Asylum Law in the European Union

Francesco Cherubini

• Publisher: Routledge
• Year: 2014
• ISBN:
  9781317804444
• Edition: 1
• Topic: Derecho
• Subtopic: Teoría y práctica del derecho

This book examines the rules governing the right to asylum in the European Union. Drawing on the 1951 United Nations Convention relating to the Status of Refugees, and the 1967 Protocol, Francesco Cherubini asks how asylum obligations under international refugee law have been incorporated into the European Union.

The book draws from international law, EU law and the case law of the European Court of Human Rights, and focuses on the prohibition of refoulement; the main obligation the EU law must confront. Cherubini explores the dual nature of this principle, examining both the obligation to provide a fair procedure that determines the conditions of risk in the country of origin or destination, and the obligation to respond to a possible expulsion.

Through this study the book sheds light on EU competence in asylum when regarding the different positions of Member States. The book will be of great use and interest to researchers and students of asylum and immigration law, EU law, and public international law.

1 The Geneva Convention of 1951 and its Protocol of 1967

DOI: 10.4324/9781315814421-2

1.1 Definition of refugee

The first international treaty regulating the right of asylum is the 1951 Geneva Convention Relating to the Status of Refugees (the Refugee Convention), together with its Protocol of 1967.¹ The articles of the treaty, which have been given an authoritative, though not binding, interpretation by the Office of the United Nations High Commissioner for Refugees (UNHCR), were drawn up essentially in order to supply a definition of persons in need of protection and to provide them with a system of support ranging from the prohibition on refoulement to the right to work.² The beneficiaries of the Refugee Convention are listed in Article 1A(2), which defines as refugee someone who

¹ Convention Relating to the Status of Refugees (adopted Geneva 28 July 1951 and entered into force 22 April 1954), 189 UNTS 147 ff. To date there are 145 parties to the Convention, including the United Kingdom, which ratified it on 11 March 1954. Protocol Relating to the Status of Refugees (adopted New York 31 January 1967 and entered into force 4 October 1967), 606 UNTS 267 ff.; 146 states signed, including the United Kingdom, which ratified it on 4 September 1968. Only very few of the States parties to the Convention failed to ratify the Protocol, and vice versa; respectively, they were Madagascar and Saint Kitts and Nevis, and Cape Verde, the United States and Venezuela. As will be explained later, this has major consequences only where the States are parties to the Convention alone. ² The Office of the High Commissioner was founded as a subsidiary organ of the United Nations General Assembly (UNGA) under Article 22 of the Charter, UNGA Resolution 319 (IV), December 1949, A/RES/319(IV)[A–B]. Broadly speaking, it took over the functions of the former International Refugee Organization (IRO), the Constitution of which was adopted by UNGA Resolution 62, 15 December 1946, A/RES/62(I)[I–II]. The organisation was originally intended to operate only until 31 December 1953; however, its mandate was renewed every five years (see UNGA Resolution 727, 3 October 1953, A/RES/727(VIII); Resolution 1165, 26 November 1957, A/RES/1165(XII); Resolution 1783, 7 December 1962, A/RES/1783(XVII); Resolution 2294, 11 December 1967, A/RES/2294(XXII); Resolution 2957, 12 December 1972, A/RES/2957(XXVII); Resolution 32/68, 8 December 1977, A/RES/32/68; Resolution 37/196, 18 December 1982, A/RES/37/196; Resolution 42/108, 7 December 1987, A/RES/42/108; Resolution 47/104, 16 December 1992, A/RES/47/104; Resolution 52/104, 12 December 1997, A/RES/52/104; and Resolution 57/186, 18 December 2002, A/RES/57/186) until the General Assembly eventually decided, Resolution 58/153, 22 December 2003, A/RES/58/153, para. 9, ‘to remove the temporal limitation on the continuation of the Office of the High Commissioner contained in its Resolution 57/186 and to continue the Office until the refugee problem is solved’. UNHCR has limited means at its disposal, having no judicial or even quasi-judicial authority, nor any general power of enforcement, similarly to the bodies responsible for other international instruments for the protection of human rights, such as the European Court of Human Rights (ECtHR), or the Human Rights Committee, or the Committee of Ministers of the Council of Europe. On this point see V. Türk (2003: 4–5) and C. W. Wouters (2009: 39 ff.). More generally, on UNHCR's control functions see W. Kälin (2003: 613 ff.).

As a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.³

³ Article 1A also contains a clause (1) giving a definition of ‘history’ or ‘statutory’ refugees: see A. Grahl-Madsen (1966–1972, II: 108 ff.) and, more recently, S. Schmahl (2011a: 247 ff.).

