Seeking Asylum in the European Union : Selected Protection Issues Raised by the Second Phase of the Common European Asylum System [1 ed.] 9789004290167, 9789004290150

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Seeking Asylum in the European Union

International Refugee Law Series Editor-in-Chief David James Cantor Editorial Board Deborah Anker Bhupinder Chimni Geoff Gilbert Guy S. Goodwin-Gill Liliana Jubilut Susan Kneebone Hélène Lambert Bonaventure Rutinwa Volker Türk

VOLUME 4

The titles published in this series are listed at brill.com/irls

Seeking Asylum in the European Union Selected Protection Issues Raised by the Second Phase of the Common European Asylum System Edited by

Céline Bauloz, Meltem Ineli-Ciger, Sarah Singer and Vladislava Stoyanova

LEIDEN | BOSTON

Library of Congress Cataloging-in-Publication Data Seeking asylum in the European Union : selected protection issues raised by the second phase of the common European asylum system/edited by Céline Bauloz, Meltem Ineli-Ciger, Sarah Singer, and Vladislava Stoyanova. pages cm. -- (International refugee law series ; v. 4) Includes bibliographical references and index. ISBN 978-90-04-29015-0 (hardback : alk. paper) 1. Emigration and immigration law--European Union countries. 2. Asylum, Right of--European Union countries. 3. Refugees--Legal I. Bauloz, Céline, editor. II. Ineli-Ciger, Meltem, editor. III. Singer, Sarah (Law teacher), editor. IV. Stoyanova, Vladislava, editor. KJE5202.S44 2015 342.2408’3--dc23 2015009785

This publication has been typeset in the multilingual “Brill” typeface. With over 5,100 characters covering Latin, ipa, Greek, and Cyrillic, this typeface is especially suitable for use in the humanities. For more information, please www.brill.com/brill-typeface. issn 2213–3836 isbn 978-90-04-29015-0 (hardback) isbn 978-90-04-29016-7 (e-book) Copyright 2015 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper.

Contents Foreword vii Hélène Lambert Acknowledgements viii Abbreviations ix Notes on Contributors xi 1 Introducing the Second Phase of the Common European Asylum System 1 Céline Bauloz, Meltem Ineli-Ciger, Sarah Singer and Vladislava Stoyanova

PART 1 Procedural Guarantees and Reception Conditions 2 Fair Enough? The uk’s Reluctance to Find Article 6 echr Engaged in Asylum Disputes and the Transformative Potential of eu Law 23 Emma Borland 3 Victims of Human Trafficking A Legal Analysis of the Guarantees for ‘Vulnerable Persons’ under the Second Phase of the eu Asylum Legislation 58 Vladislava Stoyanova

PART 2 Qualification as Persons in Need of Protection 4 Availability of Protection in the Country of Origin An Analysis under the eu Qualification Directive 111 Julian M. Lehmann 5 The Persecution of Disabled Persons and the Duty of Reasonable Accommodation An Analysis under International Refugee Law, the eu Recast Qualification Directive and the echr 141 Stephanie A. Motz

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6 Refuge from Climate Change-Related Harm Evaluating the Scope of International Protection within the Common European Asylum System 195 Matthew Scott

PART 3 Missed Opportunities and Problematic Developments 7 Has the Temporary Protection Directive Become Obsolete? An Examination of the Directive and Its Lack of Implementation in View of the Recent Asylum Crisis in the Mediterranean 225 Meltem Ineli-Ciger 8 The Recast Eurodac Regulation Are Asylum Seekers Treated as Suspected Criminals? 247 Niovi Vavoula Selected Bibliography 275 Index 292

Foreword After fourteen years of negotiation, revision, and adoption, the Common European Asylum System (ceas) has finally emerged. With some of the ambiguities, loopholes and derogations of the first phase of the ceas gone, the European Union (eu) Commissioner for Home Affairs, Cecilia Malmström, is feeling optimistic, as the new ceas rules should provide ‘a much better basis for good implemsentation’ (speech, Sofia, 24 March 2014). There may indeed be grounds for optimism in the fact that many of these new rules will continue to evolve and become more liberal under the influence of the European Court of Human Rights, the Court of Justice of the European Union, and national judges. However, Europe’s normative power, in terms of influencing refugee law in other parts of the world, should not be underestimated. A recent study reveals clear evidence of emulation of European legal norms of refugee protection in places such as Africa, Australia, Canada, Israel, Latin America, and Switzerland (H. Lambert, J. McAdam and M. Fullerton (eds.), The Global Reach of European Refugee Law (cup 2013)). Even the United States, which has been slow to emulate eu law and practice, recently rejected the definition of ‘particular social group’ provided in the unhcr Handbook, to the benefit of the more restrictive (on paper, at least) eu definition contained in Article 10(1)(d) of the Qualification Directive, according to which a social group must have both a defining innate characteristic and a distinct perceived social identity (us Board of Immigration Appeals in Matter of mevg 2014). It is therefore very important and timely to study the second generation of eu asylum instruments with a view to capturing the constant adjustments being made to restrictive norms, and to reflect on the eu’s role as a global leader in refugee protection. Hélène Lambert

Professor of International Law, University of Westminster London, 9 August 2014

Acknowledgements This volume follows a one day international workshop organized under the auspices of the Refugee Law Initiative, School of Advanced Study, University of London at Senate House, London, in April 2014. The aim of this workshop was to gather the most promising early career researchers, at both PhD and postdoctoral level, to focus on some of the most debated issues in international and European refugee law. Each panel was chaired and detailed feedback provided by a senior academic in the field, to whom we are greatly indebted for kindly donating their time, experience and knowledge. In no particular order, these are: Dr David J. Cantor (University of London), Professor Vincent Chetail (Graduate Institute of International and Development Studies), Professor Elspeth Guild (Queen Mary University of London & Radboud University Nijmegen), Dr Violetta Moreno-Lax (Queen Mary University of London) and Professor Gregor Noll (University of Lund). We would also like to particularly thank Professor Hélène Lambert (University of Westminster) for delivering the keynote address of the conference and the Foreword to the present volume – her help and support has been invaluable. We would also like to express our gratitude to the Refugee Law Initiative and all at the Human Rights Consortium at the School of Advanced Study, University of London, for kindly hosting the event and supporting this publication. And of course we would like to thank all that attended and participated in the conference at Senate House, for providing such rich material for discussion and debate and ultimately providing the impetus for the present publication.

Abbreviations afis Automated fingerprinting identification system ai Amnesty International aire Centre Advice on Individual Rights in Europe Centre ait Asylum and Immigration Tribunal (uk) cat Convention against Torture ceas Common European Asylum System cedaw Convention on the Elimination of Discrimination against Women cerd Convention on the Elimination of All Forms of Racial Discrimination cescr Committee on Economic, Social and Cultural Rights cjeu Court of Justice of the European Union CoE Council of Europe crc Convention on the Rights of the Child crpd Convention on the Rights of Persons with Disabilities easo European Asylum Support Office echr European Convention on Human Rights ecre European Council on Refugees and Exiles ECtHR European Court of Human Rights edps European Data Protection Supervisor emn European Migration Network eu European Union ExCom Executive Committee (unhcr) greta Group of Experts on Action against Trafficking in Human Beings hra Human Rights Act 1998 (uk) hrw Human Rights Watch iarlj International Association of Refugee Law Judges iccpr International Covenant on Civil and Political Rights icescr International Covenant on Economic, Social and Cultural Rights ICRtoP International Coalition for the Responsibility to Protect ilpa Immigration Law Practitioners’ Association ipcc Intergovernmental Panel on Climate Change irb Immigration and Refugee Board (Canada) lapso Legal Aid, Sentencing and Punishment of Offenders Acts 2012 (uk)

x ngo nzipt rrt rsaa rsd teu tfeu udhr uk un unga unhcr unisdr vclt vis wmo

Abbreviations

Non-governmental organization New Zealand’s Immigration and Protection Tribunal Refugee Review Tribunal (Australia) Refugee Status Appeals Authority (New Zealand) Refugee status determination Treaty on the European Union Treaty on the Functioning of the European Union Universal Declaration of Human Rights United Kingdom United Nations United Nations General Assembly United Nations High Commissioner for Refugees United Nations International Strategy for Disaster Reduction Vienna Convention on the Law of Treaties Visa Information System World Meteorological Organization

Notes on Contributors Dr Céline Bauloz is Postdoc Researcher for the National Centre of Competence in Research – The Migration-Mobility Nexus (nccr – on the move; University of Fribourg) and Managing Editor of the Refugee Survey Quarterly (Oxford University Press). She is also a member of the Refugee Law Initiative Doctoral Affiliates Network (University of London) and of the Migration Law Centre (University of Neuchâtel). Céline previously worked as Visiting Researcher at Harvard Law School (Cambridge, ma), Senior Researcher at the Global Migration Centre (Graduate Institute of International and Development Studies, Geneva) and Teaching Assistant at the Geneva Academy of International Humanitarian Law and Human Rights. She also regularly works as consultant for international and non-governmental organizations. Céline’s research interests focus on the protection of individuals under public international law and on European Union and United States’ migration law. Among her most recent publications, she co-edited the Research Handbook on Migration and International Law (Edward Elgar Publishing, 2014). Her work and research for the present volume were supported by the nccr – on the move funded by the Swiss National Science Foundation. Emma Borland is a PhD candidate at Cardiff Law School under the supervision of Professor Luke Clements and Dr Bernadette Rainey. She holds an llb (Hons) from Edinburgh University and an llm (Distinction) and msc in Social Science Research Methods from Cardiff University. Her research pathway is socio-legal studies (empirical studies in law) and her research topic concerns issues of access to justice for migrants and asylum seekers. Emma is also the current Chair of Trustees of the Welsh Charity ‘Asylum Justice’ that offers pro bono advice, assistance and representation to asylum seekers and refugees. She has five years’ experience as an accredited immigration adviser (oisc Level 3/Law Society Level 2) and her work as a practitioner, specialising in deportation and asylum cases, has inspired her research interest. Emma has been committed to helping asylum seekers and refugees since she undertook a six months internship in 2008–2009 as a legal adviser for the Egypt branch of a United Kingdombased non-governmental organization, African and Middle East Refugee Assistance (amera).

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Meltem Ineli-Ciger is a PhD candidate at the University of Bristol Law School. She holds a ba in Law from Dokuz Eylul University and llm in international law from University of Bristol. She began her doctoral research in 2011 under the supervision of Professor Achilles Skordas and Professor Malcolm Evans. Her research focuses on temporary protection of persons fleeing armed conflict in mass influx situations. She has published a number of articles and book chapters on temporary protection and protection of persons fleeing armed conflict. She has been a Visiting Researcher at the Chinese University of Hong-Kong, Centre for Rights and Justice under the World Wide Universities Network Researcher Programme. She is one of the Doctoral Affiliates of the Refugee Law Initiative. Julian Lehmann is a Research Associate at the Global Public Policy Institute (gppi), an inde­ pendent think tank in Berlin. His doctoral research concerns state protection in European Union asylum law and is supervised at Dresden University of Technology. Prior to joining gppi, Julian completed consultancies for the United Nations High Commissioner for Refugees, the European Council on Refugees and Exiles and the International Institute of Human Rights in Strasbourg. Julian holds an llm in international human rights law from the University of Essex and a bachelor’s degree in international relations from Dresden University of Technology. He was a Visiting Scholar at the University of Michigan in 2012 and at the University of Lund in 2014. Since 2013 he has been a Doctoral Affiliate at the Refugee Law Initiative at the School of Advanced Study, University of London. His doctoral project is funded by the Villigst Foundation. Stephanie Motz is a part-time PhD candidate at the University of Lucerne, Switzerland, where she writes on the qualification for refugee status of disabled persons. She is a barrister currently practising in Switzerland, where she regularly represents asylum applicants before the United Nations Committee against Torture and the European Court of Human Rights, having successfully represented the applicant in aa v Switzerland. Stephanie previously worked as a barrister in the United Kingdom and remains a door tenant there. She has taught public law at King’s College London and now teaches on the ma in Refugee Protection and Forced Migration Studies at the Refugee Law Initiative and gives an introductory course on Swiss immigration and asylum law in Zürich. Stephanie completed the Bachelor of civil law at the University of Oxford as well as internships at the International Criminal Court and the Greek Council for Refugees. She regularly publishes in the field of asylum law, immigration law and human rights.

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Matthew Scott is a uk-qualified solicitor and a doctoral candidate at the Faculty of Law at Lund University in Sweden. His research examines the scope of the nonrefoulement obligation in the context of disasters in an era of climate change. Starting from the recognition that disasters are increasing in part as a result of climate change, it asks to what extent existing law can address the international protection needs of individuals unwilling to return to their home countries owing to seriously adverse conditions of existence they would encounter there. Where protection needs are not accommodated in existing interpretations, questions about the potential role that strategic litigation can play in developing the law arise and will be addressed through a combination of doctrinal and empirical legal research. His research is part-funded by the European Refugee Fund and he is part of the erf-funded Lund/Uppsala Migration Law Network (L/umin). Before commencing his doctoral research he practiced asylum and immigration law at the Immigration Advisory Service in the United Kingdom and also worked for the Australian Department of Immigration in Russia and Australia. In addition to his legal qualifications he holds a Master degree in Anthropology of Development from the School of Oriental and African Studies (soas) at the University of London. Dr Sarah Singer is an academic at the Refugee Law Initiative and Lecturer in Human Rights Law at the School of Advanced Study, University of London. Sarah is also Managing Editor of the International Community Law Review, a peer reviewed academic journal published by Brill; Martinus Nijhoff. She is Programme Director of the ma in Refugee Protection and Forced Migration Studies, the first postgraduate distance learning programme of its kind, run by the Refugee Law Initiative and delivered through the prestigious University of London International Programmes. She also teaches the law component of the ma in Understanding and Securing Human Rights at the Human Rights Consortium, School of Advanced Study, University of London. Dr Vladislava Stoyanova has a doctoral degree from the Faculty of Law, Lund University, Sweden. Her doctoral project is entitled ‘Human Trafficking and Slavery Reconsidered. Con­ ceptual Limits and States’ Positive Obligations.’ She teaches migration law and human rights law at Lund University. She holds an llm in public international law from Leiden University, an llm in human rights law from the Central European University and a Master’s degree from Sofia University. Vladislava’s

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research interests cover human rights law, refugee and migration law. She has published widely in the field of human trafficking and slavery. She is a member of the editorial board of the Refugee Law Initiative Working Paper Series. Niovi Vavoula graduated from the National and Kapodistrian University of Athens (School of Law) in 2008. She is a qualified lawyer (Athens Bar Association) and holds an llm in European law from Queen Mary, University of London. Before commencing her doctoral studies at the same University in October 2012, she interned for the Greek Desk at eurojust and participated in several research projects. Her thesis explores the nexus between counter-terrorism consi­ derations and the operation of European Union immigration databases, in ­particular fundamental rights concerns.

chapter 1

Introducing the Second Phase of the Common European Asylum System Céline Bauloz, Meltem Ineli-Ciger, Sarah Singer and Vladislava Stoyanova If the roads to reach the European Union (eu) are often dangerous for asylum seekers,1 they only constitute preliminary steps on the tortuous journey of seeking protection within the Union. Being granted asylum in eu Member States is indeed a sinuous process, reflecting the complexity of the communitarian protection regime established at the eu level, the so-called ‘Common European Asylum System’ (ceas). The complexity surrounding the ceas is in turn inherent to its very rationale, scope and evolution. First, it would be misleading to conceive of the ceas as a purely protectionoriented system built on the basis of Member States’ obligations under international refugee law and international human rights law. Its rationale is more complex, as it is also a product of Member States’ policy interests in the field of migration and asylum.2 Hence, this communitarian regime was not only established with the view to enhance asylum protection in the eu, but also with the objective of combating the so-called phenomenon of ‘asylum shopping’.3 1 This is sadly illustrated by the dramatic number of boat people who perish every day in the Mediterranean Sea. According to the United Nations High Commissioner for Refugees (unhcr, ‘High Seas Tragedies Leave More than 300 Dead on the Mediterranean in Past Week’ unhcr News Stories (26 August 2014) accessed 6 December 2014). These figures nonetheless only account for the deaths that have been identified and reported so that the scale of these high seas tragedies might be even greater. 2 As noted by Pirjola, ‘[t]he objective of the EU’s asylum policy is then reconciling the universal interest of asylum seekers as stated in EU policy documents with the particular interest of the EU or its Member States’. J. Pirjola, ‘European Asylum Policy – Inclusions and Exclusions under the Surface of Universal Human Rights Language’ (2009) 11 EJML 347, 349. 3 As further detailed below, combating asylum shopping has been the main driving force behind the creation of the ceas. Nonetheless, the system can be more broadly seen as relying on four main strategic pillars which, in addition to the fight against asylum shopping, include preventing access of asylum seekers to the eu territory, criminalizing those not entitled to international protection and enforcing their return, and promoting the integration of genuine refugees (V. Chetail and C. Bauloz, The European Union and the Challenges of Forced Migration: From Economic Crisis to Protection Crisis? (European University Institute 2011) 4).

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004290167_002

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With the abolition of internal borders within the then European Community,4 concerns were indeed raised that asylum seekers would begin moving from one State to the other with the view to ‘shop’ for the country with the most generous asylum policies.5 Each individual Member State thus feared becoming the destination country in Europe. To counter such secondary movements, the Community has relied on a twostep strategy. Firstly, with the 1990 Dublin Convention it established a system allocating responsibility among Member States for the examination of asylum claims.6 The effect of this Dublin mechanism has been to return asylum seekers to the Member State through which they first entered the European Community’s territory, thereby countering subsequent movement to other Member States. Secondly, because the Dublin mechanism presupposed similar treatment of refugees in all Member States, and with the view to further decrease incentives for secondary movements of such persons, the Community worked towards harmonizing asylum policies at the European level.7 This s­econd strategy however took more time to implement as it entailed extracting asylum from the sole competence of Member States.8 This was thus done

4 The abolition of internal borders between Member States was necessary to establish the ‘free movement of goods, persons, services and capital’ in the European Community (see Agreement between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the Gradual Abolition of Checks at their Common Borders (Schengen Agreement), 30 ilm 68, 14 June 1985 (entry into force: 1 September 1993) and Article 8(a) of the Single European Act of 28 February 1986, OJ L 169/1, 29 June 1987 (entry into force: 1 July 1987)). However, refugees were from the inception of the common area excluded from this ‘free movement equation’ (E. Guild, ‘The Europeanisation of Europe’s Asylum Policy’ (2006) 18 ijrl 630, 634). 5 eu Commission, Completing the Internal Market, White Paper from the Commission to the European Council, com(85) 310 final, 14 June 1985, 15–16, para 55. 6 Dublin Convention determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities, OJ C 254/1, 15 June 1990 (entry into force: 1 September 1997). 7 As highlighted by Barbou Des Places and Oger, ‘[…] it is the generalised suspicion vis-à-vis forum shopping that fuels harmonization of the national legislation regulating asylum seekers’ access to the status of refugee, the procedure for the application examination and the reception conditions’. S. Barbou Des Places and H. Oger, ‘Making the European Migration Regime: Decoding Member States’ Legal Strategies’ (2005) 6 ejml 353, 371. 8 In 1989, the Presidency already envisioned the long-term objective of harmonizing asylum policies among Member States: ‘[…] an inventory will be made of national policies on asylum with a view to achieving harmonization’. eu Council, Conclusions of the Presidency, European Council, Strasbourg, 8 and 9 December 1989, EU Doc SN 441/2/89, 1989, 5.

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progressively by first acknowledging asylum as a matter of inter-governmental cooperation under the 1992 Maastricht Treaty9 and then instituting it as an area of communitarian competence under the 1997 Amsterdam Treaty.10 Hence, the Amsterdam Treaty opened the door to the genuine harmonization of asylum policies among eu Member States. When the ceas was created in 1999 by the Tampere Presidency conclusions, the overall strategy of countering asylum shopping was integrated as a constituent element of the system.11 Thus, although not explicitly mentioned in the Tampere conclusions, the goal of combating asylum shopping constitutes both the foundation upon which the ceas was built and its main driving force. Against this background, it therefore comes as no surprise that the ceas is not as generous as one might expect a regional system of refugee protection to be. Second, although the ceas was conceived as a comprehensive system, it is in fact comprised of an aggregation of various and dispersed rules. This contrasts with other regional refugee protection systems which have been comparatively less ambitious in their scope.12 While the 1969 Convention Governing the Specific Aspects of Refugee Problems in Africa and the 1984 Cartagena Declaration of Refugees have focused on extending the refugee definition to broader categories of asylum seekers,13 the ceas has rather sought to establish 9

See Title VI on cooperation in the field of Justice and Home Affairs, OJ C 191/1, 2 July 1992 (entry into force: 11 November 1993). 10 See Article 63, OJ C 340/115, 10 November 1997 (entry into force: 1 May 1999). 11 See eu Council, Presidency Conclusions, Tampere European Council, 15 and 16 October 1999, EU Doc 200/1/99, 16 October 1999, paras 14 and 15. 12 As Vincent Chetail underscores, although more recent than its regional counterparts the ceas is much more ambitious in its scope. V. Chetail, ‘The Common European Asylum System: Bric-à-Brac or System?’, in V. Chetail, P. de Bruycker and F. Maiani (eds.), Towards a Common European Asylum System: The Added Value of the Legislative Package of Second Generation (Martinus Nijhoff, forthcoming) (on file with the authors). 13 These two instruments have complemented the Convention relating to the Status of Refugees and its 1967 Protocol by extending its refugee definition to additional categories of refugees (see, respectively, 189 UNTS 150, 28 July 1951 (entry into force: 22 April 1954) and 606 UNTS 267, 31 January 1967 (entry into force: 4 October 1967)). While its Article 1(1) takes up the conventional refugee definition, Article 1(2) of the 1969 Convention further considers a refugee to be ‘every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality’ (Convention Governing the Specific Aspects of Refugee Problems in Africa adopted by the then Organization of the African Unity (1001 UNTS 45, 10 September 1969 (entry into force: 20 June 1974)). Similarly, the Cartagena Declaration on Refugees provides that ‘[…] the

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common standards regulating all facets of asylum in the eu.14 But what is referred to as the ceas is in fact scattered among multiple directives and regulations aimed at determining the Member State responsible for considering an asylum claim (Dublin Regulation, replacing the 1990 Dublin Convention, and supported by the Eurodac Regulation)15 and detailing the reception conditions provided to asylum seekers (Reception Directive),16 the asylum procedure (Procedures Directive),17 as well as the type of protection conferred and the rights and benefits granted to those eligible for protection (Temporary Protection Directive and Qualification Directive).18 As a result, understanding

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definition or concept of a refugee to be recommended for use in the region is one which, in addition to containing the elements of the 1951 Convention and the 1967 Protocol, includes among refugees persons who have fled their country because their lives, safety or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order’ (Recommendation No. 3 of the Cartagena Declaration on Refugees, adopted by the Colloquium on the International Protection of Refugees in Central America, Mexico and Panama, held at Cartagena (Colombia) on 19–22 November 1984). Although the Declaration is not legally binding, it remains authoritative for its extended refugee definition has been incorporated within the asylum legislation of 15 States in Central and South America. See unhcr, Definición ampliada de refugiado en América Latina [Extended Definition of the Refugee in Latin America] (unhcr America updated as of June 2011) accessed 6 December 2014. See Tampere Conclusions (n 11) paras 14–15. Council Regulation (ec) No. 353/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national, OJ L 50/1, 25 February 2003; and Council Regulation (ec) No. 2725/2000 of 11 December 2000 concerning the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of the Dublin Convention, OJ L 316/1, 15 December 2000. Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers, OJ L 31/18, 6 February 2003. Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures  in Member States for granting and withdrawing refugee status, OJ L 326/13, 13 December 2005. See, respectively, Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof, OJ L 212/12, 7 August 2001; and Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who

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the ceas is like deciphering a musical score: although each individual note makes a particular sound, it is only taken together that the greater composition can be played. Borrowing the words of Vincent Chetail, ‘the ceas is halfway between a bric-à-brac and a true system. The key challenge will be to transform the existing collection of eclectic instruments into a comprehensive and coherent regime of refugee protection’.19 Third, and finally, the complexity of the ceas flows not only from its ­rationale and scope but also from its constant evolution. The eu-wide harmonization of asylum policies has indeed been approached as a step-bystep construction. Since its creation in 1999, the ceas has undergone two main phases of harmonization. The first phase was conceived by the 1997 Amsterdam Treaty and the 1999 Tampere Conclusions as a preliminary stage with the view to establishing common minimum standards in the field of asylum within a five-year period. This mandate led the eu to adopt, in a relatively short time span, the various regulations and directives mentioned above. In 2008, the eu Commission however recognized that this first phase had not been entirely successful in achieving the complete harmonization of asylum policies: […] the differences in decisions to recognise or reject asylum requests from applicants from the same countries of origin point to a critical flaw in the current CEAS: even after some legislative harmonisation at eu level has taken place, a lack of common practice, different traditions and diverse country of origin information sources are, among other reasons, producing divergent results. This is creating secondary movements and goes against the principle of providing equal access to protection across the eu.20 The consequent need for more effective harmonization has led the ceas to enter a second phase of development. As laid down by the eu Council in its 2004 Hague Programme, ‘the aim of the [ceas] in its second phase will be the

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­otherwise need international protection and the content of the protection granted, OJ L 304/12, 30 September 2004. Chetail, ‘The Common European Asylum System’ (n 12). eu Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions, Policy Plan on Asylum: An Integrated Approach to Protection Across the eu, COM(2008) 360 final, 17 June 2008, 3.

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establishment of a common asylum procedure and a uniform status for those who are granted asylum or subsidiary protection’.21 This objective was further explicitly recognized by the Council in its 2009 Stockholm Programme as a way to ‘prevent or reduce secondary movements within the eu’22 and was ultimately integrated within the 2009 Lisbon Treaty.23 To be achieved, the minimum standards developed during the first phase of the ceas had to be replaced with common standards.24 As a result, most of the regulations and directives that had been adopted in the first phase of the ceas had to be recast in what is now commonly referred to as the second generation of ceas instruments. A  Recast Qualification Directive was thus adopted in 2011,25 followed in

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eu Council, The Hague Programme: Strengthening Freedom, Security and Justice in the European Union, OJ C 53/1, 3 March 2005, 3. eu Council, The Stockholm Programme: An Open and Secure Europe Serving and Protecting the Citizens, EU Doc 17024/09, 2 December 2009, 69. Article 78(1) of the consolidated version of the Treaty on the Functioning of the European Union (tfeu), as amended by the Treaty of Lisbon (OJ C 306/1, 17 December 2007 (entry into force: 1 December 2009)), indeed provides that: ‘The Union shall develop a common policy on asylum, subsidiary protection and temporary protection […]’. The second paragraph details the necessary measures to be adopted and which comprise: ‘(a) a uniform status for nationals of third countries, valid throughout the Union; (b) a uniform status of subsidiary protection for nationals of third countries who, without obtaining European asylum, are in need of international protection; (c) a common system of temporary protection for displaced persons in the event of massive inflow; (d) common procedures for the granting and withdrawing of uniform asylum or subsidiary protection status; (e) criteria and mechanisms for determining which Member State is responsible for considering an application for asylum or subsidiary protection; (f) standards concerning the conditions for the reception of applicants for asylum or subsidiary protection; (g) partnership and cooperation with third countries for the purpose of managing inflows of people applying for asylum or subsidiary or temporary protection’. It is noteworthy that the Lisbon Treaty is the first instrument of eu primary law to expressly refer to the ceas. Such common standards had to initially be adopted by 2010 according to the 2004 Hague Programme (n 21). The 2008 Policy Plan on Asylum (n 20) and the 2009 Stockholm Programme (n 22) extended this deadline to 2012, while, in fact, the second phase of the ceas harmonization was achieved mid-2013. Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2911 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons ­eligible for subsidiary protection, and for the content of the protection granted (recast), OJ L 337/9, 20 December 2011.

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­mid-2013 by Recast of the Reception Conditions Directive,26 Asylum Procedures Directive,27 Dublin Regulation,28 and Eurodac Regulation.29 In light of the above, the level of complexity in the ceas equals its wideranging ambitions of being a multifaceted, policy-oriented and harmonized asylum system in the eu. Coupled with the diverse eu measures put in place to prevent asylum seekers’ access to the Union,30 the ceas takes the form of a 26

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Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (recast), OJ L 180/96, 29 June 2013. Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (recast), OJ L 180/160, 29 June 2013. Regulation (eu) No. 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast), OJ L 180/31, 29 June 2013. Regulation (EU) No. 603/2013 of the European Parliament and of the Council of 26 June 2013 on the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of Regulation (eu) No. 604/2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person and on requests for the comparison with Eurodac data by Member States’ law enforcement authorities and Europol for law enforcement purposes, and amending Regulation (eu) No. 1077/2011 establishing a European Agency for the operational management of large-scale it systems in the area of freedom, security and justice (recast), OJ L 180/1, 29 June 2013. These most notably encompass visa requirements for nationals – including potential refugees – of certain third countries (Regulation (EC) No. 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (Visa Code), OJ L 243/1, 15 September 2009; and Council Regulation (EC) No. 539/2001 of 15 March 2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement, OJ L 81/1, 21 March 2001 which were both subject to subsequent amendments); interception of migrants trying to reach the European shores (Frontex Council Regulation (EC) No. 2007/2004 of 26 October 2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, OJ L 349/1, 25 November 2004 further amended and most recently by Regulation (EU) No. 656/2014 of the European Parliament and of the Council of 15 May 2014 establishing rules for the surveillance of the external sea borders in the context of operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, OJ L 189/93, 27 June 2014); and the externalization of asylum p­rocessing through

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labyrinth; obscuring the path to protection, if not the ramparts of ‘fortress Europe’. Refugee protection has, however, always been heralded by the eu as a key component of the ceas. Laying down the foundations of the ceas, the 1997 Treaty of Amsterdam expressly grounded the asylum measures to be adopted on the protective regime established by the 1951 Refugee Convention, its 1967 Protocol and ‘other relevant treaties’.31 The 1999 Tampere Conclusions further clarified that the ceas was to be based on the ‘absolute respect of the right to seek asylum’, that is, ‘on the full and inclusive application of the Geneva Convention [1951 Refugee Convention], thus ensuring that nobody is sent back to persecution, i.e. maintaining the principle of non-refoulement’.32 This commitment to refugee protection was integrated in all the ceas instruments s­ubsequently adopted and was reaffirmed in the second phase of ceas development.33 In keeping with the Amsterdam Treaty, the Lisbon Treaty has more recently reiterated the need for the ceas to respect international refugee instruments and other treaties relevant to international protection.34

31 32

33

34

Regional Protection Programmes (see for instance eu Commission, Communication from the Commission to the Council and the European Parliament on Regional Protection Programmes, COM(2005) 388 final, 1 September 2005). On these preventive measures against asylum, see Chetail and Bauloz, The European Union and the Challenges of Forced Migration (n 3) 5–10. Article 63(1) of the 1997 Amsterdam Treaty (n 10). Tampere Conclusions (n 11), para 13. See also, eu Council, Presidency Conclusions, Seville European Council, 21 and 22 June 2002, EU Doc 13463/02 POLGEN 52, 24 October 2002, para 29. See most notably, the 2004 Hague Programme (n 21), 3; and the 2009 Stockholm Programme (n 22), 69. All regulations and directives of the ceas in its first and second phase made direct reference to international refugee law and human rights law. For the Dublin Regulation, see most notably Recitals 2 and 15 of Dublin II Regulation (n 15) and Recitals 3, 19, 20, 21 and 39 of Dublin III Regulation (n 28); for the Temporary Protection Directive (n 18), see Recitals 10, 16 and 18; for the Qualification Directive, see Recitals 2, 3, 10, 11 and 12 of the 2004 Directive (n 18) and Recitals 3, 4, 16, 17, 18 and 34 of the 2011 Recast Directive (n 25); for the Reception Directive, see Recitals 2, 5 and 6 of the 2003 Directive (n 16) and Recitals 3, 9, 10, 18 and 22 of the 2013 Recast Directive (n 26); for the Procedures Directive, see Recitals 2, 8 and 14 of the 2005 Directive (n 17) and Recitals 3, 15 and 33 of the 2013 Recast Directive (n 27). Article 78(1) of the tfeu, as amended by the Lisbon Treaty (n 23), provides that the ceas shall be developed ‘with a view to offering protection and ensuring compliance with the principle of non-refoulement. This policy must be in accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees, and other relevant treaties’.

