007] UKAIT 00098). On rejected asylum claims and international protection needs sur place, see Clayton 2008, pp. 455–456.
- 23.
See UNHCR 2005, supra n. 19, Sect. 4.2, p. 44.
- 24.
Ibid.
- 25.
See, for instance, supra n. 6, Sect. 4.1, Article 5(1) and Article 8(1) of the Commission’s Proposal for a Qualification Directive (Document COM(2001) 510 final of the Commission of the European Communities, 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 (hereafter the Commission’s Proposal). The drafting of both provisions shows that this type of asylum claim sur place is not deemed problematic.
- 26.
Musalo et al. 2007, p. 200.
- 27.
Musalo 2002, p. 49.
- 28.
In Shirazi v. Secretary of State for the Home Department, Sedley L.J. said
I am conscious of the ever-present risk of creating a back to door to asylum by allowing claims to apostasy on the part of nationals of theocratic states to establish without more a well-founded fear of persecution. That, no doubt, makes great caution appropriate in deciding (…) on the question off causation which can arise in the case of refugees sur place’ (Shirazi v. Secretary of State for the Home Department [2003] EWCA Civ 1562, para 32 (English Court of Appeal).
However, Sedley L.J. had stressed that the status of refugee sur place was recognised in international law (see para 19).
- 29.
Goodwin-Gill and McAdam, supra n. 12, Sect. 4.2, p. 89. In Ward, the Supreme Court of Canada held that ‘[t]he political opinion ascribed to the claimant and for which he or she fears persecution need not necessarily conform to the claimant's true beliefs’ (Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689).
- 30.
The issue of continuity is discussed in Sect. 3 and the concept of good faith for the purpose of seeking refugee status is examined in Sect. 4.
- 31.
UNHCR 1992, supra n. 1, Sect. 4.1, paras 96 and 83.
- 32.
Ibid, para 96.
- 33.
UNHCR 2005 , supra n. 19, Sect. 4.2, p. 44. In Goodwin-Gill and McAdam’s opinion, ‘[i]t might be argued that, in a refugee status case, the “likelihood of persecution” must be established on a balance of probabilities’. See Goodwin-Gill and McAdams, supra n. 12, Sect. 4.2, p. 54. This is in line with UNHCR guidelines. According to the latter, ‘[t]he adjudicator should consider the applicant’s fear well-founded if there is a reasonable possibility that the applicant would face some form of harm if returned to the country of origin or habitual residence’. See UNHCR 2005, n. 19, Sect. 4.2, p. 44. See also UNHCR 1992, supra n. 1, Sect. 4.1, para 42. The author contends that in certain circumstances it may also be necessary to determine whether post-departure actions may give rise to well-founded fear of persecution at the hands of non-state actors. See, for example, CRR, M.M, 27 April 2006, available at http://www.commission-refugies.fr/centre_recherche_18/thematique/motifs_reconnaissance_qualite_refugie_m77/religion_m195/christianisme_m197/?deplier=2073#art2073 (accessed 13 July 2009). The Qualification Directive expressly recognises non-state agents as potential actors of persecution or serious harm (see supra n. 6, Sect. 4.1, Article 6(c)).
- 34.
The UNHCR Annotated Comments on the Qualification Directive did not include remarks on Article 5(1), thereby suggesting that its drafting was deemed satisfactory (UNHCR, UNHCR Annotated Comments on the EC Council Directive 2004/83/EC of 29 April 2004 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 (OJ L 304/12 of 30 September 2004) (hereafter the UNHCR Annotated Comments)).
- 35.
Emphasis added.
- 36.
See supra n. 6, Sect. 4.1, Rec. 18 and 6.
- 37.
Teitgen-Colly 2006, p. 1522.
- 38.
See supra n. 34, Sect. 4.3, p. 56.
- 39.
YB (Eritrea) v Secretary of State for the Home Department [2008] EWCA Civ 360 and Shirazi v Secretary of State for the Home Department. See supra n. 28, Sect. 4.2.
- 40.
CRR, Jean, 9.358, 25 April 1978, referred to in Tiberghien, supra n. 14, Sect. 4.2, p. 390 and CRR, Ba, 10.232, 27 November 1979.
