Non-Refoulement: Is Business Office Of The Eu’S Qualification Directive Invalid?

By Pieter Boeles, visiting professor migration law, VU University Amsterdam, emeritus professor University Leiden

Introduction

The absolute grapheme of the regulation of non-refoulement – the ban on removal to an dangerous province – is widely acknowledged. Still, in that place is confusion as well as insecurity on this indicate with regard to the Qualification Directive, which defines how to decide if someone enjoys refugee or subsidiary protection status inside the EU. On fourteen July 2016, a Czech Court (the Nejvyšší správní soud) asked the Court of Justice European Union whether Article 14(4) of the European Union Qualification Directive, allowing for revoking, ending or refusing to renew refugee status for reasons of criminal behavior or a security risk, is invalid inwards the calorie-free of the regulation of non-refoulement (Case C-391/16). In its explanation, the Czech Court points out that ‘the binding nature of the prohibition on the render of persons inwards contravention of the regulation of non-refoulement forms purpose of the obligation non to dependent area anyone to torture or inhumane or degrading handling or penalty nether Article iii ECHR as well as Article four as well as Article 19(2) of the Charter, as well as it applies whenever in that place is a existent conduct a chance of such handling occurring as a final result of forced deportation or extradition’.

The interrogation of the Czech courtroom is important. In my view, a well-reasoned reply tin only hold upwardly given if the ambivalent construction of the Qualification Directive on this indicate is acknowledged as well as addressed.  In this comment I volition endeavour to analyse the problems to hold upwardly solved. 

One sole regulation of non-refoulement inwards European Union law

Basically, the dogmatic indicate of difference is simple: the European Union regulation of non-refoulement is anchored inwards Article 19(2) of the Charter of Fundamental Rights of the EU, which contains a prohibition to remove, expel or extradite whatever mortal to a State where in that place is a serious conduct a chance that he or she would hold upwardly subjected to the decease penalty, torture or other inhuman or degrading handling or punishment. The Charter should regulation the uniform interpretation of the regulation of non-refoulement inwards Union law, both inwards the Treaties as well as inwards secondary legislation (like the Returns Directive as well as the Qualification Directive). As the prohibition of refoulement is absolute inwards the ECHR, it should universally hold upwardly interpreted to hold upwardly absolute regardless of the legal context of European Union constabulary inwards which it appears. Article 19(2) of the Charter corresponds to Article iii ECHR, as well as so must hold upwardly interpreted the same way (Article 52(3) of the Charter). See the ECtHR ruling inwards Chahal, as well as to a greater extent than representative constabulary inwards Kees Wouters, International Legal Standards for the Protection from Refoulement, Intersentia, 2009, p. 307 – 314. The Court of Justice has recognized the absolute nature of the dominion inwards its judgment inwards Aranyosi (paras 85-87).  

Article 19(2) Charter, derived from Article 2 as well as iii ECHR, is non only relevant for persons with subsidiary protection but as for refugees. Refugees are protected against a danger, formulated (in Article 1.A of the Refugee Convention, as good as the European Union Qualification Directive) as persecution on grounds of race, religion, nationality, political thought or membership of a detail social group. The persecution feared must hold upwardly of a certainly flat of severity, which volition unremarkably coincide with decease penalty, torture or other inhuman or degrading handling or punishment. Under the uniform pregnant of non-refoulement inwards Article 19(2) of the Charter, absolute protection against refoulement must hold upwardly granted on an equal terra firma to both refugees as well as subsidiary protected persons. As the regulation of non-refoulement is a prevailing full general regulation of European Union constabulary inwards the feel of Article half dozen TEU, secured yesteryear the Charter, it follows that the Qualification Directive grants stronger protection to refugees than the Refugee Convention lonely does.  This is also what the Czech courtroom asserts.

The stronger protection does non undermine whatever of the rights for refugees granted inwards the Refugee Convention.  But it may hateful that non-refoulement has a wider pregnant for refugees inside the range of European Union law. Although the wording of Article 14(4) of the Qualification Directive matches the exception to the non-refoulement dominion inwards the Refugee Convention, the Charter sets a higher measure for non-refoulement (as confirmed yesteryear reference to Chahal).

