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

Introduction

The principle of non-refoulement, which forbids returning individuals to unsafe nations, is generally considered absolute. However, ambiguity persists concerning its application within the EU’s Qualification Directive, which governs the determination of refugee or subsidiary protection status. The Czech Nejvyšší správní soud inquired with the Court of Justice of the European Union on July 14, 2016, about the potential conflict between Article 14(4) of the Qualification Directive and the principle of non-refoulement (Case C-391/16). Article 14(4) permits the revocation or denial of refugee status due to criminal activity or security concerns. The Czech court emphasized that returning individuals in violation of the non-refoulement principle, enshrined in Article 3 of the ECHR and Articles 4 and 19(2) of the Charter, is prohibited if there is a genuine risk of torture or inhumane treatment.

This inquiry is significant. Addressing it adequately requires recognizing and resolving the Qualification Directive’s ambiguities regarding this principle. This commentary will examine these challenges.

A Unified Principle of Non-Refoulement in EU Law

The foundation is clear: Article 19(2) of the EU Charter of Fundamental Rights prohibits transferring anyone to a country where they face serious risks of death, torture, or other inhumane treatment. This article underpins the uniform interpretation of non-refoulement within EU law, including both treaties and secondary legislation. Mirroring the absolute nature of non-refoulement in the ECHR, its interpretation should be universally consistent in all EU legal contexts. Given their equivalence, Article 19(2) of the Charter and Article 3 ECHR should be interpreted uniformly, as per Article 52(3) of the Charter and demonstrated by the ECtHR’s Chahal ruling and other jurisprudence. The Court of Justice has acknowledged this absolute nature in its Aranyosi judgment.

Grounded in Articles 2 and 3 ECHR, Article 19(2) safeguards both refugees and those under subsidiary protection. Refugees are protected from persecution based on race, religion, nationality, political views, or social group affiliation, as defined by Article 1.A of the Refugee Convention and the EU Qualification Directive. This persecution must reach a severity level typically involving threats of death, torture, or other inhumane treatment. Due to the consistent meaning of non-refoulement in Article 19(2), both refugees and beneficiaries of subsidiary protection are entitled to equal and absolute protection. As a core principle of EU law according to Article 6 TEU and reinforced by the Charter, this suggests that the Qualification Directive offers refugees greater protection than the Refugee Convention alone. The Czech court also affirms this view.

This strengthened protection doesn’t diminish any refugee rights outlined in the Refugee Convention. However, it might broaden the scope of non-refoulement for refugees under EU law. While Article 14(4) of the Qualification Directive mirrors the non-refoulement exception in the Refugee Convention, the Charter sets a higher standard, as affirmed by the reference to Chahal.

This isn’t immediately evident in the Qualification Directive’s text. Article 21(1), directly addressing non-refoulement, doesn’t explicitly state that Member States must uphold the ‘absolute principle of non-refoulement’ or ’the principle of non-refoulement as per Article 19(2) of the Charter.’ While the current text requiring Member States to respect non-refoulement ‘in line with their international obligations’ could be interpreted this way, especially given that ‘international obligations’ likely encompass those under Articles 2 and 3 ECHR, it muddies the interpretation of Article 21’s second paragraph. This paragraph creates confusion by suggesting that refoulement might be permissible under certain conditions, despite its absolute prohibition. Clearly, Article 21(2), similar to Article 14(4), implicitly references the exception outlined in Article 33(2) of the Refugee Convention, given their nearly identical wording. Thus, Article 21 raises questions about the dominant norm shaping the ‘principle of non-refoulement’: the absolute standard of Article 19(2) or the non-absolute standard of the Refugee Convention.

This confusion might have influenced the Court of Justice’s response in the H.T. case (C-373/13). In paragraphs 41–44 of that judgment, the Court described the system outlined in Article 21 without explicitly mentioning the absolute nature of non-refoulement. Technically, the Court’s statement in paragraph 42 that Article 21(2) “provides for a derogation from that principle, allowing Member States the discretion to refoule a refugee where it is not prohibited by those international obligations (…)” is not incorrect.

It’s noteworthy that the Court, in paragraph 65, acknowledges that Articles 18 and 19(2) of the Charter guarantee the principle of non-refoulement as a fundamental right but doesn’t delve deeper. Additionally, the extensive focus on the alleged leeway granted by Article 21(2) is perplexing. Why suggest any possibility of refoulement? Why mention in paragraph 43 that “Member States [enjoy] the discretion whether or not to refoule a refugee”? Why, in paragraphs 42 and 55, refer to a “derogation” from this non-derogable principle? Why state in paragraph 72 that applying Article 21(2) might have “very drastic” consequences because the refugee “might be returned to a country where he is at risk”? Why not clearly state that explaining Article 21(2) is essentially pointless due to the absolute nature of the principle in question?

