Penalising Refugees: When Should The Cjeu Convey Jurisdiction To Translate Article 31 Of The Refugee Convention?

Yewa Holiday

PhD Candidate at Queen Mary, University of London researching Article 31 of the Refugee Convention together with prosecutions of asylum seekers together with refugees inwards the UK.

The CJEU has held inwards  Qurbani (Case -481/13) that it does non receive got jurisdiction inwards relation to the interpretation of Article 31 of the 1951 Refugee Convention together with its 1967 Protocol.  Article 31(1) states that refugees (which includes asylum seekers) must non go penalised past times states which receive got ratified the Refugee Convention for entry or presence without ascendancy if they ‘present themselves without delay to the authorities together with demonstrate expert create for their illegal entry or presence.’ The article likewise requires that the refugee comes ‘directly’ from a ground where his life or liberty was threatened inwards the feel of Article 1 of the Refugee Convention.[1] This cautious determination arose from the asking past times the Bamberg Higher Regional Court, Deutschland of a preliminary ruling nether Article 267 TFEU inwards relation to criminal proceedings against Mr Mohammed Ferooz Qurbani for forgery of documents, illegal entry, unauthorised rest together with unauthorised rest without a passport. It is arguable that Qurbani is a missed chance to address the questions raised past times the Bamberg Higher Regional Court which demonstrate the importance together with continuing relevance of Article 31(1) protection for asylum seekers together with refugees.

Mr Qurbani is an asylum seeker from Afghanistan. He had used the services of a ‘human trafficker’ to go through Islamic Republic of Iran together with Turkey to Greece. He together with so flew on 17 August 2010, using a fake Pakistani passport which he obtained from about other ‘human trafficker’, to Munich where he was arrested when he presented the fake passport. Mr Qurbani straight off claimed asylum (the application remains outstanding).  On xi Apr 2011, the Warzburg Public Prosecution Service applied to the Local Court for a penal monastic say against Mr Qurbani inwards relation to the higher upwards offences. The monastic say was challenged past times Mr Qurbani.  On four Feb 2013, the Local Court acquitted him of all charges together with noted that the correct of asylum, contained inwards the German linguistic communication constitution, prevented Mr Qurbani beingness convicted of unauthorised rest together with unauthorised rest without a passport; together with the exemption from penalties provided for inwards Article 31 of the Refugee Convention applied to the offences of unauthorised entry together with forgery of documents. The Public Prosecution Service appealed on a betoken of law to the Bamberg Higher Regional Court contention that Article 31(1) was non applicable because Mr Qurbani had non entered Deutschland from a province of persecution but had passed through about other fellow member state, namely Greece. It was likewise argued that Article 31(1) concerns solely unauthorised entry together with could non thus deprive the German linguistic communication authorities of the possibility of punishing offences connected to that entry. The Higher Regional Court stayed the proceedings together with referred iii questions to the CJEU for a preliminary ruling. Firstly, the Bamberg Court wanted to know whether the interruption of penalties inwards Article 31(1) included offences which were additional to illegal entry, such equally the forgery of a passport when the forged passport was non necessary to apply for asylum inwards Germany. The minute enquiry was whether the role of human traffickers precluded reliance on Article 31(1). The terminal enquiry was whether the factual requirement inwards Article 31(1) of coming ‘directly’ from a territory where the life or liberty of the soul concerned was threatened, was to go interpreted equally pregnant that that chemical factor was satisfied if the soul concerned showtime entered about other Member State (in this case, Greece) from where he continued to about other Member State (Germany) inwards which he sought asylum.

