Many people might already know about Colin Yeo’s blog post that imagines Paddington Bear having a tough time with British immigration law. However, could EU law potentially protect Paddington, particularly by offering a new kind of protection for those forced to leave their home countries?

Background

EU law has detailed rules for two types of international protection: refugee status (based on the UN’s Geneva Convention) and subsidiary protection status for those who don’t qualify as refugees. There’s also EU law for temporary protection, but it’s never been used. But what about people who don’t qualify for any of these? When can they stay?

This is relevant in several situations. For example, Paddington might argue that he’s an “environmental refugee,” fleeing a natural disaster in his home country. (Let’s imagine Paddington as a human here, just like Colin does). Others might not qualify to stay but can’t be removed because they lack documents proving their nationality, and their potential home country refuses to take them back. Or they might have a severe illness, but their developing home country lacks the resources to treat it, essentially making deportation a death sentence.

The last scenario is the focus of two recent rulings from the Court of Justice of the European Union (CJEU) in the cases of M’Bodj and Abdida. (It’s important to read these judgments in that order to avoid misunderstandings). However, these rulings might also affect other groups, perhaps even our marmalade-loving bear.

Judgments

In the M’Bodj case, a non-EU citizen, after unsuccessfully seeking asylum and residency in Belgium on medical grounds, was violently attacked. He then requested a disability allowance only available to those eligible for subsidiary protection. According to the EU’s qualification Directive, subsidiary protection is granted if someone faces: (a) the death penalty or execution; (b) torture or other cruel, inhuman, or degrading treatment or punishment in their home country; or (c) a serious and individual threat to their life or safety due to indiscriminate violence during an armed conflict. A revised Directive didn’t change this definition.

The CJEU had already interpreted the third ground but not the first two. Mr. M’Bodj argued that the second ground applied, citing the European Court of Human Rights’ (ECtHR) interpretation of Article 3 of the European Convention on Human Rights (ECHR). This article, which also forbids “torture or other inhuman or degrading treatment or punishment,” has been interpreted to mean that, in exceptional cases, people cannot be returned to their home countries if they would die due to inadequate medical treatment.

However, the CJEU rejected this argument. It reasoned that because the qualification Directive specifically lists human actions as the cause of persecution or serious harm, this harm must result from “conduct by a third party” and “cannot simply be the result of general shortcomings in the health system of the country of origin.” This interpretation was supported by the Directive’s preamble, which states that it doesn’t apply to those allowed to stay “on a discretionary basis on compassionate or humanitarian grounds.” An exception was made for cases where someone was intentionally denied health care. The ECtHR’s interpretation of Article 3 ECHR, allowing people like Mr. M’Bodj to stay, didn’t automatically entitle them to subsidiary protection under the EU Directive.

The Directive allows Member States to have “more favourable standards” for granting refugee or subsidiary protection status, but these standards must be “compatible” with the Directive. The Court deemed it incompatible to grant Mr. M’Bodj subsidiary protection because there would be “no connection with the rationale of international protection.”

On its own, the M’Bodj case implies that those facing terrible conditions in their home country not caused by humans have no right to refugee or subsidiary protection. They only have the protection against being returned to their home country, as per ECtHR case law, and any limited benefits under national law. These national laws vary widely, as shown in a European Migration Network study. For Paddington, this means he could be sent back to his home country unless the conditions there violated Article 3 ECHR standards. In that case, he could stay in the UK but likely wouldn’t have a good life.

However, the Abdida case, decided by the CJEU on the same day, suggests that in some cases, those ineligible for subsidiary protection or refugee status can use the EU’s Returns Directive to get a different kind of protection. Mr. Abdida had also requested residency in Belgium on medical grounds and was appealing the rejection of his application. During his appeal, he was denied social assistance because it was only available to those whose appeals prevented their removal, which wasn’t the case for him under Belgian law.

The national court asked the CJEU to interpret EU asylum law, and based on its M’Bodj judgment, the CJEU stated that EU asylum law didn’t apply. While Member States can choose to apply EU law on reception conditions and asylum procedures to other types of protection requests, Belgium hadn’t done so.

The CJEU could have stopped there, but it didn’t. It provided a detailed answer to questions the national court hadn’t asked, interpreting the unmentioned Returns Directive, which governs the removal of irregular migrants.

First, the Court addressed Mr. Abdida’s procedural rights. While the Returns Directive doesn’t require appeals against removal to have suspensive effect, it was necessary to consider the EU Charter of Rights. Article 19(2) of the Charter prohibits removals to countries where individuals would face a serious risk of inhuman or degrading treatment. This had to be interpreted considering the ECtHR case law on Article 3 ECHR, which prohibits removals on “medical grounds” in exceptional circumstances.

How does this affect the Returns Directive? Article 5 states that when implementing the Directive, “Member States shall take due account of: (a) the best interests of the child; (b) family life; (c) the state of health of the [person] concerned, and respect the principle of non-refoulement.” The CJEU ruled that Article 5, “taken in conjunction with Article 19(2) of the Charter,” means that Member States “may not…proceed with…removal” if it “would infringe the principle of non-refoulement” on medical grounds.