- 41.
Battjes 2006, p. 261. This restrictive approach is, for instance, adopted in Denmark. Adjudicators there may refuse refugee status ‘(…) if the activities are not a “natural continuation or prolongation of the activities” carried out in the country of origin (…)’ See Musalo et al., supra n. 26, Sect. 4.2, p. 200. The Qualification Directive, however, is not binding on Denmark. In accordance with Articles 1 and 2 of the Protocol on the position of Denmark, annexed to the Treaty on European Union and the Treaty establishing the European Community, Denmark did not take part in the Directive (See supra n. 6, Rec. 40).
- 42.
Article 2(e) of the Qualification Directive reads that
“person eligible for subsidiary protection” means 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.
- 43.
See Supra n. 25, Sect. 4.2.
- 44.
Ibid.
- 45.
Ibid.
- 46.
See Goodwin-Gill, supra n. 12, Sect. 4.2, p. 89.
- 47.
1951 Convention, Article 1(D), (E) and (F). On the Convention exclusion clauses, see, supra n. 1, paras 140–163; UNHCR, Guidelines on International Protection. Application of the Exclusion Clauses (Article 1 F of the 1951 Convention)’, HCR/GIP/03/05, 4 September 2003; and Gilbert 2003.
- 48.
See supra n. 25, Sect. 4.2, pp. 16–17.
- 49.
Ibid., p. 17.
- 50.
Ibid., p. 16 The Commission stressed that Article 8(2) aimed, inter alia, to address ‘the issue of abuse in sur place cases’.
- 51.
YB (Eritrea) v Secretary of State for the Home Department, supra n. 39, Sect. 4.3, para 15.
- 52.
Ibid., This point was made by Sedley L.J. in respect of Article 4(3)(d) in YB (YB (Eritrea) v Secretary of State for the Home Department.
- 53.
The EU seeks to ‘progressively [establish] an area of freedom, security and justice open to those who, forced by circumstance, legitimately seek protection in the Community’. See supra n. 6, Sect. 4.1, Rec. 1 (emphasis added). With this in mind, ‘[t]he main objective of this Directive is, on the one hand, to ensure that Member States apply common criteria for the identification of persons genuinely in need of international protection, and, on the other hand, to ensure that a minimum level of benefits is available for these persons in all Member States’. See supra n. 6, Rec. 6.
- 54.
Grahl-Madsen 1966, p. 251.
- 55.
Ibid., Grahl-Madsen; On the concept of imputed political opinion, see, for instance, Goodwin-Gill, supra n. 12, Sect. 4.2, pp. 87 and 89.
- 56.
See supra n. 54, Sect. 4.4.1, p. 251.
- 57.
Ibid.
- 58.
Goodwin-Gill 2000, p. 665.
- 59.
‘Refugee Appeal No. 2254/94 Re HB (21 September 1994)’ reported as case abstract in 7 International Journal of Refugee Law (1995) p. 352 (emphasis added).
- 60.
Ibid.
- 61.
Ibid., The RSAA, however, failed to elaborate on these points.
- 62.
Ibid., para 6(1) p. 353. In this case, an Iranian national had claimed he had a well-founded fear of being persecuted because he had purchased a copy of The Satanic Verses by Salman Rushdie in Japan and brought it back to Iran. He later admitted that his asylum claim was based on an untrue statement. He submitted a subsequent application and alleged that the Iranian authorities now knew that he had applied for asylum in New Zealand and that he had claimed falsely to have acquired The Satanic Verses. The RSAA found that there ‘[was] no real chance of the appellant being subjected to persecution for his (false) claim to have been in possession of The Satanic Verses’ (ibid., p. 333). See Goodwin-Gill, supra n. 58, Sect. 4.4.1, p. 665.
- 63.
- 64.
Judgment of Brooke L.J. in Danian v. The Secretary of State for the Home Department, see supra n. 14.
- 65.
See also Lambert, supra n. 3, p. 172.
- 66.