This is non unequivocally visible inwards the text of the Qualification Directive  The seminal Article 21(1) of the Directive, which deals with non-refoulement directly, does non say straightforwardly that Member States shall observe ‘the absolute regulation of non-refoulement’, or ‘the regulation of non-refoulement inwards accordance with Article 19(2) the Charter of Fundamental Rights’. True, the introduce text of the inaugural of all paragraph of this article, stating that Member States shall observe the regulation of non-refoulement ‘in accordance with their international obligations’, tin hold upwardly interpreted that way, peculiarly because the ‘international obligations’ must hold upwardly deemed to include those nether Article 2 as well as iii ECHR. But if that is the right interpretation, it is hard to empathize what the reasonable pregnant tin hold upwardly of the 2nd paragraph of Article 21, stating that refoulement of a refugee is all the same allowed inwards to a greater extent than or less cases, ‘where non prohibited yesteryear the international obligations’. In suggesting that refoulement would all the same hold upwardly allowed nether certainly conditions, Article 21(2) Qualification Directive is confusing. Obviously, Article 21(2), similar Article 14(4) of the Directive, implicitly refers to the exception to the non-refoulement dominion set out inwards Article 33(2) of the Refugee Convention, as it is phrased nearly identically.  Article 21 thus begs the interrogation what must hold upwardly considered  to hold upwardly the prevailing norm informing the ‘principle of non-refoulement’. The absolute norm of Article 19(2) inwards the Charter - or the non-absolute norm of the Refugee Convention?

I cannot aid suspecting that the Court of Justice was captured inwards this confusion, when before answering the questions asked inwards the representative of H.T. (C-373/13), discussed here. The Court of Justice described the organisation of Article 21 Qualification Directive inwards paragraphs 41 – 44 of that judgment. In that description whatever explicit referral to the absolute grapheme of the regulation of non-refoulement is lacking. Strictly, the Court says naught wrong, stating inwards paragraph 42 that Article 21(2) Qualification Directive, ‘whose wording essentially repeats that of Article 33(2) of the Geneva [Refugee] Convention, all the same provides for a derogation from that principle, allowing Member States the discretion to refoule a refugee where it is non prohibited yesteryear those international obligations (…)’.

It may hold upwardly telling that the Court notes inwards para 65 that the regulation of non-refoulement is guaranteed as a telephone substitution right yesteryear Articles eighteen as well as 19(2) of the Charter of Fundamental Rights of the European Union. But the Court does non elaborate on that. Then again, I produce non empathize the extensive attending drawn to the alleged leeway granted yesteryear Article 21(2) of the Directive. Why propose that in that place tin hold upwardly meaningful room for refoulement at all? Why brand elevate of ‘Member States, enjoying the discretion whether or non to refoule a refugee’ inwards paragraph 43? Why beak of a ‘derogation’ inwards paragraphs 42, 55, from this non-derogable principle? Why province inwards paragraph 72, that the consequences of applying Article 21(2) may hold upwardly “very drastic” because the refugee ‘might hold upwardly returned to a province where he is at risk’? Why maintain surreptitious that the whole practise of explaining Article 21(2) is essentially futile because of the absolute grapheme of the regulation at stake?

Crucial impact of the case

The reply of the Court of Justice to the Czech court’s questions volition hold upwardly crucial for the futurity evolution of European Union law. If the absolute grapheme of the regulation of non-refoulement is non clearly upheld now, nosotros powerfulness hold upwardly witnessing a gradual procedure of interpreting away the absolute grapheme of non-refoulement. The inaugural of all pace could be, to frame the refugee status inwards the Directive as the primary status. The protection granted yesteryear Article iii ECHR could so hold upwardly downgraded as subsidiary as well as less of import as well as only to hold upwardly used as a security internet for persons who are non eligible for the inaugural of all flat protection. In such a construction, it could hold upwardly argued that the international obligations referred to inwards Article 21 Qualification Directive are essentially obligations nether Article 33 of the Refugee Convention.  This would grant Member States room for refoulement of refugees nether Article 21(2) of the Directive inwards cases of criminal behavior or security risks.  Then, if the ‘primary’ status would non hold upwardly deemed connected to an absolute protection of non-refoulement, it could hold upwardly considered weird to grant whatever amend protection to the ‘lesser’ status.  