This removal ban meant that the appeal process had to have a suspensive effect, even though the Directive’s wording was optional. Without it, Mr. Abdida could suffer irreparable harm if returned to his home country before his appeal was decided.

Second, the CJEU ruled on Mr. Abdida’s social rights. Article 14 of the Directive states that unless irregular migrants are detained, given time for voluntary departure, or their removal is postponed, Member States must “ensure that the following principles are taken into account as far as possible…: (a) family unity with family members present in their territory is maintained; (b) emergency health care and essential treatment of illness are provided; (c) minors are granted access to the basic education system subject to the length of their stay; and (d) special needs of vulnerable persons are taken into account.”

The Court determined that Mr. Abdida qualified for this treatment because his removal had to be postponed under the Directive, which mandates postponement when an appeal has suspensive effect. Strangely, the Court didn’t mention that the Directive also requires postponement when removal would violate the principle of non-refoulement, although this was clearly relevant to Mr. Abdida.

The Directive allows Member States to postpone removal in other cases. It specifies that “Member States shall in particular take into account: (a) the third-country national’s physical state or mental capacity;” and “(b) technical reasons, such as lack of transport capacity, or failure of the removal due to lack of identification.” In these cases, individuals could also invoke Article 14 safeguards since it applies regardless of the reasons for postponement.

Yet, it seemed Mr. Abdida’s specific request for social assistance couldn’t succeed, as Article 14 doesn’t mention it. The Directive’s preamble states that pending return, “basic conditions of subsistence should be defined according to national legislation.” However, the CJEU ruled that such legislation must be “compatible with the requirements laid down in” the Directive. In this case, the right to healthcare would be “rendered meaningless if there were not also a concomitant requirement to make provision for the basic needs” of the individual. However, this right only applied “as far as possible,” provided the person couldn’t meet their own needs, and Member States could “determine the form” of this provision.

Comments

Firstly, the qualification Directive and the Returns Directive have different territorial scopes. The former applies to all Member States except Denmark but includes the UK and Ireland. The latter doesn’t apply to the UK and Ireland and only applies to Denmark and non-EU Schengen associates (Norway, Iceland, Switzerland, and Liechtenstein) in certain situations.

Considering this CJEU case law, my advice to Paddington is to hop on the tube from Paddington to King’s Cross & St. Pancras station and stow away on a Eurostar train to Brussels. (Sorry for encouraging a breach of immigration law, violating the EU’s Directive on that. And even bigger apologies for unleashing “Gare du Midi Bear” upon the world). Alternatively, he could stow away on a train to Disneyland Paris – and keep a whole army of copyright lawyers busy.

The Court’s judgments raise questions about the scope of international protection under the qualification Directive and the new protection possibilities under the Returns Directive. Let’s call the latter “alternative protection” for brevity (though “Returns Directive protection” would be more accurate).

First, the qualification Directive. The key point is that there’s no right to subsidiary protection solely due to inadequate healthcare in one’s home country unless access to that healthcare is blocked. While the Court doesn’t elaborate on this exception, a parallel argument could be made for refugee status if access to essential healthcare is blocked based on grounds like race, religion, or political opinion, as defined in the Geneva Convention, as this would likely constitute persecution.

More broadly, the Court rules out a subsidiary protection claim unless the conditions in the home country are caused by a “third party” as defined in the Directive (meaning the State, entities controlling the State, or non-State actors). While the Court didn’t explicitly rule on this, its logic suggests that “non-State actors” must be human. Indirect causation also seems insufficient. One could argue that insufficient healthcare in developing nations results from corrupt leaders hoarding wealth or the legacy of colonialism and slavery. Similarly, many believe environmental displacement results from human-caused climate change. However, the CJEU might not accept this argument.

Furthermore, the Court prevents Member States from using their power to apply more favorable rules for international protection in such cases. Its only prior ruling on this, the B and D case, stated that States couldn’t grant refugee status to those excluded from it. This could have been interpreted as meaning Member States were only restricted from granting more favorable treatment when international law explicitly forbade it. However, the M’Bodj judgment goes much further. The CJEU hasn’t just refused to raise the floor for international protection – it’s significantly lowered the ceiling.

The requirement for more favorable standards to be compatible with EU law applies to other EU asylum laws and some EU migration legislation, like the Returns Directive. The M’Bodj judgment might impact these laws too. However, this rule doesn’t apply to all EU immigration laws, and there’s no reason to assume a “compatibility” requirement should apply where the EU legislature deliberately chose not to include one.

So what more favorable standards can Member States apply? Regarding the qualification Directive, the Court states they must fall within the scope of international protection, presumably referring to persecution or serious harm caused by a “third party.” Therefore, higher standards can only apply to the Directive’s definitions of “refugee” and “subsidiary protection.” For example, Member States should be able to grant subsidiary protection to those fleeing indiscriminate violence even if the threat isn’t “individual” or if they aren’t civilians.

