By Stephen Coutts
The on-going conflict in the Middle East has profound implications for the global legal order in two areas of law in particular: asylum law and anti-terrorist law. The European Union and EU law have not been immune from this development and in many respects are closely affected by these geopolitical developments and their legal impact. After a fitful start, the EU has become a major actor in the area of criminal law, and in particular anti-terrorist law, on the one hand and in asylum law on the other. The two fields meet in Article 12(2)(c) of the Qualification Directive, itself reflecting Article 1F of the Geneva convention, providing that an individual shall be excluded from eligibility for refugee status for acts contrary to the principles and purposes of the United Nations, acts which have been held to include acts of terrorism. Furthermore, Article 12(3) of the Qualification Directive extends that exclusion to ‘persons who instigate or otherwise participate in the commission of the the crimes or acts’ mentioned in Article 12(2). The status of terrorist and refugee are legally incompatible and mutually exclusive; one simply cannot be a terrorist and also a refugee. What, however, constitutes a terrorist for the purposes of Article 12 of the Qualification Directive? That essentially is the question at stake in Lounani. Continue reading
By Margarite Helena Zoeteweij
On 1 March 2016 the Court of Justice of the European Union gave its judgment in the joined cases of Ibrahim Alo and Amira Osso, Cases C-443/14 and C-444/14, ruling that the EU’s Qualification Directive does not sanction the imposition of restrictions of the freedom of movement for beneficiaries of subsidiary protection, and that such a limitation is not justifiable for reasons of territorial sharing of social assistance burdens, while at the same time leaving it up to the referring German Federal Administrative Court to decide whether the limitation can be justified for reasons of migration and integration policy. The judgment comes in the midst of Europe’s biggest migrant crisis since World War II, and affects especially the rights of the beneficiaries of subsidiary protection status – those seekers of international protection that do not qualify as ‘refugees’, – the number of which is currently booming in Europe. The judgment will have instant and far-reaching consequences on the leeway of the national authorities in their dealings with beneficiaries of subsidiary protection status, especially since the Court confirms that, in principle, refugees and beneficiaries of subsidiary protection status are entitled to the same catalog of rights contained in Chapter VII of the Qualification Directive. Continue reading
On March 20, the Judicial Division of the Netherlands Council of State referred three cases concerning asylum seekers who claim to have been persecuted on account of their sexual orientation to the Court of Justice for a preliminary ruling. Pursuant to Article 10(1)(d) Qualification Directive, groups with a common characteristic of sexual orientation may fall within the ambit of the minimum level of protection afforded by European asylum law. However, during the initial procedure the asylum seekers concerned failed to convince the Dutch immigration service that they were gay and their application was subsequently denied.
On appeal, their lawyers argued that the mere statement that one is gay, lesbian or bisexual is sufficient proof of an asylum seeker’s sexual orientation. Moreover, the lawyers submitted, any further verification of their sexuality is contrary to, inter alia, Articles 3 and 7 of the Charter of Fundamental Rights. The Council of State accepted that some questions pertaining to the way in which the applicant experiences, sexually or otherwise, his sexual orientation or how and when the applicant became aware of his sexual orientation may be contrary to the right to personal integrity (art. 3 (1) Charter) and the right to private life as guaranteed in Articles 3 and 7 of the Charter of Fundamental Rights and asked the CJEU for guidance on this point. In this post, I will use queer theory in an attempt to substantiate the argument that verification ought to be considered contrary to human rights standards.
About a month ago, the Court of Justice made a long-awaited judgment in cases Y and Z. The judgment is particularly important for EU asylum law. The applicants in the main proceedings were Pakistani nationals who applied for asylum in Germany on religious grounds. They stated that because they exercised their faith as members of the Ahmadiyyah (a minority community), they would face prosecution and possible detention and therefore should be recognized as refugees. The German Federal Administrative Court (Bundesverwaltungsgericht) decided to refer questions to the Court of Justice, which it asked to set out the circumstances in which an infringement of the freedom of religion may constitute an ‘act of persecution’ sufficient to grant refugee status within the meaning of Directive 2004/83/EC. This Directive seeks to establish minimum standards and common criteria for all Member States regarding the recognition of asylum seekers as refugees within the meaning of Article 1 of the Refugee Convention.
First of all, it should be noted that in international asylum law it is commonly assumed that not all human rights violations amount to acts of persecution in the sense of the Refugee Convention, but only those that are perceived as risks to the life and being of a person (for example when a person risks death or torture because of his or her political opinion). This is the main reason why this is a huge judgment in the field of asylum law: it goes into the concept of persecution, and the role that human rights play in defining the refugee.
In his recent Opinion in Cases C-71/11 and C-99/11 Advocate General Bot held that a serious infringement of the freedom of religion may constitute an ‘act of persecution’ where the asylum seeker, by exercising that freedom or as a result of infringing the restrictions placed on the exercise of that freedom, runs a real risk of being deprived of his most fundamental rights. This is an important case for the application of fundamental rights in asylum context. The AG seems to be aware of this considering the extensive elaboration on the matter. Nevertheless, the Opinion of the AG is not very satisfying, mainly because the interpretation based on the European Court of Human Rights (hereafter: ECHR) case law, does not seem very consistent.
The cases concerned a reference for a preliminary ruling by the German Bundesverwaltungsgericht (Federal Administrative Court). The applicants in the main proceedings were Pakistani nationals who entered Germany and applied for asylum on religious grounds. They stated that because they exercised their faith as members of the Ahmadiyyah (a minority community that adheres to the Ahmadiyyah, long contested by the Sunni Muslim majority in Pakistan), they would be prosecuted and therefore should be recognized as refugees. The lower German Court had decided that the freedom of religion entails amongst others the right to exercise and demonstrate faith in public and that the restrictions on the exercise of faith in Pakistan represent a grave violation of the freedom of religion for a devout Ahmadi. The Bundesverwaltungsgericht decided to refer questions, in which it asked the Court of Justice to set out the circumstances in which an infringement of the freedom of religion, and in particular of the right of an individual to live his faith freely and openly, may constitute an ‘act of persecution’ within the meaning of Directive 2004/83/EC.