The Case’s Significant Implications

The Court of Justice’s response to the Czech court will have significant ramifications. Failing to explicitly uphold the absolute nature of non-refoulement could trigger a gradual erosion of this principle. One initial step could involve framing the refugee status within the Directive as the primary status, relegating the protection offered by Article 3 ECHR to a secondary, less significant safety net for those ineligible for this primary protection. This interpretation could lead to the argument that Article 21 primarily refers to obligations under Article 33 of the Refugee Convention, potentially allowing Member States to refoule refugees based on criminal behavior or security risks under Article 21(2). Subsequently, if this ‘primary’ status doesn’t inherently include absolute protection against refoulement, granting superior protection to the ’lesser’ status might seem illogical.

However, acknowledging the importance of Article 19(2) of the Charter might hinder this downgrading process. It’s striking that the Qualification Directive’s preamble only connects non-refoulement with the Refugee Convention (point 3), not Article 19(2). Moreover, point 16 of the preamble lists various relevant Charter provisions but omits Article 19(2).

Complications: Status, Residence Permits, and Expulsion

Several factors complicate this discussion. Firstly, refoulement only pertains to deportation to the country where the individual faces danger, not expulsion to safe countries (as demonstrated by Article 32 of the Refugee Convention). Secondly, the Qualification Directive provides protection through status designations and residence permits. What are the implications?

Status

A status is essentially an act of recognition. Article 2(e) defines ‘refugee status’ as a Member State’s recognition of a third-country national or stateless person as a refugee. Similarly, Article 2(g) defines ‘subsidiary protection status’ as recognizing an individual’s eligibility for such protection. Since status equates to recognition, it can only be revoked by withdrawing this recognition. Inherently, a status signifies acknowledging the obligation of non-refoulement toward the individual.

(The term ‘recognized refugee’ here specifically refers to those recognized under the Qualification Directive, not individuals who might be refugees according to the 1951 Convention but haven’t been recognized as such. This recognition under the Qualification Directive confirms the applicability of the absolute EU principle of non-refoulement to the refugee.)

Revoking a status while the danger persists solely based on criminal behavior would be illogical, similar to revoking a pregnancy confirmation because of a stolen book, not the end of the pregnancy. However, the Qualification Directive allows for the termination of status even when the absolute prohibition of refoulement remains applicable, particularly for refugees. Article 14(4) mirrors Article 21(2) by allowing for the revocation or denial of refugee status based on criminal behavior or security risks but without the caveat of overriding “international obligations.”

Article 14(4) clearly references Article 33(2) of the Refugee Convention, which also inspired the ‘refoulement’ possibility under Article 21(2). As previously stated, a correct interpretation of Article 21(1) renders its second and third paragraphs inapplicable. So, if those paragraphs are considered ‘dead letters,’ does Article 14(4) still hold weight?

The answer hinges on the value placed on the Directive’s internal consistency. Refusing or terminating a status based on factors unrelated to the danger it safeguards is peculiar. However, as long as there is no refoulement, refusing or terminating refugee status doesn’t violate the non-refoulement principle.

Residence Permit

The H.T. judgment (para. 95) argues that even without a residence permit, the individual retains their refugee status and the associated benefits outlined in Chapter VII of the Qualification Directive. These include protection from refoulement, family unity maintenance, travel document rights, access to employment and education, social welfare, healthcare, freedom of movement within the Member State, and access to integration facilities. The same should apply to those granted subsidiary protection (Article 20(2)).

However, this raises concerns. Certain rights mentioned in Chapter VII, such as travel documents for international travel, freedom of movement within the host state, and access to employment, are only granted to ’lawfully’ residing refugees under the Refugee Convention. It’s unclear if the Court fully considered this aspect. Chapter VII lacks clarity in differentiating rights solely linked to ‘status’ from those tied to ’lawful residence.’

Therefore, the validity of paragraph 95 in the H.T. judgment is questionable. Does ‘status’ inherently imply lawful presence? Or does it differ from a ‘residence permit’ precisely because it doesn’t inherently confer a right to lawful presence?

