Professor Steve Peers, Royal Holloway University of London
Photo credit: Luxofluxo, via Wikimedia Commons
Introduction
While the focus has been on revising EU asylum law, as explored in my upcoming article and blog series, the Court of Justice of the European Union (CJEU) has been issuing significant judgments on asylum law matters. This post reviews these judgments, recent Advocate-General opinions, and potential impacts of the new EU asylum laws. It also examines how EU asylum law interacts with broader EU law principles.
Qualification for Asylum
Recent CJEU judgments have provided guidance on qualifying for refugee or subsidiary protection status, including groundbreaking rulings on women qualifying for refugee status due to gender-specific issues.
A January ruling in Case C-621/21 addressed women experiencing domestic violence. The Court established that women, as a group, can be considered a ‘particular social group’ facing persecution under the Refugee Convention. This recognition stems from shared innate characteristics, potential additional commonalities like family background, and societal perceptions influenced by social, moral, or legal norms. The Court also clarified the connection between persecution and the Convention ground of ‘particular social group’ and highlighted the possibility of subsidiary protection for women facing risks like honor killings.
Furthermore, in Case C-646/21, the CJEU determined that women advocating for gender equality could also constitute a ‘particular social group.’ This judgment built upon the previous one, recognizing the fundamental nature of such beliefs and the potential for persecution based on gender. The Court emphasized that states bear responsibility for gathering evidence regarding the situation of women in the country of origin and highlighted the importance of considering the best interests of the child.
In Case C-222/22, the CJEU addressed obtaining refugee or subsidiary protection status ‘sur place’ - when the basis for the claim arises after leaving the country of origin. The Court interpreted the optional exception in the Qualification Directive narrowly, emphasizing the need to demonstrate ‘abusive intent’ for an application to be considered ‘manufactured.’ Genuine conversions, for instance, would not fall under this exception.
The Court also clarified the distinct position of Palestinian refugees in Case C-563/22, particularly concerning UNRWA assistance. The judgment, issued before the events of October 7th, 2023, highlighted the conditions in Gaza as potential grounds for UNRWA protection or assistance being considered ceased, thereby entitling individuals to Refugee Convention benefits.
Regarding refugee integration, Advocate-General’s opinion in Case C-158/23 (Keren) suggested that compulsory integration courses are permissible, as long as penalties for non-compliance remain proportionate.
Asylum Procedures
Recent judgments have focused on the right of access to the asylum procedure, as enshrined in the EU’s asylum procedures Directive. Case C-123/22 saw Hungary fined heavily for failing to comply with a previous judgment on asylum law. The Court found Hungary continued to restrict access to asylum and limit the right to stay pending appeal, violating the Directive and Returns Directive. The significant fines reflected the seriousness of the breaches, impacting fundamental rights and demonstrating a lack of cooperation.
The procedures Directive outlines grounds for inadmissibility of asylum claims, including situations where another Member State has granted protection. However, previous CJEU case law recognizes exceptions due to severe human rights concerns in the first Member State. In Case C-753/22, the Court clarified that while there is no automatic mutual recognition obligation under current EU law, the first Member State’s decision should be considered when assessing an asylum application.
Case C-352/22, closely related to the previous judgment, addressed extradition requests for recognized refugees. The Court determined that extradition cannot be granted unless the first Member State decides to withdraw refugee status, emphasizing the non-refoulement protection granted to refugees throughout the EU.
Repeat applications for asylum were the focus of Case C-216/22. While the Directive generally deems repeat applications inadmissible, an exception exists for ’new elements or findings.’ The Court clarified that its judgments could constitute such new elements, potentially impacting the admissibility of repeat applications. The judgment also addressed appeals, confirming Member States’ right to allow administrative re-decisions following successful appeals while adhering to court judgments.
Advocate-General’s opinion in Case C-134/23 examined the ‘safe third country’ concept, specifically when readmission is uncertain or refused. The opinion suggested that certain refusal of readmission doesn’t prevent listing a country as ‘safe’ but impacts inadmissibility decisions and enforcement. The Advocate-General’s reasoning emphasized procedural efficiency and alignment with the new asylum procedures Regulation.
The ‘safe country of origin’ concept, allowing expedited processing of asylum applications, was addressed in Advocate-General’s opinion in Case C-406/22. The opinion argued that emergency derogations from the ECHR don’t automatically preclude a country from being designated ‘safe’ but should be considered. It also highlighted the illegality of designating only parts of a country as ‘safe’ under current law.
Dublin
The EU’s Dublin rules, determining responsibility for asylum applications, were subject to interpretation in two recent judgments.
Case C-392/22 marked the first application of the human rights exception in the Dublin rules to ‘pushbacks’ – illegal returns without considering asylum applications. The Court declared pushbacks a breach of EU law, potentially violating the non-refoulement principle. However, the judgment also explored the criteria for establishing a systemic risk of torture or inhuman treatment, necessary for triggering the human rights clause.
The ‘sovereignty clause’ in the Dublin III Regulation, allowing Member States to take responsibility for asylum seekers outside the standard rules, was examined in Case C-359/22. The Court confirmed the discretionary nature of this clause, denying asylum-seekers the right to challenge its non-exercise.
Impact of New EU Asylum Law
Most provisions of the revised EU asylum laws, applicable from June and July 2026, are consistent with the recent judgments and opinions. However, changes to the ‘sur place’ exception and the ‘safe country of origin’ rule will require adjustments in interpretation. The Court’s approach to mutual recognition of asylum decisions is likely to remain relevant, with potential arguments for even stronger consideration of prior grants of protection.
Comments
The recent CJEU case law on asylum exhibits a progressive approach, pushing boundaries in areas like mutual recognition, gender equality, and enforcement of EU law. Notably, the Court adopts distinct approaches in connecting asylum law with these broader EU law principles, sometimes opting for distinction, other times for integration or extension.
Regarding mutual recognition, the Court maintains a degree of separation between asylum law and its application in other fields like internal market law. This distinction persists despite the harmonizing effect of EU asylum law and international legal frameworks. Nevertheless, the recent judgments acknowledge the legal significance of refugee status granted by another Member State, emphasizing non-refoulement protection and the duty to consider prior decisions.
Conversely, the Court actively integrates gender equality principles into asylum law, aligning with the Charter and other EU legislation on violence against women. This integration may lead to further examination of persecution definitions and credibility assessments in asylum claims based on gender.
The Court’s approach to enforcing EU law in the context of asylum demonstrates an extension of existing principles. The judgment against Hungary establishes a new category for exceptionally serious breaches, potentially influencing future cases involving fundamental rights or environmental protection.
It’s crucial to acknowledge the Court’s continued commitment to a liberal interpretation of EU asylum law, even amidst the adoption of more restrictive legislative measures by EU institutions. This stance is evident in the generous interpretation of the ‘particular social group’ definition and the emphasis on non-refoulement protection.
The upcoming years will reveal whether the Court maintains this progressive approach in the face of potential political pressures. Its response will shape the future of EU asylum law and its relationship with core EU law principles.
Annex - Other Pending Cases
Qualification
Cases C-608/22 and C-609/22 (Afghan women)
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)
Case C-202/23 (Baabda)
Case C-288/23 (El Baheer - inadmissibility - repeat application)
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)
Case C-662/23 (Izmir - six-month deadline for 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)
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 – status of non-Ukrainians)