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Against such laudable pronouncements, one may thus wonder why seeking asylum in the eu still seems to be such a tortuous process. The first phase of the ceas revealed gaps between the ‘protection’ rhetoric and actual practice: some ceas standards adopted under the various regulations and directives either fell short of States’ international legal obligations or gave Member States too broad discretion in their implementation.35 Widely criticised by scholars,36 35

36

The leeway given to Member States was due to the vague wording of certain provisions, as well as to explicit references to Member States’ national legislation. See in this sense, C. Teitgen-Colly, ‘The European Union and Asylum: An Illusion of Protection’ (2006) 43 Common Mkt L Rev 1503, 1512–1513; and Chetail, ‘The Common European Asylum System’ (n 12). Among the vast literature on the ceas, see most notably: E. Guild and P. Minderhoud (eds), The First Decade of EU Migration and Asylum Law (Martinus Nijhoff Publishers 2011); F.A.N.J. Goudappel and H.S.R. Raulus (eds), The Future of Asylum in the European Union: Problems, Proposals and Human Rights (TMC Asser Press 2011); P. de Bruyker et al., Setting up a Common European Asylum System: Report on the Application of Existing Instruments and Proposals for the New System, Study (European Parliament, Directorate General for Internal Policies, Policy Department C: Citizens’ Rights and Constitutional Affairs, Civil Liberties, Justice and Home Affairs, EU Doc PE 425.622, 2010); E. Guild, S. Carrera and A. Eggenschwiler (eds), The Area of Freedom, Security and Justice Ten Years On: Successes and Future Challenges under the Stockholm Programme (Centre for European Policy Studies 2010); S.W. Allard, ‘Casualties of Disharmony: The Exclusion of Asylum seekers under the Auspices of the Common European Asylum System’ (2010) 24 Emory Int’l L Rev 295; H. Lambert, ‘Transnational Judicial Dialogue, Harmonization and the Common European Asylum System’ (2009) 58 ICLQ 519; O. Ferguson Sidorenko, The Common European Asylum System: Background, Current State of Affairs, Future Directions (TMC Asser Press 2007); A. Baldaccini, E. Guild and H. Toner (eds), Whose Freedom, Security and Justice? eu Immigration and Asylum Law and Policy (Hart Publishing 2007); E. Guild, ‘The Europeanisation of Europe’s Asylum Policy’ (2006) 18 IJRL 630; H. Battjes, European Asylum Law and International Law (Martinus Nijhoff Publishers 2006); J. Huysmans, The Politics of Insecurity: Fear, Migration and Asylum in the EU (Routledge 2006); M. Garlick, ‘Asylum Legislation in the European Community and the 1951 Convention: Key Concerns regarding Asylum Instruments Adopted in the “First Phase” of Harmonization’, in T. Balzacq and S. Carrera (eds), Security Versus Liberty? A Challenge for Europe’s Future (Ashgate 2006) 45; Teitgen-Colly, ‘The European Union and Asylum’ (n 35); J.-Y. Carlier and P. de Bruycker (eds), Immigration and Asylum Law of the EU: Current Debates (Bruylant 2005); F. Julien-Laferrière, H. Labayle and Ö. Edström (eds), The European Immigration and Asylum Policy: Critical Assessment Five Years after the Amsterdam Treaty (Bruylant 2005); J. van Selm, ‘European Refugee Policy: Is There Such a Thing?’ (2005) 115 UNHCR New Issues in Refugee Research Series; J. Vedsted-Hansen, ‘Common EU Standards on Asylum – Optional Harmonization and Exclusive Procedures?’ (2005) 7 ejml 369; T.J. Hatton and J.G. Williamson, ‘Refugees, Asylum seekers and Policy in Europe’ (2005) 5058 cepr Discussion Paper; S. Da Lomba, The Right to Seek Refugee

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these shortcomings came to the attention of eu institutions. As a result, and although prompted by the need for further harmonization, the second phase of the ceas was also an opportunity to redress these flaws by adopting higher protection standards.37 Whether the second generation instruments have succeeded in enhancing protection is, however, a question that cannot be answered in a straightforward manner. On the one hand, in some instances the instruments have improved the treatment of asylum seekers in the eu. For instance, important safeguards were introduced with regard to detention in the Recast Reception Directive38 and concerning legal counselling and interviews in the Recast Procedures Directive,39 which also now applies to subsidiary protection claims. The Recast Qualification Directive also introduced some positive modifications, including more circumscribed definitions of actors of protection and

37

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Status in the European Union (Intersentia 2004); C. Harvey, ‘The Right to Seek Asylum in the European Union’ (2004) 1 ehrlr 17; M. Fullerton, ‘Asylum on the Eve of Accession: European Developments and Perspectives’ in Proceeding of the Ninety-Eight Annual Meeting of the American Society of International Law (asil), Protection Control: Regulating the Movement of People in a Globalized World (ASIL 2004) 255; A. Klug, ‘Harmonization of Asylum in the European Union – Emergence of an EU Refugee System?’ (2004) 47 GYIL 594; C. Dias Urbano de Sousa and P. de Bruycker (eds), The Emergence of a European Asylum Policy (Bruylant 2004); I. Boccardi, Europe and Refugees – Towards an EU Asylum Policy (Kluwer Law International 2002); S. Lavenex, The Europeanisation of Refugee Policies: Between Human Rights and Internal Security (Ashgate 2002). See in this sense, albeit not so explicitly couched, the 2009 Stockholm Programme (n 22) 69 underlining that the ceas ‘should be based on high protection standards’. The adoption of higher protection standards is more expressly affirmed by the recitals of the recast directives. For instance, the 2011 Recast Qualification Directive provides that: ‘In light of the evaluations undertaken, it is appropriate, at this stage, to confirm the principles underlying Directive 2004/83/EC as well as to seek to achieve a higher level of approximation of the rules on the recognition and content of international protection on the basis of higher standards’ (n 25, Recital 10, emphasis added). See as well Recital 7 of the 2013 Recast Reception Directive (n 26). See also the role of the Court of Justice of the European Union (cjeu) and the European Court of Human Rights (ECtHR) in the recast process for setting higher protection standards: F. Ippolito, ‘The Contribution of the European Courts to the Common European Asylum System and its Ongoing Recast Process’ (2013) 20(2) Maastricht J Eur & Comp L 261. For the provisions on detention, refer to Articles 8–11 of the Recast Reception Directive (n 26). Concerning legal assistance, see Articles 12 and 19–23, and for safeguards relating to interviews, refer most notably to Articles 14–17 of the Recast Procedures Directive (n 27). For a more detailed account of the Recast Procedures Directive, see S. Peers, The Revised Asylum Procedures Directive: Keeping Standards Law (Statewatch 2012).

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internal protection,40 as well as a quasi-total uniformization of the rights and benefits granted to subsidiary protection beneficiaries and refugees.41 On the other hand, the extent of these changes appears to be insufficient to fully ensure the effective protection of refugees in the eu. This is particularly striking with respect to the Dublin III Regulation which, despite the systemic deficiencies of the Dublin mechanism, has remained loyal to the wording of its predecessor.42 Against such a mixed background, the ceas in its second phase does not fully live up to one’s expectations in terms of refugee protection. As incisively noted by Steve Peers: Taken as a whole, the second-phase legislation provides for very limited improvements as regards reception conditions, modest improvements as regards procedures and qualification, no real improvement as regards the Dublin rules and a significant reduction in standards as regards Eurodac. On balance the overall scoreboard is modestly positive, but as regards the Dublin rules in particular there have only been cosmetic changes to the previous objectionable legislation. This legislation in particular deserves the description of being merely ‘lipstick on a pig’.43 40

See, respectively, Articles 7 and 8 of the Recast Qualification Directive (n 25). On the changes brought about by the Recast Qualification Directive, see: J. Eaton, ‘The Internal Protection Alternative under European Union Law: Examining the Recast Qualification Directive’ (2012) 24(4) ijrl 765; S. Peers, The Revised Directive on Refugee and Subsidiary Protection Status (Statewatch 2011). 41 See Chapter VII of the Recast Qualification Directive which details the rights and benefits granted to refugees and subsidiary protection beneficiaries. While the granting of such benefits between the two types of protection beneficiaries differed under 2004 Qualification Directive, the only differences remaining between them under the Recast concern residence permits and social assistance. For more insights on these modifications and their consequences, see: C. Bauloz and G. Ruiz, ‘Refugee Status and Subsidiary Protection: Towards a Uniform Content of International Protection?’ in V. Chetail, P. de Bruycker and F. Maiani (eds), Towards a Common European Asylum System: The Added Value of the Legislative Package of Second Generation (Martinus Nijhoff forthcoming). 42 See in this sense, S. Peers, The Second Phase of the Common European Asylum System: A Brave New World – Or Lipstick on a Pig? (Statewatch 2013) 6. The mss case ruled by the ECtHR and the ns case judged by the cjeu have both highlighted the limits of the Dublin mechanism (see, respectively, MSS v Belgium and Greece, Appl no 30696/09 (ECtHR, 21 January 2011); and Joint Cases C-411/10 and C-493/10 NS et al. v Secretary of State for the Home Department [2011] ECR I-13905). Contrary to the initial assumption, it is now acknowledged that Member States cannot be automatically considered as safe countries in case of Dublin transfers. 43 Peers, The Second Phase of the Common European Asylum System (n 42) 16.

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Albeit recently adopted, the second generation of ceas instruments has thus already attracted scholarly attention and criticism.44 Publications on the subject, highlighting the merits and flaws of these recast regulations and directives, are beginning to emerge. These studies are valuable in enabling one to grasp the contours and content of the ceas in its second phase as well as identify the challenges still to be overcome. The present volume aims to complement these recent doctrinal comments. The objective here is not to undertake a comprehensive assessment of the changes introduced by the recast ceas instruments. Rather, the purpose of this volume is to concentrate on specific protection issues raised by the second phase of the ceas which are not addressed in studies of a broader nature. The aim of this volume is thus to provide further insight and critical analysis of selected problems that scholars and policy-makers will have to face and address in this second phase of the ceas. In so doing, specific protection issues are identified and analysed in the present volume. These issues are clustered into three groups: procedural guarantees and reception conditions (Part 1), qualification as persons in need of protection (Part 2) and missed opportunities and problematic developments (Part 3). Part 1 of this volume focuses on two specific issues concerning the procedure for the assessment of international protection needs and the reception conditions afforded to asylum applicants during the assessment procedure: (i) the possibility of obtaining free legal assistance and (ii) the protection of vulnerable persons in terms of procedural guarantees and reception conditions. In Chapter 2, ‘Fair Enough? The uk’s Reluctance to Find Article 6 echr Engaged in Asylum Disputes and the Transformative Potential of eu Law’, Emma Borland addresses the absence of guarantees in the protection assessment procedure. More specifically, she discusses the limited opportunities for asylum seekers to benefit from legal aid. Since it can be assumed that a significant number of asylum claims involve complex issues in terms of substance and procedure, she asks to what extent cuts in legal aid are compatible with the right to an effective remedy. As background to her analysis, Borland first 44

See most notably: V. Chetail, P. de Bruycker and F. Maiani (eds.), Towards a Common European Asylum System: The Added Value of the Legislative Package of Second Generation (Martinus Nijhoff, forthcoming); S. Velluti, Reforming the Common European Asylum System – Legislative Developments and Judicial Activism of the European Courts (Springer 2014); H. O’Nions, Asylum – A Right Denied: A Critical Analysis of European Asylum Policy (Ashgate 2014); F. Toscano, ‘The Second Phase of the Common European Asylum System: A Step Forward in the Protection of Asylum seekers?’ (2013) 7 Institute for European Studies Working Papers; and F. Ippolito and S. Velluti, ‘The Recast Process of the EU Asylum System: A Balancing Act between Efficiency and Fairness’ (2011) 30(3) RSQ 24.

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draws attention to the incremental cuts to legal aid that have taken place in the United Kingdom (uk) in recent years and the corresponding rise in unrepresented asylum claimants. The latter can easily become ‘failed asylum seekers’ who are exposed to the danger of being subjected to removal proceedings. She questions the extent to which these asylum applicants, who should rather be named ‘asylum seekers failed by the asylum system’, could invoke the standards of eu law and the European Convention of Human Rights (echr) for the purpose of enhancing the availability of procedural guarantees in these cases. The eu Procedures Directive, adopted as part of the first generation of the ceas to which the uk has opted in, leaves Member States wide discretion to decide not to grant legal aid in particular circumstances. As noted by the Commission, this wide discretion permitted a ‘proliferation of disparate procedural guarantees at the national level’.45 Borland investigates the extent to which this problem has been remedied with the Recast Asylum Procedures Directive. It is commendable that the directive stipulates that at first instance applicants shall be ‘provided with legal and procedural information free of charge’.46 However, this does not cover the attendance of a representative at the personal interview. In addition, the directive reintroduced the ‘merits test’ exception to free legal representation.47 As a consequence, if the application has ‘no tangible prospect of successes’, the Member State may refuse free legal assistance and representation. Borland asks whether the echr and eu Charter of Fundamental Rights impose higher standards than those incorporated in the Recast Procedures Directive. She reminds us of the unfortunate effects of the Maaouis v France Judgment of the European Court of Human Rights (ECtHR) and argues it should be revisited. At the same time, she also sees the transformative potential of eu law in at least two respects. First, eu law confers certain rights which can be framed as civil rights; as a consequence, the operation of Article 6 of the echr could be triggered. Second, Borland points out the effects of Article 47 of the eu Charter, which importantly are not restricted to the determination of civil and criminal law cases. In Chapter 3, ‘Victims of Human Trafficking: A Legal Analysis of the Guarantees for “Vulnerable Persons” under the Second Phase of the eu Asylum Legislation’, Vladislava Stoyanova argues that the provisions in the second 45

46 47

eu Commission, Proposal for a Directive of the European Parliament and of the Council on Minimum Standards on Procedures in Member States for Granting and Withdrawing International Protection (Recast), COM(2009) 554 final, 21 October 2009 (Proposal for a Recast Procedures Directive). Article 19(1) of the Recast Asylum Procedures Directive (n 27). Ibid, Article 10(3).

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phase of eu asylum legislation which address the needs of vulnerable persons are so vague that there is a real risk that they could be rendered meaningless in practice. She focuses on victims of human trafficking, who have been designated as vulnerable persons in the second phase ceas instruments. This inclusion raises challenging questions about the interaction between the human trafficking legal framework, which requires a procedure for the identification of victims of trafficking and the provision of certain levels of assistance, on the one hand, and the ceas, on the other hand. Having closely examined the interaction between the two frameworks, Stoyanova continues to explore the conceptual problems raised by the categories of vulnerable persons, victims of human trafficking, applicants with special reception needs and applicants in need of special procedural guarantees, as introduced by the second phase of the ceas. She reviews how the eu Recast Reception Conditions Directive and the eu Recast Procedures Directive have structured the assessment of whether applicants for international protection belong to these special categories. She also critically examines the meaningfulness of the benefits attached to these categories. Finally, Stoyanova addresses the perplexing questions that the application of the Dublin mechanism, as regulated by the Recast Dublin Regulation, raise in relation to victims of human trafficking, and argues that in certain circumstances Dublin transfers will have to be suspended. Part 2 of this volume, entitled ‘Qualification as Persons in Need of Protection’, concentrates on specific questions raised in relation to the qualification of asylum seekers as beneficiaries of international protection under the second phase ceas instruments. With the creation of the ceas in 1999, qualification for international protection gave rise to the adoption of a specific directive devoted to eligibility standards: the 2004 Qualification Directive. In addition to detailing the rights and benefits granted to beneficiaries of international protection, the purpose of the Directive has been ‘to ensure that Member States apply common criteria for the identification of persons genuinely in need of international protection’.48 This objective has been sought through ‘the approximation of rules on the recognition of refugees’ as established by the 1951 Refugee Convention49 and with the creation of a subsidiary protection status, complementing refugee status and primarily building on the non-refoulement

48 49

Recital 6 of the Qualification Directive (n 18). Ibid, Recital 4. In this regard, the refugee definition provided by the Directive is expressly grounded on the 1951 Refugee Convention. According to its Recital 17: ‘It is necessary to introduce common criteria for recognising applicants for asylum as refugees within the meaning of Article 1 of the Geneva Convention’.

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case law of the ECtHR.50 Hence, two forms of international protection are regulated at the eu-level: refugee status and subsidiary protection.51 The adoption of the Recast Qualification Directive in 2011 did not alter this protection scheme.52 In structural terms, international protection is still conceived by the eu on the basis of these two protection statuses.53 From a substantive point of view, the Recast Directive did not substantially modify the eligibility standards of both forms of protection. Except for a handful of modifications,54 qualification for refugee status and subsidiary protection remains on the whole governed by the same criteria as previously. 50

51

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53 54

See Recital 5 of the Qualification Directive (n 18): ‘The Tampere conclusions also provide that rules regarding refugee status should be complemented by measures on subsidiary forms of protection, offering an appropriate status to any person in need of such protection’. As to the relationship of subsidiary protection with the non-refoulement jurisprudence of the ECtHR, see most notably: EU Council, Note from the Presidency to the Asylum Working Party, Discussion Paper on Subsidiary Protection, EU Doc 13167/99 ASILE 41, 19 November 1999, 2; and EU Council, Note from the Presidency to Asylum/Migration Working Group, Implications of Article 3 of the European Convention on Human Rights for the Expulsion of Illegally Resident Third Country Nationals, EU Doc 7778/97 ASIM 89, 28 April 1997. See also the following judgments of the CJEU and ECtHR: CJEU, Case C-465/07 Meki Elgafaji & Noor Elgafaji v Staatssecretaris van Justitie [2009] ECR I-00921 para 28 and ECtHR, Sufi and Elmi v the United Kingdom, Appl nos 8319/07 and 11449/07 (ECtHR, 28 June 2011) para 226. Within the eu, temporary protection is not per se conceived as a form of international protection and will thus be dealt with separately in Part 3 of the present volume. Moreover, the fact that the Qualification Directive regulates the granting of refugee status and subsidiary protection is without prejudice to the existence of other forms of protection prescribed at the national level. As Recital 9 of the 2004 Qualification Directive reminds us: ‘Those third country nationals or stateless persons, who are allowed to remain in the territories of the Member States for reasons not due to a need for international protection but on a discretionary basis on compassionate or humanitarian grounds, fall outside the scope of this Directive’. At least when it comes to qualification for international protection. The most important changes brought about by the 2011 Recast Qualification Directive rather concern the content of international protection as the majority of benefits granted to subsidiary protection beneficiaries were aligned with those of refugees (see above n 41). See Recitals 5 and 6 of the 2011 Recast Qualification Directive (n 25), which restate verbatim Recitals 4 and 5 of the 2004 Directive. For a list of the modifications introduced by the Recast Qualification Directive, see S.  Peers, The Revised Directive on Refugee and Subsidiary Protection Status (n 40) 3–6. Among these modifications, those concerning the eligibility criteria for international ­protection include: (1) a more generous definition of family member (Article 2(j)); (2)  clarifications as to the notion of protection by the actors of protection (Article 7);

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The partial maintenance of the status quo raises concerns as to the criteria for qualification for international protection and, more specifically, the actual impact of the modifications introduced by the Recast Directive. While some of these modifications incontestably enhance the prospects for asylum seekers to receive international protection,55 others appear of modest impact.56 For instance, this is the case with the changes made to Article 7 of the Directive on actors of protection, critically analysed by Julian M. Lehmann in Chapter 4 entitled ‘Availability of Protection in the Country of Origin: An Analysis under the eu Qualification Directive’. By examining the implementation of Article 7 of the 2004 Qualification Directive in Germany, the United Kingdom and the Netherlands, the author highlights significant differences in the interpretation of the provision. These differences include how much emphasis courts place on the analysis of the existence of actors of protection in the country of origin, where they locate such analysis and whether they link it to the nexus requirement of the refugee definition, whether they expect individuals to appeal to authorities of the host country, which elements are considered relevant when considering protection against persecution and serious harm, and whether decision makers substantiate their conclusions. According to Lehmann, these divergences are not likely to be overcome by the modifications of Article 7 introduced by the Recast Qualification Directive. Indeed, the latter still gives Member States considerable leeway in its interpretation.

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(3) a more detailed definition of the internal protection alternative (Article 8); (4) a direct reference to the absence of protection in the definition of persecution (Article 9(3)); (5) a more gender-sensitive definition of membership of a particular social group (Article 10); and (6) a more circumscribed ground of cessation of protection in case of ceased circumstances in the country of origin (Article 11). This is notably the case concerning refugee applications based on gender-related aspects which now have to be duly taken into account by Member States when determining membership of a particular social group. Contrary to the 2004 Directive which gives Member States the possibility to consider gender-related aspects for determining membership of a particular social group, Article 10(1)(d) of the 2011 Recast Qualification Directive now provides an obligation to do so. The latter indeed prescribes that: ‘Gender related aspects, including gender identity, shall be given due consideration for the purposes of determining membership of a particular social group or identifying a characteristic of such a group’. By contrast, Article 10(1)(d) of the 2004 Directive provides that: ‘Gender related aspects might be considered, without by themselves creating a presumption for the applicability of this Article’. Underlying the importance of this modification, see Peers, The Revised Directive on Refugee and Subsidiary Protection Status (n 40) 4 and 6. See Peers, The Revised Directive on Refugee and Subsidiary Protection Status (n 40) 6 especially with regard to the modifications to the definition of family members further detailed in ibid, 3.

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Moreover, other provisions governing qualification for international protection contained in the Qualification Directive have not been subject to any modifications despite the pressing need for clarification. The most striking illustration often given is that of Article 15(c) concerning subsidiary protection57 which, although highly debated, was ultimately left untouched during the recast process.58 Chapters 5 and 6 of the present volume also shed light on other – so far less examined – protection issues that deserved to be addressed by the Recast Qualification Directive. In this regard, Chapter 5 entitled ‘The Persecution of Disabled Persons and the Duty of Reasonable Accommodation: An Analysis under International Refugee Law, the eu Qualification Directive and the echr’ written by Stephanie A. Motz, provides valuable insight into the specific case of disabled persons seeking asylum. In light of the refugee definition provided by the Qualification Directive, it is indeed not clear whether violations of the duty of reasonable accommodation, as established under the United Nations Convention on the Rights of Persons with Disabilities,59 could constitute a form of persecution and thus entitle disabled persons to refugee status. Following an incisive analysis of the human rights and international refugee law framework in this area, the author demonstrates that a disability-sensitive reading of persecution might be adopted under the Recast Qualification Directive. She further questions whether such a reading might even be required by the Convention on the Rights of Persons with Disabilities, to which the eu is a contracting party, and by the eu Charter of Fundamental Rights.60 In Chapter 6 entitled ‘Refuge from Climate Change-Related Harm: Evaluating the Scope of International Protection within the Common European Asylum System’, Matthew Scott analyses one of the most controversial and con­ temporary issues in today’s refugee protection regime, namely international ­protection in cases of disaster-related harm. Despite the magnitude of forced 57

Article 15(c) provides that subsidiary protection can be granted in case of ‘serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict’. 58 When presenting its recast proposal of the Qualification Directive, the eu Commission considered that the interpretive hurdles raised by Article 15(c) had been clarified by the cjeu in its Elgafaji Judgment (n 50). For the Commission, there was thus no need any longer to modify the paragraph. eu Commission, Proposal for a Directive of the European Parliament and of the Council on Minimum Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Beneficiaries of International Protection and the Content of the Protection Granted (Recast), COM(2009) 551 final/2, 23 October 2009. 59 2515 UNTS 3, 13 December 2006 (entry into force: 3 May 2008). 60 OJ C 364/01, 18 December 2000 (entry into force: 1 December 2009).

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migration caused by disaster-related harm at present, and its expected increase in years to come, no form of international protection is per se designed to protect this specific category of displaced persons in the eu. Nevertheless, building upon the case law of Australia and New Zealand, the author investigates the potential for individuals affected by climate change-related harm to be protected under existing ceas instruments. After having examined the Temporary Protection Directive and qualification for refugee status under the Recast Qualification Directive, Scott analyses the potential for such individuals to be granted subsidiary protection and the protection of the non-refoulement principle as developed by the ECtHR. This leads him to explore a new avenue for extending the scope of subsidiary protection, by focusing on scenarios where a State affected by a natural disaster would have ‘culpably exacerbated’ the impact of the disaster. Beyond the potential offered by this interpretation, however, the author points to a protection gap that will only be properly addressed through norm-building at the inter-state level. The volume concludes with the final Part ‘Missed Opportunities and Problematic Developments’, which focuses on the missed opportunity to develop a more comprehensive and operational temporary protection regime within the second phase of the ceas and the changes brought about by the Recast Eurodac Directive. In Chapter 7, ‘Has the Temporary Protection Directive Become Obsolete? An Examination of the Directive and its Lack of Implementation in view of the Recent Asylum Crisis in the Mediterranean’, Meltem Ineli-Ciger discusses the long-standing problem of the eu Temporary Protection Directive: namely, the non-implementation of the Directive since its adoption in 2001. Ineli-Ciger explores the reasons for the lack of implementation of this directive in the last 13 years, challenging the assumptions that underpin this situation and suggesting ways to counter such approaches. Finally, the chapter reviews the much debated issue of how European States and the eu handled the protection of mass flows of persons that fled North African States in 2011 and arrived at the Italian island of Lampedusa, and changes in the Dublin Regulations and introduction of the European Asylum Support Office. By examining these developments, Ineli-Ciger seeks to answer the question of whether the Temporary Protection Directive will be ever implemented. The missed opportunity to develop this aspect of the ceas is starkly exposed, as is the unlikely prospect that the Directive will ever be effectively used as a means of protecting those fleeing armed conflict, violence and other humanitarian emergencies. The volume concludes with Chapter 8 written by Niovi Vavoula and entitled ‘The Recast Eurodac Regulation: Are Asylum Seekers Treated as Suspected Criminals?’ which provides a critical analysis of the crucially important but

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under-researched instrument: the eu Recast Eurodac Regulation. Vavoula discusses how law enforcement access to Eurodac data affects the fundamental rights of asylum seekers and to what extent this means that asylum seekers are treated as a group of criminal suspects. In particular, Vavoula examines the main provisions of the Recast Regulation concerning the use of the database for criminal law objectives. She assesses the new functionality introduced in the Recast instrument by exploring concerns relating to fundamental rights and how the Regulation attempts to address these concerns. Vavoula concludes by assessing the necessity of the law enforcement access to the database and whether this necessity justifies the problematic aspects of the Eurodac Regulation with regard to its interference with the rights of asylum seekers. As such, Vavoula reveals an area in which the recast of European instruments has led to a situation in which the rights of asylum seekers are undermined. She also draws attention to the problematic consequences that may arise from the implementation of the Recast Eurodac Regulation.

Part 1 Procedural Guarantees and Reception Conditions

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chapter 2

Fair Enough? The uk’s Reluctance to Find Article 6 echr Engaged in Asylum Disputes and the Transformative Potential of eu Law Emma Borland 1 Introduction Let us remind ourselves that the refugee ‘does not enjoy the legal guarantees accorded by every State to its own nationals and to nationals of foreign countries who can fall back on the protection of their diplomatic and consular representatives’.1 Her limited rights derive from the well-established international legal principle of non-refoulement.2 An asylum seeker, once physically present in the jurisdiction of a State Party to the Refugee Convention,3 cannot be removed until and unless there is a negative refugee status determination.4 During such time, she ‘should not be arbitrarily detained or otherwise penalized for seeking protection’; her ‘essential security and economic subsistence needs’ should be met by the host State; her ‘basic human dignity ought to be respected, including by respect for property and related rights, preservation of family unity, honouring freedom of thought, conscience, and religion, and by the provision of primary education to refugee children’; her ‘authoritative documentation of identity and status in the host State should be made available’; and she ‘must have access to a meaningful remedy to enforce [her] rights, including a remedy for breach of any of these primary protection rights’.5 It is 1 J. Vernant, The Refugee in the Post-War World (George Allen and Unwin 1953) 14. 2 United Nations High Commissioner for Refugees (unhcr), The Principle of Non-Refoulement as a Norm of Customary International Law. Response to the Questions Posed to unhcr by the Federal Constitutional Court of the Federal Republic of Germany in Cases 2 BvR 1938/93, 2 BvR 1953/93, 2 BvR 1954/93 (unhcr 31 January 1994). 3 Geneva Convention Relating to the Status of Refugees, 189 unts 150, 28 July 1951 (entry into force: 22 April 1954). 4 J.C. Hathaway, The Rights of Refugees under International Law (cup 2005) 278. 5 Ibid, 279. Also note that Article 16 of the Refugee Convention states: ‘1. A refugee shall have free access to the courts of law on the territory of all Contracting States; 2. A refugee shall enjoy in the Contracting State in which he has his habitual residence the same treatment as a national in matters pertaining to access to the Courts, including legal assistance and exemption from caution judicatum solvi; 3. A refugee shall be accorded in the matters referred

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004290167_003

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this last basic and inalienable right, the right to due process, that is, the right to an effective remedy and the right to a fair hearing, which will be the focus of this paper. While the Refugee Convention sets out the eligibility criteria for those who should be afforded protection, it does not stipulate the procedure for how claims should be determined. National authorities, therefore, have procedural autonomy, free to implement procedural rules and to process claims in whichever manner they see fit.6 To what extent, then, do international human rights play a role in tempering this ‘state-centred regime’?7 How far do supranational laws assist asylum claimants to successfully challenge the fairness of the decision-making process in the face of injustice? Unsurprisingly, it has been acknowledged that, in spite of commitments to protect the right to an effective remedy under international law, ‘in practice, the access to a remedy may be problematic’.8 Even the enhanced protections under the Procedures Directive Recast fail to guarantee effective access to justice through the provision of legal aid at all stages of an asylum case (discussed below). This Chapter will begin by outlining emerging evidence that questions the fairness of uk Tribunal hearings of disputes over the refusal of asylum, in view of restrictions on legal aid. The limited procedural protections (when considered in isolation) under the European Convention on Human Rights (echr) and European Union (eu) law (together with the uk’s refusal to opt-in to the enhanced Recast Asylum Procedures Directive) will be explored. The logic of the reluctance of the European Court of Human Rights (ECtHR) to extend the protection of Article 6 (the right to a fair trial) to asylum disputes will then be interrogated. Finally, the extent to which the ECtHR and the uk Courts can continue to refuse to extend the protection of Article 6 echr, in view of the development of the Common European Asylum System (ceas) and the evolving nature of eu law – since the eu Charter of Fundamental Rights and

to in paragraph 2 in countries other than that in which he has his habitual residence the treatment granted to a national of the country of his habitual residence’. 6 unhcr, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (unhcr 1979, reprinted December 2011) 189. Subject to Council Directive (ec) 2005/85 of 1 December 2005 on minimum standards on procedures in Members States for granting and withdrawing refugee status, oj L 326/13, 13 December 2005 (Asylum Procedures Directive). 7 J. Pirjola, ‘European Asylum Policy – Inclusions and Exclusions under the Surface of Universal Human Rights Language’ (2009) 11 ejml 347, 349. 8 M. Reneman, ‘Access to an Effective Remedy in European Asylum Procedures’ (2008–2009) 1 Amsterdam L F 65.

