Professor Steve Peers, Royal Holloway University of
London
Photo credit: Luxofluxo, via Wikimedia Commons
Introduction
While attention has been focussed
on the overhaul of EU law on asylum – which I have analysed in an upcoming
article, reflected in an 8-part series of blog posts, starting here
– the CJEU has been delivering a number of judgments on important asylum law
issues. There have been no fewer than ten asylum law judgments since the start
of the year, including five in June alone. The following blog post is an
overview of these judgments, and also discusses recent Advocates-General
opinions in pending asylum cases. Also, to give an idea of future developments,
it discusses whether the new EU asylum laws would change the outcome of recent
judgments, and other asylum cases pending before the CJEU are listed in an
annex. Finally, this blog post develops a framework for analysis of the extent to
which EU asylum law fits within the application of EU law more generally: is it
distinguished from the ‘mainstream’, integrated into it, or used to build upon
it?
Qualification for asylum
Interpreting the Directive
on qualification for refugee or subsidiary protection status, recent judgments
have included, first the first time, two rulings on women qualifying for
refugee status because of issues specific to being women. (Of course it
is also possible for women to qualify for refugee status due to persecution on
other grounds, such as their religion or political opinion).
The first
of these judgments, back in January (Case C-621/21; see analysis of the earlier
Advocate-General’s opinion by Dr Maja Grundler here),
concerned the position of women facing domestic violence. First
of all, the Court ruled that women in general could constitute a ‘particular
social group’ being persecuted under the Refugee
Convention (which defines refugees as people who are outside their country
of origin who have a well-founded fear of being persecuted on grounds of race,
religion, nationality, political opinion or membership of a particular social
group, and who are unable or unwilling to return to that country due to this
fear – a definition enshrined
in, and elaborated
upon, in the EU Directive). The
Court stated that interpretation of EU law had to take account of both the UN
Convention on Elimination of Discrimination Against Women – which all
Member States were party to, although the EU is not – as well as the Istanbul Convention
on violence against women – which the
EU is party to, although some Member States are not. The latter Convention
in particular requires asylum law to be interpreted in a gender-sensitive
manner.
Applying this principle, the
Court found that women in general shared an ‘innate characteristic’, thus
satisfying the first of the two cumulative grounds to be considered a
‘particular social group’, according to the wording of the Directive. The first ground could also be satisfied by
sharing ‘a common background that
cannot be changed’, or ‘a characteristic or belief that is so fundamental to
identity or conscience that a person should not be forced to renounce it’; the
Court ruled that women who shared an ‘additional common feature’ could also
meet the first part of the definition by meeting one of those criteria, or by
sharing another innate characteristic – giving the example of ‘a particular
family background’ as a ‘common background that cannot be changed’. In
particular, the court stated that ‘women who have escaped from a forced
marriage’, or married women who ‘have left their homes’ met that test.
Women in general also met the second part of the test set out
in the Directive to be considered a ‘particular social group’, namely having a
‘distinct identity’, due to being perceived as different by others, ‘in particular because of social,
moral or legal norms in their country of origin’. So did specific groups of
women who ‘share an additional common characteristic, such as’ those mentioned
by the court (ie family background), ‘where the social, moral or legal norms in
their country of origin have the result that those women, on account of that
common characteristic, are perceived as being different by the surrounding
society’. The rest of society may, in this context, be
either the whole country concerned, or some part of it. Discrimination or
persecution against the group (whether women as a whole, or women who refuse or
end forced marriages) may also be relevant to defining that group.
Next, the Court ruled that there was a link between
persecution and the Convention ground of ‘particular social group’ (as required
by the Directive) either where the act of persecution took place on that
ground, regardless of whether the failure to protect women was motivated by
that ground, or whether the failure to protect was motivated by
that ground, but the mistreatment was not.
Finally, the Court ruled that women in this situation could
qualify for subsidiary protection if they did not qualify for refugee status –
given that the risk of death or torture or other inhuman or degrading treatment
(two of the three grounds for subsidiary protection) could emanate not only
from the State but also from private actors. So a real risk of ‘honour killing’
could justify a subsidiary protection claim, as could a real risk of torture et
al falling short of death.