Refugee status is declarative not constitutive. See UNHCR 1992, supra n. 1, Sect. 4.1, para 28. The Qualification Directive stresses that ‘[t]he recognition of refugee status is a declaratory act’. See supra n. 6, Sect. 4.1, Rec. 14.
- 67.
R v. Secretary of State ex p Adan [1999] INLR 362, p. 383 E–F.
- 68.
Goodwin-Gill 2007, supra n. 12, Sect. 4.2, p. 89. This is confirmed in UNHCR 2005, supra n. 19, Sect. 4.2, p. 45.
- 69.
Supra n. 34, Sect. 4.3, p. 17.
- 70.
Danian v. Secretary of State for the Home Department, supra n. 14. See also YB (Eritrea) v Secretary of State for the Home Department, supra n. 39, Sect. 4.3.
- 71.
See Danian v. Secretary of State for the Home Department, supra n. 14, Sect. 4.2. See also the judgment of Buxton L.J. in Danian v. Secretary of State for the Home Department, ibid., para 15.
- 72.
1951 Refugee Convention, Article 1(A).
- 73.
See supra n. 47, Sect. 4.3.
- 74.
Article 1(F) of the 1951 Convention reads
The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that.
-
(a)
He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
-
(b)
He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
-
(c)
He has been guilty of acts contrary to the purposes and principles of the United Nations.
-
(a)
- 75.
The only limitation to the principle of non-refoulement is to be found in Article 33(2) of the 1951 Convention. It reads that ‘[t]he benefit of the present provision [Article 33(1)] may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country’. For a discussion of the status of the principle of non-refoulement, see Allain 2001, p. 533.
- 76.
European Court of Human Rights, Chahal (1996) 23 EHHR 413, para 79. The absolute nature of this prohibition distinguishes Article 3 of the ECHR from Article 33 of the 1951 Refugee Convention.
- 77.
European Court of Human Rights, Chahal (ibid.). See also Saadi v. Italy, Application No. 37201/06, judgment of 28 February 2008, paras 127 and 137–148 available at http://www.unhcr.org/refworld/docid/47c6882e2.html (accessed 13 July 2009).
- 78.
See Goodwin-Gill 2007, supra n. 12, Sect. 4.2, p. 89.
- 79.
See R. v Secretary of State for the Home Department Ex p. Mbanza, supra n. 22, Sect. 4.2.
- 80.
See Danian v. Secretary of State for the Home Department, supra n. 14, and Re HB, supra n. 59, Sect. 4.4.1. See also Shirazi v. Secretary of State for the Home Department, supra n. 28, Sect. 4.2, para 32.
- 81.
Ibid.
- 82.
Ibid.
- 83.
See supra n. 59, Sect. 4.4.1.
- 84.
See supra n. 34, Sect. 4.3, p. 17.
- 85.
See supra n. 14, Sect. 4.2.
- 86.
See supra n. 22, Sect. 4.2.
- 87.
See supra n. 14, Sect. 4.2.
- 88.
Ibid., Emphasis added. In 2006, UNHCR reported that ‘[t]he assessment of credibility still pose[d] a particular problem for [UK] Home Office decision makers’ (Refugee Council, Refugee Council response to the Home Office Consultation on the Qualification Directive: Implementation of Council Directive 2004/83/EC of 29 April 2004 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, August 2006 available at http://www.refugeecouncil.org.uk/OneStopCMS/Core/CrawlerResourceServer.aspx?resource=71933100-A700-42ED-80B2-145AF9CFC8EA&mode=link&guid=196dccc9f1214a70bbc08ae48cb2966f (accessed 16 July 2009).
- 89.
Secretary of State for the Home Department v Ahmed [1999] EWCA Civ 3003 (English Court of Appeal).
- 90.
See supra Sect. 4.2.
- 91.
See UNHCR 1992, supra n. 1, Sect. 4.1, para 96.
- 92.
Subsequent applications are considered in the EU Asylum Procedures Directives (Council Directive 2005/85/EC of 1 December 2005 (OJ L 326/13 of 13.December. 2005). Article 32 requires the EU Member States to have in place specific procedures to deal, inter alia, with fresh asylum claims after a first application has been rejected or withdrawn. These procedures derogate from the basic principles and guarantees set out in Chapter II of the Asylum Procedures Directive. Applications based on well-founded fear of persecution as a failed asylum seeker constitute subsequent claims within the meaning of Article 32. See supra n. 22, Sect. 4.2.