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Freedoms9 (the eu Charter) became legally binding with the entry into force of the Treaty of Lisbon in December 2009 – will be questioned. 2

Restrictions on Legal Aid and Unfair Asylum Outcomes in the uk

It is the inherent tension between the uk’s legal obligations (under international refugee law, human rights law, and the eu legal framework) towards those seeking protection, on the one hand, and national sovereignty and ‘the political imperative to maintain effective immigration control’,10 on the other hand, which has shaped and continues to influence national asylum policy and administrative processes. Jari Pirjola has described this tension between the rights of those seeking protection and the interests of States as one between ‘universal commitments and particular interests’.11 The competing interests of universalism and particularism must be kept in delicate balance in order to ensure that fair and accurate decisions are made and that those who are entitled to refuge are granted refugee status accordingly. The interests in fairness and justice must not therefore be outweighed by demands for a cost-effective system.12 However, in the uk, reforms to legal aid since 2004 by successive governments have upset the balance of interests and undermine the fairness of the asylum adjudication process.13 Incremental Cuts to Legal Aid and the Attrition of Legal Representation in Asylum Cases The incremental restrictions on public funding have resulted in the attrition of specialist immigration and asylum practitioners and the corresponding rise of unrepresented asylum claimants, thereby limiting access to justice for this group.14 These cuts have been described as ‘the single greatest blow to the

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Charter of Fundamental Rights of the European Union, oj C 364/1, 18 December 2000 (entry into force: 1 December 2009) (eu Charter). 10 R. Thomas, ‘Evaluating Tribunal Adjudication: Administrative Justice and Asylum Appeals’ (2005) 25(3) Legal Stud 462, 462. 11 Pirjola (n 7) 348. 12 Thomas (n 10) 472. 13 See, for example, A. Trude and J. Gibbs, Review of Quality Issues in Legal Advice: Measuring and Costing Asylum Work (icar 2010) accessed 6 December 2014. 14 See, for example, S. Chakrabarti, ‘Rights and Rhetoric: The Politics of Asylum and Human  Rights Culture in the United Kingdom’ (2005) 31(1) J L & Soc’y 131; J. Burnett, ‘No Access to Justice: Legal Aid and Destitute Asylum seekers’ (2008) 3 pafras Briefing

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­protection of human rights and the right of asylum’.15 Following the same restrictive trend as New Labour, the current Coalition Government has introduced drastic cuts to legal aid under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (laspo).16 Despite the fact that the provision of legal aid in asylum cases has been retained under laspo, which came into effect on 1 April 2013, the curtailment of legal aid in most immigration cases impinges, nonetheless, on access to justice for asylum seekers.17 Previous cuts to legal aid in this area have forced the closure of hundreds of specialist immigration and asylum practices,18 with ‘respected asylum lawyers leaving practice or moving into more sustainable areas’,19 leaving vast numbers of asylum seekers without hope of finding representation.20 Further cuts under laspo contribute to the ‘exodus’21 of asylum practitioners and is likely to put some of the remaining reputable immigration and asylum practices out of business.22 Indeed, the Ministry of Justice’s annual legal aid statistics, published on 24 June 2014, revealed that the number of immigration legal aid providers dropped from 226 (187 solicitors and 91 not-for-profit organizations) in 2011–12 to just 86 (76 solicitors and 10 not-for-profit organizations) in 2013–14, a 62 per cent decrease.23 This raises concern for several compounded reasons, addressed, briefly, below.

15 16

17 18 19 20

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Papers accessed 6 December 2014; F. Webber, ‘Borderline Justice’ (2012) 54(2) Race & Class 39; J. Robins, ‘Comment: An Incentive to Dumb Down’ (2010) 24 June ls Gaz 8. A. Kelly, Asylum Aid Condemns Move to Limit Legal Aid (Third Sector 2003) accessed 6 December 2014. For further commentary on laspo, see, for example, S. York, ‘The End of Legal Aid in Immigration – a Barrier to Access to Justice for Migrants and a Decline in the Rule of Law’ (2013) 27(2) jianl 106. A. Forbess, Reversing Inequalities (The Justice Gap 2012) accessed 6 December 2014. Webber (n 14). Chakrabarti (n 14) 141. Refugee and Migrant Justice and the Immigration Advisory Service, for example, who employed hundreds of lawyers between them and provided services to tens of thousands of asylum seekers, went into administration in 2010 and 2011. See, for example, Webber (n 14) 46–47. J. Renshaw, ‘O Brave New World’ (2013) New Law Journal accessed 6 December 2014. Free Movement, Legal Aid and Access to Justice (Free Movement 2013) < http://www .freemovement.org.uk/legal-aid-and-access-to-justice/> accessed 6 December 2014. uk Ministry of Justice, ‘Legal Aid Statistics: April 2013 to March 2014’ (uk Ministry of Justice 2014) accessed 6 December 2014.

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The Significance of Quality Legal Representation in the uk Asylum Process With regard to the asylum process, in the uk, the Home Office considers initial claims for asylum. Legal aid is no longer available for lawyers to attend the Home Office asylum interview.24 The asylum interview is the claimant’s main opportunity to explain to the Home Office decision maker the reasons that she  is claiming asylum; to produce and explain any supporting evidence that  she may have; and for the decision maker to assess whether they find her to be credible. The Home Office refuses most asylum claims.25 The accuracy of a number of these decisions is in doubt in view of evidence of poor Home Office asylum decision-making,26 attributed, in part, to a welldocumented ‘culture of disbelief’ within the Home Office.27 There is a right of appeal against Home Office refusals to grant asylum to an independent, ­specialist administrative tribunal. Around 70 per cent of asylum claimants refused initially lodge appeals.28 Although the asylum Tribunal was originally intended to be ‘largely inquisitorial, and legal representation was not envisaged as necessary’,29 an adversarial model has nevertheless developed where an Immigration Judge acts as arbiter between the parties. Asylum appeals are often factually and legally complex30 and many appellants, a number of whom do not speak English as a first language, are generally unable to prepare their own cases and to represent themselves.31 Unrepresented asylum appellants are placed at a substantial disadvantage if: (i) English is not their first language presenting an immediate 2.2

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Withdrawn under the 2004 reforms to legal aid. See, for example, Trude and Gibbs (n 13). For example, in the year ending March 2014, 32 per cent of initial decisions were grants of asylum, 0.3 per cent of initial decisions were grants of humanitarian protection and 3 per cent of initial decisions were grants of discretionary leave to remain. See uk Home Office, Immigration Statistics, January to March 2014 (uk Home Office 2014) accessed 6 December 2014, Asylum table as_01. 26 Thomas (n 13) 479. 27 B. Feder, ‘A Credible Judge of Character? A Psycho-Legal Analysis of Credibility Assessments for Asylum Applicants with a History of Sexual Violence’ (2010) 24(4) jianl 295, 296. 28 See R. Thomas, ‘Assessing the Credibility of Asylum Claims: eu and uk Approaches Examined’ (2006) 8(1) ejml 79, 84 and uk Home Office (n 25) Asylum table as_04. 29 Thomas (n 10) 477. 30 The politicisation of the asylum debate has resulted in the implementation of a string of increasingly restrictive measures by successive uk governments. See, for example, G.  Mulvey, ‘When Policy Creates Politics: The Problematizing of Immigration and the Consequences for Refugee Integration in the uk’ (2010) 23(4) jrs 437. 31 Thomas (n 10) 478.

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barrier to their ability to prepare their own cases; (ii) they cannot afford to have crucial documents that substantiate their claim translated or to pay an expert to produce a report to corroborate their account where part or all of their claim is in dispute; and (iii) they are uneducated, poorly educated, have learning difficulties or mental health issues. It is therefore the Tribunal’s ‘general position that the appeals process works best when there is good quality representation on both sides’.32 Indeed, empirical studies suggest that legally represented asylum appellants experience a higher degree of success than unrepresented asylum appellants.33 This finding is supported if you compare the results from a recent Freedom of Information Request that revealed that, in the period from 1 April 2012 to 31 March 2012, the average success rate from unrepresented appellants was 4.9 per cent, to the average success rate of 26.7 per cent for all asylum appellants in 2012, calculated from the available Home Office Statistics.34 Asylum grants should not be a lottery and legal representation in the asylum Tribunal is therefore considered crucial to ensure equality of arms and a fair hearing. The availability of legal aid at appeal stage will be considered below. Of equal note, and complicating the inequitable situation further, is evidence of a high level of poor quality representation in the sector that may actually hinder the success of appeals.35 Despite the fact that, in the uk, the provision of immigration advice and immigration services is regulated36 (caseworkers must be accredited under the Law Society’s Immigration and Asylum Accreditation Scheme if working under a legal aid contract, or, otherwise, under the Office of the Immigration Service Commissioner’s regulatory scheme), it has been found that the legal aid system ‘acts to disincentivise quality’.37 The quality of legal representation can vary in the extreme between 32

R. Thomas, Administrative Justice and Asylum Appeals: A Study of Tribunal Adjudication (Hart Publishing 2011) 116. 33 Ibid, 116. 34 hm Courts & Tribunal Service (uk), Letter Responding to a Freedom of Information Act 2000 Request, ‘Please Provide the Average Success Rate of Unrepresented Asylum Appellants before the First Tier Tribunal ( figures for the last full year for which you have accurate i­ nformation on)’ (2012) accessed 6 December 2014; uk Home Office (n 25). 35 Thomas, Administrative Justice and Asylum Appeals (n 32) 114. 36 In accordance with Section 84 of the Immigration and Asylum Act 1999. 37 J. Gibbs, Justice at Risk: Quality and Value for Money in Asylum Legal Aid: Interim Report (Refugee and Migrant Justice 2010) accessed 6 December 2014.

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and within organizations and there is, overall, an insufficient number of good quality practitioners. The House of Commons’ Home Affairs Committee, in their 2013 report on Asylum, observed that ‘the existence of unscrupulous and poor practitioners is compounded by fixed-fee funding’,38 that is, a set fee paid for work done regardless of the number of hours spent on the case. The Home Affairs Committee also highlighted that the recent reduction in the number of matter starts, that is, the authority to start work on a new case, allocated by the Legal Aid Agency to legal aid providers, is problematic. The Home Affairs Committee explained that this ‘means that practitioners with good reputations are oversubscribed whilst their less well-thought-of counterparts are then the only option for applicants who need to access legal aid funding’.39 This impinges upon asylum seeking clients’ ability to choose their legal representative and upon the quality of services available, as, without healthy competition, there is little incentive to improve standards. 2.2.1 The Misapplication of the Merits Test Public funding to represent asylum claimants in respect of appeals before the Tribunal, against decisions to refuse asylum, is allowed subject to a merits test.40 In order for legal aid to be granted, legal aid lawyers must assess the asylum claim to have 50 per cent or greater prospects of success on appeal, otherwise, representation is discontinued. If properly applied, it is to be expected that unrepresented appellants refused legal aid will lose their appeal. However, assessing merits is not an exact science and the merits of an appeal are not always clear until the case has been fully prepared.41 Moreover, and of  real concern, is recent empirical evidence that indicates that in roughly ­two-thirds of cases public funding is being wrongly withdrawn by legal representatives.42 This is unsurprising as restrictions to legal aid in this sector

38 House of Commons, Home Affairs Committee, Asylum (2013) hc 71-I, 31. 39 Ibid. 40 The merits test does not apply in Scotland. 41 C. Physsas, MOJ CUTS versus THE RULE OF LAW (Freemovement 2013) accessed 6 December 2014. 42 See Devon Law Centre, ‘Asylum Appellate Project – Final Report’ (Devon Law Centre 2010) accessed 6 December 2014, which revealed that public funding was wrongly refused in 79 per cent of cases; and C. Hutton and S. Lukes, An Interim External Evaluation of Refugee Action’s Access  to Justice Project (Refugee Action 2013) accessed 6 December 2014.

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encourage lawyers to ‘cherry pick’43 cases estimated most likely to succeed but that will require little work and can be billed quickly. It is not unheard of for Immigration Judges to allow the appeals of unrepresented appellants who have been refused legal aid. This has been the author’s experience as a volunteer legal adviser with Asylum Justice, Cardiff and, in itself, suggests that representation is being wrongly discontinued in cases in Wales where the appellant is determined by the Tribunal to meet the refugee definition. Yet, despite the emergence of evidence that legal aid is being denied in high number of meritorious cases, and at risk of intensifying the problem, on the 27th January 2014, legal aid for borderline cases was removed. The Bar Council has observed that this ‘will see funding removed for cases critical both to individuals and areas of public policy’44 and the Immigration Law Practitioners’ Association (ilpa) has noted that: The cases funded where the prospects of success are borderline are a very particular class of case, cases of particular importance which are likely to involve substantial injustice or suffering. Where there is such injustice or suffering, the State should encourage attempts to use the law to put them right.45 2.2.2 The Procedural ‘Error of Law’ Hurdle in Onward Appeals The asylum Tribunal is a two-tiered system and there is the right of onward appeal against decisions of the First-tier of the Tribunal to the Upper Tribunal and then to the higher courts. However, onward appeals cannot be made over disputes of fact, only on points of law and there are tight deadlines to appeal. It is unlikely that an asylum claimant will have sufficient knowledge of the law and procedure to successfully appeal decisions of the First-tier Tribunal. 43

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See for example D. James and E. Killick, ‘Empathy and Expertise: Case Workers and Immigration/Asylum Applicants in London’ (2012) 37(2) Law & Social Inquiry 430, 438 and Robins (n 14). General Council of the Bar of England and Wales (Bar Council), Bar Council Response to the Transforming Legal Aid: Delivering a More Credible and Efficient System Consultation (Bar Council 2013) accessed 6 December 2014. ilpa, ilpa Note on the ‘Transformation’ Legal Aid Consultation (ilpa 2013) accessed 6 December 2014.

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Without the assistance of an experienced asylum lawyer to argue on their behalf that the Immigration Judge has erred in law, these claimants are excluded in practice from having their cases considered before the Upper Tribunal and the higher courts. 2.2.3 Reform of Legal Aid in Judicial Review Cases Similarly, while applications for judicial review may be sought at any stage of asylum proceedings, and litigants in person can appear before the High Court or Upper Tribunal,46 lodging such applications is likely to prove practically difficult, if not impossible, for claimants who lack knowledge of the grounds and procedural rules of judicial review. All pre-permission work in judicial review proceedings will no longer be funded unless permission is granted by the High Court or the Upper Tribunal or if the Lord Chancellor considers that it is reasonable to pay remuneration in the circumstances of the case.47 This recent reform means that the risk is borne by claimant lawyers and is likely to create a chilling effect on claimant lawyers’ willingness to bring claims.48 It is the view of the Joint Committee of Human Rights that this change ‘constitutes a potentially serious interference with access to justice, and sufficient evidence to demonstrate its necessity is currently lacking’.49 2.2.4 The Consequences for Those Failed by the System The consequences of getting asylum decisions wrong are grave as those refused asylum will be forcibly removed from the uk to the countries from which they have fled. As the Countess of Mar reminds us, [The asylum Tribunal] is the only jurisdiction in the country that has the power of invoking the death penalty… You can also impose on people an

46

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Until October 2011, it was the sole remit of the administrative division of the High Court to consider applications for judicial review but, since November 2013, most judicial reviews in immigration and asylum cases are now lodged with and heard by the Upper Tribunal. Following the entry into force of the Civil Legal Aid (Remuneration) (Amendment) (No. 3) Regulations 2014 on 22 April 2014. See, for example, Public Law Project (plp), Judicial Review: Proposals for Further Reform (plp 2013) accessed 6 December 2014. uk House of Lords, House of Commons, Joint Committee on Human Rights, The Implications for Access to Justice of the Government’s Proposals to Reform Judicial Review (2014) Thirteenth Report of Session 2013–14, hl 174, hc 868, 4.

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awful prison sentence. Some of the conditions in the country that asylum seekers come from are appalling.50 If not forcibly removed, many so-called ‘failed asylum seekers’, better named ‘asylum seekers failed by the asylum system’, fearful of the persecution that awaits them in their home countries,51 take their chances and remain in the uk clandestinely, facing hardship, homelessness and destitution.52 Such vulnerable individuals are at risk of abuse, exploitation53 and trafficking,54 as well as deterioration in their health, including mental condition,55 exacerbated by the uncertainty of their future and the ever-present fear of detention and deportation. 3

Procedural Protections and their Limits

It is well established that, under international law, asylum seekers who claim that their expulsion will violate the prohibition of refoulement, have a right to an effective remedy.56 However, as demonstrated in the above paragraphs, restrictive national rules on asylum procedure, such as the withdrawal of legal aid, can, in practice, limit access to an effective remedy. To what extent then is this basic right protected under the echr and eu law? In this section, the 50 51 52

53

54 55

56

H. MacIntyre, ‘Imposed Dependency: Client Perspectives of Legal Representation in Asylum Claims’ (2009) 23(2) jianl 188. H. Hintjens, ‘“Like Leaves in the Wind”: Desperately Seeking Asylum in the uk’ (2006) 48(1) Race & Class 79, 81. H. Crawley, J. Hemmings and N. Price, Coping with Destitution: Survival and Livelihood Strategies of Refused Asylum Seekers Living in the uk (Oxfam 2011) accessed 6 December 2014. See British Red Cross, Not Gone, But Forgotten: The Urgent Need for a More Humane Asylum  System (British Red Cross 2010) accessed 6 December 2014. Hintjens (n 51). See, for example, K. Chantler, ‘Gender, Asylum seekers and Mental Distress: Challenges for Mental Health Social Work’ (2012) 42(2) Br J Soc Work 318 who highlights, inter alia, the relationship between poverty and mental health in asylum cases. See Article 2(3) of the International Covenant on Civil and Political Rights (iccpr) (999 unts 171, 16 December 1966 (entry into force: 23 March 1976)) read in view of the Human Rights Committee, General Comment No. 31: Nature of the General Legal Obligation on States Parties to the Covenant, un Doc CCPR/C/21/Rev.1/Add.13, 26 May 2004, 12.

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procedural guarantees under the echr and under eu law will be considered briefly before going on to consider in greater depth, in the following section, why Article 6 echr has been found not to apply to asylum disputes. 3.1 Procedural Guarantees under the echr Article 13 echr provides a right to an effective remedy but is of limited scope and application. It can only be raised where there is an arguable violation of another echr article.57 As Hélène Lambert notes, ‘[c]oncentrating on refugees, it follows that Article 13 does not secure the right to an effective remedy against any decision concerning entry, asylum or non-refoulement because the echr does not guarantee such rights’.58 In asylum cases, Article 13 is usually raised in conjunction with Article 3 (prohibition on torture, inhuman or degrading treatment), Article 2 (the right to life) and Article 8 (the right to respect for private and family life) echr. The problem, of course, is that, in practice, without legal aid it can be difficult for an asylum claimant to demonstrate that she has an arguable case. The difficulty is exacerbated in the uk context, since Article 13 was not incorporated into domestic law by the Human Rights Act 1998 (hra); leaving section  7 of the hra59 as the only ‘effective ­remedy’ in such cases.60 Article 6 echr has been held not to apply to asylum disputes, the reasons for which are explored fully in the following sections. Why is it desirable that Article 6 should be engaged in asylum disputes? The reason is that, once engaged, Article 6 not only ensures a fair hearing but also access to justice.61 It has been held that Article 6 imposes a positive obligation upon the State to provide free legal aid if legal representation proves necessary for reason of the complexity of the case or of the procedure, the ability of the applicant to represent him or herself and the seriousness of what is at stake for the applicant.62

57 58 59

60 61 62

See, for example, Silver and Others v United Kingdom Appl no 5947/72 (ECtHR, 25 March 1983) para 113 and Leander v Sweden (1987) 9 ehrr 433 para 77. H. Lambert, ‘The European Convention on Human Rights and the Protection of Refugees: Limits and Opportunities’ (2005) 24(2) rsq 39, 47. Section 7 of the hra provides that: ‘A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by Section  6(1) may (a) bring ­proceedings against the authority under this Act in the appropriate court or tribunal, or (b) rely on the Convention right or rights concerned in any legal proceedings’. Damages cannot therefore be claimed domestically in respect of a breach of Article 13. Golder v United Kingdom (1975) 1 ehrr 524. See, for example, Alkan v Turkey Appl no 44324/09 (ECtHR, 22 October 2013) and P, C and S v United Kingdom Appl no 56547/00 (ECtHR, 16 July 2002).

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For the reasons explained earlier, it is submitted that this would be true for most asylum cases in the uk context. While out-with the scope of this paper, the extent to which positive obligations under Articles 3 and 8 echr impose procedural protections in asylum cases merits further attention.63 3.2 Procedural Guarantees under eu Law Following the entry into force of the Lisbon Treaty in December 2009, Article 47 of the Charter, which provides a right to an effective remedy and to a fair hearing, is now legally binding. Article 47 combines, and is based upon, Article 13 echr (the right to an effective remedy) and Article 6 echr (the right to a fair hearing). It includes an express right to legal aid, albeit not an absolute right. However, Article 47 is limited by the scope of eu law. As stated in Article 51 of the eu Charter, ‘[t]he provisions of [the] Charter are addressed to the institutions and bodies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law’. In other words, Article 47 of the Charter ‘applies whenever member states fulfil an obligation imposed by eu law’.64 Frances Meyler and Sarah Woodhouse have observed that such instances may be increased: […]a new line of authorities starting with Zambrano[65] raises the tantalising possibility of a wider conception of eu citizenship and its interplay with fundamental rights, which might, in the future extend the reach of Article 47 to a broader category of cases, including cases involving “static” persons who nonetheless enjoy Citizenship of the Union.66 Since 1999,67 under the auspices of the eu’s ‘area of freedom, security and justice’,68 a Common European Asylum System (ceas) has been developed. 63 64

See Lambert (n 58). K. Lenaerts, ‘Exploring the Limits of the eu Charter of Fundamental Rights’ (2012) 8(3) Eur Const L Rev 375. 65 Case C-34/09 Gerardo Ruiz Zambrano v Office national de l’emploi (onem) [2011] ecr I-01177. 66 F. Meyler and S. Woodhouse, What Hope after laspo: Time to Re-Visit Maaouia? (Freemovement 2013) accessed 6 December 2014. A ‘static’ person refers to a citizen of an eu Member State who has not exercised their right to free movement but, rather, remained in their Nation State. 67 See eu Council, Presidency Conclusions, Tampere European Council, 15 and 16 October 1999, eu Doc 200/1/99, 16 October 1999. 68 The Treaty of Amsterdam amending the Treaty of the European Union [1997] oj C 340/1 (entry into force: 1 May 1999).

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The ceas seeks to harmonise asylum law among eu Member States through the adoption of legislative measures that set minimum uniform standards for processing asylum claims. The objective of the ceas is, therefore, ‘reconciling the universal interest of asylum seekers as stated in the eu policy documents with the particular interest of the eu or its Member States’.69 Amongst the measures adopted, and of particular relevance to the present discussion, are the Qualification Directive70 and the Procedures Directive.71 These measures were adopted as part of the ‘first phase’ of the ceas to which the uk has optedin. As part of the ‘second phase’ of the ceas, the Procedures Directive Recast raises the minimum standards of protection, but the uk has refused to opt-in to this enhanced measure (discussed below). The Procedures Directive stipulates minimum guarantees for asylum procedures. Article 39 of the Procedures Directive provides that asylum seekers have a right to an effective remedy before a court or tribunal against the rejection of their asylum application and Article 15(2) of the Procedures Directive provides for a right to legal aid where an asylum application is refused. However, Article 15(2) is subject to limitations and leaves the Member States wide discretion not to grant legal aid in particular circumstances, including express provision for limitation on a merits test.72 The discretionary approach of the Procedures Directive has been criticised by unhcr and non-governmental organizations (ngos) as eroding procedural rights and likely to lead to a denial of access to protection.73 69 70

Pirjola (n 7) 349. Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, oj 304/12, 20 September 2004 (the Qualification Directive). 71 Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Members States for granting and withdrawing refugee status, oj L 326/13, 13 December 2005 (the Asylum Procedures Directive). 72 Article 15(3)(d) of the Asylum Procedures Directive. The European Council on Refugees and Exiles (ecre) highlights that, ‘[a] “merits-of–the-claim” test is not applicable in Belgium, Czech Republic, Denmark, Finland, Hungary, Lithuania, Romania, Slovenia and Spain’. See ecre, Survey on Legal Aid for Asylum Seekers in Europe (ecre 2010). 73 See ilpa, Comments on Commission Proposal for a Directive of the European Parliament and the Council on Minimum Standards on Procedures in Member States for Granting and Withdrawing International Protection (Recast) Com (2009) 554 (ilpa 2009); ilpa, Analysis and Critique of Council Directive on Minimum Standards on Procedures in Member States for Granting and Withdrawing Refugee Status (ilpa 2004); ecre, Amnesty International (ai) and Human Rights Watch (hrw), Refugee and Human Rights Organisations across Europe Express their Concern at the Expected Agreement on Asylum Measures on Breach of International Law (ECRE/AI/HRW 2004); unhcr, ‘Lubbers Calls for eu Asylum Laws Not

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The rules on legal aid and assistance (Articles 15 & 16) are considered to be inadequate and particularly problematic.74 Research conducted by unhcr on the application of the Procedures Directive found that ‘in some Member States, lengthy processes for approving the grant of legal assistance could negate the usefulness of legal aid schemes in appeal processes with short deadlines’.75 This is true of the uk. Asylum claimants may challenge decisions made by their legal representative to withdraw or refuse to grant legal aid on the basis of a merits-test. However, even where such decisions are successfully challenged, legal aid may not be reinstated within the short timeframe for an appeal to be submitted and heard. This means that those who are entitled to legal aid and who have been wrongly refused legal aid may still be unrepresented on appeal. unhcr acknowledges that ‘[i]n some states, “merits tests” were seen to be applied in ways that could lead to the arbitrary restriction of access for appellants to legal assistance, contrary to the [Procedures Directive]’.76 As discussed above, there is evidence that, in the majority of cases, legal aid lawyers misapply the ‘merits test’. unhcr is also concerned about the general ‘lack of available lawyers specialized and competent in refugee law… [and that] ngos and lawyers who have traditionally provided legal assistance face resource shortages and low remuneration levels in some Member States that can significantly impede their work’.77 As highlighted above, recent statistics issued by the Ministry of Justice reveal the stark attrition of specialist immigration and asylum law practitioners in the uk following the most recent cuts to legal aid under laspo. Moreover, unhcr also reported that in a number of Member States ‘effective opportunities to obtain legal assistance for an appeal is limited for appellants in the accelerated procedure or in detention’.78 The lack of adequate legal advice and representation available to asylum claimants processed in the detained fast-track system in the uk is well documented.79 to Contravene International Law’ unhcr Press Release (29 March 2004) accessed 6 December 2014; and unchr, ‘unhcr Regrets Missed Opportunity to Adopt High eu Asylum Standards’ unhcr Press Release (30 April 2004) accessed 6 December 2014. 74 See ilpa, Comments on Commission Proposal (n 73). 75 unhcr, Improving Asylum Procedures: Comparative Analysis and Recommendations for Law and Practice – Key Findings and Recommendations (unhcr 2010). 76 Ibid. 77 Ibid. 78 Ibid. 79 See, for example, Detention Action, Fast Track to Despair: The Unnecessary Detention of  Asylum Seekers (Detention Action 2011) accessed 6 December 2014.

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As part of the ‘second phase’ of the ceas, the Recast Asylum Procedures Directive80 aims to amend the Asylum Procedures Directive and to raise the standards of procedural protection in the ceas. It was considered that the original Procedures Directive afforded Member States ‘a wide discretion’, permitting the ‘proliferation of disparate procedural arrangements at national level and deficiencies regarding the level of procedural guarantees for asylum applicants’.81 ilpa has observed that the negotiations of the original Asylum Procedures Directive ‘were tortuous and the resulting drafts entailed a consistent erosion of procedural standards, such that in March 2004 an ngo Alliance called for the withdrawal of the Procedures Directive, noting that it was likely to lead to denial of access to protection’.82 The objective of the Recast Asylum Procedures Directive is thus ‘to improve the coherence between eu asylum instruments, simplify, streamline and consolidate procedural arrangements across the Union and lead to more robust determinations at first instance, thus preventing abuse and improving efficiency of the asylum process’.83 According to the Commission’s Explanatory Memorandum, the provisions in the Recast Directive: […] are, to a large extent, informed by evolving case law of the European Court of justice regarding the general principles of Community Law, such as the right to defence, the principle of equality of arms, and the right to effective judicial protection. The jurisprudence of the European Court of Human Rights was another key source of inspiration for developing further procedural safeguards for asylum applicants.84 A number of the new provisions under the Recast Asylum Procedures Directive are commendable and enhance procedural protection. For example, the Recast Directive, amongst other things, reduces the situations where accelerated

80

Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (recast), oj L 180&7, 29 June 2013. 81 eu Commission, Proposal for a Directive of the European Parliament and of the Council on Minimum Standards on Procedures in Member States for Granting and Withdrawing International Protection (Recast), com(2009) 554 final, 21 October 2009 (Proposal for a Recast Procedures Directive). 82 ilpa, Comments on Commission Proposal (n 73). 83 Ibid. 84 eu Commission, Proposal for a Recast Procedures Directive (n 81) Explanatory Memorandum, 6.