The second
judgment, issued more recently (Case C-646/21: see the further analysis
of this judgment by Türkan Ertuna
Lagrand and Salvo Nicolosi), concerns the
position of women who are supporters of equality between men and women
as recognised in European countries. In the Court’s view, building on its first
judgment on women and refugee status, they could also be recognised as a
‘particular social group’. They met the first part of the relevant test to
define ‘particular social group’ (as discussed above) because the importance of
equality in daily life as regards matters such as choice of partner and
economic independence meant that support for the principle was ‘a characteristic or belief that is so fundamental
to identity or conscience that a person should not be forced to renounce it’. Moreover,
staying in a Member State while they forged their belief in equality as part of
their identity meant that they had a ‘common background that cannot be changed’.
They also met the second part of the test, as it is possible that the
surrounding society (which again, need not be the entire country) would regard
them as having a distinct identity. There was no need (although it was
possible) for their belief to have a religious or political link.
This judgment also pointed out that persecution could take
the form of violence against women due to their gender – again taking account
of the Istanbul Convention. Member States could not make the applicant solely
responsible for supplying evidence about the situation in the country of
origin, and (taking account of UNHCR guidance) had to gather evidence about the
particular situation of women themselves. The Court also pointed out that,
applying previous case law to these facts, becoming convinced of equality
principles while on the territory could not be regarded as an abusive
manufacturing of an asylum claim (see the next case discussed in this blog
post), and that women could not be expected to hide their beliefs in gender
equality when returning to their country of origin. In light of the age of the
applicants, the Court also elaborated for the first time upon the requirements
to take into account the ‘best interests of the child’ when assessing asylum
applications, taking account of a General Comment by the UN Committee on the
Rights of the Child.
Finally, the assessment of an application had to apply the
same criteria regardless of whether it was a repeat application or not (see also
another recent judgment – Case
C-563/22). And while the uncertainty about the right to stay in the country
was not a factor in assessing asylum claims, the possibility that long-term
stay had strengthened the belief in equality between men and women had to be
taken into account.
The Court of Justice has also recently
ruled (Case C-222/22) for the first time on obtaining refugee (or
subsidiary protection) status sur place – ie, where the basis
for the claim for refugee or subsidiary protection status is events that happened
since the asylum-seeker left their country of origin. (For example, think of a
coup that takes place while a national of that country is studying abroad, or
working abroad as a diplomat appointed by the deposed government). The Qualification Directive provides for an optional
exception for Member States in this context: they ‘may determine that’ an
asylum seeker while files a repeat application ‘shall not normally be granted refugee status if the risk of persecution is
based on circumstances which the applicant has created by his or her own
decision since leaving the country of origin’, although this is ‘[w]ithout
prejudice’ to the Refugee Convention.
This
case concerned a repeat application following a religious conversion. The Court
pointed out that the word ‘normally’ implied that refugee status could still be
obtained in some cases, and noted that sur place applications did not
necessarily have to be based on opinions or beliefs held by the asylum-seeker
in the country of origin. As an exception from the general rule, the prospect
of refusing refugee status had to be interpreted narrowly, and could only refer
to cases where an ‘abusive intent’ by the asylum-seeker had led to a
‘manufactured’ application. This intent could only be established by a thorough
individual assessment; Member States could neither skip such an assessment nor
create a presumption that all such applications fell within the scope of the
exception, which the asylum-seeker would have to rebut. In this case, if the
asylum-seeker had genuinely converted, then this ruled out any abusive intent. As
for the requirement to apply the exception ‘[w]ithout prejudice’ to the Refugee
Convention, the court ruled that this meant that the applicant could still rely
on the provisions of the Convention which could not be subject to reservation –
including the basic right of non-refoulement (ie not being sent to an
unsafe country).
Next, a judgment
last week (Case C-563/22) added to the case law on the distinct position of
Palestinian refugees – who are subject to specific rules in the
Refugee Convention, which are cross-referenced
in the qualification Directive. Article 1.D of the Convention states that it
‘shall not apply to persons who are at present receiving…protection or
assistance’ from UN bodies other than the UN High Commissioner for Refugees. In
practice, this only covers Palestinians receiving support from the UNRWA.