On the other hand, such a downgrading procedure may less easily prepare if the importance of Article 19(2) of the Charter inwards this observe is acknowledged. In that respect, it is striking that the referral to the regulation of non-refoulement inwards indicate iii of the preamble of the Qualification Directive is entirely linked to the Refugee Convention as well as non to Article 19(2) Charter. It is farther conspicuous that indicate sixteen of the Preamble mentions a whole make of relevant Charter provisions except for exactly Article 19(2).  

Complications: status, residence permit, expulsion

The news on this topic is complicated yesteryear a number of circumstances. First, refoulement only refers to deportation to the province where the mortal is inwards danger. Non-refoulement as such does non stand upwardly inwards the way of expulsion to other countries (as tin hold upwardly seen inwards Article 32 of the Refugee Convention allowing a express possibility of removals to other countries, fifty-fifty if a refugee is ‘lawfully inwards [the] territory’). Further, the protection granted yesteryear the Qualification Directive takes the shape of issuing statuses as well as residence permits, with other things, to protected persons.  What follows from this? Status as well as residence permit are ii dissimilar things, as tin hold upwardly seen inwards Article 24 Qualification Directive. Revoking a residence permit cannot Pb to the revocation of the refugee status (H.T. judgment, para. 74). Neither volition the status of subsidiary protection hold upwardly affected yesteryear revocation of the residence permit. What does the distinction betwixt status as well as residence permit mean? And what is the human relationship betwixt a status as well as the obligation of non-refoulement?

Status

Principally, a status is recognition. Under Article 2(e) Qualification Directive, ‘refugee status’ way the recognition yesteryear a Member State of a third-country national or a stateless mortal as a refugee, as well as nether Article 2(g) ‘subsidiary protection status’ way the recognition yesteryear a Member State of a third-country national or a stateless mortal as a mortal eligible for subsidiary protection.  As a status is equated with recognition, a status tin only hold upwardly terminated together with the recognition. The status intrinsically comprises recognition of the existence of an obligation of non-refoulement with observe to the mortal concerned.

(When I utilisation the term ‘recognised refugee’ I am only dealing hither with recognised refugees nether the Qualification Directive. Influenza A virus subtype H5N1 recognised refugee nether the Qualification Directive is inwards a dissimilar seat from a mortal who is non recognised but who powerfulness soundless hold upwardly a refugee nether the Convention of 1951. It is the recognition nether the Qualification Directive which puts beyond dubiety that an the absolute European Union regulation of non-refoulement is applicable to the refugee as well).

Now, if a ‘status’ should hold upwardly equated with ‘recognition’ of the danger threatening the mortal involved, it would hold upwardly an anomaly to revoke a status inwards cases where the danger continues to exist, only because of criminal behaviour. That would amount to an arbitrary refusal to admit the existent as well as continuing conduct a chance against which the mortal seeks protection. More or less similar revoking the medical acknowledgement of pregnancy of a adult woman because she stole a book, non because the pregnancy was over. However, nether the Qualification Directive, termination of a status is made possible inwards cases where it is non established that an absolute prohibition of refoulement is no longer applicable to the mortal concerned. This is peculiarly so with refugees. On the same grounds as set out inwards Article 21(2), but without the proviso of the ‘international obligations’ override, Article 14(4) Qualification Directive allows for revoking, ending or refusing to renew a refugee status. 

The wordings of Article 14(4) evidently refer to Article 33(2) Refugee Convention which also inspired the creation of a possibility of ‘refoulement’ nether Article 21(2). In the kickoff of my exploration, I stated that a right interpretation of Article 21(1) compels non-application of the 2nd (and consequently the third) paragraph. So, if the 2nd as well as 3rd paragraphs of Article 21 should hold upwardly declared ‘dead letters’, is in that place soundless room for applying Article 14(4)?