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p­rocedures will be allowed85 and limits the circumstances where Member States can impose a non-suspensive right of appeal.86 The Recast Asylum Procedures Directive also includes a right to free legal assistance at first instance while the Asylum Procedures Directive only protects a right to legal assistance at first instance at the asylum applicant’s ‘own cost’ and a right to free legal assistance on appeal.87 However, the benchmark is low, that is, the asylum applicant is entitled to free legal assistance ‘at least information on the procedure’ and does not cover a representative’s attendance at the personal interview. It is regrettable that the Recast Asylum Procedures Directive does not raise standards further by guaranteeing the provision of free legal assistance and representation at all stages of the asylum procedure (including attendance at the personal interview).88 ilpa has expressed its dismay that the Recast Directive ‘reflects practices which have been tried and failed in the uk’.89 The Recast Directive reintroduces the ‘merits test’ exception, allowing Member States to refuse free legal assistance and representation ‘if the applicant’s appeal is considered by a Court or Tribunal to have no tangible prospect of success’.90 It is the position of the ecre that: […] a merits-test should in principle be avoided in asylum procedures. It constitutes an exercise in trying to predict the outcome of the examination of the need for international protection and in view of the increasingly crucial role of legal assistance and representation in asylum procedures, it may undermine equality of arms and result in appeals procedures being conducted less thoroughly and on the basis of incomplete files.91 Article 21 of the Recast Asylum Procedures Directive states that free legal services may be provided by ‘professionals from government authorities or from specialised services of the State’.92 This provision is equally undesirable as legal assistance and representation should be sufficiently independent from the State in order to avoid any conflict of interest. 85 86 87 88 89 90 91

92

Article 31 (6) of the Recast Asylum Procedures Directive (n 80). Ibid, Article 46. Ibid, Article 19 and Article 15 of the Asylum Procedures Directive (n 71). Articles 19 and 20 of the Recast Asylum Procedures Directive (n 80). ilpa, Comments on Commission Proposal (n 73). Article 20(3) of the Recast Asylum Procedures Directive (n 80). ecre, Comments from the European Council on Refugees and Exiles on the Amended Commission Proposal to Recast the Asylum Procedures Directive (com(2011) 319 final) (ecre 2011). Article 21(1) of the Recast Asylum Procedures Directive (n 80).

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Despite the stated aim of the Recast Asylum Procedures Directive to address the problem of the low standards of procedural guarantees in the first generation instrument and the lack of consistency between the Member State practices, similar compromised provisions and exceptions, such as the exception to refuse legal aid on the basis of a merits test, appear in the Recast Directive. The Recast Directive only raises the standards marginally in relation to the provision of legal aid and Member States continue to be granted wide discretion to refuse legal aid. The extent to which the drafting of the final Recast Asylum Procedures Directive was influenced by the principles and jurisprudence of the Court of Justice of the European Union (cjeu) and the ECtHR is questionable. It is argued below, there is a duty under Community law (with reference to the jurisprudence of the ECtHR), and therefore under domestic law, on the State to provide legal aid where the applicant has insufficient means and legal aid is necessary for reason of the complexity of and the law and/or procedure. This can be assumed in respect of all asylum cases (see reasons detailed above). In any event, the uk has refused to opt-in to the Recast Asylum Procedures Directive and the 2005 Asylum Procedures Directive continues to apply. Despite evidence to the contrary, it is the uk’s position that its ‘asylum procedures satisfy the standards imposed by its obligations under international and European law, and does not view further harmonization of asylum matters at eu level as necessary or appropriate’.93 Failing to opt-in to the ‘second phase’ measures of the ceas has been considered by some as ‘unfortunate’94 as the result will be that ‘the uk asylum framework will be, in some respects, inferior to the framework applicable in the other Member States’.95 In response to the Proposal for a Recast Procedures Directive, ilpa states: We concur with the analysis of the House of Lords Committee on the European Union that in the light of this ‘it is not so much desirable as essential that the Government should opt in.’ As our previous submission argued, the uk government’s reasons are largely based on dubious readings of the Proposal.96 Nonetheless, it is highlighted that the ‘first phase’ of the ceas (to which the uk has opted-in) wrote refugee law into eu law (and thus into domestic law), and 93 94 95 96

J.N. Stefanelli, ‘Whose Rule of Law? An Analysis Of The uk’s Decision not to Opt-In to the eu Asylum Procedures and Reception Conditions Directives’ (2011) 60(4) iclq 1055, 1055. Ibid, 1061. Ibid, 1064. ilpa, Comments on Commission Proposal (n 73).

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invokes the entire body of eu law jurisprudence (following the Lisbon treaty) and the jurisprudence of the ECtHR (see below). This process of ‘cross pollination’ of legal orders may still enhance procedural protection at the domestic level (regardless of the uk’s refusal to opt-in to the Recast Asylum Procedures Directive and the failings of this instrument to provide robust procedural protection) and is discussed further below. Article 47 of the Charter and the general principles of eu law (of equivalence, effectiveness and effective judicial protection) impose more demanding obligations on States to provide free legal assistance and representation to asylum claimants than the Recast Asylum Procedures Directive so it matters less that the uk has decided not to opt-in to this measure. 4 Why Has Article 6 echr (Right to a Fair Hearing) Been Held Not to Apply in Asylum Cases? Despite some early indications by the Commission97 that Article 6 might be engaged in immigration cases if Article 8 echr (the right to respect for private and family life) was breached,98 both the Commission and, later, the ECtHR have ‘applied a self-denying ordinance’99 on the application of Article 6 to immigration and asylum matters. 4.1 Early Decisions of the Commission In the application of Mohamed Alam and Mohamed Khan,100 for example, the Commission suggested that Article 6 might be arguable if an Article 8 claim was in play. This case was ‘the very first case brought against the United Kingdom, soon after the British Government had accepted the right of

97

The European Commission of Human Rights determined the admissibility of complaints to Strasbourg from 1954 until 1998 when it was abolished by Protocol 11 of the European Convention on Human Rights. 98 See N. Armstrong, ‘laspo, Immigration and Maaouia v United Kingdom’ (2013) 18(2) Judicial Rev 177, 178–179; X, Y, Z, V and W v United Kingdom (1967) 25 cd 117; Alam, Khan and Singh v United Kingdom (1967) 24 cd 116; Uppal and Others v United Kingdom (1979) 17 dr 149. 99 Armstrong (n 98) 178. 100 Alam, Khan and Singh v United Kingdom (n 98) was submitted at the same time as and procedurally joined by the Commission with a second immigration case which was not admitted for further consideration: Singh v United Kingdom (1967) 24 cd 116. See D.J. Harris, ‘Immigration and the European Convention on Human Rights’ (1969) mlr 102.

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i­ndividual petition in January 1966’.101 The immigration authorities had refused to allow Mohammed Khan, the thirteen-year-old son of Mohamed Alam, to enter the uk because they were not satisfied that he was Alam’s son. As explained by Lord Lester of Herne Hill, who was lead counsel for the applicants:102 There was no appeal system at all in those days, and the father and son were not believed as to their relationship. The panchayat in India was summoned in order to give evidence that they were in fact father and son. The boy got his passport, was allowed in, had his travel paid after three visits, and the appeal system was introduced.103 The rights under Article 6 are only engaged in respect of the determination of a person’s ‘civil rights and obligations or of any criminal charge against him’.104 The Commission declared the application admissible for reason that the facts raised the possibility of a breach of the right to respect for family life under Article 8 and that ‘this may well be considered as the determination of a civil right within the meaning of Article 6’.105 The Commission was concerned that the ‘the determination of such civil right raises questions of such complexity’ and so concluded that ‘their determination must depend upon an examination of the merits of the case’.106 Harris has observed that: The meaning of the term ‘civil rights’ is a matter that has vexed the Commission from the beginning. Just how wide is the guarantee in Article 6 in non-criminal cases? Does it cover all rights? (If so, what is a right?) Is 101 A. Lester, The European Court of Human Rights after 50 Years (2009) accessed 6 December 2014. 102 Now retired barrister, Roger Warren Evans, who established Asylum Justice in 2005 (a  charitable trust that provides free legal services to asylum seekers and refugees in Wales) was junior counsel in this case. 103 uk House of Lords, House of Commons, Minutes of Evidence taken before the Joint Committee on Human Rights, The Human Rights of Unaccompanied Migrant Children and Young People in the uk (2012) hc 772-I, 16 [uncorrected transcript of evidence taken in public]. 104 Article 6(1) echr. 105 Alam, Khan and Singh v United Kingdom (n 98) 132. 106 Ibid.

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it limited to rights enforceable in a court of law? Does it extend, following Continental civil law, only to private rights, leaving out public rights or rights vis-à- vis the government? Then again, does the Article refer back to the rights that happen to exist at any given time in the law of each of the contracting parties, or is there an autonomous concept of “civil rights” written into the [echr]?107 In the case of Mohamed Alam and Mohamed Khan, the applicants argued, inter alia, that, the ‘autonomous’ meaning of ‘civil rights’ under Article 6 ‘should be widely interpreted; its function within Article 6 is to distinguish such matters from criminal charges’.108 Therefore, ‘Mohamed Alam’s claim for his son to be permitted to enter the United Kingdom to take up residence with him as a member of his family is a civil right […] guaranteed by Article 8’.109 The Commission seem to have been persuaded in this early case that the autonomous meaning of ‘civil rights’ could include the rights directly guaranteed by the echr.110 However, as Lord Lester tells us, there was a friendly settlement in the Alam case, adopted on 17 December 1968,111 and so, sadly, it would seem, from the research so far conducted, there never was an examination of the merits and the Article 6 issue was left unresolved. In a number of expulsion cases that followed, the Commission ultimately adopted a different view, stating that even where the decision to expel gave rise to a breach of Article 8, Article 6 would not be engaged.112 The Commission reasoned that such administrative decisions, made in the exercise of discretionary powers, exist exclusively within the sphere of public law, and do ‘not involve as such the determination of civil rights within the meaning of Article 6 (1)’.113 In the case of Uppal and Others v United Kingdom,114 the Commission explained that ‘even assuming that the respective rights of grandparents, ­parents and children to maintain a life in common is a civil right within the

107 Harris (n 100) 104–105. 108 Alam, Khan and Singh v United Kingdom (n 98) 126. 109 Ibid. 110 Ibid, 132 and see Harris (n 100) 105. 111 A. Lester, East African Asians Versus the United Kingdom: The Inside Story (2003) accessed 6 December 2014. 112 For example, Uppal and Others v United Kingdom (n 98); Bozano v France (1984) 39 dr 119; Urrutikoetxea v France (1996) 87-B dr 151; and Kareem v Sweden (1996) 87-A dr 173. 113 Uppal and Others v United Kingdom (n 98) 397–398. 114 Ibid, 398.

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meaning of that provision, the decision of the United Kingdom immigration authorities to expel the applicant parents does not determine such a right’.115 The Commission extended the exclusion of Article 6 to asylum cases. In P v United Kingdom,116 the Commission found that political asylum applications fell within the category of discretionary procedures followed by public authorities to determine whether an alien should be allowed to stay in a country or should be expelled. This position fails to recognize refugee status as a personal right, a ‘civil right’. As argued by the applicants, and endorsed by unhcr, ‘it is for a government to recognise a refugee, it does not declare him to be one’.117 Collins J has observed that: The reference to discretion as a reason for the non-application of Article 6 (1) seems to us a little curious. It is because it is an administrative act and so any rights found in public law that the Article does not apply. In asylum cases, discretion is not a relevant consideration. If the claim falls within the [Refugee] Convention, asylum must be granted.118 The Commission’s position, therefore, of extending the exclusion of Article 6 to asylum cases, is premised upon contested reasoning. 4.2 The Grand Chamber Decision in Maaouia Following the abolishment of the Commission in 1998,119 in the 2001 case of Maaouia v France,120 the ECtHR Grand Chamber considered for the first time the issue of the applicability of Article 6(1) to procedures for the expulsion of aliens. It is stressed that this case was not about refugee status but concerned an exclusion order. The applicant was a Tunisian national who had failed to comply with a deportation order made against him. He was prosecuted, sentenced to one-year’s imprisonment together with a 10-year exclusion order. He later successfully challenged the deportation order on the basis of his marriage to a French national and had the exclusion order rescinded. He complained that the length of the proceedings for the rescission of the exclusion order had 115 Ibid. 116 P v United Kingdom (1987) 54 dr 211. 117 Ibid. 118 mnm v Secretary of State [2000] ukiat 00005 para 11. 119 See Protocol No. 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Restructing the Control Machinery Established Thereby, cets No. 155, 11 May 1994 (entry into force: 1 November 1998). 120 Maaouia v France (2001) 33 ehrr 42.

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been unreasonable and violated Article 6(1). The ECtHR held, in its unsatisfactorily short Judgment, that ‘decisions regarding the entry, stay and deportation of aliens do not concern the determination of an applicant’s civil rights or obligations or of a criminal charge against him, within the meaning of Article 6 (1) of the [echr]’.121 The ECtHR took into account that the Commission had ‘consistently expressed the opinion that the decision whether or not to authorise an alien to stay in a country of which he is not a national does not entail any determination of his civil rights or obligations or of any criminal charge against him within the meaning of [Article 6 (1)]’.122 The ECtHR confirmed that the concepts of ‘civil rights and obligations’ and ‘criminal charge’ within Article 6 had autonomous echr meanings.123 The ECtHR also confirmed that the provisions of the echr must be construed in the light of the entire echr system, including the Protocols. They then put emphasis on Article 1 of Protocol 7 (which grants minimum procedural guarantees to lawfully resident aliens subject to an exclusion order). The ECtHR reasoned that the fact that special measures had been taken in this area showed that Member States did not intend for Article 6 (1) to provide protection.124 The ECtHR further held that the fact that the exclusion order ‘incidentally had major repercussions on the applicant’s private and family life or on his prospects of employment’ did not bring Article 6(1) within scope and that no criminal charge was being determined.125 In his concurring opinion, Nicolas Bratza illuminates the underlying reasoning of the ECtHR in refusing to recognize expulsion cases as falling under the protection of Article 6(1). Echoing the past reasoning of the Commission, Bratza explains that, […] because of the substantial discretionary and public-order element in such decisions, proceedings relating to them are not to be seen as determining the civil rights of the person concerned, even if they inevitably but incidentally have major repercussions on his private life, the prospects of employment, financial position and the like. However, this reasserts an unhelpful, and, in practice, confusing distinction between public law and private law matters (discussed below). 121 122 123 124 125

Ibid, para 40. Ibid, para 35. Ibid, para 34. Ibid, paras 36–37. Ibid, para 38.

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The ECtHR’s Judgment in Maaouia is now 13 years old but remains the leading authority, precluding reliance on Article 6 in immigration and asylum proceedings alike. Judges Loucaides and Traja did not agree with the ECtHR’s assessment in 2001. In their dissenting opinion, they highlighted that the ECtHR referred to the Commission’s jurisprudence but without any analysis of the reasoning of such jurisprudence. Moreover, they pointed out that the ECtHR’s restrictive approach ignores the drafting history of Article 6 that supports a broader interpretation of ‘civil rights and obligations’. Loucaides and Traja argued, as did the applicants in Alam, that the autonomous meaning of ‘civil’ rights ought to be construed widely as ‘non-criminal’. They contended that an interpretation that ‘enhances individual rights is more in line with the object and purpose of the [echr] and should always be preferred’. In relation to the issue of Protocol 7, Loucaides and Traja argued that this measure gives additional procedural guarantees to those being expelled and does not affect judicial guarantees, stating that ‘Protocols add to the rights of the individual. They do not restrict or abolish them’. Most interestingly, the dissenting judges noted that the ECtHR had already ‘felt the need to extend the application of the terms “civil rights and obligations” to matters that do not ordinarily belong in the sphere of private law’, such as claims for social security and social assistance that are public law matters. It is thus open to the ECtHR to similarly find that asylum and/or immigration matters concern the determination of ‘civil rights’ under Article 6 (1) echr. 5

Strasbourg’s Unclear and Inconsistent Jurisprudence

The question then, is where is the dividing line between public law matters and private law matters to be drawn? The uk courts have found that the ECtHR’s case law is far from clear126 with the distinction between private law and public law rights becoming ‘increasingly blurred’.127 Yet, despite these criticisms, it is interesting to observe that the uk courts have been unwilling to depart from the Strasbourg jurisprudence (see below for further commentary on this point). It would seem that administrative decisions are capable of falling within the ambit of Article 6 and it depends upon the ‘nature and purpose 126 Secretary of State for the Foreign Office and Commonwealth Affairs v E Maftah and A Khaled [2011] ewca Civ 350, per Lord Justice Sedley: ‘The only thing which is certain is that civil rights in article 6 have an autonomous meaning. The Strasbourg court has made this clear on more than one occasion. What is neither certain nor clear is what that meaning is’. 127 mk (Iran) v Secretary of State for the Home Department [2010] ewca Civ 115, para 58.

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of the administrative action which determines whether its impact on private law rights is such that a legal challenge to it involves a determination of civil rights’.128 It can be gleaned from the case law that Article 6 is likely to be engaged when the applicant has public law rights which are of a personal and economic nature and do not involve any large measure of official discretion.129 It is interesting to observe that, in the same year as the ECtHR’s Judgment in Maaouia, there was a domestic judgment that held that decisions to withdraw financial support from asylum seekers engaged Article 6.130 The effect, therefore, is that an asylum seeker is entitled to the protection of Article 6 in respect of a dispute over withdrawal of her accommodation or other support, but not in respect of the asylum claim itself.131 Explaining this to an asylum claimant, given the-prima facie irrationality of the ECtHR’s interpretation of Article 6, is no easy task. Despite producing such anomalous results, the ECtHR’s ruling in Maaouia has been confirmed in recent asylum cases, by the ECtHR in SS v United Kingdom132 and domestically in mk (Iran) v Secretary of State for the Home Department,133 for example. When determining the admissibility of SS on the ground of Article 6, the ECtHR simply reasserted its mantra that, ‘decisions regarding the entry, stay and deportation of aliens do not concern the determination of an applicant’s civil rights or obligations or of a criminal charge against him’ and that, therefore, the Article 6 complaint must be ‘rejected as incompatible ratione materiae with the provisions of the [echr]’.134 This approach lumps asylum matters together with immigration and expulsion matters, the logic of which is inconsistent with other ECtHR rulings. As explained above, the majority of the ECtHR in Maaouia were swayed primarily by the argument that the existence of procedural safeguards under Article 1, Protocol 7, relating to the expulsion of aliens, meant that the Member States did not intend for Article 6(1) to apply to aliens facing expulsion. However, this reasoning cannot be extended to cases concerning asylum disputes. It was held 128 Maftah and Khaled (n 126) para 24. 129 R. English, ‘eu Directive on Refugee Status Does Not Enhance Asylum Rights under Strasbourg Convention’ (2010) uk Human Rights Blog accessed 6 December 2014. 130 Husain v Asylum Support Adjudicator [2001] ewhc 852. 131 R(A) v Croydon lbc [2009] uksc 8, per Lady Hale, para 59. 132 SS v United Kingdom Appl no 12096/10 (ECtHR, 24 January 2012). 133 mk (Iran) v Secretary of State for the Home Department (n 127). 134 SS v United Kingdom (n 132) para 85.

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in st v France,135 for example, that Article 1, Protocol 7 does not protect asylum claimants as they cannot be said to be ‘lawfully resident’ in accordance with this provision. Indeed, Hélène Lambert has observed that Article 1, Protocol 7 ‘has never been invoked successfully by refugees’.136 6 A Missed Opportunity for the uk to Depart from the Maaouia Doctrine In mk (Iran) v Secretary of State for the Home Department, the domestic Court grappled to a degree with the submissions that asylum cases should be distinguished and that Article 6 echr was engaged in such cases. However, the Court of Appeal, ultimately, refused to depart from the jurisprudence of the ECtHR. The asylum claimant in this case was suffering from mental illness and claimed for damages on the basis that the delay in determining his case had caused or aggravated his mental illness, depriving him of the opportunity to present his case during a window of lucidity. mk raised ‘novel issues of both European Union law and [echr] law’.137 Counsel for the claimant argued that, by virtue of the Qualification Directive, that recognizes the right to asylum as part of eu law, the claim for asylum was a ‘civil right’ for the purposes of Article 6, giving rise to a claim for compensation under the 1998 hra. He accepted that ‘this argument goes against the grain of traditional Strasbourg jurisprudence’,138 however, he submitted that ‘since 2006, the Qualification Directive has brought about a fundamental change in the legal status of the claim to refugee status, in the [echr] law, as well as eu law’;139 that refugee status and subsidiary protection have become part of eu law and therefore part of domestic law.140 Article 13 of the Qualification Directive provides in mandatory terms that Member States ‘shall grant refugee status’ to someone 135 st v France Appl no 20649/92 (ECtHR, 8 February 1993): ‘Toutefois, la Commission relève que cette disposition ne s’applique qu’aux étrangers “résidant régulièrement” sur le territoire en question, et ne peut être invoquée par une personne comme le requérant, qui ne peut se prévaloir d’un titre de séjour, dès lors que sa demande de bénéficier du statut de réfugié politique a été définitivement refusée’. 136 Lambert (n 58) 46. 137 mk (Iran) v Secretary of State for the Home Department (n 127) para 1. 138 Ibid, para 45. 139 Ibid. 140 Ibid, para 55. ss v United Kingdom (n 132) post-dated the Qualification Directive but the arguments raised in mk (Iran) were not made in ss v United Kingdom and the Directive and its effect was not drawn to the attention of the ECtHR.

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who qualifies as a refugee, and, once such protection is granted, economic rights flow under Articles 26 and 28, thus elevating refugee status to a personal right under Article 6.141 However, the Court of Appeal held that the Qualification Directive did not alter the jurisprudence of the ECtHR, that asylum decisions did not constitute determinations of civil rights under Article 6. The Court of Appeal concluded that decades of consistent jurisprudence of the Commission and ECtHR establishes that an asylum decision is a public law decision and does not involve the determination of civil rights within the meaning of Article 6(1). The Court of Appeal simply was not willing to depart from the ECtHR’s established jurisprudence. In support of his decision, Lord Justice Sedley cited Lord Bingham in Ullah: ‘[t]he duty of the national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less’;142 and Lord Brown’s comment in Al-Skeini: ‘I would respectfully suggest that last sentence could as well have ended: “no less, but certainly no more”’.143 However, the ‘no more’ part of the Ullah principle144 has been subject to much academic criticism. Lord Neuberger in the case of Nicklinson also hinted that the time to revise Ullah may be nearing.145 The purpose of the echr is to provide a ‘floor of rights’146 and the existence of a Strasbourg imposed ‘ceiling on human rights’ is contested.147 Section of 2 of the hra provides that uk courts must ‘take into account’ the case law of the ECtHR. Lewis argues that the Ullah principle stems from and rewrites section 2 so as to bind domestic courts to Strasbourg jurisprudence.148 This is problematic for a number of reasons. The White Paper entitled Rights Brought Home considered that the hra would enable British judges ‘to make a distinctively British contribution to the development of the jurisprudence of  human rights in Europe’, providing the ECtHR with a ‘useful source of

141 142 143 144 145

mk (Iran) v Secretary of State for the Home Department (n 127) para 55. R (Ullah) v Special Adjudicator [2004] 2 ac 323, 350, para 20. R (Al-Skeini) v Secretary of State for Defence [2008] 1 ac 153, para 105. Also known as the ‘mirror principle’. R (on the application of Nicklinson and another) v Ministry of Justice [2014] uksc 38, para 70. 146 Per the Lord Chancellor, Hansard, hl Vol 583, col 510 (18 November 1997). 147 See, for example, J. Lewis, ‘The European Ceiling on Human Rights’ (2007) 4 pl 720; F. Klug and H. Wildbore, ‘Follow or Lead? The Human Rights Act and the European Court of Human Rights’ (2010) 6 ehrlr 621; E. Bjorge, ‘National Supreme Courts and the Development of echr Rights’ (2011) 9(1) Int’l J Const L 5. 148 Lewis (n 147).

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­information and reasoning for its decisions’.149 The Ullah principle thus limits the contribution of the uk courts to international human rights jurisprudence.150 Other Council of Europe countries have not adopted principles equivalent to the Ullah principle and it has been argued that this principle has prevented the uk courts from developing indigenous human rights jurisprudence.151 Lewis reminds us that there are good reasons why Parliament deliberately decided that domestic courts should not be bound by Strasbourg jurisprudence, namely: […] it is the [echr] itself, not the jurisprudence of the court, that is the ultimate source of the relevant law. Further, the [echr] has no strict rule of precedent. Secondly, under the [echr], the United Kingdom is only bound to ‘abide by’ rulings of the Strasbourg Court in cases in which it has been involved as a part to proceedings. Thirdly, a sentiment expressed in the White Paper itself, uk courts ‘must be free to try to give a lead to Europe as well as be led’. Fourthly, decisions of the Strasbourg institutions are often inherently unsuited to being followed as most judgments are essentially declaratory in nature.152 Moreover, it has been noted that ‘as a consequence of the decision-making process which generates Strasbourg judgments, a number of Strasbourg cases do not withstand close scrutiny’.153 Lord Philips suggested in the case of Horncastle that there would be ‘rare occasions’ where uk courts would ‘decline to follow the Strasbourg decision giving reasons for adopting this course’ resulting in ‘what may prove to be a valuable dialogue between [uk courts] and the Strasbourg Court’.154 The justification for the Ullah principle is uniformity between the Member States. However, the doctrine of margin of appreciation undermines uniformity but is nevertheless applied by the Strasbourg Court.155 Furthermore, it is important not to conflate the rights under the echr with the rights under the hra. A more generous domestic interpretation 149 uk Secretary of State for the Home Department, Rights Brought Home: The Human Rights Bill, cm 3782, October 1997, para 1.14. 150 Lewis (n 147) 732–733 citing R. Clayton, ‘The Human Rights Act Six Years on: Where are We Now?’ (2007) 1 ehrlr 11. 151 Lewis (n 147) 732. 152 Ibid, 731; R. Masterman, ‘Section 2(1) of the Human Rights Act 1998: Binding Domestic Courts to Strasbourg’ (2004) 12 pl 725. 153 Lewis (n 147) 731–732 and Clayton (n 150). 154 R v Horncastle & Others [2009] uksc 14, para 11. 155 Lewis (n 147) 737.

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of an echr article does not affect the content of the echr right and thus does not disrupt uniformity.156 As Bjorge observes, Deffering or opting not to adopt an interpretation which would fall foul of the Ullah rule seems […] tantamount to go with the smallest common denominator, resulting more often than not in an interpretation which falls short of rigorous rights protection.157 A ‘debilitating reading’158 of Lord Bingham’s argument does seem to be at odds with the human rights system established by the echr. The echr sets minimum standards and, therefore, it is expected that at the national level higher standards need to be ensured. It is submitted that: (i) given the age of the Maaouia decision; (ii) the lack of clarity in the Strasbourg jurisprudence regarding what is a ‘civil right’ under Article 6; (iii) the absence of a wellreasoned justification in the jurisprudence for the continued denial of the application of Article 6 to asylum disputes; and (iv) that Strasbourg’s reasoning for denying the application of Article 6 relies upon the doctrine of the margin of appreciation, uk courts would be justified to depart from the Strasbourg jurisprudence and to find that Article 6 does apply to asylum disputes. 7 Can Strasbourg and uk Courts Continue to Stand Still in View of the Expansion of eu Law? It is evident that a change of law at the domestic level is unlikely unless the ECtHR changes its position in relation to the application of Article 6 in asylum disputes. The possibility of such a change was, until recently, in sight. The Advice on Individual Rights in Europe Centre (aire Centre) put similar arguments to those presented in mk (Iran) before the ECtHR in the application of N and Others v United Kingdom.159 N was removed from the uk to Sri Lanka in September 2011 after the uk dismissed her asylum claim. She complained to the ECtHR, inter alia, that failure, prior to her removal, to provide her with a hearing regarding her fresh asylum claim (in which N disclosed that she had been raped), violated her right to a fair hearing under Article 6 echr. It was 156 Ibid, 736. 157 Bjorge (n 147) 16. 158 Ibid. 159 N and Others v United Kingdom Appl no 16458/12 (ECtHR, 15 March 2012).

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accepted that decisions regarding the entry, stay and deportation of aliens do not concern the determination of an applicant’s civil rights or obligations. However, N’s lawyer submitted that ‘where a State conferred rights which could be enforced by means of a judicial remedy, these could, in principle be regarded as civil rights’160 and he observed that eu law was domestic law for the purposes of the echr.161 He further submitted that N’s fresh claim met the requirements of Article 32(4) of the Asylum Procedures Directive (that confers a right to have a new application for asylum considered) and that N had a right, therefore, to an effective remedy and a right to a fair and public hearing in accordance with Article 47 of the eu Charter, thereby invoking Article 6 echr. In view of N’s submissions, the ECtHR asked the parties, in relation to the Article 6 complaint, to address the question: ‘Is the right set out in Article 32(4) of Council Directive 2005/85 to have a new application for asylum considered in certain circumstances a “civil right” within the meaning of Article 6 of the [echr]?’ While the possibility of a complete reversal of the Maaouia doctrine was not open for debate, it was encouraging that the ECtHR seemed to be willing to consider arguments for the application of Article 6 to be extended in certain asylum cases. However, despite having invited submissions on the Article 6 point, in its decision of 15 April 2014, the ECtHR managed to evade the question of whether Article 6 might apply in certain asylum cases by assessing only the Article 13 complaint.162 The ECtHR circumvented the issue by considering that, ‘the applicant’s Article 6 complaint is, essentially, a reformulation of her complaint under Article 13 that the holding of a hearing only after her removal did not allow proper consideration of her Article 3 complaint’.163 This was a missed opportunity for the ECtHR to clarify the parameters of Article 6 in view of the expansion of eu law. It has been observed, by some, that the ECtHR, relying upon the principle of subsidiarity and the principle of the margin of appreciation, is increasingly exercising judicial restraint, shifting from an interventionist to an ‘appeasement approach’.164 With this in mind, it is contended that the ECtHR, in this case, sought to avoid deciding on what it considers to be a difficult issue by using a different tactic, namely, by conflating 160 Ibid, para 81 citing Oršuš and Others v Croatia (2011) 52 ehrr 7. 161 N and Others v United Kingdom (n 159) para 81 citing Aristimuno Mendizabal v France Appl no 51431/99 (ECtHR, 17 January 2006). 162 N and Others v United Kingdom Appl no 16458/12 (ECtHR, 15 April 2014). 163 Ibid, para 128. 164 See, for example, H. Fenwick, H., An Appeasement Approach in the European Court of Human Rights? (uk Constitutional Law Group 2012) accessed 6 December 2014.