However, Article 1.D goes on to say that ‘[w]hen such protection or assistance
has ceased for any reason’, without an overall settlement of those persons’
position in accordance with UN General Assembly resolutions, ‘those persons
shall ipso facto be entitled to the benefits of this Convention’.
Previous case law had already
discussed the circumstances in which it could be concluded that assistance from
the UNRWA had ceased for particular Palestinians, with the consequence that
they would immediately be entitled to the benefits of the Refugee Convention
(and, transposing this into EU law, to refugee status under the qualification
Directive). The recent judgment – the questions in which were addressed by a
national court to the CJEU before October 7th 2023 and its
aftermath – examines again when UNRWA is unable to offer protection, in
particular as regards Gaza. (This judgment is separate from the pending ICJ case alleging breaches
of the Genocide Convention, and from the requests
for ICC warrants as regards Hamas and Israeli leaders).
Applying that prior case law, the most
recent judgment confirms that the conditions in Gaza – both before and after
October 7 2023 – could be considered as circumstances in which
UNRWA protection or assistance has ceased, for reasons other than the will of
the asylum-seeker, in particular because of a ‘personal state of serious insecurity,
taking
into account, where applicable, his or her state of vulnerability, and that
UNRWA finds itself, for whatever reason, including by reason of the general
situation prevailing in that sector, unable to ensure dignified living
conditions and minimum security for that stateless person, taking into account,
where applicable, the specific needs linked to his or her state of
vulnerability’. The national authorities had to consider whether ‘the
impossibility, for whatever reason, to receive UNRWA’s protection or assistance
places that stateless person at real risk of being exposed to living conditions
which do not ensure that, under UNRWA’s mission, his or her essential needs in
terms of health, education and subsistence are met, taking into account, where
applicable, his or her specific essential needs due to his or her belonging to
a group of people being characterised by a reason of vulnerability, such as age.’
The Court also referred to a UNHCR position
paper on returns to Gaza from 2022, which ‘in view of the indications of
serious violations and abuses of internationally recognised human rights and
humanitarian law, as well as the continuing instability in that sector, the HCR
is said to have called on States to allow all civilians fleeing the Gaza Strip
to enter their territories and respect the principle of non-refoulement. The HCR
expressly emphasises that the situation in that sector may constitute an
objective reason for Palestinian refugees to leave it, explaining therefore
that UNRWA’s protection or assistance must be considered to have ceased for
them.’ Since then, the Court noted that ‘both the living conditions in the Gaza
Strip and UNRWA’s capacity to fulfil its mission have experienced an
unprecedented deterioration due to the consequences of the events of
7 October 2023.’
Finally, a recent Advocate-General’s
opinion concerned integration of refugees after obtaining refugee status
from a Member State (the Keren case – Case C-158/23). In the
Advocate-General’s view, it was open to Member States to make such courses
compulsory – although the fines or other penalties for not attending or completing
the courses must remain proportionate.
Asylum procedures
The starting point of the asylum procedure
in the EU’s asylum
procedures Directive is the right of access
to the procedure, which has been the subject of many important
judgments. Last week, it was an important part of a judgment (Case
C-123/22) fining Hungary for failure to comply with a previous judgment (Case
C-808/18) on asylum law. While Hungary had closed the transit zones that were
partly at issue in that judgment, it had maintained restrictions on applying
for asylum; the Court also ruled that Hungary had still limited the right of
asylum-seekers to stay pending appeal, as required
by the Directive, and was still in breach of a number of provisions of the Returns
Directive.