The reply may depend on how consistency of the organisation of the Directive is valued. It is foreign to spend upwardly or terminate a status on grounds that receive got naught to produce with the danger against which the status is meant to offering protection. But, as long as in that place is no refoulement, the refusal or termination of the refugee status as cannot violate the regulation of non-refoulement. 

Residence permit

In the H.T. judgment, para. 95, it is claimed that, fifty-fifty without his residence permit, the mortal concerned remains a refugee as well as as such remains entitled to the benefits guaranteed yesteryear Chapter VII of the Qualification Directive to every refugee, including protection from refoulement, maintenance of menage unit of measurement unity, the right to locomote documents, access to employment, education, social welfare, healthcare as well as accommodation, liberty of movement inside the Member State as well as access to integration facilities. The same must hold upwardly truthful for a mortal with the status of subsidiary protection (Article 20(2)).

However I receive got to a greater extent than or less difficulties with this passage. Influenza A virus subtype H5N1 number of rights mentioned inwards Chapter VII – similar locomote documents for travelling abroad, liberty of movement inside the territory of the host state, access to work -  would, nether the Refugee Convention only hold upwardly granted to ‘lawfully’ introduce refugees. I dubiety it whether the Court took this human face fully into account. In Chapter VII no clear distinction has been made betwixt the rights correlating to the ‘status’ lonely as well as rights specifically connected to ‘lawful residence’.  

I am hence non convinced that para. 95 of the H.T. judgment is tenable. Is it actually truthful that a ‘status’ lonely already implies lawful presence? Is it non rather so, that a ‘status’ differs from a ‘residence permit’ exactly because a ‘status’ does non inwards itself regulate a right to lawful presence on the territory?

Whatever the right reply to that interrogation is, fifty-fifty if nosotros fully convey para. 95 of the H.T. judgment, a ‘status‘ only protects against refoulement, non against whatever shape of expulsion to a rubber country. That is why the residence permit offers to a greater extent than security. As long as a residence permit is granted to a status holder, the Member State guarantees non only non-refoulement to the province of rootage but also non-expulsion to whatever other province as well as a total right to inclusion inwards society. This applies both to refugees as well as to subsidiary protected persons. With a residence permit the legal seat of the mortal may run stronger through fourth dimension as well as eventually Pb to a permanent status or to nationality of the host state.

The regulation of non-refoulement is, at to the lowest degree inwards abstracto, reconcilable with revoking, non-extending or refusing a residence permit.  Under Article 24 Qualification Directive, as explained inwards the H.T. judgment, a non-renewal or revocation of a residence permit is possible both for a refugee as well as for a subsidiary protected mortal inwards representative of compelling reasons of national security or populace order, patch the status remains unaffected. So, measures to protect populace monastic enjoin as well as populace security may convey the shape of terminating or refusing a residence permit, but they may, according to what I said higher upwardly never Pb to refoulement as long as it is prohibited nether Article 19(2) Charter.

Exclusion

A thorny number is how the concept of exclusion (as distinct from revocation of refugee status, and/or a residence permit) must hold upwardly positioned nether an absolute norm of non-refoulement.

The exclusion clauses of the Refugee Convention are transposed inwards Article 12 of the Qualification Directive. Further, inwards Article 17 of the Directive, the concept of exclusion is also applied to persons with subsidiary protection – a novelty. According to the wording of the Directive, exclusion may hateful something dissimilar for refugees compared to subsidiary protected persons. In Article 12, a third-country national or a stateless mortal is excluded from existence a refugee.  Thus, an excluded mortal ‘is’ non a refugee.  He is excluded from the definition. In the wording of the Court of Justice inwards B as well as D (paras 89, 91, 98, 100, 104 as well as 106), the mortal is excluded from refugee status. In contrast, nether Article 17, a third-country national or a stateless mortal is excluded from existence eligible for subsidiary protection. Here, the mortal is excluded from the ’eligibility’ to hold upwardly protected, which may non hold upwardly exactly the same as a status. However, for reasons of consistency with the linguistic communication of the B. as well as D. judgment, it is mayhap preferable to encounter Article 17 as dealing with exclusion of the status of subsidiary protection, only similar Article 12 is nigh exclusion from the status of refugee.