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Article 6 and Article 13. This is misconceived and problematic. While there is a close relationship between Article 6 and 13, they are not one and the same. One of the important distinctions, highlighted above, is that Article 13 is only engaged if there is an ‘arguable claim’ under another echr article. In the case in hand, the ECtHR (after lengthy analysis) found that there had been no violation of Article 3. In a troubling lapse of logic, the ECtHR then equated this with there being ‘no arguable claim’ under Article 3 and, on this basis, considered that Article 13 was not engaged.165 We find ourselves now in what appears to be a judicial stalemate over the issue of the application of Article 6 in asylum disputes, in contradiction to the doctrine of evolutive interpretation,166 with neither the ECtHR nor the domestic courts willing to move forward despite the development of eu asylum law. If domestic courts feel bound to defer to the ECtHR’s jurisprudence, leaving costly and protracted applications to the ECtHR as the only option of redress, then the purpose of the hra to ‘bring rights home’ is defeated. If the ECtHR, the last court of redress, is then equally prone to exercise deference insouciantly (either explicitly or implicitly) then we are faced with a failing human rights system and an absence of any meaningful human rights protection. For how long can domestic courts and the ECtHR continue to refuse blankly to consider the arguments being brought by lawyers that Article 6 applies in at least some asylum cases? As Lord Kerr has questioned, ‘[w]here Strasbourg has not taken a pace which would allow us to fall into step beside them, must we remain stationary?’167 uk courts have, on occasion, demonstrated a willingness to go beyond the Strasbourg jurisprudence.168 By failing to make a decision on the Article 6 complaint in N and Others, the ECtHR has left the door open for fresh challenges that raise the same or similar arguments. In view of the contestable reasoning upon which Maaouia is premised, the time that has 165 A claim can still be ‘arguable’ even where the ECtHR has concluded that the claim is ‘manifestly ill-founded’. This is because a finding that a claim is ‘manifestly ill-founded’ concerns an assessment of the merits whereas a claim is ‘arguable’ simply if it raises an issue that merits further examination. This is a low threshold. See Boyle and Rice v United Kingdom (1988) 10 ehrr 425. 166 See, for example, Sir N. Bratza, ‘Living Instrument or Dead Letter – The Future of the European Convention on Human Rights’ (2014) 2 ehrlr 116 regarding the doctrine of evolutive interpretation. 167 Lord B.F. Kerr, The uk Supreme Court: The Modest Underworker of Strasbourg? (Clifford Chance Lecture 2012) accessed 6 December 2014. 168 See, for example, R (Adam and Limbuela) v Secretary of State for the Home Department [2005] ukhl 66.

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passed since the Grand Chamber’s Judgment, the lack of any robust reasoning for extending the doctrine to asylum disputes, and the development of eu asylum law, it is submitted that it is time for the domestic courts to take the lead, to end the current judicial impasse, and to seize the next opportunity to interpret the law in a manner that enhances human rights in the uk. Lord Kerr would certainly support this approach, having stated: If the much vaunted dialogue between national courts and Strasbourg is to mean anything, we should surely not feel inhibited from saying what we believe Strasbourg ought to find in relation to those arguments. Better that than shelter behind the fact that Strasbourg has so far not spoken and use it as a pretext for refusing to give effect to a right that is otherwise undeniable. I consider that not only is it open to this court to address and deal with those arguments on their merits, it is our duty to do so.169 In respect of future judgments on whether Article 6 applies in asylum disputes, domestic courts should keep in mind that the reasoning of the ECtHR in Maaouia falls away under the eu Charter. As highlighted above, Article 47 of the Charter is broader than Article 6 echr and is not restricted to the determination of civil and criminal law cases.170 In the explanatory note to Article 47, it states explicitly that: […] in Union law, the right to a fair hearing is not confined to disputes relating to civil law rights and obligations. That is one of the consequences of the fact that the Union is a community based on the rule of law.171 Recital 10 of the Qualification Directive and Recital 8 of the Asylum Procedures Directive both provide explicitly that ‘this Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union’. Having opted-in to the Qualification Directive and the Asylum Procedures Directive, the uk is bound by these directives to recognize the principles enshrined in Article 47 of the Charter. As explained above, the Recast Asylum Procedures Directive falls 169 Ambrose v Harris [2011] uksc 43, Lord Kerr at para 130. 170 E. Brouwer ‘Effective Remedies for Third Country Nationals in eu Law: Justice Accessible to All?’ (2005) 7 ejml 219. 171 Updated Explanations relating to the text of the Charter of Fundamental Rights, conv 828/1/03, 18 July 2003, 41 (emphasis added).

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short of the procedural guarantees under Article 47 of the Charter and Article 6 echr. When applying provisions under the Qualification Directive or the Asylum Procedures Directive, general principles of eu law, such as the principles of equivalence, effectiveness and effective judicial protection are to be taken into account.172 These principles are inspired by international human rights treaties on which the Member States have collaborated or of which they are signatories,173 namely the 1950 echr, the 1966 iccpr, the 1951 Refugee Convention and the 1984 Convention against Torture.174 The provisions of these international human rights treaties and the case law of the respective decision-making bodies, that is, the ECtHR, the Committee against Torture and the Human Rights Committee, should therefore be taken into account by national courts and the cjeu in asylum cases. Bast argues that the principle of the right to a fair hearing (as first developed in competition law cases) has attained status as a ‘fundamental right’175 or ‘constitutional guarantee’176 and, therefore, Member States must apply this procedural guarantee in relation to asylum determinations that fall within the scope of eu law.177 The special significance of the echr as a source of general principles of eu law is recognized in Article 6(2) of the Treaty of the European Union. Reneman observes that ‘in many cases, in which the Court of Justice applies general principles of Community law, it refers to the echr and/or the case law by the ECtHR’178 and that the cjeu, therefore, ‘often, but not always refers to Article 6 and 13 echr when it addresses effective judicial protection’.179 Reneman also observes that ‘although Article 6 echr (the right to a fair trial) is, according to 172 See, for example, J. Bast, ‘Of General Principles and Trojan Horses – Procedural Due Process in Immigration Proceedings under eu Law’ (2010) 11 glj 1006, 1007. 173 European Union, Consolidated version of the Treaty on European Union, 2008/C 115/01, 13 December 2007, Article 6. 174 iccpr (n 56); Refugee Convention (n 3); and Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1465 unts 85, 10 December 1984 (entry into force: 26 June 1987). 175 Case C-7/98, Krombach and Bamberski [2000] ecr I-1935, para 42 and Joint Cases C-204/00 P, C-205/00 P, C-211/00 P, C-213/00 P, C-217/00 P, and C-219/00 P, Aalborg Portland A/S et al [2004] ecr I-123, para 64. 176 Cases C-402/05 P and C-415/05 P, Kadi et al v Council and Commission [2008] ecr I-6351, paras 290, 336–337, and 349. 177 As Bast (n 172) 1020 describes, this development ‘services, willingly or not, to import legal transplants from other policy fields embodied in general principles of law’. 178 Reneman (n 8) 65–66 and 79. 179 Ibid, 71.

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the ECtHR, not applicable to asylum cases, it can have significance in the context of the general principle of effective judicial protection’.180 Similarly, Battjes explains that: International law has served as a source of inspiration for the general principles of Community law concerning appeal proceedings, as well as for Article 47 Charter. But these principles, and this Charter provision offer in several respects more extensive protection. To begin with, they require an effective remedy if the right guaranteed by Community law is affected (the ‘arguable claim’ requirement does not apply). Moreover, the obligations laid down in article 6 echr apply to all Community rights (thus not only to ‘civil rights and obligations or criminal charges’) – including administrative proceedings, such as asylum procedures.181 This is significant because, as noted above, the ECtHR has found Article 6182 to impose a positive obligation upon the State to provide free legal aid if legal representation proves necessary for reason of the complexity of the case of the procedure.183 Thus, as Reneman concludes, ‘[i]f the [asylum seeker] does not know the legal system of the country of asylum and does not speak the language, legal aid may be indispensible to avail himself of the available remedy, particularly when the procedural rules are rather complex’.184 In Aerts v Belgium it was held that, where domestic law requires legal representation, the 180 Ibid, 79. 181 H. Battjes, European Asylum Law and International Law (Nijhoff Publishers 2006). 182 Article 6 echr and Article 14(1) iccpr guarantee access to a court or tribunal while the right to an effective remedy does not. Moreover, Article 14 iccpr protects the notion of equality before the court. The content and wording of Article 14 is similar to Article 6 but it does not distinguish ‘civil’ rights. It thus seems to apply to all legal proceedings, whether ‘in the determination of any criminal charge’ or in respect of a person’s ‘rights and obligations in a suit of law’. 183 See Airey v Ireland (1979) 2 ehrr 305 and Alkan v Turkey (n 62). The Committee against Torture considers that the right to an effective remedy would be denied where the State fails to provide free legal aid in cases where the complainant’s language and/or legal skills are insufficient for her to represent herself and, at the same time, her financial means are also insufficient for her to retain private legal counsel. Committee against Torture, zt v Norway, un Doc CAT/C/23/D/127/1999, 19 November 1999. 184 Reneman (n 8) 98. While Member States enjoy a certain margin of appreciation when laying down procedure rules, as the rights under Article 6 are not absolute, any limitations must not be excessively formalistic; they must not impair the essence of the right of access to an effective remedy, and they must be in pursuit of a legitimate aim and must be proportionate. See ibid, 91 and 97.

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provision of legal aid could not be refused on the basis that the case is considered to have insufficient merits as this impairs ‘the very essence’ of the right to a tribunal and is accordingly a breach of Article 6(1).185 Alternatively, ‘[i]f legal aid is not obligatory, the procedure in which the prospects of the review are assessed must offer several guarantees’.186 While Article 13 echr does not impose an obligation on States to provide legal aid, the ECtHR has found Article 13 echr to be violated where there has been a failure in practice for an asylum applicant to have the opportunity to have access to legal assistance whilst detained.187 8 Conclusion At the apex of the asylum legal framework, we find a ‘universal and abstract commitment to provide protection’.188 However, as we descend through the layers of asylum law – from international refugee law and international human rights law, to European asylum law, and to national asylum law – particularism plays a greater role and begins to eclipse the universal principles of refugee and humanitarian protection. Jari Pirjola has observed that ‘[i]n theory, inclusive universal human rights law commitments should take priority, but in practice exclusive legal and other policy goals seem to prevail’.189 The refusal of the uk to opt-in to the Recast Asylum Procedures Directive and, indeed, the failure of the Recast Directive to provide robust procedural protection, is indicative of this disjoint between the rhetoric of human rights protection at the international and regional level and the translation of rights into practice at the domestic level. However, the ‘cross-pollination’190 of legal orders, by virtue of the ceas and the Charter, creates fertile ground for the growth of a rights-based approach and, hopefully, will result in more robust procedural protection in asylum disputes. As Bast argues, ‘even a relatively “shallow” harmonization of laws can lead to a “deep” reshaping of the domestic legal order’.191 It seems, therefore, that the development of procedural protections under eu law (not restricted to the development of eu asylum law) will make it difficult for 185 Aerts v Belgium Appl no 25357/94 (ECtHR, 30 July 1998) para 60. 186 Reneman (n 8) 92. 187 Abdolkhani and Karimnia v Turkey Appl no 30471/08 (ECtHR, 22 September 2009). 188 Pirjola (n 7) 356. 189 Ibid, 357. 190 Bast (n 172) 1007. 191 Ibid.

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the ECtHR and uk courts to continue to resist extending the scope of Article 6 to asylum cases and future challenges are therefore anticipated. This development is welcomed. Refugee status is not a privilege conferred at the discretion of the State. It is a right. And, the echr is ‘intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective’.192 192 Airey v Ireland (n 183).

chapter 3

Victims of Human Trafficking

A Legal Analysis of the Guarantees for ‘Vulnerable Persons’ under the Second Phase of the eu Asylum Legislation Vladislava Stoyanova1 1 Introduction Victims of human trafficking have been designated as a group of migrants in need of special assistance and protection. As a result, a whole legal framework has been developed which revolves around this group. Within Europe, this framework operates on two levels: the Council of Europe and the European Union (eu). In the context of the Council of Europe, States have adopted the Convention on Action against Human Trafficking (the CoE Trafficking Convention).2 Within the eu, two relevant legal instruments have been adopted: Directive 2011/36/EU of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims (the eu Trafficking Directive)3 and Council Directive 2004/81/EC of 29 April 2004 on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities (the eu Residence Permit Directive).4 eu law has added an additional layer of sophistication with its second generation of asylum legislation. The category ‘victims of human trafficking’ has been added to the groups of applicants for international protection considered to be ‘vulnerable persons’, who might be in need of special 1 The author would like to thank Prof Gregor Noll, Dr Céline Bauloz, Dr Sarah Singer and the other participants in the Refugee Law Initiative Second Postgraduate Workshop on Refugee Law for their comments on earlier versions of this paper. Responsibility for the views expressed remains that of the author. 2 Council of Europe Convention on Action against Trafficking in Human Beings, cets No. 197, 16 May 2005 (entry into force: 1 February 2008). 3 Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA, OJ L 1001/1, 15 April 2011. 4 Directive 2004/81/EC of 29 April 2004 on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities, OJ L 261/19, 6 August 2004.

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004290167_004

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reception conditions and/or special procedural guarantees in relation to the procedure for determining their international protection needs.5 The Dublin mechanism, which is one of the cornerstones of the eu asylum system, also needs to be considered. In particular, as with any other applicant for international protection, victims of human trafficking may be subject to Dublin transfers.6 This creates the possibility of clashes between the Dublin mechanism, as recently amended during the second phase of harmonisation of eu asylum law, and the human trafficking legal framework. This chapter explores the tectonic friction between the regimes for victims of trafficking, geared towards the repression of crime, and that of international protection, with its focus on refugees and human rights law. A reading of the pertinent legal norms that steers away from practices that lock migrants into either of these regimes, denying them benefits potentially available in the other, is sought. In sum, the objective of this Chapter is to investigate how pertinent legal instruments of eu law and regional international law, i.e. Council of Europe law, interact with each other. At the same time, this chapter also draws attention to conceptual problems concerning the categories of vulnerable persons, victims of human trafficking, applicants with special reception needs and applicants in need of special procedural guarantees. It reviews the related difficulties of identifying these special categories of applicants for international protection and critically examines the meaningfulness of the benefits attached to these categories. The argument is structured along the following lines. Section 2 explains that the human trafficking legal framework requires that States build a procedure for identifying migrants as victims of human trafficking. This identification procedure tends towards identification of victims who may be useful for criminal proceedings. Despite this limitation which, as I argue, is embedded in the relevant legal norms, construction of an identification infrastructure has 5 Directive 2013/33/EU of 26 June 2013 laying down standards for the reception of applicants for international protection (recast), OJ L 180/96, 29 June 2013 (Recast Reception Directive); Directive 2013/32/EU of 26 June 2013 on common procedures for granting and withdrawing international protection (recast), OJ L 180/60, 29 June 2013 (Recast Asylum Procedures Directive). The protection of vulnerable persons, including applicants for international protection, has been set as a central priority of eu policies. See eu Council, The Stockholm Programme: An Open and Secure Europe Serving the Protecting Citizens, eu Doc 17024/09, 2 December 2009. 6 Regulation (eu) No 604/2013 of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast), OJ L 180/131, 29 June 2013 (Dublin III Regulation).

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p­ositive consequences, including the provision of social assistance to, and protection of, those individuals who have been formally identified. The focus then zooms in on protection measures which could imply non-removal from the territory of a Member State once a migrant has been identified as a victim of human trafficking. It is demonstrated that, in this respect, the possibilities for non-removal are not only very limited, but also that the human trafficking legal framework views the return of the victim as the standard solution for his/ her case. Thus, the victim will logically turn to the international protection procedure.7 Against the above background, questions about the interaction between the two procedures – i.e. the procedure for identifying migrants as victims of human trafficking and the procedure for determining their international protection needs – inevitably arise: Are victims confronted with the choice to either stay in the procedure for identification as victims of human trafficking or switch to the international protection procedure? If they decide to stay in the international protection procedure, can they also benefit from the assistance measures envisioned under the human trafficking legal framework? In relation to these questions, Section 3.1 develops two arguments. First, that the human trafficking legal framework does not offer an alternative to the international protection procedure and as such cannot be used to undermine the procedure for granting international protection and the procedural and reception guarantees developed therein. Second, the current state of these legal norms does not offer a holistic approach and coherent application of both legal frameworks (i.e. the human trafficking legal framework and the legal framework covering international protection). Rather, as the recent study by the European Migration Network demonstrates, each Member State has its own approach.8 Certainly, Member States have discretion as to how to regulate the issue in many respects. Yet, this Chapter proposes how the two legal frameworks can harmoniously co-exit. More specifically, it is submitted that the human trafficking legal framework should be offered as a measure of ­additional 7 ‘International protection’ means both refugee status and subsidiary protection status. See Article 2 of the Directive 2011/95/EU of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast), OJ L 337/9, 20 December 2011. 8 European Migration Network (emn), ‘Identification of Victims of Trafficking in International Protection and Forced Return Procedures’ (emn 2014) accessed 6 December 2014.

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protection which, in relevant circumstances, can complement the international protection framework. The analysis then examines various problematic aspects that emerge in relation to the application of the international protection framework to vulnerable persons, including victims of human trafficking (Section  3.2). There are serious deficiencies which might hamper the assessment of whether applicants are in need of special reception conditions or special procedural guarantees. In relation to victims of human trafficking, the analysis points out the insecure and complex meaning of the definition of human trafficking in international law. This complexity will inevitably have an impact and might even de facto block the assessment of whether applicants for international protection are victims of human trafficking. This further exacerbates the general deficiencies imbedded in the second generation of eu asylum legislation in relation to the assessment of applicants’ vulnerabilities. Section  3.3 examines the benefits afforded to applicants once they are assessed as vulnerable persons within the international protection procedure. It is emphasised that, if an applicant is also identified as a victim of human trafficking, he/she should be also offered the benefits flowing from the human trafficking legal framework. In this regard, it is asked whether there is anything special in the ‘special’ benefits ascribed to vulnerable persons under the eu Reception Conditions Directive and the eu Asylum Procedures Directive. Finally Section 3.4 addresses the application of the Dublin mechanism to victims of human trafficking. It is submitted that, although victims of human trafficking cannot be generally exempted from Dublin transfers, there are situations when Member States’ obligations under the human trafficking legal framework prevent their transfers. 2

Two Procedures with Diametrically Opposite Objectives

2.1 Victim Identification or Witnesses Identification? Article 4(e) of the CoE Trafficking Convention stipulates that a victim of human trafficking ‘shall mean any natural person who is subject to trafficking in human beings as defined in accordance with the definition of human trafficking’. Human trafficking is defined in Article 4(a) of the Convention. As the definition is generally explained, it has three constitutive elements: the ‘action’ element, the ‘means’ element and the ‘purpose’ element.9 Thus, in very simply terms, a migrant is a victim of human trafficking if he/she has been subjected 9 Article 4(a) of the CoE Trafficking Directive (n 2); Article 2 of the eu Trafficking Directive (n 3).

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to a coercive/deceptive process, which involves his/her recruitment, transportation, transfer, harbouring or receipt, for the purpose of exploitation.10 One of the most important obligations imposed upon the States Parties to the CoE Trafficking Convention is the obligation of identifying victims of human trafficking. To that effect, Article 10(1) of the CoE Trafficking Convention prescribes that: Each Party shall provide its competent authorities with persons who are trained and qualified in preventing and combating trafficking in human beings, in identifying and helping victims, including children, and shall ensure that the different authorities collaborate with each other as well as with the relevant support organizations, so that victims can be identified in a procedure duly taking into account the special situation of women and child victims and, in appropriate cases, issued with residence permits under the conditions provided for in Article 14 of the present Convention [emphasis added]. Article 10(2) of the Convention adds that States ‘[…] shall adopt such legislative or other measures as may be necessary to identify victims […]’. Accordingly, States Parties to the CoE Trafficking Convention have to develop an identification infrastructure and to organize a procedure for victim identification. In other words, there needs to be a formal identification procedure conducted by mandated national authorities as designated by the national legal system. These national authorities will be entitled to confer the statuses of ‘a presumed victim of human trafficking’ and ‘a victim of human trafficking’. The modalities of the procedure are left for each State to determine. There are variations at the national level in terms of how the procedure is regulated (whether this is through laws adopted by the national parliament, policy guidelines and/or practices).11 There are also considerable variations between 10

11

There has been a debate as to whether human trafficking refers only to the process which might lead to exploitation or whether it can also cover the condition of being exploited. I adopt the position that it refers to the process. See J. Allain, Slavery in International Law. Of Human Exploitation and Trafficking (Martinus Nijhoff 2013) 355. For example, in Spain, a Framework Protocol for Protection of Victims of Human Trafficking sets out the procedure for identification and coordination between relevant authorities and institutions; accessed 6 December 2014. In Ireland, the procedure is regulated by Administrative Immigration Arrangements for the  Irish Naturalisation and Immigration Service. See ‘Administrative Immi­ gration  Arrangements for the Protection of Victims of Human Trafficking’ (undated)

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States Parties to the CoE Trafficking Convention concerning the national bodies which are mandated with the task of identifying victims. These could be the immigration authorities.12 In other countries, it is the prosecuting authorities.13 In some States Parties to the CoE Trafficking Convention, police units conduct the procedure.14 The choice made at the national level might depend on whether human trafficking is viewed more as an immigration control issue or as a law enforcement issue. The eu Trafficking Directive contains a provision aimed at ensuring the identification of victims of human trafficking: ‘Member States shall take the necessary measures to establish appropriate mechanisms aimed at the early identification of [victims] …’.15 Since this provision does not impose an obligation upon Member States to develop an identification procedure, the eu law standards are weaker than the standards established by the above quoted Article 10(2) of the CoE Trafficking Convention. The CoE instrument specifically requires the development of an identification procedure. In contrast, accessed 6 December 2014. In the United Kingdom (uk), the so called National Referral Mechanism is based on a policy. See The Anti-Trafficking Monitoring Group, Hidden in Plain Sight – Three Years On: Updated Analysis of uk Measures to Protect Trafficked Persons (Anti-Slavery International 2013) 12; P. Chandran, ‘The Identification of Victims of Trafficking’ in P. Chandran (ed), Human Trafficking Handbook: Recognizing Trafficking and Modern-Day Slavery in the uk (Lexis Nexis 2011) 27. In Norway there is no formal national identification system. Each authority and service provider can identify potential victims of trafficking in accordance with their own criteria. See the Group of Experts on Action against Trafficking in Human Beings (greta), Report Concerning the Implementation of the Council of Europe Convention on Action against Trafficking in Human Beings by Norway, greta (2013) 5, 7 May 2013, 10 and 31. 12 In the uk and Denmark, the immigration authorities identify migrants as victims of human trafficking. See uk Home Office, ‘Guidance for Competent Authorities’ (undated) accessed 6 December 2014; and greta, Report Concerning the Implementation of the Council of Europe Convention (n 11) paras 110 and 115. 13 In Bulgaria and in Belgium, the public prosecutor carries out formal identification. See greta, Report Concerning the Implementation of the Council of Europe Convention on Action against Trafficking in Human Beings by Belgium (2013) 14, 25 September 2013, para 129; greta, Report Concerning the Implementation of the Council of Europe Convention on Action against Trafficking in Human Beings by Bulgaria, greta (2011) 19, 11 December 2014, 35. 14 See greta, Report Concerning the Implementation of the Council of Europe Convention on Action against Trafficking in Human Beings by Spain (greta 2013) 16, 27 September 2013, paras 145 and 159. 15 Article 11(4) of the eu Trafficking Directive (n 3) [emphasis added].

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the eu Trafficking Directive simply refers to ‘appropriate mechanisms aimed at early identification’. Of central importance in the identification of victims of human trafficking is the question of whether and to what extent the CoE Trafficking Convention envisions a process of victim identification distanced from criminal investigation and prosecution. Another pressing question is whether the status of a victim of trafficking can be granted notwithstanding the formal role of the person in the criminal proceedings. The CoE Trafficking Convention seems to suggest, though not unequivocally, that the status of ‘a victim of human trafficking’ is detached from the formal role of the victim in the criminal justice system. The Explanatory Report to the Convention states that: ‘[t]he identification process provided for in Article 10 is independent of any criminal proceedings against those responsible for the trafficking’.16 Thus, the Explanatory Report suggests that the recognition of an individual as a victim of human trafficking and the provision of assistance and protection can take place prior to possible criminal investigation, prosecution and conviction for human trafficking. Accordingly, a migrant could be recognized as a victim of human trafficking even if there are no identified suspects, the criminal proceedings find the suspects not guilty as the prosecutor could not prove beyond reasonable doubt the elements of the crime of human trafficking or if the suspects are convicted for other crimes since not all elements of the crime of human trafficking could be proven in conformity with the required standard of proof. In sum, a migrant can be a victim of human trafficking regardless of whether an offender is identified, apprehended, prosecuted or convicted. Accordingly, it appears that the status of a victim of human trafficking must be detached from the status of a victim of crime with a formal role in the criminal investigation and prosecution process. It also appears that the status of a victim of human trafficking has to be detached from any criminal proceedings and criminal investigation. Still, the text of the CoE Trafficking Convention does not unambiguously preclude linking the identification of victims of human trafficking with criminal investigation and prosecution. As a result, there could be a convergence between, on the one hand, identification of victims of trafficking for the purposes of affording them assistance and protection and, on the other hand, the criminal investigation and prosecution process. The following two examples suffice to illustrate such cases. First, the CoE Trafficking Convention does not exclude the possibility that  victim identification is conducted exclusively as a facet of criminal 16

The Explanatory Report to the CoE Trafficking Convention, para 134.

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­investigation. Competent authorities that could identify victims of human trafficking include law enforcement agencies.17 As already mentioned, in some countries it is indeed the police, criminal investigating authorities or prosecuting authorities that have the sole authority to identify trafficked victims. Clearly, this identification is conducted in the context of the investigation of alleged crimes.18 The negative consequence of this is that the scope of migrants who are to be identified as victims of human trafficking might be restricted to victims who are useful to the investigation and prosecution process. The ultimate problem here is that, in the eyes of the national investigating and prosecuting authorities, a victim of trafficking exists, or, in other words, an individual might be recognized as a victim, only if he/she cooperates with the authorities in their investigation and prosecution of the crime. In a given State Party there might be no possibility for recognizing a person as a victim of trafficking solely for the purposes of affording him/her assistance; there might be a complete convergence between victim identification and the requirement of cooperation with the authorities. A situation in which an individual is recognized as a victim of human trafficking and is assisted, but does not cooperate with the authorities in relation to the investigation of the crime, might be rendered de facto impossible. Pursuant to this logic, if he/she does not cooperate, he/she would not be considered a victim of human trafficking. Similarly, a situation in which the migrant can be recognized as a victim without having any formal role in the criminal investigation and prosecution process might not be envisioned at national level. The second example in support of the above assertion that the status of a victim of human trafficking might be inherently linked with the person’s usefulness for the criminal proceedings relates to the so called ‘recovery and reflection period’. This period of at least 30 days is granted to persons who are presumed to be victims of human trafficking at the initial stage of the procedure for victim identification. Its rationale is to prevent the person’s deportation until a conclusive decision is reached as to whether he/she is indeed a victim. Article 13(1) of the CoE Trafficking Convention, which regulates the ‘recovery and reflection period’, is drafted in the following way: Each Party shall provide in its internal law a recovery and reflection period of at least 30 days, when there are reasonable grounds to believe 17 18

Ibid, para 129. In some countries, there is a clear disjunction between victim identification and criminal proceedings. In the uk, for example, guidance for the authorities competent to identify victims of human trafficking is very clear as to the different contexts (identification of victims versus crime investigation). See uk Home Office, Guidance for Competent Authorities (n 12).

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that the person concerned is a victim. Such a period shall be sufficient for the person concerned to recover and escape the influence of traffickers and/or to take an informed decision on cooperating with the competent authorities. During this period it shall not be possible to enforce any expulsion order against him or her.19 The first sentence of this provision requires States Parties to adopt national legislation that provides for the possibility of a reflection period of at least 30 days. It also appears to suggest that the period could be granted where there are ‘reasonable grounds to believe’ that a migrant is a victim of human trafficking. Notably, the provision does not provide that States shall grant this period where there are ‘reasonable grounds to believe’ that a migrant is a victim. The first sentence is not structured in such a way as to explicitly confer an individual entitlement corresponding to an obligation upon the State to unconditionally grant a reflection period. Accordingly, the question as to under what conditions the period has to be granted remains open. An answer could be found in the second sentence of the above quoted provision. The ‘and/or’ formulation in the second sentence of Article 13(1) of the CoE Trafficking Convention is particularly notable. It means that the length of the recovery and reflection period is to be determined by either of the stated conditions taken in isolation or cumulatively. This means, inter alia, that the CoE Trafficking Convention requires that the period be sufficient for the person to ‘recover and escape the influence of traffickers’. Thus, it could be argued that the duration of the period is dictated solely by the goal of protecting the individual, as distinct from the goals of any criminal investigation or prosecution which might commence or be underway. However, the reference to cooperation with the competent authorities in the second limb of this sentence is disturbing. The fact that national investigating and prosecuting authorities can be solely mandated to formally identify victims, combined with this reference to a victim of human trafficking taking ‘an informed decision on cooperating’ with them, is even more alarming. In fact, Article 13(1) of the CoE Trafficking Convention allows situations in which one would not get the status of a presumed victim without being of potential use to the criminal investigation process. The relevant eu law is even more troubling in this respect. Article 3(1) of the Residence Permit Directive assumes that the identification of victims of human trafficking is inherently linked with the criminal investigation process. This assumption is warranted in light of the purpose of the Directive, namely, 19

Emphasis added.