As a penalty for non-compliance
with the prior judgment, the Court fined Hungary €200 million as a lump sum – a
wholly unprecedented amount – as well as €1 million/day (also higher than
usual) for continued non-compliance after the latest judgment. The latter sum
was divided between penalties for non-compliance with asylum law (€900,000 day)
and non-compliance with the Returns Directive (€100,000 day). The size of the sum
– far more than the Commission had requested – was justified by the exceptionally
serious nature of the breach, based on the importance of the rights at issue for
the people concerned (taking account of the Charter, the Refugee Convention and
the ECHR), the effect of transferring obligations to other Member States (taking
account of the principle of solidarity in EU law, especially in asylum and
immigration), the repeated breaches of EU law in this field (the Court also
referred to its judgments in Cases
C-715/17, C-718/17 and C-719/17 on relocation, C-821/19
on criminalising assistance to asylum-seekers, and C-823/21
on access to the territory), and the failure to cooperate with the Commission
(Hungary had made no effort to comply with the prior judgment other than
closing the transit zones, and had attempted to stall compliance by asking its
constitutional court to rule; but the Court reiterated the primacy of EU law).
The procedures Directive includes
several grounds of inadmissibility
of asylum claims, including (optionally) another Member State having granted
international protection. But the previous case law of the CJEU (for instance, Ibrahim)
recognises that it might nevertheless exceptionally be possible to claim
protection status in a second Member State in such cases, due to severe human
rights problems in the first Member State. In such cases, does the second
Member State have to mutually recognise the prior positive decision of the
first Member State? Today’s new
judgment (Case C-753/22) addressed this issue for the first time.
In the Court’s view, Article
78 TFEU, which provides for the power for the EU political bodies to adopt
legislation to create ‘a uniform status of asylum…valid throughout the Union’, does
not itself create an independent mutual recognition obligation for Member
States. Rather it creates a power to legislate to that effect – but this power
has not yet been exercised. In principle, therefore, the Syrian woman in this
case, who had been recognised as a refugee by Greece, nevertheless had to convince
the German authorities that she was entitled to refugee status (the latter authorities
had rejected her application, but had agreed that she was entitled to
subsidiary protection status). While Member States could exercise their power
(under current EU asylum law) to set higher standards than the minimum set out
in EU law, including mutual recognition of other Member States’ grant of status,
Germany had not chosen to do so.
However, while the first Member State’s
grant of refugee status was not binding on the second Member State, it was not
wholly irrelevant either: the Court said when assessing an application for
refugee status, the latter State’s authorities had to contact the first Member
State’s authorities, and take into account the first Member State’s decision,
considering that the logic of the Common European Asylum System was to ensure
harmonised interpretation of asylum law.
This judgment is closely linked
to a second
judgment today, in Case C-352/22. In this case, Italy had recognised a Turkish
man as a refugee; he subsequently moved to Germany (the Court did not state on
what basis), after which Turkey had sent an extradition request to
Germany for him. Although the procedures
Directive provides that asylum-seekers have the right
to remain on the territory until the first instance decision is taken
on their application, this is subject to very narrow exceptions, including
extradition to a non-EU country – provided that the authorities are satisfied
that there is no direct or indirect refoulement in breach of international
or EU law (there is also a right to stay in principle when appealing a refusal
of an asylum application, but in that case the exceptions are broader). Of
course, the Turkish man in this case was no longer an asylum-seeker, but a recognised
refugee – so the Court observed that a recognised refugee was entitled to
non-refoulement protection under the Qualification
Directive. This extended, in effect, also to Member States other than the
one which granted refugee status, in conjunction with Articles 18 and 19 of the
Charter (which concern the right to asylum and protection from non-refoulement).
In the Court’s view, extradition could not be granted unless the first Member State
decided to withdraw refugee status, subject to the EU law rules and procedures on
that point – although the second Member State could contact that Member State
with a view to obtaining further information about that person’s refugee
status, possibly suggesting that status should be withdrawn.
Another ground of inadmissibility
(in this case, mandatory) is a repeat
application for asylum. A recent judgment (Case C-216/22)
adds to the case law on this issue. While the procedures Directive obliges
Member States to find repeat applications inadmissible, there is an exception
to that obligation where the repeat application raises ‘new elements or
findings’ that ‘significantly add to the likelihood’ of qualifying for
international protection. In this case, a Syrian man who had been refused
refugee status (although granted subsidiary protection) in Germany made a fresh
application for refugee status, arguing that a CJEU judgment delivered in the
meantime, concerning asylum law and conscientious objection (Case
C-238/19), was a ‘new element’ that meant that his repeat application
should be admissible.