Regardless of the answer, even if we accept paragraph 95 of the H.T. judgment, ‘status’ solely safeguards against refoulement, not expulsion to a safe country. Hence, a residence permit offers greater security. As long as a status holder possesses a residence permit, the Member State guarantees not only non-refoulement but also non-expulsion to any other country and full societal inclusion. This applies to both refugees and beneficiaries of subsidiary protection. Over time, a residence permit might strengthen the individual’s legal standing, potentially leading to permanent residency or citizenship.

The non-refoulement principle is, at least theoretically, compatible with revoking, refusing to extend, or denying a residence permit. Article 24 of the Qualification Directive, as explained in the H.T. judgment, allows for the non-renewal or revocation of residence permits for both refugees and beneficiaries of subsidiary protection based on compelling national security or public order reasons, without impacting their status. Consequently, measures to safeguard public order and security might involve terminating or denying residence permits but can never, according to the previous arguments, lead to refoulement when prohibited by Article 19(2) of the Charter.

Exclusion

A complex issue is how exclusion (distinct from revoking refugee status or a residence permit) aligns with the absolute norm of non-refoulement.

The exclusion clauses of the Refugee Convention are transposed into Article 12 of the Qualification Directive. Article 17 extends the concept of exclusion to individuals with subsidiary protection, a novel addition. However, the Directive’s wording suggests potential differences in what exclusion means for refugees versus beneficiaries of subsidiary protection. Article 12 states that a third-country national or stateless person is excluded from being a refugee, meaning they are excluded from the definition itself. In contrast, Article 17 states that a third-country national or stateless person is excluded from being eligible for subsidiary protection. This suggests exclusion from the eligibility for protection, which might not be synonymous with status. Nevertheless, for consistency with the B and D judgment, it might be preferable to interpret Article 17 as pertaining to exclusion from subsidiary protection status, mirroring Article 12’s focus on refugee status exclusion.

Regardless of these potential distinctions, both provisions prevent or nullify the assessment of whether an individual faces a situation necessitating protection under the Qualification Directive, either due to a well-founded fear of persecution or a real risk of harm, torture, or inhumane treatment. Non-assessment doesn’t negate risk. Therefore, exclusion under the Qualification Directive doesn’t preclude the applicability of the non-refoulement principle. Article 5 of the Returns Directive still safeguards these individuals against refoulement. Hence, returning excluded individuals to their countries of origin isn’t automatically permissible.

As previously established, status embodies acknowledging the obligation of non-refoulement. Consequently, exclusion from a status effectively means exclusion from this recognition. Therefore, there’s no automatic right to a residence permit either.

Essentially, excluded individuals fall outside the Qualification Directive’s scope and rely on the Returns Directive for protection against refoulement. Following the Abdida judgment (Court of Justice, December 18, 2014, C-562/13, para 50), they must have access to a remedy with suspensive effect to prevent their return before a competent authority examines any objections based on violations of the non-refoulement principle as defined by Article 5 of the Returns Directive and Article 19(2) of the Charter.

Conclusions

Despite its ambiguities, Article 21 of the Qualification Directive isn’t invalid. The phrase “in accordance with their international obligations” allows for an interpretation aligned with the absolute prohibition of refoulement. Consequently, even in the scenarios outlined in paragraph 2, refoulement of refugees is prohibited. This renders the third paragraph of Article 21, which addresses the revocation or refusal of residence permits for refugees subject to paragraph 2, entirely inapplicable. Therefore, under a correct interpretation, the second and third paragraphs of Article 21 are effectively ‘dead letters.’

The impact of this ‘dead letter’ status on the validity of Article 14(4), which shares its basis with Article 33(2) of the Refugee Convention, is unclear. However, as long as Article 21(2) remains unused, Article 14(4) doesn’t violate the absolute prohibition of refoulement. Nonetheless, Article 14(4) compels Member States to refuse or terminate a refugee status even when obligated to acknowledge the absolute prohibition of refoulement, which is illogical. If ‘status’ equals ‘recognition,’ it should be upheld even for individuals who commit crimes, as long as the ‘recognition’ is valid.

The Court of Justice, in its response to the Czech court, might need to clarify the division of responsibility for safeguarding against refoulement between the Qualification Directive and the Returns Directive, as done in the Abdida case. Exclusion, as per Articles 12 and 17 of the Qualification Directive, removes applicants from its protection, leaving them reliant on the Returns Directive and its provision for a remedy with suspensive effect to examine non-refoulement claims.

Barnard & Peers: chapter 9, chapter 26

JHA4: chapter I:5

Photo credit: Bryan Denton, New York Times