- 93.
See Goodwin-Gill 2007, supra n. 12, Sect. 4.2, p. 89.
- 94.
See supra n. 25, Sect. 4.2.
- 95.
See supra Sect. 4.1.
- 96.
Seesupra n. 34, Sect. 4.3, p. 17.
- 97.
Ibid.
- 98.
See Storey, supra n. 3, Sect. 4.1, p. 27.
- 99.
See Battjes, supra n. 41, Sect. 4.3, p. 485.
- 100.
See Teitgen-Colly, supra n. 37, Sect. 4.3, p. 1538.
- 101.
Hathaway 2003, p. 12. Hathaway made this point in relation to Article 16 of the EU Reception Standards Proposal (Document COM(2001) 181 final of 3 April 2001). Article 16 provides for reduction and withdrawal of reception conditions in a number of cases, for example where the asylum seeker has not claimed refugee status ‘as soon as reasonable practicable’ (Article 16(2)).
- 102.
Ibid., Article 2 of the 1951 Convention reads that ‘[e]very refugee has duties to the country in which he finds himself, which require in particular that he conform to its laws and regulations as well as to measures taken for the maintenance of public order.’
- 103.
See Lambert, supra n. 3, Sect. 4.1, p. 172.
- 104.
See, for instance, UNHCR’s comments on Article 20(1) of the Qualification Directive. See supra n. 34, Sect. 4.3, p. 35.
- 105.
In Pretty v. UK, the European Court of Human Rights provided guidance as to the level of suffering, physical or mental, required to engage Article 3 of the ECHR. The Court held
As regards the types of ‘treatment’ which fall within the scope of Article 3 of the Convention, the Court’s case law refers to ‘ill-treatment’ that attains a minimum level of severity and involves actual bodily injury or intense physical or mental suffering. Where treatment humiliates or debases an individual showing lack of respect for, or diminishing, his or her human dignity or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance, it may be characterised as degrading and also fall within the prohibition of Article 3. The suffering which flows from naturally occurring illness, physical or mental, may be covered by Article 3, where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible. (Pretty v. UK (2002) 35 EHHR 1, para 52).
This issue also arises in respect of the conditions for the reception of asylum seekers in the EU. See Da Lomba 2009, pp. 332–334.
- 106.
Commenting on Article 20(1) of the Qualification Directive, UNHCR noted that international and regional human rights treaties that may be more generous than the 1951 Convention may be applicable. See supra n. 34, Sect. 4.3, p. 35.
- 107.
For example, the 1951 Convention provides that refugees shall be granted the most favourable treatment accorded to foreign country nationals as regards the right to engage in wage-earning employment (Article 17(1)). Conversely, the Qualification Directive guarantees access to employment for Convention refugees on the same basis as nationals (Article 17(1) and (2)).
- 108.
For example, UNHCR observes that Article 21(2) and (3) of the Qualification Directive, ‘which in part reflects the exceptions to the non-refoulement principle under Article 33(2) of the 1951 Convention, does not comprehensively reflect the Convention obligations applicable in such a case’ (UNHCR Annotated Comments, supra n. 34, p. 37). The Directive fails to explain why some rights are expressly incorporated and others are not. For instance, the Qualification Directive does not expressly mention freedom to practise religion and freedom as regards the religious education of refugees’ children (Article 4 of the 1951 Convention) and the rights attached refugees’ juridical status in the host country (Articles 12–16 of the 1951 Convention). On this issue, see Hathaway, supra n. 101, Sect. 4.4.2, pp. 17–18. UNHCR recommended that all 1951 Convention rights be included in national implementation legislation ‘[f]or the sake of completeness and to avoid oversights in practice’ (See supra n. 34, Sect. 4.3, p. 35). In Hathaway’s opinion, the inclusion of an article stating that all 1951 Convention rights were applicable to recognised refugees would have constituted a simpler option (See Hathaway, supra n. 101, Sect. 4.4.2, p. 18).