The CJEU confirmed its prior case
law which said that its own judgments could be a ‘new element’ justifying the
admissibility of a repeat application (see Joined
Cases C-924/19 and C-925/19), clarifying that this could be the case for
any of its judgments, not just those holding that national law was in breach of
EU law – although the Court observed that its prior judgment would have to be
relevant to significantly increasing the likelihood of obtaining international
protection, as the Directive requires. But the Court stated that the failure to
raise the issue earlier was not the ‘fault’ of the asylum-seeker (an important
point because the Directive provides that Member States can optionally require
this as a condition for the repeat application being inadmissible).
This judgment also addressed appeals,
confirming the prior case law that Member States are not obliged to let courts,
in the event of a successful appeal against the refusal of status, substitute
their decision for the administration’s – provided that the administration,
when making a fresh decision after their previous refusal being quashed by the
courts, was bound by the court judgment (on the remedy if the administration
fails to do so, see Torubarov).
Another ground of inadmissibility
(in this case optional for Member States) is that the applicant arguably should
have applied in a ‘safe
third country’ before reaching the EU (for a map of national lists of
such countries, see here).
The Directive sets out criteria for defining a ‘safe third country’ (on which,
see the recent Irish High Court judgment discussed here),
and also requires both a ‘connection’ with that country and that the
application must be considered on the merits if the non-EU country concerned
does not allow the asylum-seeker to enter. A new
Advocate-General’s opinion (Case C-134/23) examines the last point, given
that Turkey does not readmit asylum-seekers from Greece. The national court
asked if this prevented Turkey from being listed as a ‘safe third country’ in
the first place, or had effect only at the point of deciding on the admissibility
of the application or enforcement of the asylum-seeker’s removal.
In the Advocate-General’s view,
the certain refusal of readmission (which he contrasted with the prospect that
readmission might be uncertain) did not prevent a country from being
listed as a ‘safe third country’, since the Directive did not require the readmission
issue to be a factor when the listed was made. Instead, the rule applied first
when inadmissibility was considered: a Member State could not hold an
application inadmissible on ‘safe third country’ grounds where it was certain,
at that time, that the application would be refused. On the other hand, if it
was ‘likely’ or ‘plausible’ that the asylum-seeker would be readmitted, then
the authorities could decide that the case was inadmissible. In the latter
case, authorities would subsequently have to ‘verify’ readmission ‘in practice’;
but if the asylum-seeker was then not readmitted in practice at the time of enforcement,
the Member State ‘may not enforce’ the inadmissibility decision, and would have
to consider the application on the merits. This interpretation was justified both
by the objective of efficient procession of asylum applications (if the refusal
to readmit was certain, adopting an inadmissibility decision which could not be
enforced would be wasting time), and by its consistency with the newly adopted asylum
procedures Regulation.
Finally, a recent
Advocate-General’s opinion
(Case C-406/22) concerned the ‘safe
country of origin’ rules, which are currently an option for Member
States (for a map of national lists, see here).
These rules provide that an application for asylum can be fast-tracked on the
merits because that country can be presumed safe, due to meeting the criteria
set out in the Directive. According to the Advocate-General, in a case
concerning the Czech government’s designation of part of Moldova as a ‘safe
country of origin’, Moldova’s emergency derogation from the ECHR on the basis
of Article 15 ECHR did not as such prevent it from being designated as a ‘safe
country of origin’ – although the derogation was a factor to consider when
assessing whether human rights were generally upheld in that country. However,
the Advocate-General argued that it was illegal, under the current law, to
designate only part of a country of origin as ‘safe’ – even if, as in the case
of Moldova, the territorial distinction was based on which part of a country
was effectively controlled (or not) by its government. Finally, as regards
appeals, the opinion argues that courts hearing an appeal must raise the
question of legality of designations of ‘safe countries of origin’ of their own
motion.
Dublin
The equivalent of ‘safe third
country’ rules within the EU is the EU’s Dublin rules on responsibility
for asylum applications, currently set out in the Dublin
III Regulation. There are two recent judgments on the Regulation.