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to define the conditions in which third-country nationals can be granted a residence permit linked to the length of the criminal proceedings. As to the eu Trafficking Directive, as already mentioned above, this instrument contains a very brief and vague provision on victim identification. It stipulates that Member States have to take measures to establish appropriate mechanisms aimed at the early identification of victims.20 It is not clear whether there needs to be a distinctive legal status of a ‘victim of trafficking’ or how this status might be conferred. Therefore, the eu Trafficking Directive does not modify the above expounded analysis. In conclusion, the trafficking legal framework does not necessarily preclude a situation in which only migrants who are of use to criminal proceedings are qualified as presumed victims of human trafficking. This flaw is embedded in the legal framework itself. In particular, the CoE Trafficking Convention and eu law on human trafficking purport to simultaneously achieve two objectives: protection of victims and effective law enforcement. Ultimately, these objectives could conflict as it is difficult to achieve protection in a criminal law framework which is subject to its own rationales relating to effective law enforcement. 2.2 Return as the Standard Resolution for Victims of Trafficking The domination of the criminal law rationale in the human trafficking legal framework further manifests itself in the conditions under which victims of human trafficking can be issued residence permits. If the competent national authorities reach a conclusive decision that a migrant is a victim of human trafficking, Article 14(1) of the CoE Trafficking Convention stipulates that States have to issue a renewable residence permit: […] in one or other of the two following situations or in both: a. the competent authority considers that their stay is necessary owing to their personal situation; b. the competent authority considers that their stay is necessary for the purpose of their co-operation with the competent authorities in investigation or criminal proceedings.21 The above provision allows States to grant residence permits only in the second situation, that is, solely to those victims who co-operate with the relevant authorities. Issuance of residence permits in such cases is thus clearly related 20 21

Article 11(4) of the eu Trafficking Directive (n 3). Emphasis added.

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to the usefulness of the victim for the purposes of criminal proceedings. I will not dwell more upon the conditions under which a residence permit is granted and can be withdrawn. The central point which should be underscored is that once the person is no longer useful for the criminal process the permit can be terminated.22 A question deserving special attention in this respect concerns the fate of victims of trafficking who do not wish to cooperate, are not useful for criminal  proceedings or were involved in criminal proceedings that have been ­terminated. The arguments which emerge from my analysis below are that (i)  removal is the standard outcome awaiting victims of human trafficking, and (ii) the CoE Trafficking Convention has strengthened the obligations upon countries of origin to facilitate and accept the return of victims, thereby making removal, in fact, easier. Article 16(1) of the CoE Trafficking Convention stipulates that: The Party of which a victim is a national or in which that person had the right of permanent residence at the time of entry into the territory of the receiving Party shall, with due regard for his or her rights, safety and dignity, facilitate and accept, his or her return without undue or unreasonable delay. Thus, there is an obligation upon countries of origin, which are parties to the convention, to readmit their nationals. The repatriation dimension is further strengthened by the temporal obligation reflected in the expression ‘without undue or unreasonable delay’. Countries of origin are also obliged to issue, at the request of the sending State, ‘such travel documents or other authorization as may be necessary to enable the person to travel to and re-enter’ their territory.23 Therefore, facilitation of the removal and subsequent readmission of the individual to their country of origin are ensured. In sum, the CoE Trafficking Convention in effect takes the form of a readmission agreement.24 What obligations are imposed upon host countries in relation to the return of victims of human trafficking? Article 16(2) of the CoE Trafficking Convention provides that: 22

Article 14(3) of the CoE Trafficking Convention (n 2); Article 13(1) of the eu Residence Permit Directive (n 4). 23 Article 16(4) of the CoE Trafficking Convention (n 2). 24 G. Noll, ‘The Insecurity of Trafficking in International Law’ in V. Chetail (ed), Mondialisation, Migration et droits de l’homme: le droit international en question (Bruylant 2007) 356.

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When a Party returns a victim to another State, such return shall be with due regard for the rights, safety and dignity of that person and for the status of any legal proceedings related to the fact that the person is a victim, and shall preferably be voluntary.25 The formulation ‘shall preferably be voluntary’ appears self-contradictory. It is an unconditional obligation; however, at the same time, the return only needs to be ‘preferably’ voluntary. This provision ultimately implies that victims can be forcefully returned. 2.3 Conclusion Under the relevant legal framework, identification of a migrant as a victim of human trafficking is not construed as a channel for gaining legal migration status. Such identification is rather perceived as a way of ensuring the extraction of an individual from a harmful situation, provision of some basic assistance, the potential for initiating investigation and prosecution and, finally, subsequent repatriation to the country of origin. The identification of a migrant as a victim of human trafficking and the recognition that, in fact, that nature of the experienced harm qualifies as human trafficking is not viewed as an avenue for securing an individual’s right to remain in the country of destination. Clearly, host countries, in the exercise of their entitlement to determine who can stay on their territory, can remove migrants, including victims of human trafficking. The CoE Trafficking Convention facilitates this exercise by imposing readmission obligations upon countries of origin. While it is true that, from the perspective of a migrant, these obligations could be of assistance if he/she wishes to return, if he/she does not so the legal framework ensures that they can still be forcefully returned. 3 Victims of Human Trafficking as Applicants for International Protection 3.1 Referral to the International Protection Procedure Since the trafficking legal framework is useful for preventing the removal of victims only in very limited circumstances and for specific time duration, it can be expected that victims look to the possibilities offered under the procedure for granting international protection, which might prove more promising. 25

Emphasis added.

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Importantly, the human trafficking legal framework cannot function to the prejudice of the international protection framework. Article 40(4) of the CoE Trafficking Convention stipulates that: Nothing in this Convention shall affect the rights, obligations and responsibilities of States and individuals under international law, including international humanitarian law and international human rights law and, in particular, where applicable, the 1951 Convention and the 1967 Protocol relating to the Status of Refugees and the principle of non-refoulement as contained therein. In addition, Article 14(5) of the CoE Trafficking Convention stipulates that granting a permit to migrants in their capacity as victims of trafficking who cooperate with the authorities in the context of criminal proceedings or due to their ‘personal situation’ ‘shall be without prejudice to the right to seek and enjoy asylum’. Accordingly, national legislation which presents migrants with the choice to either opt to be identified as a victim of human trafficking or to enter the procedure for determining their international protection needs is in violation of the above quoted provision.26 In addition to the safeguards in the CoE Trafficking Convention, the right to asylum under Article 18 of the eu Charter is also of importance. Gil-Bazo has convincingly argued that the right to be granted asylum has become a subjective and enforceable right of individuals under the eu legal order.27 Therefore, barring victims of human trafficking from applying for international protection is also not in conformity with the eu Charter. The eu Trafficking Directive incorporates important provisions which link the procedure for the identification of victims of human trafficking with the procedure for determination of international protection needs. The combined interpretation of Article 11(2), Articles 11(5) and 11(6) of the eu Trafficking 26

27

It has been reported that in some countries, like Ireland and Norway, the initiation of the procedure for identification as a victim of human trafficking and the granting of a reflection period is considered as incompatible with filing an application for international protection. C. Smith, Identification and Assistance of Victims of Human Trafficking in Ireland: An Article 4 echr Analysis (Irish Refugee Council 2012). See also Immigrant Council of Ireland, Asylum Seeking Victims of Human Trafficking in Ireland: Legal and Practical Challenges (Immigrant Council of Ireland 2011) accessed 6 December 2014. M. Gil-Bazo, ‘The Charter of Fundamental Rights of the European Union and the Right to be Granted Asylum in the Union’s Law’ (2008) 27(3) rsq 33.

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Directive has the following effect: as soon as the competent authorities have ‘a reasonable-grounds indication for believing’ that the migrant is a victim of human trafficking and/or when the migrant has been identified as a victim of human trafficking, Member States are under an obligation to inform him/her of the possibility of being granted international protection pursuant to the eu Qualification Directive, the eu Asylum Procedures Directive, or pursuant to other international instruments or other similar national rules. The above obligation, however, is weakened by the introduction of the expression ‘where relevant’ in Article 11(6) of the eu Trafficking Directive. Therefore, presumed victims of trafficking have to be informed ‘where relevant’ about the possibilities offered by the international protection framework. The addition of the expression ‘where relevant’ opens up scope for discretion on the part of national authorities. Still, the explicit mention of the eu asylum legislation might facilitate the referral of victims and presumed victims of trafficking to the procedure for determining their international protection needs. The eu Recast Asylum Procedures Directive does not contain a provision to the effect that applicants for international protection need to be informed of the possibility for a reflection period under the eu Residence Permit Directive and/or the possibility of being assisted as victims or presumed victims of human trafficking pursuant to the eu Trafficking Directive. Therefore, no link is made with the protection and the assistance provided under the human trafficking framework. This implies that there might be applicants for international protection who may not be properly referred to the procedure for identifying victims of trafficking. This in turn poses the danger that the assistance and protection measures envisioned for victims of human trafficking might not be granted in addition to those provided to asylum seekers who have applied for international protection. I will revert to this point later in the Chapter. 3.2 Identification within the International Protection Procedure The eu Recast Reception Directive has introduced the concepts of ‘vulnerable persons’ and ‘applicants in need of special procedural guarantees’. Crucially, the Directive explicitly lists victims of human trafficking as a group of ‘vulnerable persons’.28 Accordingly, in the context of the eu Recast Reception Directive, the status of victim of human trafficking has been recognized as a specific legal category to which specific benefits are attached. In addition, the eu Recast Procedures Directive has introduced the category of ‘applicant 28

Under the first generation instruments of the Common European Asylum System, victims of human trafficking were not explicitly listed as vulnerable persons. See Article 17 of the Reception Conditions Directive 2003/9/EC (OJ L 31/18, 6 February 2003).

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in need of special procedural guarantees’. Victims of human trafficking could also fall within the latter group of applicants. Two questions become relevant at this junction. First, how victims of human trafficking are to be identified within the international protection procedure, and whether and how this identification relates to the identification procedure under the human trafficking legal framework. Second, once an applicant for international protection has been successfully identified as a victim of human trafficking, what relevance and significance might this have in terms of (i) reception conditions, (ii) procedural guarantees, and (iii) the application of the Dublin mechanism. Prior to discussing the above mentioned questions, one point on the scope of the forthcoming analysis needs to be made. I do not plan to engage in an extensive investigation of eu law relating to reception conditions, status determination procedures and Dublin transfers. Rather, this investigation is limited to important points in relation to victims of human trafficking as a category of ‘vulnerable persons’ who might be in need of special reception conditions or special procedural guarantees, as envisioned by the second generation of eu asylum legislation. 3.2.1 The eu Recast Reception Directive – Victims of Trafficking as a Distinct Group of ‘Vulnerable Persons’ Article 21 of the eu Recast Reception Directive introduces the concept of ‘vulnerable persons’. Victims of human trafficking are listed as vulnerable persons together with minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children, persons with serious illness or mental disorders and those who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence, such as victims of female genital mutilation. Since Article 21 of the Recast Reception Directive uses the expression ‘such as’, it could be implied that the above simply enumerates examples. In support of this argument, one can contrast Article 21 of the Recast Reception Directive with Article 3(9) of the Return Directive.29 In comparison with the Recast Reception Directive, the Return Directive defines the group of vulnerable persons in an exhaustive way and therefore, the list contained therein is closed. As the relevant provision of the Return Directive stipulates, ‘“vulnerable persons” means minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with

29

Directive 2008/115/EC of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, OJ L 348/98, 24 December 2008.

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minor children and p ­ ersons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence’. However, Article 22(3) of the Recast Reception Directive sits at odds with the open-ended list contained in Article 21 of the Directive. Article 22(3) stipulates that: Only vulnerable persons in accordance with Article 21 may be considered to have special reception needs and thus benefit from the specific support provided in accordance with this Directive. Article 22(3) of the Recast Reception Directive sits uncomfortably with an open-ended notion of vulnerability and the openness of the category of ‘vulnerable persons’. Ultimately, the effect of Article 22(3) is that Member States may decide that only those groups explicitly listed in Article 21 can be defined as vulnerable. Member States can decide that it is not possible, pursuant to their national legislation, to qualify any asylum seeker as vulnerable for he/she has to first fall within one of the categories of vulnerable persons. If a Member State chooses to have an open list of vulnerable groups, then there needs to be profound discussion as to the meaning of vulnerability and how vulnerability is linked with special reception needs. Since this might be a complicated exercise, vulnerability might be seen as predetermined. In this case, national authorities will need to establish whether a person falls within predefined groups of vulnerable persons. Thus, a group-based understanding of vulnerability will be applied.30 In sum, since it might be the case that not all asylum seekers will be con­ sidered vulnerable, special reception conditions might be afforded only to these  limited groups of persons.31 Significance therefore attaches to the 30

31

A provision similar to Article 22(3) of the eu Recast Reception Directive (n 5) was not included in the drafts for a recast directive submitted by the Commission respectively in 2008 and 2011. Thus, Article 22(3) was added relatively late in the drafting process. See eu Commission, Proposal for a Directive of the European Parliament and of the Council Laying Down Minimum Standards for the Reception of Asylum Seekers (Recast), com(2008) 815 final, 3 December 2008 (Proposal for a Recast Reception Directive). See also eu Commission, Amended Proposal for a Directive of the European Parliament and of the Council Laying Down Standards for the Reception of Asylum Seekers (Recast), com(2011) 320 final, 1 June 2011 (Amended Proposal for a Recast Reception Directive). I should not be misunderstood to be stating that Member States can disregard the list of vulnerable persons in the Recast Reception Directive. I am elaborating here on the assertion that Member States can treat the list as closed and so ultimately exclude some a­ sylum seekers from the scope of vulnerable persons if they do not fall within the listed categories.

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i­ dentification of an applicant as a victim of human trafficking, as the applicant will need to fit into this category in order to be viewed as vulnerable and in need of the special reception conditions offered by the Directive.32 Article 22(1) of the eu Recast Reception Directive introduces another concept: ‘applicant with special reception needs’. Clearly, there is a difference between the two categories of ‘vulnerable persons’ and ‘applicants with special reception needs’. An applicant for international protection might fall within the first category, but does not necessary fall within the second. In the logic of the eu Recast Reception Directive, not all vulnerable persons have special reception needs. However, in any case one needs to be qualified as a vulnerable person in order to be considered to be an applicant with special reception needs. To that effect, Article 2(k) of the eu Recast Reception Directive defines an ‘applicant with special reception needs’ as ‘a vulnerable person, in accordance with Article 21, who is in need of special guarantees in order to benefit from the rights and comply with the obligations provided for in this Directive’.33 Article 22(3) of the eu Recast Reception Directive also supports the division between the two categories. Pulling the threads together, an applicant needs to be assessed as belonging to one of the groups of vulnerable persons. It then needs to be determined whether he/she has special reception needs. Therefore, the eu Recast Reception Directive incorporates a two-stage process.

32

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For example, actors have voiced concerns about the limited understanding of vulnerability since ‘[o]ther factors, such as the physical and psychological impact of the journeys undertaken prior to arrival, or the negative effect that life in the reception phrase or in detention might have in itself, are systematically ignored despite the fact that they often lead to situations of vulnerability’. See European Council on Refugees and Exiles (ecre), ecre Proposals for Revisions to the ec Directive on the Reception of Asylum Seekers (ecre 2008) 14. At the same time, it needs to be also emphasized that if an applicant turns into an applicant with special reception needs at a later stage in the asylum procedure, Member States are under an obligation to ‘ensure that those special reception needs are also addressed’. See the third sentence of Article 22(1) of the eu Recast Reception Directive (n 5). What follows from this sentence is that if an applicant has developed a serious illness or mental disorder during the reception stage or while in detention pending the examination of his/her application, he/she may still fall within the category of vulnerable persons and there needs to be an assessment as to whether he/she has special reception needs. This assertion should not be misunderstood as a rejection of the possibility that an applicant who has suffered ‘serious forms of psychological, physical or sexual violence’ cannot fall within the group of vulnerable persons. Rather, what I try to highlight is that if the inclusion of the distinct category of victims of human trafficking in the list of vulnerable persons is to make any sense, then an applicant will have to be identified as a victim of human trafficking. Emphasis added.

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Article 22(1) of the eu Recast Reception Directive imposes an obligation upon Member States to ‘assess whether the applicant is an applicant with special reception needs’. Article 22(2) of the Directive adds that ‘[t]hat assessment shall be initiated within a reasonable period of time after an application for international protection is made’. Thus, the overall objective is not identifying vulnerable persons as such. The objective is rather identifying ‘applicant[s] with special reception needs’. Interestingly, the eu Recast Reception Directive does not even impose an explicit obligation upon Member States to identify vulnerable persons. This gap could create a paradoxical situation. On the one hand, certain groups are defined as vulnerable and, in addition, only these groups ‘may be considered to have special reception needs’. As a consequence, a group-based approach to vulnerability has been endorsed. On the other hand, Member States are not even formally obliged to assess the applicants’ vulnerabilities and to determine whether they belong to these vulnerable groups. It can be argued that the obligation of identifying persons as vulnerable is implied from the obligation of identifying persons with special reception needs. In this way, the above depicted paradoxical situation can be avoided. Still, in the logic of the eu Recast Reception Directive, the objective does not seem to be identification of victims of human trafficking as such. In fact, this ought to be the objective sought within the human trafficking legal framework; although, as argued in Section 1 above, that objective is not truly served since the identification is reduced to identification of ‘useful’ witnesses. The aim of the eu Recast Reception Directive in contrast focuses on identifying applicants for international protection who, in light of vulnerabilities or traumatic experiences, are in need of special reception conditions. There is another source of contradiction in the eu Recast Reception Directive. On the one hand, this instrument does not explicitly provide for assessment of whether applicants are vulnerable persons. On the other hand, certain benefits are attached precisely to the category of ‘vulnerable persons’34 and not to the category of applicants with special reception needs. This is illogical. The provisions in the Directive can make sense if, as submitted above, an implied obligation of identifying vulnerable persons is also imposed. There are further reasons, particularly relevant to victims of human trafficking, which render the meaning of these different categories – i.e. vulnerable persons, applicants with special reception needs and victims of human ­trafficking – confusing. It can certainly be argued that all victims of human 34

See, for example, Article 11(1) of the eu Recast Reception Directive (n 5) which regulates the issue of detention. See Section 3.3.1 below where I address the issue of detention in more details.

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­trafficking have gone through traumatic experiences. However, there is something peculiar about the category of victims of human trafficking which distinguishes it from all the other vulnerable persons enumerated in Article 21 of the eu Recast Reception Directive. The vulnerability of the other groups enumerated is more immediately identifiable or is a matter of assessing the current condition of the applicant. This is not to imply that age assessment (to establish whether an individual falls within the vulnerable group of minors) is easy, or that victims of torture or rape or asylum seekers with mental disabilities are readily visible.35 Rather, my argument tries to draw the reader’s attention to the legal definition of human trafficking, which denotes certain peculiarities of the group of human trafficking victims. In other words, we need to be sensitive to the following question: what do we mean by ‘victims of human trafficking’? In what follows, I submit that the legal complexity of the category of victims of human trafficking might de facto block its application under the special protection framework of the eu Recast Reception Directive. Pursuant to the legal definition endorsed by the CoE Trafficking Convention and the relevant eu law, to qualify as a victim of human trafficking a migrant must have been subjected to a coercive/deceptive process for the purpose of exploitation. It is not necessary that he/she has been actually exploited.36 There is little certainty as to the level of coercion or deception required for a migrant to be categorised as a victim of trafficking.37 It is similarly unclear what ‘exploitation’ in the context of human trafficking actually means.38 ‘Exploitation’ can refer to any engagement in prostitution, including voluntary prostitution.39 ‘Exploitation’ can also refer to severe forms of abuse amounting  to slavery, servitude and forced labour. The open-ended nature of the 35 36 37 38 39

C. Straimer, ‘Vulnerable or Invisible? Asylum Seekers with Disabilities in Europe’ (2010) 194 unhcr, New Issues in Refugee Research Series. A. Gallagher, The International Law of Human Trafficking (cup 2012) 25–34. J. Davidson and B. Anderson, ‘The Trouble with Trafficking’ in C. van den Anker and J. Doomernik (eds), Trafficking and Women’s Rights (Palgrave McMillan 2006) 11. Noll, ‘The Insecurity of Trafficking’ (n 24) 356. At the time when the definition of human trafficking was adopted, the ‘purpose’ element was defined as exploitation so that conflicting positions in relation to the involvement of women in prostitution could be accommodated. See V. Munro, ‘A Tale of Two Servitudes: Defining and Implementing a Domestic Response to Trafficking of Women for Prostitution in the uk and Australia’ (2005) 14 Soc & Leg Stud 91; J. Doezema, Sex Slaves and Discourse Masters the Construction of Trafficking (Zed Books 2010); K. Kempadoo, ‘From Modal Panic to Global Justice: Changing Perspectives on Trafficking’ in K. Kampadoo (ed), Trafficking and Prostitution Reconsidered New Perspectives on Migration, Sex Work, and Human Rights (Paradigm Publishers 2005).

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d­ efinition of human trafficking undermines its effectiveness in reflecting the gravity of abuses which migrants might experience. Notably, most applicants for international protection use the services of smugglers to access eu territory.40 This can involve truly traumatic experiences, including physical violence, rape, loss of family members etc., and can be even more traumatic than being deceived and forced to migrate to the eu for the purpose of exploitation. In this sense, smuggled migrants who apply for international protection might be as vulnerable as victims of human trafficking. Accordingly, the category of victims of human trafficking might make little sense. It would make sense if it referred to migrants who have been subjected to ‘rape or other serious forms of psychological, physical or sexual violence’. However, these migrants in any case fall within the group of vulnerable persons. In addition, all migrants are exposed to these dangers in the process of travelling towards the eu and once within the eu territory; these threats are not unique to victims of human trafficking.41 Thus, it could be argued that the category of victims of human trafficking has no specific added value. In fact, it could even be detrimental for at least three reasons. First, the category of victims of trafficking is always used in opposition to the category of smuggled migrants, based on the dubious premise that, in contrast to trafficked victims, smuggled migrants do not experience harm.42 This point is of course without prejudice to the possibility that smuggled migrants can fall within the category of vulnerable persons as applicants who have been subjected to forms of violence. For present purposes, the point I try to highlight here is that the overly simplistic dichotomy between trafficking victims and smuggled migrants poses the danger of dismissing the vulnerability of smuggled migrants. 40 41

42

J. Morrison and B. Crosland, ‘The Trafficking and Smuggling of Refugees: The End Game in European Asylum Policy?’ (2001) 39 unhcr, New Issues in Refugee Research Series. There are further issues as to what exactly a victim of human trafficking means. The category could cover persons who have been trafficked into the eu and who subsequently apply for international protection. It could also cover persons who have been trafficked into third countries, then enter the eu and apply for international protection therein. Human trafficking is always defined in opposition to human smuggling. It is constantly emphasized that victims of trafficking are different from smuggled migrants. At the same time, it is also always noted that it is difficult to maintain the distinction between human trafficking and human smuggling. See J. Bhabha, ‘Border Rights and Rites: Generalisations, Stereotypes and Gendered Migration’ in S. van Walsum and T. Spijkerboer (eds), Women and Immigration Law. New Variations on Classical Feminist Themes (Routledge 2007) 15, 27.

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Second, historically, the category of victims of human trafficking is intimately linked with the experiences of migrant prostitutes.43 This continues to be the case, although theoretically all migrants, including, for example, those working in the construction industry, could also meet the international law definition of trafficking. Nevertheless, sexual exploitation continues to be the focal point of attention. This assertion should not be accepted as a denial of the severe forms of harm that migrant prostitutes experience. Rather, I try to  draw attention to the fact that migrant women have been the dominant signifier in the assessment of whether or not a person is a victim of human trafficking. As a consequence, migrants who experience other forms of harm might be invisible. Third, a migrant who has voluntarily migrated without being deceived or coerced, but who subsequently finds herself/himself in extremely abusive working conditions is not considered to be a victim of human trafficking under the relevant legal framework. I should again underscore that the definition of human trafficking refers to a deceptive or coercive process which might or might not lead to exploitation, not to the actual exploitation itself.44 In light of the above criticisms, one might choose to approach Article 21 of the eu Recast Reception Directive differently and assume that victims of human trafficking refers to migrants who have been subjected to severe forms of abuses like slavery, servitude and forced labour. The category would therefore be limited to applicants who have suffered ‘serious forms of psychological, physical or sexual violence’. If this were the case, however, the definition of the category needs to be changed as these are not necessarily victims of human trafficking; rather these could be other migrants subjected to slavery, servitude or forced labour. To summarise, in many respects it is hard to give substance to the label of a victim of human trafficking. Most notably, there is indeterminacy as to the threshold of coercion, deception and exploitation that needs to be satisfied. In fact, the complexity of the category of victims of human trafficking might pose a substantial obstacle to its application under the special protection framework of the eu Recast Reception Directive. This simply adds to the overall confusing categorisations of ‘vulnerable persons’ and ‘applicants with special reception needs’ and the perplexing relations between them.

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E. Bruch, ‘Models Wanted: The Search for an Effective Response to Human Trafficking’ (2004) 40(1) Stan J Int’l L 1. J.C. Hathaway, ‘The Human Rights Quagmire of “Human Trafficking”’ (2008) 49(1) Va J Int’l L 1.

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3.2.2 Divergence or Convergence of the Assessment Procedures Ignoring the above outlined problems and assuming that the category of victims of human trafficking encompasses vulnerable persons who have gone through severe forms of physical or psychological harm, the issue that needs to be confronted is how to identify these people. As submitted above, there is no obligation under the eu Recast Reception Directive for identifying vulnerable persons. Yet in practice, in order for Articles 21 and 22 of the Directive to make sense, an applicant for international protection might have to be assessed as a victim of human trafficking in order to fall within the category of ‘vulnerable persons’. Once within that category, it then needs to be assessed whether he/she has special reception needs. This two pronged approach to assessment might have to be severed from the identification procedure envisioned under the human trafficking legal framework (see Section  2 above) as these two assessment procedures are conducted for different purposes and might lead to different outcomes. In very simple terms, the investigating authorities and/or the prosecutor are likely to qualify a person as a victim of human trafficking in relation to criminal proceedings that have been initiated. In contrast, within the procedure for determining international protection needs, the assessment should be independent from any concept of the usefulness of the applicant for criminal proceedings. Yet, the eu Recast Reception Directive does not preclude linking such an assessment with existing national procedures for identifying victims of human trafficking. The second paragraph of Article 22(1) of the eu Recast Reception Directive says that the assessment ‘may be integrated into existing national procedures’. Therefore, a convergence between the two procedures is not excluded. Some advantages which accrue from separating the assessment of whether an applicant is a victim of human trafficking within the international protection procedure from the identification of victims of human trafficking under the human trafficking legal framework have previously been mentioned. More specifically, I suggested that the pitfalls incorporated in the identification ­procedure under the trafficking framework could be avoided. Are there any disadvantages? There could be. First, there is no uniform status of a victim of human trafficking, since different bodies at the national level can make identifications and assessments in pursuance of their own objectives. This sits uncomfortably with the objective of having a legal system which strives for consistency and coherency. The second disadvantage, however, appears more troubling. Applicants for international protection might not be referred to the protection and assistance measures under the human trafficking legal framework, which may, in some

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respects, go beyond what is available under the eu Recast Reception Directive.45 Victims of trafficking might need additional assistance from law enforcement authorities. And finally, without being referred to the assistance and protection measures under the human trafficking legal framework which inter alia envisions suspension of deportation under certain circumstances, victims of trafficking might be subjected to Dublin transfers. The last section of this Chapter will further elaborate on the compatibility between the Dublin mechanism and Member States’ positive obligations under the human trafficking legal framework. Thus, at this stage, this issue recedes to the background in order to reappear later in the text. Finally, there might be a third way of approaching the relationship between the identification procedure under the human trafficking framework and the assessment procedure under the international protection framework. This alternative could materialise if the national authorities which conduct refugee status determination are authorised to grant applicants for international protection the status of victims of human trafficking. Once that status is granted, all positive obligations in relation to victims of human trafficking under the CoE Trafficking Convention, the eu Residence Permit Directive and the eu Trafficking Directive could thus be triggered. In this way, it can be ensured that the applicant benefits simultaneously from both legal frameworks. This would be the most favourable solution. To recap, the assessment of whether an applicant is a victim of human trafficking within the procedure for determining his/her protection needs could be severed from the identification done at the national level in relation to States’ obligations under the human trafficking legal framework. The latter identification serves different purposes from the former. This split between the two identification procedures has clear advantages: the assessment as to whether the applicant is a victim of human trafficking is independent from his/her usefulness for any criminal proceedings. It might also have disadvantages: victims of human trafficking who have applied for international protection might not benefit from the assistance and protection measures that exist under the human trafficking legal framework unless they are also recognized 45

See Section 3.3 below, where I conclude that, in relation to certain areas, the human trafficking legal framework does not offer a higher level of protection than the international protection framework. However, there could be other areas where this might not be the case. For example, pursuant to Article 26 of the CoE Trafficking Convention (n 2) and Article 8 of the eu Trafficking Directive (n 3), under certain circumstances victims of human trafficking must not be criminally punished for their involvement in criminal activities committed in relation to the trafficking.

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as victims by the competent authorities under the latter framework. Clearly, the best solution would be if victims of trafficking could benefit from both legal frameworks. This could be ensured if the national authorities which conduct refugee status determination are also mandated with the task of granting the status of a victim of human trafficking. 3.2.3 The eu Recast Reception Directive – Assessment of ‘Special Reception Needs’ If this latter suggestion is endorsed, and national authorities which conduct refugee status determination are also mandated with the task of granting the status of a victim of human trafficking, then a question that requires more careful consideration is whether the Recast Reception Directive imposes any procedural standards in relation to the assessment procedure. Does the Directive guarantee better standards than those imposed by the human trafficking legal framework? Article 22(2) of the Recast Reception Directive stipulates that an assessment ‘needs not take the form of an administrative procedure’.46 The Directive leaves the modalities as to how the assessment is to be conducted to the discretion of Member States. The eu Recast Reception Directive lays down very few requirements as to the quality of the assessment procedure. In fact, the drafting history of the Directive illustrates a clear intent to limit the rigour of any identification obligations. Initially, the Commission proposed that Member States had to ‘establish procedures in national legislation with a view to identifying […] whether the applicant has special needs […]’.47 This was then weakened and reformulated as an obligation of establishing ‘mechanisms with a view to identify whether the applicant is a vulnerable person’.48 In its final version, Article 22(1) of the Recast Reception Directive simply refers to an assessment of whether an applicant has special reception needs.49 It is also noteworthy that procedural guarantees within the assessment ­procedure are not envisioned in the Recast Reception Directive. This lacuna 46 47 48 49

Emphasis added. eu Commission, Proposal for a Recast Reception Directive (n 30) 30 [emphasis added]. eu Commission, Amended Proposal for a Recast Reception Directive (n 30) 33 [emphasis added]. Thus, it is questionable whether the main concern in relation to the application of Article 17 of the first generation instrument has been adequately addressed. This concern was that in its previous version the Reception Directive did not expressly require Member States to establish a procedure for identifying vulnerable asylum seekers. See L. de Bauche, Vulnerability in European Law on Asylum: A Conceptualization under Construction (Bruylant 2012) 11.