It should be clarified that this definition relates to refugees ipso iure. In other words, it is universally acknowledged that recognition of a person's status as a refugee does not make them such, it merely ascertains that status:⁴ a person becomes a refugee as soon as (and only because) he or she meets the requirements set out in Article 1A of the Refugee Convention. This raises two points: first, while in theory the (positive) determination of refugee status would appear irrelevant, in practice without it the protection which the Convention affords the refugee becomes meaningless. Thus, while States have considerable freedom as to the method of determining refugee status⁵ – and while UNHCR, unlike the contracting States, has no duty to uphold the provisions of the Convention that would eliminate, or at least reduce, the broad scope for their interpretation – they have nonetheless several obligations, procedural and of substance, designed to safeguard people who are already refugees even before their status is recognised. These obligations derive mainly, though not only, from Article 33 of the Refugee Convention enshrining a rule rightly deemed to be one of the cornerstones of international law: the prohibition on refoulement.⁶

⁴ See C. W. Wouters (2009: 47). This is developed further in UNHCR (1992a: para. 28), which states that ‘A person is a refugee within the meaning of the 1951 Convention as soon as he fulfils the criteria contained in the definition. This would necessarily occur prior to the time at which his refugee status is formally determined. Recognition of his refugee status does not therefore make him a refugee but declares him to be one. He does not become a refugee because of recognition, but is recognized because he is a refugee’. Similar opinions are found in the case law: see the decision of the High Court of Ireland of 17 December 2010, Artur Abramov v. Minister of Justice, Equality and Law Reform (Abramov), para. 20. Where not specified, mentioned case law is available online at http://www.refworld.org. ⁵ UNHCR (1992a: para. 189). ⁶ A. Grahl-Madsen (1983: 14).

The provisions of the Refugee Convention, moreover, do not always employ the same terms, and this is the second point. While there is only one concept of refugee (though not unambiguous), in the articles of the Convention the term acquires different nuances case by case. There would appear to be three categories of refugee: refugee tout court, refugee lawfully present in the country, and refugee lawfully staying in the country.⁷ The first two have an important feature in common: in both categories the refugees have not had their status officially (and positively) determined; the only difference is that refugees lawfully present in the host country are there in compliance with the laws on foreign nationals – that is, they have entry documents (valid ID, travel papers and so on) and a temporary permit to stay (usually a three-month visa). On the other hand, refugees lawfully staying in the country generally have a recognised status or, if not, hold a long-term permit to stay, though not necessarily a permanent one (again, three months is the term usually fixed in the legislation on foreign nationals). The differences between these categories of refugee are reflected in the degree of protection provided by the Convention: the stronger the link with the host country, the broader the rights of the refugee.⁸ Consequently, all categories enjoy the protection associated with the prohibition on refoulement, but only some are allowed to move freely about the territory of the host country and even fewer have the right of association, the right to housing, and so on.⁹

⁷ Some authors, such as J. C. Hathaway (2005: 156 ff.), make a further distinction between refugees under the jurisdiction of States and refugees physically present in their territory, although there is no actual basis for this in the Refugee Convention. The Convention, however, does envisage a further category, that of refugees with habitual residence (see Articles 14 and 16(2)), which is more or less equivalent to the category of refugees lawfully staying in the country, although the argument has been made (Ibid.: 907–8) that an additional element is required: recognition of refugee status. ⁸ V. M. Teichmann (2011: 922). ⁹ According to Article 15, only resident refugees have the right of association; see references in footnote 423. Henceforth, the three categories will be referred to as ‘refugee’, ‘refugee lawfully present’ and ‘refugee lawfully staying’. Instead, the Refugee Convention contains no reference to the category of asylum-seekers, although it is found frequently in both legal writings and practice. Henceforth, the term will be used to denote people who leave their country of origin to seek some form of international protection, regardless of whether or not they have made an official application.

This brings us back to the concept of refugee. Some elements of the definition have changed over the years, at times quite considerably. The Refugee Convention, for instance, still talks of two limitations, one temporal, the other geographical. Article 1A(2) establishes a dies ad quem (date at which) – 1 January 1951 – the events that led the person to be outside his or her country, and unable or unwilling to return there, ceases to have any bearing on the application of the Convention. This limitation is evidently based on the same rationale that led the States to draft such a treaty, that is, to remedy the effects of the Second World War on population movements. However, when other events occurred potentially entailing similar consequences for population movements but falling outside the field of application of the Refugee Convention because of the limitation,¹⁰ it was eliminated by the 1967 Protocol, which was ratified by all the States parties to the Convention except two (Madagascar and Saint Kitts and Nevis¹¹).

¹⁰ According to S. Schmahl (2011c: 614), the provisions of Article 1A(2) were extended to include some subsequent events, such as the Hungarian uprising of 1956, because, to stretch the meaning slightly, they ‘were considered to be a result of the communist takeover shortly after the Second World War. While they fled in 1956, it was the “effect” of an “event” which occurred prior to 1 January 1951 (so called “after-effect”)’. This stratagem could not be used again for later events, such as those occurring i...