First of all, a judgment
in February (Case C-392/22) applied the human
rights exception to the Dublin rules – previously used to prevent
transfers to Member States where the asylum system had collapsed, or which did
not have adequate support for the asylum-seekers in question – for the first
time to the issue of ‘pushbacks’, ie illegal returns to non-EU
countries without considering asylum applications. According to the Court,
pushbacks were a breach of EU law, as they did not give asylum-seekers an
effective opportunity to apply for asylum, as required
by the asylum procedures Directive. They may also be a breach of the
principle of non-refoulement guaranteed by the Charter and the Refugee
Convention, if the asylum seeker was pushed back to an unsafe country. Automatic
detention at border posts was also a breach of EU law.
However, it did not necessarily
follow that the human rights clause in the Regulation prevented transfers in
such cases. There needs to be a systemic flaw resulting in a real risk of
torture or other inhuman or degrading treatment, with the two parts of that
test being considered separately. The Court confirmed that a ‘systemic’ risk
had to apply to the entire asylum system or certain groups of applicants,
clarifying that those crossing from Belarus into Poland could be such a group.
As for the risk of torture et al, the national court had to examine whether
there would be a ‘real risk’ after a transfer of being ‘taken to the border between Poland and
Belarus and of being subjected there to a pushback to Belarus, possibly after
being detained at a border control post, and, secondly, whether such measures
or such practices would expose him to a situation of extreme material poverty
that would not allow him to meet his most basic needs, such as, inter alia,
food, personal hygiene and a place to live, and that would undermine his
physical or mental health or put him in a state of degradation incompatible
with human dignity, placing him in a situation of such gravity that it may be
equated with inhuman or degrading treatment’ (following prior case law on the
latter point). The risk would have to be assessed at the time of transfer, not
as of when the asylum seeker ‘originally entered the territory of that Member
State’.
The Court also opined on the evidence needed to
establish a Charter risk, ruling that the national authorities had to consider
both evidence submitted by the asylum-seeker and any evidence they could obtain
on their own motion. But it was possible, as noted in prior case law, to seek
to obtain individual guarantees from the other Member State about the treatment
of the asylum seeker following any transfer.
Secondly, a judgment
in April (Case C-359/22) reaffirmed the Court’s case law on the ‘sovereignty
clause’, a provision in the Dublin III Regulation that allows a Member
State to take responsibility for an asylum-seeker even if their asylum
application is not the responsibility of that Member State under the Dublin
rules. The judgment confirmed that asylum-seekers did not have an EU law right
to bring a legal challenge against a Member State’s decision not to exercise
that option, because it was wholly discretionary. Nor did the EU Charter confer
a right to challenge such decisions, or to suspend their implementation. And
the time limit to carry out a transfer runs from the time another Member State
accepts it or an appeal with suspensive effect is rejected, not from the date
of refusal to trigger the sovereignty clause.
Impact of new EU asylum law
Would the recent judgments and
Advocates-General opinions be decided the same way under the revised EU asylum
laws, mostly applicable from June and July 2026? Taking the judgments and
opinions in turn, there is no significant change to the definition
of ‘particular social group’ under the 2024 Qualification
Regulation (Member States will be obliged to apply both parts of the
definition of ‘particular social group’, but then the Court’s judgments examine
both parts anyway). Nor does that Regulation alter the approach to the special
position of Palestinian
refugees. However, the exception
on sur place asylum applications is different, so the recent judgment on
the exception cannot simply be applied without modification (see detailed
discussion in my article
on the new asylum laws). As for integration conditions, the 2024 Regulation sets
out more details than the current Directive, but is consistent with the
recent opinion: Member States can make integration courses compulsory but they
must in principle be free of charge; fees can be charged as a derogation, but
only if beneficiaries of international protection have the means and are not
being placed under an ‘unreasonable burden’.
For asylum procedures, the new Procedures
Regulation will retain a slightly different rule on access
to the procedure (see also recital 13 in the preamble), as well as most of
the right
to stay pending appeal, so Hungary would still be in breach of the
provisions concerned if it does not comply with the Court’s recent judgment.