Anyhow, regardless of the potential differences betwixt the ii provisions, their mutual effect is that they preclude or undo the creation of a legal instant inwards which it must hold upwardly assessed nether the Qualification Directive whether the mortal concerned is inwards a province of affairs where refoulement is prohibited, either because of well-founded fearfulness for persecution or because of a existent conduct a chance for life or of torture, inhuman or degrading handling or punishment. Of course, non-assessment of a conduct a chance does non hateful that it does non exist. Therefore, exclusion nether the Qualification Directive leaves opened upwardly that the regulation of non-refoulement may soundless apply to excluded persons. Under Article five of the Returns Directive they soundless are protected against refoulement. So, it is non a priori allowed to post excluded persons dorsum to their countries.

Above, I stated that the status embodies a recognition of an obligation of non-refoulement with regard to the mortal concerned. Accordingly, an exclusion from a status is equivalent to exclusion from recognition of an obligation of non-refoulement. As a consequence, in that place is no right to a residence permit either.

In fact, excluded persons are thrown out of the land of application of the Qualification Directive as well as are referred to the Returns Directive for farther protection against refoulement. In accordance with the Abdida judgment, Court of Justice eighteen Dec 2014, C-562/13, para 50 (discussed here), they must hold upwardly able to avail themselves, inwards such circumstances, of a remedy with suspensive effect, inwards monastic enjoin to ensure that the render determination is non enforced before a competent say-so has had the chance to examine an objection alleging infringement of the regulation of non-refoulement set downward inwards Article 5 Returns Directive as well as Article 19(2) of the Charter.

Conclusions

In spite of its confusing content, Article 21 Qualification Directive is non invalid because it tin hold upwardly interpreted inwards accordance with the absolute prohibition of refoulement thank y'all to the words ‘in accordance with their international obligations’  inwards the inaugural of all section. The effect of the right interpretation is that refoulement of refugees is non allowed fifty-fifty inwards the cases formulated inwards paragraph 2. Consequently, neither the 3rd paragraph of Article 21, dealing with revoking, ending or refusing to renew or to grant the residence permit of (or to) a refugee to whom paragraph 2 applies, tin always hold upwardly applied. Correctly interpreted, the 2nd as well as 3rd paragraph of Article 21 must hold upwardly regarded dead letters.

It is hard to conclude what the ‘dead letter’ seat of Article 21(2)(3) way for the validity of Article 14(4) which was based on the same Article 33(2) Refugee Convention. At whatever rate, Article 14(4) is non invalid for violating the absolute prohibition of refoulement as long as Article 21(2) is non applied. Still, in that place is something anomalous nigh Article 14(4). It compels Member States (‘shall’) to spend upwardly or terminate a refugee status inwards cases where in that place is soundless an obligation to admit the absolute prohibition of refoulement. If it would hold upwardly accepted that a ‘status’ is equivalent to ‘recognition’, the ‘status’ should hold upwardly maintained, also for persons committing crimes, as long as the ‘recognition’ has solid ground.    

In answering the questions of the Czech Court, the Court of Justice may also receive got to clarify (as it did inwards Abdida) how the protection against refoulement is divided betwixt the Qualification Directive as well as the Returns Directive. Exclusion inwards the feel of Articles 12 as well as 17 of the Qualification Directive has the effect of throwing the applicants out of the protection organisation of the Qualification Directive as well as leaving their protection against refoulement to the Returns Directive, which entitles them to a remedy with suspensive effect for the essay of a claim of non-refoulement.

Barnard & Peers: chapter 9, chapter 26

JHA4: chapter I:5

Photo credit: Bryan Denton, New York Times

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