Second, what does the Abdida judgment mean for “alternative protection”? To understand this, let’s compare it to elements of EU law governing international protection: responsibility allocation for an application (the “Dublin rules”); substantive grounds for protection; procedures for determining protection needs; and benefits received during the determination process (and after, if successful).

First, some general points about the Court’s approach to the Returns Directive in Abdida. When adopted in 2008, NGOs criticized it as enabling inhumane treatment of irregular migrants. Over time, the CJEU’s interpretation has generally ensured better treatment for them than initially feared. The Abdida judgment goes even further, turning an instrument of expulsion into a tool for protection in some cases. It’s like ordering a vegetarian dish and getting served a bacon sandwich.

For meat-eaters, that’s a welcome surprise. So what’s the problem? It’s difficult to repurpose a law designed for removing migrants to help them instead. The CJEU attempts this in Abdida through legal acrobatics: rewriting the national court’s questions; turning an obligation to “take due account” of non-refoulement into a removal ban; making optional suspensive appeals mandatory; transforming the “principle” of healthcare into a rule; and adding social assistance to Mr. Abdida’s entitlements. Yet, making the Returns Directive work for individual protection will still require significant effort.

To see why, let’s examine the protection process elements, starting with responsibility allocation for an application. There are no “Dublin rules” for alternative protection. If Paddington reached Brussels or Paris, Belgium or France couldn’t invoke rules to send him back to the UK. However, this changes if he sought asylum in the UK before going elsewhere. The Dublin rules would apply, making the UK responsible as he entered unauthorized before any other Member State. However, this wouldn’t apply to Paddington because unaccompanied minors can usually change the country responsible for their application.

In reality, most using “alternative protection” would likely have sought asylum first (like in Abdida and M’Bodj), so the Dublin rules would apply. According to the CJEU, they could only resist being returned to the responsible Member State if its asylum system completely collapsed. For Paddington, neither the attention from Nicole Kidman’s character nor the harsh realities of British immigration law, as described in Colin Yeo’s blog, would meet that threshold.

Next, the substantive grounds for alternative protection. Abdida shows they include at least non-refoulement. Importantly, non-refoulement under the Returns Directive and the Charter is broader than the concept of international protection. It covers “medical cases” and possibly situations outside refugee and subsidiary protection but within Article 3 ECHR (e.g., those excluded from both). It might even cover environmental cases, like the destruction of talking bears’ habitats or sinking islands. Article 5 of the Returns Directive also mentions the best interests of the child, health, and family life, which could be grounds for alternative protection. However, one cannot claim alternative protection solely because enforcing a return decision is practically impossible, as seen in the Mahdi case.

Moving to procedures for determining alternative protection needs, there are three aspects: access, administrative procedure, and judicial protection. Access is problematic, as the Returns Directive is only accessible with a pending return decision. This creates an odd situation where individuals facing removal (Mr. Abdida) have better healthcare access than those with residency permits (Mr. M’Bodj). The Returns Directive mandates issuing return decisions to those without authorization but allows for them to stay, in which case the decision is rescinded. Otherwise, it’s silent on the expiration, renewal, or rescission of these decisions. There’s no way for someone to request a return decision, even if it might benefit them.

The administrative procedure during returns is addressed in recent CJEU judgments on the right to be heard in Returns Directive cases. The Boudjlida judgment requires national authorities to consider Article 5 of the Returns Directive before issuing a return decision. However, the Court’s development of the right to be heard in these cases is generally weaker than the rules on interviews, etc., in the asylum procedures directive.

Conversely, regarding judicial protection, the suspensive effect of removals in Abdida is stronger than similar provisions in the asylum procedures Directive. However, it’s unclear if this applies to other “alternative protection” arguments. Article 13 of the Returns Directive contains other rules on the appeals body’s independence and impartiality (which doesn’t have to be a judicial body), the requirement for a merits review, access to legal advice, and legal aid. Similar to the suspensive effect in Abdida, it might be argued that Article 47 of the Charter grants stronger rights than the Directive requires.

Finally, the benefits received while awaiting a decision, if removal is postponed, are family unity, essential healthcare, education for minors, protection for vulnerable individuals, and written confirmation of their status. Abdida shows this list isn’t exhaustive and can include basic needs. The CJEU implicitly accepted that providing healthcare to Mr. Abdida meant nothing if he starved on the streets. This logic likely applies to other cases: shouldn’t an unaccompanied minor also receive food and shelter?

What about the Court’s two caveats: the means test and Member States’ power to “determine the form” of basic needs provision? On the former, the employer sanctions Directive allows, but doesn’t obligate, Member States to permit irregular migrants to work. They could consider income from family, friends, or charities. Regarding the latter, Member States can’t simply detain individuals, as the Returns Directive outlines grounds and conditions for detention. However, they likely have leeway in housing and financial support details. So, Paddington couldn’t insist on staying with Hugh Bonneville’s family and might have to settle for Aldi marmalade instead of Marks & Spencer’s.

Barnard & Peers: chapter 9, chapter 26