Article 31 does non honor a lead counterpart anywhere inwards European Union legislation. Article 14(4) together with (5) of the 2004 European Union Qualification Directive provides for situations where fellow member States mightiness revoke or reject to grant refugee status, such equally if at that spot are ‘reasonable grounds’ that the soul is a danger to national security, together with Article 14(6) provides that such persons are withal entitled to the rights get down inwards the Refugee Convention, including Article 31. The CJEU likewise considered the relevant German linguistic communication law (paragraph 267(1) of the Criminal Code). The CJEU noted that at that spot was no clause conferring jurisdiction on it past times the Refugee Convention together with the CJEU could solely translate Article 31 if this was covered past times Article 267 TEU. However, the CJEU (citing TNT Express Nederland, paras. 58 together with 59) could solely furnish interpretations past times way of preliminary ruling if the law or rules were share of European Union law. While international agreements concluded past times the European Union were thereby share of the European Union legal monastic say together with could thus go the discipline of a preliminary ruling, the CJEU did non receive got jurisdiction to interpret, inwards preliminary ruling proceedings, international agreements concluded betwixt fellow member states together with non fellow member countries. The CJEU would solely receive got jurisdiction to translate such a convention where the European Union had assumed the ability previously exercised past times the fellow member states inwards the champaign inwards which the international understanding was concluded together with thus provisions of the convention would bind the EU. Although European Union legislation had been adopted inwards the champaign to which the Refugee Convention applied equally share of the implementation of a Common European Asylum System, fellow member states had retained sure enough powers inside this field, specifically, inwards relation to Article 31. The courtroom thus did non receive got jurisdiction to translate Article 31 notwithstanding Article 78 TFEU together with Article xviii of the Charter of Fundamental Rights of the European Union. The CJEU noted that piece it accepted it had jurisdiction to translate the provisions of the Refugee Convention to which European Union law made reference (referring to Bolbol (C-31/09 EU:C:2010:351); together with Abed El Karem El Kott together with Others (C-364/11, EU:C:2012:826)), no reference to whatsoever dominion of European Union law had been made inwards Mr Qurbani’s instance together with his instance did non enhance whatsoever number nether Article xiv of the 2004 European Union Qualifications Directive.  

Comment

It is disappointing that the courtroom concluded that it did non receive got jurisdiction inwards relation to Article 31 inwards this case.  The CJEU recognised that it mightiness receive got jurisdiction inwards a time to come instance inwards relation to Article 31, for example, if issues were raised relating to article xiv of the 2004 European Union Qualifications Directive. The second-phase reception status Directive together with the Dublin III Regulation both shout out Article 31 of the Convention inwards their preambles. This is inwards the context of the detention of asylum-seekers which relates to Article 31(2) rather than Article 31(1). This suggests that Article 31 could likewise go interpreted past times the CJEU inwards this context. However, it tin go argued that Qurbani did receive got jurisdiction. Article 3a of the Schengen Border Code (in forcefulness nineteen July 2013) refers to compliance amongst the Refugee Convention generally. Article 3 of the same Code applies to whatsoever soul crossing an internal or external edge of a province ‘without prejudice to:…(b) the rights of refugees together with persons requesting international protection, inwards item equally regards non-refoulement.’  Article v refers to the requirement of valid documents together with visas for 3rd ground nationals. Article vii refers to the falsification of go documents.  Article 4(3) refers to the imposition of penalties for the unauthorised crossing of external borders (although it adds ‘at places other than edge crossing points or at times other than the fixed opening hours’).  It would seem to go at to the lowest degree implicit that Article 31 of the Refugee Convention would go relevant to the obligation inwards the Code to impose penalties for crossing the borders without authorisation.

The questions raised past times the German linguistic communication courtroom remain unanswered past times the CJEU but I receive got provided about provisional answers below.  

Is Article 31(1) of the Refugee Convention applicable to the forgery of documents which convey house when a forged passport is presented to a police line officeholder on entry to Deutschland past times air, when the forged passport is non necessary to apply for asylum?

It is non necessary to acquaint a passport, forged or otherwise, to claim asylum. However, claiming asylum would go impossible for many if they did non receive got recourse to fake documents. This was recognised inwards the 1949 United Nations Study on Statelessness together with a 1950 Memorandum past times the United Nations Secretary-General which both stated that refugees fleeing from their ground were rarely inwards a pose to obtain together with role (genuine) passports or obtain visas into the ground of refuge. The Secretary-General’s draft convention thus contained the novel Article 24(2) which corresponded to what later became Article 31(1). Illegal entry includes the role of fake or falsified documents piece illegal presence includes, equally noted past times Goodwin-Gill, ‘the role of other methods of deception, secret entry (for example, equally a stowaway), together with entry into State territory amongst the assistance of smugglers or traffickers’. In the UK, it was accepted inwards Adimi, together with subsequent cases such equally Mateta, that the exemption from penalties inwards Article 31(1) applied to the role of fake passports. Similarly, inwards Asfaw, the together with so House of Lords recognised that an offence of attempting to obtain services past times deception (that is, when transiting the UK, trying to instruct on a bird to claim asylum elsewhere) was caught past times Article 31(1) of the Refugee Convention. Article 31 is applicable to Mr Qurbani’s presentation of the forged passport at Munich aerodrome (as indeed it would go to all the offences amongst which he was charged).

Does the role of human traffickers preclude reliance on Article 31 of the Refugee Convention?