The Regulation will also retain
the non-refoulement
protection against exercising the extradition exception to an
asylum-seeker’s right to remain on the territory awaiting a first instance
decision; the qualification Regulation will likewise retain (more
straightforward) non-refoulement
protection for those with refugee or subsidiary protection status (although
the rules on withdrawal
of status will change somewhat). The inadmissibility
rules in the procedures Regulation still provide for optional inadmissibility
for those asylum seekers who have international protection from another Member
State. But the exception to this rule was always solely a creation of the Court’s
case law, based on the Charter. None of the new EU laws provide for recognition
of international protection status conferred by another Member State. In light
of all this, there is no reason to think that the Court’s new judgments on the issues
of mutual recognition and extradition will be overruled. It might be argued, though,
that in light of the additional harmonisation of law brought about by the new
legislation, a prior grant of refugee or subsidiary protection status by
another Member State must be even more taken into account in the event of an application
in a second Member State.
As for repeat
applications, there are some changes (the ‘fault’ test is now mandatory,
and an option for Member States to allow other reasons for considering a repeat
application has been dropped) but the core of the rule (mandatory
inadmissibility; exception for ‘new elements’) remains intact, so again the
Court’s recent judgment (which explicitly addressed the ‘fault’ test anyway)
should still be relevant. The relevant provision on appeals
has not been changed either.
For ‘safe
third countries’, the Regulation includes a slightly reworded rule about
readmission to the non-EU country deemed ‘safe’; and as noted above, the
Advocate-General expressly aligns his opinion interpreting the current
Directive with the wording of the Regulation on this point. On the other hand,
the ‘safe
country of origin’ rule is amended in the Regulation to allow the
designation of only parts of countries – so the position set out in the recent
Advocate-General’s opinion would be different, as the Advocate-General notes.
(There is no reason why the other aspects of that opinion would be different).
Finally, as for the replacement
for Dublin, the ‘AMMR’ or ‘RAMM’ Regulation,
there are minor changes to the human
rights and sovereignty
clauses – but nothing so significant that it would change the Court’s recent
judgments.
Comments
Despite its voluminous prior case
law on asylum, much of the Court’s recent asylum case law breaks new ground. In
fact, it is striking that it breaks new ground in particular in three areas linked
to the core of EU law: mutual recognition, sex equality, and enforcement of EU
law. Interestingly, the Court takes three different approaches to the links between
EU asylum law and these three basic principles.
On mutual recognition, the Court takes
what might be called a ‘distinction’ approach: keeping asylum law separate from
the way in which the EU law principle more commonly applies. The Court passes
up the opportunity to extend this basic EU law principle to the grant of refugee
(or, implicitly, subsidiary protection status) by another Member State, in
effect distinguishing this area of law from internal market law (and also the
law on civil and criminal judicial cooperation). In comparison to internal market
law, for example, it could be said that refugees who move between Member States
have less protection in this context than, for instance, alcohol (Cassis),
chocolate bars (Mars),
or margarine (Rau)
– reinforcing the bias of EU law towards protection of economic interests. This
is so even though EU asylum law (and indeed international law) provides for far
more underlying harmonisation of the law than many of the areas of the internal
market where mutual recognition applies.
Having said that, though, the
Treaty wording is different – referring to a power to adopt mutual recognition
rules, rather than an obligation to ensure free movement – and in any event, today’s
judgments do not reject any legal effect of the grant of refugee status
by another Member State. There is not only an obligation for the second Member
State to take the first Member State’s grant of status into account, if a fresh
asylum application is lodged in the second Member State, but also the second Member
State must give effect to the most fundamental aspect of refugee law – non-refoulement
– until and unless the first Member State withdraws refugee status. And given the
Court’s reference to non-refoulment generally, this should protect refugees not
only against extradition, but also against expulsion or any other form of
removal to their State of origin.
In contrast to mutual recognition,
the Court’s approach to sex equality and asylum law could be described as an ‘integration’
approach: attempting to integrate asylum law into the mainstream of the application
of the EU law principle (like sexual orientation equality previously). The Court’s
second judgment on this issue in particular explicitly links the interpretation
of EU asylum law to the sex equality rights in the Charter; and its reference
to women’s identity including choices as regards work outside the home implicitly
links to a well-known massive area of EU law. In fact its first judgment also
now implicitly links to subsequent EU legislation on
violence against women.