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corresponds with one of the deficiencies in the procedure for identifying migrants as victims of human trafficking under the CoE Trafficking Convention. The latter does not envision procedural guarantees, a situation which can lead to arbitrary decisions as to whether a migrant is a victim of human trafficking. While the following analysis will focus on the absence of procedural guarantees in the assessment of the special reception needs of victims of human trafficking under the eu Recast Reception Directive, it is also of relevance to keep in mind the comparable absence of procedural guarantees in the human trafficking legal framework. The latter testifies to the difficulties which vulnerable applicants might face in order to receive assistance corresponding to their specific needs. The first procedural issue of significance is what triggers the assessment of whether an applicant has special reception needs. It can safely be argued that the second paragraph of Article 22 of the eu Recast Reception Directive requires such an assessment to be triggered automatically. Therefore, each applicant for international protection will have to be automatically screened in order to determine whether he/she has special reception needs. Thus, the eu Recast Reception Directive offers a very favourable solution. However, this initial optimism fades away upon further reading of the provision. The assessment has to be made ‘within a reasonable time after an application for international protection is made’. This formulation provides Member States with considerable flexibility as to when the assessment can begin. The test of reasonableness might imply that the initiation of the assessment is contingent on the resources of each Member State. It might also require different timing for the different groups of ‘vulnerable persons’. For example, the reasonable timeframe for initiating such an assessment might not be the same in the case of a pregnant woman or a single parent with minor children as opposed to a case that concerns victims of human trafficking. As is evident from the changes introduced in the process of recasting Article 22 of the eu Reception Directive, Member States were keen to preserve this flexibility.50 Another procedural issue of importance is whether an applicant can appeal a negative assessment. If the authorities determine that an applicant for international protection is not a victim of trafficking and thus he/she has no special reception needs, is he/she entitled to appeal this determination? The text of the eu Recast Reception Directive does not provide for such an entitlement.51 50

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Pursuant to the proposal initially submitted by the Commission, an assessment was required ‘as soon as an application for international protection is lodged’. See eu Commission, Proposal for a Recast Reception Directive (n 30) 30. Article 26(1) of the Recast Reception Directive (n 5) stipulates that decisions relating to the granting, withdrawal or reduction of benefits under the directive may be the subject

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Despite the silence of the Directive in this respect, there are robust arguments supporting the position that the right to good administration, as prescribed by Article 41 of the eu Charter, requires Member States to incorporate procedural guarantees for applicants in relation to an assessment of whether they belong to the group of ‘vulnerable persons’ and to the group of ‘applicants with special reception needs’.52 In other words, the eu Charter can be employed in interpreting the eu Recast Reception Directive in such a way so that it can guarantee greater protective standards. Article 51(1) of the eu Charter provides that the Charter is addressed to Member States when they are ‘implementing European Union law’. The meaning of ‘implementing European Union law’ is yet to be settled. The leading authority to date on Article 51(1) of the eu Charter with respect to Member States is Åklagaren v Hans Åkerberg Fransson.53 According to this Judgment, when a Member States passes a measure for the purpose of implementing a provision of eu law, and an issue falling within the material scope of a Charter’s provision arises in relation to the national measure, the application of the Charter is triggered. What is pertinent for present purposes is that when Member States take decisions on whether applicants belong to the group of vulnerable persons with special reception needs, they act within the scope of eu law, and more specifically they implement their obligations under the Recast Reception Directive. Crucially, under Article 41(2)(a) of the eu Charter, an applicant for international protection has the right to be heard before any

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of an appeal. This does not refer to assessments as to whether an applicant is a ‘vulnerable person’. Yet, it can be envisioned that within the framework of appealing a decision regarding the granting of benefits, arguments about the applicant’s status as a vulnerable person with special reception needs could be submitted. It has been argued that the right to good administration, as a general principle of eu law, is applicable to Member States and not only to ‘institutions, bodies, offices and agencies of the Union’ as the text of Article 41 of the eu Charter suggests (Charter of Fundamental Rights of the European Union, OJ C 364/01, 18 December 2000 (entry into force: 1 December 2009)). For example, Advocate General Kokott has asserted that ‘Article 41 of the Charter of Fundamental Rights does not just contain rules of good administration by the institutions but documents a general principle of law, which authorities of Member States too must observe when applying Community Law’. See Case C-75/08 Christopher Mellor v Secretary of State for Communities and Local Government [2009] ecr I-03799, para 33. See also the opinion of Advocate General Bot: ‘although the wording of Article 41(1) of the Charter refers to relations between individuals and “institutions, bodies and agencies of the Union,” I think that the right to good administration is incumbent in the same way on the Member States when they are implementing eu law’. See Case C-604/12 hn v Minister for Justice, Equality and Law Reform (cjeu, 7 November 2013) para 36. Case C-617/10 Åklagaren v Hans Åkerberg Fransson (cjeu, 26 February 2013) para 20.

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individual ­measure is taken which would adversely affect him/her. A negative decision to the effect that an applicant is not in need of special reception conditions clearly has adverse consequences for the individual involved. Therefore, he/she should have access to mechanisms through which he/she can voice reasons as to why the decision should be reconsidered. The submission of such arguments by the applicant is related to the obligation upon the authorities to give reasons for their own negative decision, as imposed by Article 41(2)(a) of the eu Charter. Another procedural issue which relates to the assessment of the reception needs of applicants who could be victims of human trafficking concerns the relevant standard of proof, namely, what standard of proof should national authorities apply when considering whether an applicant is a victim of human trafficking? Cleary such a standard should be lower than ‘beyond reasonable doubt’, the criminal law standard for the purposes of conviction. It could be suggested that the standard of ‘reasonable grounds to believe’ or, as the eu Trafficking Directive frames it, ‘reasonable grounds indication’, could be used. These standards are referred to in the CoE Trafficking Convention and the eu Trafficking Directive only for the preliminary stage of the victim identification procedure. These instruments do not indicate the standard of proof for the conclusive decision. Ultimately, therefore, national authorities are left to determine the evidential threshold for such decisions. In conclusion, each Member State can decide how to assess whether applicants for international protection are victims of human trafficking with special reception needs. The eu Recast Reception Directive imposes no limitations on Member States which might enhance the quality of the assessment procedure. There are robust arguments, though, that Article 41 of the eu Charter, which incorporates the right to good administration, could have restraining functions in this respect.54 3.2.4 The eu Recast Asylum Procedures Directive – Assessment of the Need for ‘Special Procedural Guarantees’ The eu Recast Asylum Procedures Directive introduces the concept of an ‘applicant in need of special procedural guarantees’. Pursuant to Article 2(d) of the Directive, an applicant in need of special procedural guarantees is ‘an applicant whose ability to benefit from the rights and comply with the 54

It should be briefly noted that Article 41 of the eu Charter (n 52) is also relevant when Member States implement their obligations under Article 11(4) of the eu Trafficking Directive (n 3). The latter provision requires Member States to ‘take the necessary measures to establish appropriate mechanisms aimed at the early identification of […] ­victims [of human trafficking]’.

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­obligations provided for in this Directive is limited due to individual circumstances’. Applicants with special procedural needs are to be distinguished from applicants with special reception needs. For example, a person might have special reception needs without being in need of special procedural guarantees. Recital 29 of the eu Recast Asylum Procedures Directive provides useful illustrations that can be used as indicators for assessing whether an applicant is in need of special procedural guarantees: Certain applicants may be in need of special procedural guarantees due, inter alia, to their age, gender, sexual orientation, gender identity, disability, serious illness, mental disorders or as a consequence of torture, rape or other serious forms of psychological, physical or sexual violence. The label ‘victims of human trafficking’ is not explicitly mentioned here. This might have advantages since an applicant does not need to be labelled as a victim of human trafficking in the first place. Rather, applicants who have undergone ‘serious forms of psychological, physical or sexual violence’, whether or not they are victims of human trafficking, might be considered in need of special procedural guarantees. In contrast to the Recast Reception Directive, the Recast Asylum Procedures Directive does not introduce a separate concept of ‘vulnerable persons’ and, accordingly, there is no enumeration of distinct groups who should be considered to be vulnerable. It needs to be briefly mentioned that it indirectly refers to the notion of vulnerable groups as defined in the Recast Reception Directive. In particular, Article 31(7)(b) of Recast Asylum Procedures Directive stipulates that Member States ‘may prioritise an examination of an applicant’ assessed to be an applicant with special reception needs. The Recast Directive also uses the concept of vulnerability in relation to the conditions under which a personal interview with the applicant has to be conducted.55 Specifically, Member States have to ensure that the person who conducts the interview is competent to take account of the vulnerability of the applicant. Although it does not introduce a separate category of ‘vulnerable persons’, under Article 24(1) of the eu Recast Asylum Procedures Directive, Member States are obliged to assess whether the applicant for international protection is in need of ‘special procedural guarantees’. There needs to be an automatic assessment within a reasonable period of time after an application is made. The Preamble of the Directive recommends that ‘Member States should endeavour to identify applicants in need of special procedural guarantees 55

Article 15(3)(a) of the Recast Asylum Procedures Directive (n 5).

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before a first instance decision is taken’.56 Where special procedural needs become apparent at a later stage of the procedure, Member States shall address these needs, without necessarily restarting the procedure.57 It is not necessary that Member States have distinct procedures for assessing whether applicants are in need of special procedural guarantees. They might integrate the assessment into existing national procedures, including into the assessment under the eu Recast Reception Directive of applicants with ‘special reception needs’. The assessment also does not need to take the form of an administrative procedure. In sum, the modalities of the procedure are left for each State to determine.58 In conclusion, in a similar fashion to the assessment of ‘special reception needs’ under the Recast Reception Directive, the Recast Asylum Procedures Directive imposes no restraints on Member States which might enhance the quality of the procedure to assess the needs of applicants for special procedural guarantees. 3.2.5 Conclusion Certain deficiencies might hamper the achievement of the objective of affording special reception conditions and procedural guarantees to vulnerable applicants, including victims of human trafficking. First, the eu Recast Reception Directive and the eu Recast Asylum Procedures Directive do not impose an obligation upon Member States to identify vulnerable persons. This is prone to create paradoxical situations. On the one hand, certain groups are defined as vulnerable. Only these groups ‘may be considered to have special reception needs’ and certain benefits therefore attach to these groups. On the other hand, Member States are not even obliged to assess whether applicants belong to these vulnerable groups. Rather, Member States have to assess whether applicants have special reception needs or are in need of special procedural guarantees. Second, the quality which such an assessment has to comply with is of dubious value since no standards are explicitly imposed upon Member States. 56 57 58

Ibid, Recital 29. Ibid, Article 24(3). Member States are provided with wide discretion as regards the modalities to identify applicants in need of special procedural guarantees. eu Commission, Detailed Examination of the Amended Proposal Accompanying the Document Amended Proposal for a Directive of the European Parliament and of the Council on Common Procedures for Granting and Withdrawing International Protection Status (Recast), com(2011) 319 final, 1 June 2011, 9.

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Third, while the inclusion of victims of human trafficking to the group of vulnerable persons might appear a progressive development, this view does not appreciate the complex issues which this inclusion brings about. The complexity of the category of victims of human trafficking, and the existence of a separate identification procedure geared towards the effectiveness of criminal proceedings, might be substantial obstacles for the application of the special protection framework of the eu Recast Reception Directive. This obstacle contributes to the overall confusing categorisations of ‘vulnerable persons’, applicants with special reception needs and applicants in need of special procedural guarantees and the perplexing relations between these categories of persons. In light of the disadvantages ensuing from the separation between the two identification procedures (one under the human trafficking legal framework and the other under the international protection framework), an alternative solution is possible which could ensure that applicants benefit from both legal frameworks. Namely, national authorities that conduct refugee status determinations could be also mandated with the task of granting the status of a victim of human trafficking. Such an approach would ensure that applicants receive the benefits attached to this status under the human trafficking legal framework. 3.3 Benefits of Identification The objective of this section is to evaluate the ensuing benefits once an applicant for international protection is assessed to have special reception needs or to be in need of special procedural guarantees. 3.3.1 Reception What significance does the assessment of an applicant to be a victim of human trafficking have in terms of reception conditions? Recital 14 of the eu Recast Reception Directive states that: The reception of persons with special reception needs should be a primary concern for national authorities in order to ensure that such reception is specifically designed to meet their special reception needs. In more concrete terms, three considerations flow from this provision: the circumstances in which vulnerable persons can be detained; the modalities of reception conditions including the standard of living that needs to be ensured; and finally the issue of health care. In the process of examining these three issues, I make parallels with the standards established under the human trafficking legal framework. These parallels are necessary to demonstrate any

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divergences and convergences between the two regimes in relation to the benefits guaranteed to individuals who fall within their personal scopes.59 (a) Detention Vulnerable persons are not generally exempted from detention; neither is the detention of vulnerable persons envisioned as a measure of last resort.60 On the one hand, Article 11(1) of the Recast Reception Directive clearly recognizes the possibility that vulnerable persons can be detained as any other applicant for international protection. On the other hand, this provision places certain procedural duties upon Member States when they resort to the detention of vulnerable persons. In particular, Article 11(1) of the Recast Reception Directive requires regular monitoring of their situation. However, where this monitoring reveals that, for example, the health of the person is badly affected, the Directive does not stipulate what measures need to be taken to address these concerns. The purpose of the monitoring is therefore not particularly clear. Article 11(1) also adds that when a decision is taken to detain vulnerable persons, their physical and mental health shall be of primary concern. Vulnerable persons also need to be provided with ‘adequate support’. Each Member State can decide what ‘adequate support’ means and what ‘primary concern’ with vulnerable persons’ health implies. The issue of administrative detention of victims of trafficking has been left unaddressed by both the CoE Trafficking Convention and the eu Trafficking Directive. There have been recommendations to the effect that victims of human trafficking should not be detained. Yet, these have remained nonbinding.61 The Recast Reception Directive provides some limitations on the ability of States to detain victims of human trafficking who are assessed as vulnerable applicants for international protection. However, as alluded to in the previous paragraph, the contours of these limitations cannot readily be depicted in concrete terms. The weak framing of Article 11(1) of the eu Recast 59

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There could be other points in relation to which a comparison could be made between the two legal frameworks (the human trafficking legal framework and the international protection framework). For example, Article 12(4) of the CoE Trafficking Convention (n 2), Article 11 of the eu Residence Permit Directive (n 4) and Article 15 of the eu Recast Reception Directive (n 5) regulate access to the labour market. Compare Article 11(1) with Article 11(2) of the Recast Reception Directive (n 5). The latter refers to minors and stipulates that they ‘shall be detained only as a measure of last resort’. See United Nations High Commissioner for Human Rights, Recommended Principles and Guidelines on Human Rights and Human Trafficking, Report of the United Nations High Commissioner for Human Rights to the Economic and Social Council, un Doc E/2002/68/ Add.1, 20 May 2002.

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Reception Directive leads one to question whether the distinction of the situation of vulnerable persons has any true value. The obligations under the eu Recast Reception Directive relating to the detention of vulnerable persons underwent substantial modifications in the recast process of the instrument. The Commission’s initial formulation was relatively robust and it provided that: Persons with special needs shall not be detained unless an individual examination of their situation by a qualified professional certifies that their health, including their mental health, and well-being, will not significantly deteriorate as a result of the detention. Where persons with special needs are detained Member States shall ensure regular monitoring and adequate support.62 This formulation established as a rule that vulnerable persons shall not be detained. However, exceptions were envisaged as long the physical and mental health of such persons, as well as their well-being, would not significantly deteriorate because of this detention. Nevertheless, the requirement for certification by a qualified professional did place considerable limits on States’ prerogatives. It was precisely this requirement that was removed in the second proposal submitted by the Commission.63 In the final version of the Recast Directive, the provision on detention of vulnerable persons was further watered down as even the rule relating to not detaining vulnerable persons was eventually removed. (b) Adequate Standard of Living and Material Reception Conditions Article 17 of the Reception Directive outlines the material reception conditions that need to be provided to applicants for international protection. It requires that these conditions have to provide for an ‘adequate standard of living’ which can guarantee the applicants’ subsistence and protect their physical and mental health. Article 17(2) simply adds that that the adequate standard of living has to be ensured in the specific situation of vulnerable persons. This means that vulnerable persons are not, in principle, entitled to additional benefits because of their vulnerable status or that they need to be provided with enhanced reception conditions; the same standards apply to them. However, depending on the individual circumstances of vulnerable persons, there might be a need for additional measures in order for Member States to meet the required standard. 62 63

eu Commission, Proposal for a Recast Reception Directive (n 30) 22 [emphasis added]. eu Commission, Amended Proposal for a Recast Reception Directive (n 30) 25.

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It should be also noted that even though an applicant is not qualified as a ‘vulnerable person’, he/she might still be in need of special measures to ensure an adequate standard of living as required by Article 17(2) of the Recast Reception Directive. Accordingly, the fact that one does not fit into the category of ‘vulnerable persons’ cannot be used as an argument to undermine the standard set by Article 17(2) of the Reception Directive. Article 18 of the eu Recast Reception Directive regulates the modalities of material reception conditions. In relation to accommodation, Article 18(3) stipulates that Member States shall take into consideration the situation of vulnerable persons in two circumstances: first, when they are accommodated in premises during the examination of their applications made at the border or in transit zones, and; second, when they are residing in accommodation centres.64 The obligation to take into consideration the situation of vulnerable persons does not necessarily mean that they have to be provided with additional measures, however there needs to be an individual assessment as to what they might need. Article 18(9) of the Recast Reception Directive is a complex provision which calls for careful scrutiny. It provides that: In duly justified cases, Member States may exceptionally set modalities for material reception conditions different from those provided for in this Article, for a reasonable period which shall be as short as possible, when: (a) an assessment of the specific needs of the applicant is required, in accordance with Article 22; (b) housing capacities normally available are temporarily exhausted. Such different conditions shall in any event cover basic needs. Clearly, Article 18(9) of the Recast Reception Directive depicts situations in which reception standards can be lowered. How can this provision affect applicants with ‘special reception needs’? During the assessment as to whether an applicant has ‘special reception needs’, he/she might not necessarily be provided with the material conditions which incorporate the consideration of his/her status as a vulnerable person (as required by Article 18(3) of the Recast Reception Directive). Thus, at the time of assessment, he/she might not have 64

Article 18(1)(c) of the Recast Reception Directive (n 5) provides for an additional type of accommodation, namely ‘private houses, flats, hotels or other premises adapted for housing applicants’. Pursuant to Article 18(3) of the Directive, the needs of vulnerable persons might not be taken into consideration in relation to the above enumerated types of accommodation.

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access to the conditions provided for vulnerable persons. This period should be as short as possible, which relates to the requirement in Article 22(1) of the Recast Reception Directive that the assessment of whether an applicant has special reception needs shall be initiated ‘within a reasonable period of time after an application for international protection is made’. Yet, there is no set time limit as to when the outcome of the assessment should be forthcoming. As to Article 18(9)(b) of the Recast Reception Directive and its relevance to vulnerable persons, it seems that when housing capacities are exhausted, Member States can provide lower material reception conditions than they are otherwise required to. This would clearly affect the reception standards guaranteed to vulnerable persons, since they are not exempted from the overall lowering of the standards. In many respects, the standards under the CoE Trafficking Convention and the eu Trafficking Directive are not dissimilar to the reception standards contained in the eu Recast Reception Directive. Victims of trafficking and presumed victims must be provided with ‘at least standards of living capable of ensuring victims’ subsistence through measures such as the provision of appropriate and safe accommodation and material assistance’.65 These provisions reflect the language of Article 17(2) of the eu Recast Reception Directive. Importantly, under the human trafficking legal framework this assistance has to be provided to even presumed victims of trafficking. This implies that, in contrast to the above position in the context of Article 18(9) of the Recast Reception Directive, during the identification process these standards cannot be lowered. Neither can the standards envisioned by the human trafficking legal framework be lowered when housing capacities are exhausted. Lastly, it is noteworthy that when victims of human trafficking have formal roles in criminal proceedings, for instance as witnesses, they may have to be provided with additional protection. The eu Trafficking Directive has a specific provision addressing the protection needs of victims in the context of the criminal proceedings and investigations.66 Clearly, these need to be ensured in addition to the above outlined reception conditions. (c) Health Care Article 19(2) of the Recast Reception Directive stipulates that ‘Member States shall provide necessary medical or other assistance to applicants who have special reception needs, including appropriate mental health care where 65 66

Article 11(5) of the eu Trafficking Directive (n 3). See also Article 11(1)(a) of the CoE Trafficking Convention (n 2). Article 12 of the eu Trafficking Directive (n 3).

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needed’.67 This provision needs to be compared with Article 19(1) of the Recast Reception Directive. The latter sets the general standard in terms of health care for applicants for international protection: Member States shall ensure that applicants receive the necessary health care which shall include, at least, emergency care and essential treatment of illnesses and of serious mental disorders. It follows that Member States can limit health care to ‘emergency care and essential treatment of illness and of serious mental disorders’. By contrast, vulnerable persons who are also considered to be applicants with special reception needs have to be provided with more than emergency care and essential treatment. They need to be provided with ‘necessary medical or other assistance’ and ‘appropriate’ mental health care. In light of Article 19(1), in order for Article 19(2) of the Recast Reception Directive to acquire meaning, necessary medical assistance cannot be limited to emergency care. In addition, appropriate mental health care cannot be restricted to ‘essential treatment of illnesses and of serious mental disorders’. Article 19(2) of the Recast Reception Directive must be underpinned by the presumption that vulnerable persons assessed to be applicants with special reception needs are provided with higher standards. The actual substance of these higher standards is, however, hard to determine. It might be left to the national legislation of each Member State to define what necessary medical assistance and appropriate health care mean in this context. A brief reference to the wording of the provision regulating health care for applicants with special reception needs, as initially proposed by the Commission, is valuable. The initial framing was more robust since it set a clearer standard as to what ‘necessary’ assistance and ‘appropriate’ mental health care could mean. The proposal advanced by the Commission read: ‘Member States shall provide necessary medical or other assistance to applicants who have special needs, including appropriate mental health care when needed, under the same conditions as nationals’.68 At this junction, it should also be noted that, through the use of different terms, concepts and standards in relation to heath care, the Recast Reception Directive creates a confusing situation which does not facilitate its actual implementation by Member States. More specifically, the issue of health care is also covered by Article 25(1) of the Recast Reception Directive: 67 68

Emphasis added. eu Commission, Proposal for a Recast Reception Directive (n 30) 28.

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Member States shall ensure that persons who have been subjected to ­torture, rape or other serious acts of violence receive the necessary ­treatment for the damage caused by such acts, in particular access to appropriate medical and psychological treatment or care. This provision calls for three remarks: first in relation to its personal scope, second concerning the benefits that it ensures and, third, in connection with the standard of ‘necessary treatment’. First, the personal scope of the provision covers ‘persons who have been subjected to torture, rape or other serious acts of violence’. These persons also clearly fall within the category of vulnerable persons as outlined in Article 21 of the Recast Reception Directive. Yet, a separate provision has been introduced to address their access to treatment, including medical treatment. As a consequence, they do not need to be assessed as applicants with special reception needs in order to benefit from ‘necessary treatment’. This appears to be a positive development. However, it creates confusion as to the different categories introduced in the Recast Reception Directive and the benefits attached to the different categories. Second, when it comes to the benefits envisaged, it needs to be stressed that Article 25 of the Recast Reception Directive does not refer without further qualification to ‘necessary treatment’, as such treatment has to be ‘for the damage caused by such acts’. Accordingly, a causal requirement is laid down in that the treatment needs to be provided for damage which has been caused by torture, rape or other serious acts of violence. If applicants are in need of treatment in relation to other damage, then Article 19(2) of the Recast Reception Directive is applicable if the applicants are also assessed to be applicants with special reception needs. Importantly, the plain wording of Article 25(1) suggests that the serious acts of violence do not need to be related to the alleged persecution in the country of origin. This means that even applicants who have experienced violence in the Member State can be covered. This makes the provision relevant to victims of human trafficking as persons who have been subjected to serious acts of violence. However, how the above mentioned causal requirement is to be established, how the sources of damage are to be determined and how the different sources of damage are to be distinguished is hard to comprehend. Third, Article 25(1) of the Recast Reception Directive refers to the standard of necessary treatment but does not define it. In an attempt to do so, Article 25(1) adds that necessary treatment means ‘in particular access to appropriate medical and psychological treatment or care’. The reference to ‘appropriate’ does not introduce any clarity here. As already concluded above, the national legislation and practice of Member States will be decisive in determining the level of medical and psychological assistance that applicants will receive.

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How is the issue of health care regulated under the human trafficking legal framework? The eu Trafficking Directive stipulates that victims of trafficking and presumed victims need to be provided with ‘necessary medical treatment including psychological assistance’.69 Thus, from the wording of this provision, there seems to be no difference with the eu Recast Reception Directive. Both directives use the standard of ‘necessary’ treatment. However, it must be stressed that under the eu Trafficking Directive the standard of ‘necessary’ treatment applies even to presumed victims of trafficking. This is certainly not the case under the eu Recast Reception Directive. There is an additional difference between the eu Trafficking Directive and the eu Recast Reception Directive. In order to benefit from ‘necessary medical or other assistance’, it is not enough that the applicant is assessed to be a vulnerable person, including a victim of human trafficking. Pursuant to Article 19(2) of the Recast Reception Directive, he/she also needs to qualify as an applicant with special reception needs. 3.3.2 Procedure What significance does the successful qualification of an applicant as a victim of human trafficking have in terms of procedural guarantees? To answer this question the following will be examined: first, the meaning of the requirement for ‘adequate support’, second, the application of accelerated or border procedures to victims of human trafficking and, third, the potential prioritisation of such persons’ applications for protection. No comparison with the human trafficking legal framework will be made here. Both the CoE Trafficking Convention and the eu Trafficking Directive nonetheless incorporate provisions relating to procedural rights: ‘translation and interpretation service, when appropriate’;70 ‘counselling and information, in particular as regards their legal rights and the services available to them, in a language that they can understand’;71 ‘legal assistance and free legal aid […] under the conditions provided by its [States Parties’] internal law’.72 Clearly, these could be of relevance in the context of the international protection ­procedure. However, as the phrasing of these provisions suggests, States have 69 70 71 72

Article 11(5) of the eu Trafficking Directive (n 3). Article 12(1) of the CoE Trafficking Directive (n 2) [emphasis added]. Ibid, Article 12(1) of the CoE Trafficking Directive. See also Article 11(5) of the eu Trafficking Directive (n 3). Article 14(4) of the CoE Trafficking Convention (n 2) [emphasis added]. See also Article 12(2) of the eu Trafficking Directive (n 3). The eu Trafficking Directive restricts the provision of legal representation to situations when the victim has a role in the relevant justice system.

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preserved considerable discretion about the conditions under which these procedural guarantees can be triggered and afforded. This makes the assessment of their actual impact difficult in practice. (a) Adequate support Recital 29 of the Recast Asylum Procedures Directive provides that applicants considered to be in need of special procedural guarantees ‘should be provided with adequate support, including sufficient time, in order to create the conditions necessary for their effective access to procedures and for presenting the elements needed to substantiate their application for international protection’. In this connection, Article 24(3) of Recast Asylum Procedures Directive stipulates that: Member States shall ensure that where applicants have been identified as applicants in need of special procedural guarantees, they are provided with adequate support in order to allow them to benefit from the rights and comply with the obligations of this Directive throughout the duration of the asylum procedure. The following comments are compelling in relation to Recital 29 and Article 24(3) of the Recast Directive. The meaning of ‘adequate support’ is left unspecified. Recital 29 asserts that provision of sufficient time is a constitutive part of ‘adequate support’, but this is not reflected in the actual wording of Article 24(3) of the Recast Asylum Procedures Directive. Ultimately, the meaning of ‘adequate support’ is left unclear and open to interpretation on a case-by-case basis by each Member State. As the Commission has clarified ‘[t]his rule aims to provide maximum flexibility to Member States to find the actual modalities  to implement this provision in various cases’.73 In the initial recast proposal submitted by the Commission, such support was outlined more concretely: ‘Where needed, they shall be granted time extensions to enable them to submit evidence or take other necessary steps in the procedure’.74 This 73

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eu Commission, Detailed Examination of the Amended Proposal Accompanying the Document Amended Proposal for a Directive of the European Parliament and of the Council on Common Procedures for Granting and Withdrawing International Protection Status (Recast), com(2011) 319 final, 1 June 2011, Annex, 9 [emphasis added]. eu Commission, Proposal for a Directive of the European Parliament and of the Council on Minimum Standards on Procedures in Member States for Granting and Withdrawing International Protection (Recast), com(2009) 554 final, 21 October 2009, 42 (Proposal for a Recast Asylum Procedures Directive).

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formulation allowed considerable latitude for Member States to decide when time extensions might be needed. However, the provision at least specified what adequate support might mean.75 In its current version, the value of the reference to adequate support in Article 24(3) of the Recast Asylum Procedures Directive is impossible to assess. (b)

Accelerated Procedures, Border Procedures, Suspensive Effect and Prioritization of Examination Article 24(3) of the Recast Asylum Procedures Directive has a second paragraph which also deserves examination: Where such adequate support cannot be provided within the framework of the procedures referred to in Article 31(8) and Article 43, in particular where Member States consider that the applicant is in need of special procedural guarantees as a result of torture, rape or other serious forms of psychological, physical or sexual violence, Member States shall not apply, or shall cease to apply, Article 31(8) and Article 43. Article 31(8) and Article 43 of the Recast Reception Directive concern accelerated procedures and procedures conducted at the border or in transit zones. What follows from Article 24(3) of the Recast Asylum Procedures Directive is that no block exemptions from accelerated and border procedures are applied to applicants with special procedural guarantees.76 Rather, exemptions are possible only when adequate support, including sufficient time, cannot be provided within the framework of accelerated procedures and procedures at the border or in transit zones.77 In addition, exemptions are not possible in

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It has been noted that the key safeguards relating to persons with special procedural needs have been ‘watered down to the point of meaningless’. S. Peers, The Revised Asylum Procedures Directive: Keeping Standards Low (Statewatch 2012) 8. See also Recital 30 of the Recast Asylum Procedures Directive (n 5): ‘Where adequate support cannot be provided to an applicant in need of special procedural guarantees in the framework of accelerated or border procedures, such an applicant should be exempted from these procedures’. The exemption of victims of torture, rape or other serious forms of violence was a crucial issue in the negotiations of the Recast Asylum Procedures Directive. See S. Peers, The Second Phase of the Common European Asylum System: A Brave New World – Or Lipstick on a Pig? (Statewatch 2013) 12. Pursuant to the initial proposal submitted by the Commission, accelerated procedures were not to be applied to applicants who had been subjected to ‘torture, rape or other serious forms of psychological, physical or sexual violence’. See eu Commission, Proposal for a Recast Asylum Procedures Directive (n 74) 43. See also eu

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principle to all applicants with special procedural guarantees. An additional requirement is prescribed, namely, that the special procedural guarantees need to be a result of the fact that an applicant has been subjected to torture, rape or other serious forms of violence. The last sentence of Article 24(3) of the Recast Asylum Procedures Directive requires some further consideration: Where Member States apply Article 46(6) to applicants to whom Article 31(8) and Article 43 cannot be applied pursuant to this subparagraph, Member States shall provide at least the guarantees provided for in Article 46(7). Article 46(6) of the Recast Asylum Procedures Directive outlines certain circumstances in which an application for international protection might not have an automatic suspensive effect.78 In these circumstances, ‘a court or tribunal shall have the power to rule whether or not the applicant may remain on the territory of the Member State, either upon the applicant’s request or acting ex officio’. If Article 46(6) of the Recast Directive is applied (which implies that there is no automatic suspensive effect) to applicants in need of special procedural guarantees who cannot participate in accelerated and border procedures, then at least the safeguards in Article 46(7) of the Directive need to be ensured. These guarantees are:

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Commission, Communication from the Commission to the European Parliament Pursuant to Article 294(6) of the Treaty on the Functioning of the European Union Concerning the Position of the Council on the Adoption of a Proposal for a Directive of the European Parliament and of the Council on Common Procedures for Granting and Withdrawing International Protection, com(2013) 411 final, 10 June 2013, 5. The Council of Europe has also recommended that victims of torture and sexual violence be excluded from accelerated procedures due to their vulnerability and the complexities of their cases. See Council of Europe, Parliamentary Assembly, Accelerated Asylum Procedures in Council of Europe Member States, Resolution 1471 (2005), 7 October 2005. These circumstances relate to decisions considering an application to be manifestly unfounded, decisions considering an application to be inadmissible pursuant to Article 33(2)(a), (b) or (d) of the Recast Asylum Procedures Directive (n 5) (these provisions relate to circumstances in which another Member State has granted international protection, when another State is considered to be a first country of asylum or when the case concerns a subsequent application without new elements), decisions considering rejection to reopen the case, decisions not to examine or not to examine fully the application because there is a safe third country.