The role of fake passports together with travelling without a passport are inextricably linked amongst the role of smugglers together with traffickers. The role of the term human traffickers past times the German linguistic communication courtroom is interesting. In the UK, the linguistic communication used past times the courts is normally ‘agent’. In reality, the term trafficker or smuggler is likely to a greater extent than appropriate. In about UK of Britain together with Northern Republic of Ireland cases, the facts seem to enhance issues that the asylum seeker has been trafficked (for example, Sadighpour) but it is rare for this to go raised inwards the court. In other cases (for example, Mateta), the refugee is nether the command of an agent who decides on the route, the agency of travel, when together with where the soul volition rest together with the ground of asylum. Refugees produce non normally receive got a choice inwards how they flee. To create upwards one's heed that refugees cannot rely on the prohibition inwards Article 31 if they rely on traffickers would thus homecoming Article 31 useless equally a shape of protection for asylum seekers together with refugees.

Can a soul who enters a showtime fellow member State (Greece) but together with so goes on to apply for asylum inwards a minute fellow member province (Germany) come upwards inside the phrase coming ‘directly’ from a territory where the life or liberty of the soul concerned was threatened inwards Article 31 of the Refugee Convention?

The curt respond to the terminal enquiry is ‘Yes!’ In considering a rest or transit inwards an intermediate country, what must go assessed is whether the asylum seeker or refugee is able to obtain protection there. The Conference of Plenipotentiaries which negotiated the Refugee Convention was specially concerned amongst the subsequent displace of refugees after they had reached safety. However, this cannot go interpreted to hateful that a refugee cannot displace on afterward if inwards fact he or she does non obtain protection inwards the ground of showtime or subsequent stay. Mr Qurbani travelled via Islamic Republic of Iran together with Turkey earlier reaching Greece. Islamic Republic of Iran has ratified the Refugee Convention. However, at that spot are barriers to obtaining (and retaining) refugee status inwards Islamic Republic of Iran for Afghani asylum seekers. For example, Human Rights Watch has described inwards a 2013 study how it is ‘virtually impossible’ for newly arrived Afghan asylum seekers to monastic say asylum claims inwards Iran. In whatsoever case, if Mr Qurbani was inwards transit nether the command of an agent or trafficker, he would non receive got been inwards a pose to claim asylum. Turkey has likewise ratified the Refugee Convention but it has express its application to refugees coming from Europe. It has traditionally had a temporary protection refugee regime for non-European refugees, such equally Afghanis, which runs parallel to UNHCR procedures. In Apr 2013, Turkey enacted a Law on Foreigners together with International Protection. However, this maintains the geographical limitation. In relation to Greece, the CJEU, inwards NS & Others, held that European Union Member States cannot homecoming asylum seekers to countries, such equally Greece, where they would go at adventure of ill-treatment reverse to Article 3 of the ECHR. The ECrtHR, inwards MSS v Kingdom of Belgium together with Greece held at that spot to go deficiencies inwards the Greek exam of the applicant’s asylum claim together with a consequent adventure that he would go returned lead or indirectly to his ground of origin; together with the applicant was exposed to weather condition of detention together with living weather condition which violated Article 3 of the ECHR. It would thus seem that a ground such equally Hellenic Republic cannot go said to go a house where an asylum seeker may obtain protection from persecution such equally would preclude reliance on Article 31. This declaration was accepted inwards cases such equally Mateta together with Jaddi. In Norway, next a judgment of the Norwegian Supreme Court (see likewise ECRE) on 24 June 2014, novel guidelines exempt from prosecution refugees who receive got made necessary stops inwards other condom countries earlier reaching Norway. Previously, Norwegian police line interpreted this equally exempting from prosecution solely those asylum seekers who had non passed through whatsoever other ‘safe country’ during transit.

            Prosecutions of asylum seekers together with refugees occur inwards the UK, Deutschland together with Kingdom of Norway (with local differences). There may go prosecutions inwards other countries. What Qurbani highlights is the restrictive interpretation beingness placed on Article 31(1) past times European governments together with the continuing relevance of Article 31(1).

Barnard & Peers: chapter 26

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[1] At the fourth dimension it was drafted, this reference to Article 1 meant that it applied solely to events occurring earlier 1 Jan 1951. The ‘coming directly’ phrase was inserted at the asking of the French at a belatedly stage because French Republic was concerned that Article 31 would apply to others who had no connectedness amongst the events occurring earlier Jan 1951. It is debatable how relevant the phrase is after the coming into forcefulness of the 1967 Protocol which has removed this temporal limitation.

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