Of course, issues specific to asylum
law remain: again like LGBT cases, attention may now turn to the definition of
persecution, and to the credibility of asylum claims on this ground. An asylum-seeker
who believes that a woman needs a man like a fish needs the Common Fisheries
Policy is not likely to succeed. More seriously, the Court’s delinking of sex
equality grounds with religion grounds may be a precursor of what is to come:
authorities might argue that women can only succeed on this ground if they denounce
religion and dress differently, for instance. And the case law on offensive
questions and psychological
tests in LGBT asylum cases may turn out to be relevant by analogy.
On enforcement of EU law, the
Court’s approach could be described as an ‘extension’ of the EU law principle: further
developing the case law on how fines against Member States for non-compliance
with prior judgments work (for an analysis of previous case law on this issue,
see the European
Law Review article I co-authored with Marios Costa). The judgment
against Hungary in effect sets out a new category of ‘extraordinarily serious’ cases
in which vastly higher fines could be imposed. Although the criteria offered
are necessarily specific to asylum law, they could arguably be adapted to other
areas of EU law – for instance a particularly serious infringement of free
movement rights, or exceptional damage to the environment (many of the cases on
fines for non-compliance concern environmental law).
Finally, one striking feature of
the recent case law is that it retains a broadly liberal approach to the
interpretation and enforcement of EU asylum law. Nothing new, you might say;
but by the judgments delivered in June, it is clear that the Court is maintaining
its liberal approach despite the adoption of more restrictive asylum
legislation by the EU’s political institutions. Even the arguably more restrictive
interpretations have liberal elements: the Court requires both parts of the ‘particular
social group’ test to be fulfilled (as the qualification Directive requires),
but interprets them both generously; the Court leaves it to the EU political
bodies to require the mutual recognition of refugee decisions (as the Treaty suggests),
but gives an EU-wide non-refoulement effect to each Member State’s decisions.
One key question in the years to come is whether the Court assumes the traditional
position of centrist deference to right wing populism in this field – or whether
it says no pasaran.
Annex – other pending cases
Qualification
Cases C-608/22 and C-609/22 –
Afghan women – AG opinion
of 9 Nov 2023 – see analysis of the opinion in a blog
post by Türkan Ertuna
Lagrand and Salvo Nicolosi
Case C-747/22
– access to benefits
Case C-217/23 Laghman
– ‘particular social group’ – blood feud
Case C-352/23 Changu
– national protection status
Case C-454/23
– revocation of refugee status on security grounds
Case C-63/24 Galte
– exclusion clause
Procedures
Case C-123/23 Khan
Yunis – inadmissibility – repeat application following a negative
decision by another Member State – AG opinion due 27 June 2024
Case C-202/23 – Baabda
– see Khan Yunis
Case C-288/23 El
Baheer – inadmissibility – repeat application following a
positive decision by another Member State
Case C-551/23 Cassen
– mutual recognition of asylum decisions
Case C-610/23 Al
Nasiria – appeals
Case C-656/23 Karaman
– access to the territory – relevance to date of residence permit
Case C-662/23 Izmir
– six-month deadline to decide on applications
Cases C-50/24,
C-51/24,
C-52/24,
C-53/24,
C-54/24,
C-55/24,
C-56/24
– border procedure
Dublin
Case C-560/23 Tang
– time limits for transfer
Case C-790/23 Qassioun
– prior rejection in Denmark
Case C-185/24 Tudmur
– human rights clause – Italian suspension of transfers
Reception conditions
Case C-97/24
– damages for breach of the Directive
Cases C-104/24
and C-105/24
– alternatives to detention
Case C-184/24 Sidi
Bouzid – withdrawal of benefits
Temporary Protection
Case C-753/23 Krasliva
– movement between Member States
Case C-244/24 Kaduna
– status of non-Ukrainians
Case C-290/24 Abkez
– ditto