- 109.
See supra n. 34, Sect. 4.3, p. 36.
- 110.
Ibid., Article 3 of the 1951 Convention reads that [t]he Contracting States shall apply the provisions of this Convention to refugees without discrimination as to race, religion or country of origin.’
- 111.
See supra n. 34, Sect. 4.3, p. 36.
- 112.
We have seen that the EU Member States remain bound by their international obligations. See supra Sect. 4.1.
- 113.
The Commission recently stated that ‘[t]he EU ha[d] made great progress towards creating a common European asylum regime wholly in accordance with the Geneva Convention and other applicable international instruments’ (Communication from the Commission to the European Parliament and the Council, An Area of Freedom, Security and Justice Serving the Citizen COM(2009) 262/4 (Communication on the Stockholm Programme), Sect. 5.2.1).
- 114.
Yet the primacy of the 1951 Convention over the Qualification Directive cannot be taken for granted. Much concern has been expressed as regards the personal scope of the refugee definition contained in the Directive. Indeed, the definition is confined to third country nationals and stateless persons which is not consistent with the Convention definition. This limitation is rooted in Article 63(1)(c) of the TEC which provided the legal basis for the adoption of the Directive. On this issue, see Peers, supra n. 7, Sect. 4.1, p. 334 and Storey, supra n. 3, Sect. 4.1, p. 8. The House of Lords Select Committee on European Union stressed that international law prevented the scope of the Directive from eroding the EU Member States’ obligations under the 1951 Convention (House of Lords Select Committee on European Union’s Report on ‘Defining refugee status and those in need of international protection’, Session 2001–2002, 28th Report, HL Paper 156, para 34). This, however, raises the question of the justiciability of this kind of conflict under Title IV of the TEC (Peers, supra n. 7, Sect. 4.1, p. 334). Storey takes the view that these may be addressed through Article 68 of the TEC (Storey, supra n. 3, Sect. 4.1, p. 28). However, Peers and Rogers question the European Court of Justice’s ability ‘to accept a reference that relate[s] to the application of the Directive to a national of a Member State under Title IV of the EC Treaty’ (Peers, supra n. 7, Sect. 4.1, p. 334).
- 115.
See, for instance, Communication from the Commission to the European Parliament, the Council, the European and Social Committee and the Committee of Regions, Policy Plan on Asylum, An Integrated Approach to Protection across the EU, COM(2008) 360, para 6 and COM (2009) 262/4, see supra n. 113, Sect. 4.5, para 5.2.1.
- 116.
COM(2008) 360, see supra n. 115, Sect. 4.5, para 3.3. The Commission reported that ‘[d]espite the existence of a common system of asylum, there is a need for greater uniformity in Member States’ handling of asylum applications: the rates of acceptance of applications are currently very variable. In 2007, 25% of first decisions granted protection in the form of either refugee status or subsidiary protection. Behind this average figure there are wide variations: some Member States allow protection in only very few cases, while others have a recognition rate close to 50%’. See COM (2009) 262/4, supra n. 113, Sect. 4.5, p. 4.
- 117.
Significantly the UK did not implement Article 5(3) of the Qualification Directive.
- 118.
The Hague Programme sets out as the aims of the CEAS in its second phase the establishment of a common procedure and uniform status for persons benefiting from asylum or subsidiary protection before the end of 2010 (Communication from the Commission to the Council and the European Parliament, The Hague Programme: Ten priorities for the next 5 years The Partnership for European renewal in the field of Freedom, Security and Justice 1, COM(2005) 184 final, para 2.3). As required by the Hague Programme, the Commission is due to propose amendments to the Qualification Directive in the course of 2009. See COM (2008) 360, supra n. 115, Sect. 4.5, para 3.3). See also COM (2009) 262/4, supra n. 113, Sect. 4.5, para 5.2.1.
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© 2011 T.M.C. ASSER PRESS, The Hague, The Netherlands, and the authors
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Da Lomba, S. (2011). The EU Qualification Directive and Refugees Sur Place . In: Goudappel, F., Raulus, H. (eds) The Future of Asylum in the European Union. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-90-6704-802-6_4
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