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(a) the applicant has the necessary interpretation, legal assistance and at least one week to prepare the request and submit to the court or tribunal the arguments in favour of granting him or her the right to remain on the territory pending the outcome of the remedy; and (b) in the framework of the examination of the request referred to in paragraph 6 [the request for remaining on the territory of the Member State], the court or tribunal examines the negative decision of the determining authority in terms of fact and law.  If the conditions referred to in points (a) and (b) are not met, paragraph 5 [automatic suspensive effect] shall apply. The rationale behind Article 46(7) of the Recast Asylum Procedures Directive is to ensure certain procedural guarantees to applicants whose claims are under examination at the border or in transit zones of the Member States and who cannot benefit from automatic suspensive effect. To simplify the analysis, I will introduce an example. Suppose a victim of human trafficking applies for international protection (I will call her Anna) at the border. She is channelled into an accelerated procedure since she presented a false passport to the authorities in order to mislead them.79 Within one week, she is issued with a negative decision. She wants to appeal and requests that a tribunal takes a decision that she can remain on the territory of the Member State.80 The vexing question here is whether at all the authorities have the necessary time to assess whether she is a victim of serious forms of psychological and physical violence and, as a result, an applicant in need of special procedural guarantees. One might further wonder whether the authorities at the border will have the time to assess whether or not adequate support can be provided within the border procedure. By the time such assessments are made, a negative decision will most probably already have been issued, rendering Article 24(3) of the Recast Procedure Directive meaningless. As to the last sentence of Article 24(3), it is not only likely to be practically meaningless, but it is also paradoxical for the following reason. The text of Article 46(7) of the Recast Asylum Procedures Directive outlines certain minimum procedural guarantees to be generally applied to border procedures and procedures in transit zones. Pursuant to the last sentence of Article 24(3) of 79

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See Article 31(8) of the Recast Asylum Procedures Directive (n 5), which outlines the circumstances in which Member States may decide that the examination procedure be accelerated and/or conducted at the border. Anna’s case falls within the scope of Article 31(8)(c) and (d) of the Directive. See ibid, Article 46(6).

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the Directive, this very minimum is to be ensured in situations in which border and accelerated procedures cannot be applied, since the applicant has been assessed to be an applicant in need of special procedural guarantees. Thus, almost ironically, applicants in need of special procedural guarantees are not provided with any additional special guarantees, rather the minimum guarantees are equally applicable to them. The gist of the third sentence of Article 24(3) of the Recast Asylum Procedures Directive is that applicants in need of special procedural guarantees are not necessarily entitled to automatic suspensive effect. Articles 46(6) and 46(7) of the Directive which regulate exemptions from suspensive effect can apply to such persons. These two provisions contain vague recommendations to the effect that it might not be possible to ensure adequate support to applicants in need of special procedural guarantees without suspensive effect within accelerated and border procedures.81 However, these recommendations are so vague that they are virtually rendered meaningless. It is therefore difficult to see how Anna can actually be assisted in relation to the violence that she has experienced. Finally, the question whether the applications submitted by vulnerable persons have to be prioritised will be reviewed. Article 31(7) of the Recast Asylum Procedures Directive stipulates that Member States may choose to prioritize an examination of an application for international protection ‘where the applicant is vulnerable, within the meaning of Article 22 of Directive 2013/33/EU, or is in need of special procedural guarantees, in particular unaccompanied minors’.82 Clearly, the Recast Asylum Procedures Directive does not contain hard rules as to whether and when an examination of the application can be prioritised. 3.3.3 Conclusion The second generation of eu asylum legislation places considerable focus on vulnerable persons. This is illustrated be the various provisions of the Recast Reception Directive and the Recast Asylum Procedures Directive which address vulnerable applicants. The tangible significance of these provisions is, however, questionable. The provisions do not contain clear and precise rules. Rather their formulation is vague to the point of being 81

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See also ibid, Recital 30: ‘The need for special procedural guarantees of a nature that could prevent the application of accelerated or border procedures should also mean that the applicant is provided with additional guarantees in cases where his or her appeal does not have automatic suspensive effect, with a view to making the remedy effective in his or her particular circumstances’. Emphasis added.

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meaningless. The provisions relating to detention, material reception conditions, support during the procedure, border procedures, accelerated procedures, suspensive effect and prioritisation of the examination of the application do not contain a high degree of rigour in that they leave considerable discretion to Member States in their implementation. Health care is the only benefit which appears to present some added value for victims of human trafficking. 4 The Application of the Dublin Mechanism to Victims of Human Trafficking The Dublin III Regulation lays down the criteria and mechanisms for determining the Member State responsible for examining an application for international protection. A brief summary of these criteria is compelling for the purpose of further examining the application of this instrument to victims of human trafficking. These criteria give priority to the presence or residence of family members.83 The responsible State will then be the one that has issued a valid residence permit or a valid visa.84 When it is established that the applicant has ‘irregularly crossed the border into a Member State by land, sea or air having come from a third country, the Member State thus entered shall be responsible for examining the application for international protection’.85 Article 13(1) of the Dublin III Regulation adds that ‘[t]hat responsibility shall cease 12 months after the date on which the irregular border crossing took place’. As will emerge below, this addition is of quite some significance in relation to the situation of victims of human trafficking. When these criteria cannot be applied, including when the above mentioned twelve-month period has expired, the Member State in which the applicant ‘has been living for a continuous period of at least five months […] before lodging the application for international protection’ shall be responsible for examining the application for international protection.86 As argued below, the latter obligation is also of high relevance to victims of human trafficking. In contrast to the Recast Reception and Asylum Procedures Directives, which pay specific attention to victims of human trafficking, the Dublin III Regulation does not take into account the special circumstances of such 83 84 85 86

Articles 9, 10 and 11 of the Dublin III Regulation (n 6). Ibid, Article 12. Ibid, Article 13(1). Ibid, Article 13(2).

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­persons.87 This might allow situations in which the national authorities do not assess whether an applicant could be a victim of human trafficking prior to the Dublin transfer. This outcome might be averted by the operation of Article 5 of the Dublin III Regulation. This provision requires Member States to conduct a personal interview with the applicant prior to determining the Member State responsible for processing the claim. However, Article 5 of the Dublin III Regulation needs to be approached with caution, since it does not make these personal interviews compulsory in all circumstances. In fact, Article 5(2) of the Dublin III Regulation envisions circumstances in which the personal interview can be omitted. For example, when the applicant has already provided the relevant information for determining the Member State responsible by other means, there is no obligation to conduct such an interview. In a recent study, the European Migration Network reported that Member States have diverse practices in relation to the transfer of victims of human trafficking.88 In light of these divergences, the objective in this section is to examine whether the human trafficking legal framework imposes certain restraints upon Member States in relation to the application of the Dublin mechanism. Are there circumstances in which the obligations imposed by the Dublin III Regulation come into conflict with Member States’ obligations under the human trafficking legal framework? Indeed, even when Member States administer Dublin transfers they continue to be bound by their obligations under the human trafficking legal framework and human rights law, which raises some intriguing questions.89 87

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There is one exception which relates to minors. Article 6(3) of Dublin III Regulation says that: ‘In assessing the best interests of the child, Member States shall closely cooperate with each other and shall, in particular, take due account of the following factors: […] (c)  safety and security considerations, in particular where there is a risk of the minor being a victim of human trafficking’. ‘In most Member States a Dublin transfer no longer applies if a person is suspected to be a victim of trafficking either case to case (at, cy, cz, el, ee, fi, mt, nl, pl) or at the discretion of the competent authority (be, fr, se, uk), or on specific grounds outlined in national law (cy, fi, si, uk, no). In such cases, the hosting ms takes responsibility for processing the application. In remaining (Member) States, a transfer can only be stopped on grounds of being a victim of trafficking if a different administrative process is considered to apply – i.e. if a victim is granted a reflection period/residence permit for victims (be, ee, fi, fr, ie, lu, nl, se, uk, no), if a (pre-trial) criminal investigation into the crime is initiated (de, ee, fi, fr, ie, it, lu, nl, se, uk, no) or if official identification process have been initiated (fr). emn, Identification of Victims of Trafficking (n 8) 7. Recital 32 of Dublin III Regulation (n 6). The Judgment mss v Belgium and Greece (Appl no. 30696/09 (ECtHR gc, 21 January 2011)) demonstrates how the Dublin mechanism could clash with Member States’ obligations under human rights law.

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For the purposes of making the forthcoming analysis manageable, I would like the reader to conceive the following situation. A migrant has illegally entered the eu through country A. After this she/he was trafficked into country B, where he/she was subjected to abuse. After escaping or being saved from the trafficking situation, he/she applies for international protection in country B. The responsible authorities in country B seek his/her transfer back to country A under the Dublin mechanism.90 What are the responsibilities of country B under the CoE Trafficking Convention? In very simple terms, the Convention imposes the following obligations: (i) identification of victims based on the two stage process, namely, a preliminary stage and a conclusive stage;91 (ii) providing assistance to presumed victims;92 (iii) issuing a residence permit in certain circumstances.93 The Convention does not envision the possibility that a presumed victim be transferred to another State during the preliminary stage of identification. It is in fact quite clear to the effect that: […] if the competent authorities have reasonable grounds to believe that a person has been victim of trafficking in human beings, that person shall not be removed from its territory until the identification process as victim of an offence provided for in Article 18 of this Convention has been completed by the competent authorities and shall likewise ensure that that person receives the assistance provided for in Article 12, paragraphs 1 and 2 [emphasis added].94 During this preliminary stage of identification, the person may be granted a ‘recovery and reflection period’ of at least 30 days. It can therefore be expected that for at least 30 days the person is to remain in country B. In addition, pursuant to Article 13(1) of the CoE Trafficking Directive, country B has to regularise his/her stay during the ‘recovery and reflection period’. This raises the question as to whether Article 12(1) of the Dublin III Regulation can be triggered. The ­latter provides that if the applicant is in possession of a valid residence document, the 90

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I assumed that both countries (A and B) are eu Member States bound by the Dublin mechanism, the Residence Permit Directive and the CoE Trafficking Convention. In the forthcoming analysis, I focus on the provisions of the CoE Trafficking Convention since they are more robust than the provisions of the Residence Permit Directive. Articles 10 and 13(1) of the CoE Trafficking Convention (n 2). See Section 2 above. Ibid, Article 12. See Section 3.2.1 above. Ibid, Article 14(1). Ibid, Article 10(2).

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Member State which issued the document shall be responsible for examining his/her application for international protection. Accordingly, setting into motion Article 12(1) of the Dublin III Regulation is a conceivable option here. Nonetheless, there might be one obstacle in this case. Article 13(1) of the CoE Trafficking Convention does not necessarily require States to issue a valid residence document. The provision can be interpreted to the effect that States have to legislate in order to authorise the presumed victim to stay in the country; however, it does not impose an obligation upon States Parties to issue a residence permit. The Explanatory Report of the CoE Trafficking Convention confirms this interpretation; it does not go as far as to say that States have to issue residence permits. States have to legislate to enable the presumed victim to remain in the country;95 however, States are free to choose how national legislation shall regulate the issue.96 The eu Residence Permit Directive does not diverge from these standards in any meaningful way since it does not guarantee the issuance of a residence permit during the reflection period.97 95

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At the time of the drafting of the CoE Trafficking Convention, the Council of Europe Parliamentary Assembly proposed that States should be under an obligation to issue residence permits covering the reflection period. See Council of Europe, Parliamentary Assembly, Draft Council of Europe Convention on Action against Trafficking in Human Beings, Opinion No. 253 (2005), 26 January 2005, para 14. This proposal is not reflected in the text of the CoE Trafficking Convention. The Explanatory Report to the CoE Trafficking Convention (para 178) states that: ‘The words “it shall not be possible to enforce any expulsion order against him or her” mean that the victim must not be removed from the Party’s territory during the recovery and reflection period. Although free to choose what method to employ, Parties are required to create a legal framework allowing the victim to remain on their territory for the duration of the period. To meet this end, in accordance with national legislation, each Party shall provide victims, without delay, with the relevant documents authorising them to remain on its territory during the recovery and reflection period’. Similarly, Article 6(1) of the eu Residence Permit Directive (n 4) stipulates that the national legislation has to specifically regulate the duration and the starting point of the reflection period. Articles 6 and 2(d) of the Residence Permit Directive (n 4) do not oblige Member States to actually issue residence permits for presumed victims during the ‘reflection period’. Article 6(2) of the Directive states that during the reflection period, ‘it shall not be possible to enforce any expulsion order’. At no point does the Directive say that a residence permit has to be issued during the reflection period. In fact, there is a specific provision, namely Article 6(3) of the Directive, which states precisely the contrary: ‘The reflection period shall not create any entitlements to residence under this Directive’. Therefore, in its effects the eu Residence Permit Directive is not different from the CoE Trafficking Convention. It envisions that the reflection period has to be somehow regulated by national legislation (see Article 6(1) of the Directive which provides that: ‘The duration and starting point of the period referred to in the first paragraph shall be determined

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Accordingly, it is not certain that Article 12(1) of the Dublin III Regulation can be set into motion. This will depend on the national legislation of the Member State concerned. If the national legislation provides that a presumed victim has to be issued with a residence permit, then Article 12(1) of the Dublin III Regulation could apply. Some further scrutiny of Article 13(1) of the CoE Trafficking Convention is required here. This provision reads that the ‘recovery and reflection period’ has to be sufficient ‘for the person concerned to recover and escape the influence of traffickers’.98 In practice, there might be situations where a Dublin transfer to the reception system of country A will make it difficult, if not impossible, to recover and escape the influence of traffickers. Therefore, in these situations a Dublin transfer could be in violation of Article 13(1) of the CoE Trafficking Convention. In the above depicted scenario, the duration of the recovery and reflection period might have to be prolonged. This proposition is not uncontroversial since the text of Article 13(1) of the CoE Trafficking Convention allows State Parties to legislate for a recovery and reflection period limited to 30 days. However, the second sentence of Article 13(1) of the Convention which asks for a sufficient duration provides some support for the proposition. In particular, the period has to be sufficient for the person to recover and escape the influence of traffickers. Thus, it could be argued that if transfer to country A is not administered for the above mentioned reason, then the period of recovery will have to be extended to at least five months. In this way the responsibility of country B for conducting a material consideration of the application will be triggered.99 Alternatively, country B may have to examine the application based on the discretionary clauses under the Dublin III Regulation.100 The entitlement of the presumed victim, as guaranteed by the Regulation, to have his/her application for international protection examined, can also favourably impact the above analysis.101 States’ positive obligations under Article 4 of the European Convention of Human Rights (echr) also need to be considered.102 States Parties to the echr have the positive obligation to investigate situations of trafficking upon according to the national law’). However, this does not necessarily imply issuance of a residence permit. 98 Emphasis added. 99 Article 13(2) of the Dublin III Regulation (n 6). 100 Ibid, Article 17. 101 Ibid, Article 3(1). 102 Article 4 of the echr (ets No 005, 4 November 1950 (entry into force: 3 September 1953)) enshrines the right not to be held in slavery or servitude and the right not to be required to perform forced or compulsory labour.

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reasonable suspicion of ill-treatment.103 This investigation has to be effective, which means that it has to comply with certain qualitative standards.104 Depending of the factual circumstances of the case, it might be hardly c­onceivable that an investigation can be undertaken and the standards provided for in the European Court of Human Rights (ECtHR) case law complied with, if the presumed victim is transferred to another Member State. Thus, country B might be under an obligation to investigate the crime. It might be the case that the investigation extends beyond 12 months. In this situation, the last sentence of Article 13(1) of the Dublin III Regulation becomes relevant. As a result, the responsibility of country A to examine the applicant’s claim will cease since 12 months will have passed after the date on which the borders of country A were irregularly crossed. If country B reaches the decision that the applicant is a victim of human trafficking and the 12 months period has not yet expired, this decision by itself does not entitle the person to remain in country B. This implies that the Dublin transfer might be executed. If country B reaches a conclusive decision that the applicant is a victim of human trafficking and grants him/her a residence permit pursuant to Article 14(1) of the CoE Trafficking Convention, then clearly country B will have to examine his/her asylum claim. If country B decides not to grant a residence permit under the human trafficking framework – since, for example, the applicant’s stay is not ‘necessary for the purpose of [his/her] co-operation with the competent authorities in investigation or criminal proceedings’ and the twelve month period has not expired – then country B might proceed with the transfer to country A. In this case, country B has to comply with its obligations under Articles 31 and 32 of the Dublin III Regulation relating to the exchange of relevant information, including health data, before the transfer is carried out.105 Relevant information includes any formal identification of the applicant as a human trafficking victim. This exchange of information is of crucial significance for country B to enable it to comply with its obligations in relation to vulnerable persons under the Recast Reception and Asylum Procedures Directives. To conclude, applicants who are presumed victims of human trafficking or conclusively determined to be so do not benefit from a blanket exemption from 103 Rantsev v Cyprus and Russia App no. 25965/04 (ECtHR, 7 January 2010) para 288. 104 ‘It [the investigation] must also be capable of leading to the identification and punishment of individuals responsible, an obligation not of result but of means. […]. The victim or the next-of-kin must be involved in the procedure to the extent necessary to safeguard their legitimate interests’. Ibid, para 288. 105 See also Recital 34 of the Dublin Regulation III (n 6).

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the Dublin mechanism.106 Yet, depending on the case in question, Dublin transfers might have to be averted in order to ensure that Member States fulfil their obligations under the CoE Trafficking Convention and human rights law.107 In these concluding paragraphs, and in contrast to the above micro-analysis of legal norms, a broader perspective on these two legal regimes is necessary. If human trafficking refers to the movement of the victim by means of deception/coercion, as the pertinent legal definition stipulates, then moving the applicant back against his/her will to the country from which he/she was trafficked appears to be far from acceptable.108 Such transfers sit at odds with the rationale behind the Dublin mechanism, namely the prevention of ‘asylum shopping’.109 After all, as the definition of a victim of human trafficking suggests, the victim was deceived or coerced to move to country B. Therefore, he/she arguably did not voluntary initiate the process. It should be also considered that human trafficking might raise more complex situations involving more than two countries. For instance, the person 106 The position of the uk Home Office is as follows: ‘To adopt a policy that allows a claim of trafficking to provide a blanket override of provisions of Community law in the form of the Dublin Regulation risks opening a potential area of abuse. This is why it is important that the uk does not provide a general exemption for victims of trafficking which would undermine the intent of the Dublin Regulation, but considers claims on an individual basis’. ecpat uk, ‘The Trade in Human Beings: Human Trafficking in the uk, Memorandum’ (ecpat uk 2008) para 24 accessed 6 December 2014. 107 In relation to human rights law, in the above analysis I mention only the positive obligation of conducting an effective investigation under Article 4 of the echr. However, other human rights obligations are also of relevance. Clearly, a transfer should not be administered if there is a real risk that the applicant will be subjected to inhuman or degrading treatment in the receiving Member State. The fact that the person to be transferred is a victim of human trafficking will have an impact on the determination as to whether the reception conditions in the receiving Member State reach the threshold of degrading treatment. For example, in the context of detention, the ECtHR has held that the conditions have to be adapted to the position of vulnerable individuals. See Mubilanzila Mayeka and Kaniki Mitunga v Belgium App no. 13178/03 (ECtHR, 12 October 2006) paras 102–103. 108 In this context, the aire Centre, Asylum Aid, ecpat uk and Poppy Project have argued that victims of human trafficking should never be subjected to Dublin transfers. See Anti Trafficking Legal Project (ATLeP), ‘Call for Exception from Dublin II Procedures for Victims of Trafficking, Joint Submission with aire Centre, Asylum Aid, ecpat uk and Poppy Project’ (ATLeP 2008) accessed 6 December 2014. 109 See the Introduction to this volume.

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might have been trafficked in country A and subject to abuse therein, and after this may have moved or have been moved to country B. People might also have been trafficked in transit countries and then moved into the eu. Since trafficking is about movement and the facilitation of that movement by means of deception and coercion, various countries could be involved in this process. As such, the relation between the Dublin mechanism and the human trafficking legal framework will be more complicated. 5 Conclusion In light of the limited possibilities offered to victims of human trafficking to remain on the territory of host States under the CoE Trafficking Convention  and the eu Residence Permit Directive, it can be expected that such persons will apply for international protection. Ideally, migrants who have been subjected to serious forms of violence should be able to benefit from the assistance and protection measures provided under both the human trafficking legal framework and the international protection framework. This can be guaranteed if the two legal frameworks do not operate in a fragmented  manner. This implies that victims of human trafficking have to be referred to the international protection procedure where their special needs in terms of reception conditions and procedural guarantees are properly assessed. It also implies that applicants for international protection are properly identified as victims of human trafficking; an identification which should trigger the protection measures that exist under the human trafficking legal framework, including suspension of Dublin transfers under certain circumstances. As explored in this chapter, the operation of the assistance and the protection measures under these legal frameworks, both taken in isolation and in conjunction, could be hindered. The identification procedure under the human trafficking legal framework appears to be geared towards the identification of ‘useful witnesses’. This drawback can be avoided in the context of the international protection framework where a separate assessment could be made. However, the eu Recast Reception Directive does not necessary demand such separation, and had left the issue to the discretion of Member States. A  favourable solution which Member State could opt for would be one in which the national authorities that conduct refugee status determination are also mandated with the task of granting the status of a victim of human trafficking, in this way triggering the assistance and protection measures that exist under both legal frameworks.

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Additional obstacles which might de facto block the operation of the assistance measures. Namely, the operation of the human trafficking legal framework is based on an ambiguous definition of human trafficking, the conceptual limits of which are hard to define. Such conceptual problems will inevitably emerge in the context of the assessment of whether applicants  for international protection fall within the categories of victims of human trafficking and vulnerable persons. These problems could further exacerbate the difficulties inherent in the assessment of applicants’ vulnerabilities as regulated by the eu Recast Reception Directive and the eu Recast Asylum Procedures Directive. These directives have failed to regulate the issue in a consistent and robust way. The absence of consistency and of sufficiently robust provisions in the eu Recast Reception Directive and in the eu Recast Asylum Procedures Directive relate to the following points. First, there is no explicit obligation imposed upon Member States to identify vulnerable persons. This leads to paradoxes in the text of the eu Recast Reception Directive since it stipulates that only groups of vulnerable persons may be considered to have special reception needs. In addition, although there is no explicit obligation to assess whether applicants are vulnerable persons, certain benefits are attached to groups of vulnerable persons. Second, the modalities of the assessment as to whether applicants are in need of special reception conditions or special procedural guarantees are left to Member States to determine. This opens the possibility of low quality decision making. Third, the actual significance of any assessment as a vulnerable person is hard to predict. The provisions in the second phase of eu asylum legislation which address the needs of vulnerable persons are so vague that there is a real risk that they could be rendered meaningless in practice.

Part 2 Qualification as Persons in Need of Protection

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chapter 4

Availability of Protection in the Country of Origin An Analysis under the eu Qualification Directive Julian M. Lehmann1 1 Introduction It is undisputed in contemporary interpretations of refugee law that the 1951 Convention relating to the Status of Refugees2 can accommodate claims by people fleeing persecution from non-state actors. Specifically, harm from nonstate actors is relevant to refugee claims where state authorities are unwilling or unable to provide protection against such harm. In its Handbook on Procedures and Criteria for Determining Refugee Status, the United Nations High Commissioner for Refugees (unhcr), as early as 1979, stated that: Where serious discriminatory or other offensive acts are committed by the local populace, they can be considered as persecution if they are knowingly tolerated by the authorities, or if the authorities refuse, or prove unable, to offer effective protection.3 In European Union (eu) asylum law, the question of whether non-state actors may be relevant ‘sources’ of harm for the purpose of determining an individual’s asylum claim was once and for all settled with the 2004 Qualification Directive.4 According to Article 6(c) of the Qualification Directive, harm inflicted by non-state actors can be considered sources of harm for the 1 The author is grateful to the participants of the Refugee Law Initiative’s second Postgraduate Workshop on Refugee Law, University of London, 25 April 2014, for comments on an earlier version of this paper, in particular Dr Violeta Moreno-Lax and Professor Gregor Noll. 2 Convention Relating to the Status of Refugees, 189 unts 150, 28 July 1951 (entry into force: 22 April 1954). 3 unhcr, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (unhcr 1979, reprinted December 2011) para 65. 4 Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, OJ L 304/12, 30 September 2004. As part of the second phase of the Common European Asylum System, a  recast version of the Qualification Directive was adopted in 2011: Directive 2011/95/EU

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004290167_005

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purpose of an asylum claim when state authorities in the country of origin are unwilling or unable to provide protection against such harm. According to Article 7, when deciding refugee claims in cases where the feared persecution emanates from non-state actors, courts must address the relationship between the harm feared, on the one hand, and measures taken against that harm by state authorities in the country of origin, on the other. Article 7 also  regulates what the relevant standard of protection is in these cases. Ten years after the adoption of the Qualification Directive, the application of and amendments made to Article 7(2) have received little academic attention. This Chapter therefore reviews jurisprudence from Germany, the Netherlands and the United Kingdom (uk) and examines the impact of the Qualification Directive on domestic law in these countries. In particular, this Chapter considers how state protection in the country of origin against harm emanating from non-state actors is construed in status determination procedures, and the standard of protection on which courts rely in such cases. In this Chapter this  will be termed ‘protection analysis’. The crucial question that will be addressed is: when can we say that there is ‘protection’ against harm in the country of origin? The Chapter first summarises the legal debates surrounding the role of state protection against harm emanating from non-state actors prior to the adoption of the Qualification Directive (Section 2) and discusses the drafting and criticisms made with regard to its Article 7 (Section 3). It then analyses jurisprudence in selected Member States (Section 4) and explores the changes introduced by the Recast Qualification Directive (Section 5 and 6 – conclusion). 2

‘Protection Analysis’ and International Refugee Law

2.1 What Place Does State Protection in the Country of Origin Have in the Refugee Definition? Where a person fears harm from non-state actors, assessment of a State’s response to such harm is relevant to identifying whether or not he or she is in need of international protection. However, there has been considerable debate

of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast), OJ L 337/9, 20 December 2011 (Recast Qualification Directive).

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concerning where in the refugee definition to locate such an assessment and how central it is to refugee status determination in general. There are essentially two approaches to locating state protection against harm emanating from non-state actors in the refugee definition. The first is to locate an analysis of state protection in the second limb of the refugee definition in Article 1A(2) of the 1951 Convention. According to this provision, a refugee has to be ‘unable, or, owing to […] [a well-founded fear of being persecuted] unwilling to avail himself to the protection’ of his country of nationality/origin (the ‘protection clause’). This approach has been criticised inter alia by unhcr, which is of the opinion that ‘protection’ in the second limb of the refugee definition refers to diplomatic protection in the State of refuge, rather than protection against harm in the State of origin. According to unhcr: Textual analysis, considering the placement of this element, at the end of the definition and following directly from and in a sense modifying the phrase ‘is outside his country of nationality’, together with the existence of a different test for stateless persons, suggests that the intended meaning at the time of drafting and adoption was indeed external protection. Historical analysis leads to the same conclusion. Unwillingness to avail oneself of this external protection is understood to mean unwillingness to expose oneself to the possibility of being returned to the country of nationality where the feared persecution could occur.5 A second approach locates this ‘protection analysis’ in the Convention’s notion of ‘being persecuted’. This approach was adopted for instance in the uk, where, in Shah and Islam, Lord Hoffman argued that two combined elements constitute persecution – assaults by the husbands of the asylum applicants and the unwillingness or inability of the state authorities to protect against this harm. Lord Hoffman adopted the formula ‘Persecution = Serious harm + The Failure of State Protection’.6 This two-tier approach is now applied in the majority of common law countries.7 The approach adopted in Shah and Islam was further 5 unhcr, Interpreting Article 1 of the 1951 Convention Relating to the Status of Refugees (unhcr 2001). See also A. Fortin, ‘The Meaning of “Protection” in the Refugee Definition’ (2000) 12 ijrl 548. 6 Islam v Secretary of State for the Home Department; R v Immigration Appeal Tribunal, Ex Parte Shah [1999] 2 ac 629. 7 J.C. Hathaway and M. Foster, The Law of Refugee Status (2 edn cup 2014) 295 citing cases from New Zealand (Butler (nzca, 1997); Tishkovets v Refugee Status Appeals Authority (Unreported, nzhc, 17 August 2000); Refugee Appeal No. 71427/99 (nz rsaa, 2000) para 112; ac (Egypt) [2011] nzipt 800015, para 99), from Canada (Zalzali (Can. fca, 1991), Minister of Employment

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developed in the House of Lords decision in Horvath.8 In that case, their Lordships also discussed how such a two-tier definition of persecution relates to the ‘protection clause’. According to Lord Hope: It is an important reminder that there are indeed two tests that require to be satisfied. A person may satisfy the fear test because he has wellfounded fear of being persecuted, but yet may not be a ‘refugee’ within the meaning of the article because he is unable to satisfy the protection test. But it seems to me that the two tests are nevertheless linked to each other by the concepts which are to be found by looking to the purposes of the Convention. The surrogacy principle which underlies the issue of state protection is at the root of the whole matter. There is no inconsistency between the separation of the definition into two different tests […]. I would hold therefore that, in the context of an allegation of persecution by non-state agents, the word ‘persecution’ implies a failure by the State to make protection available against the ill-­treatment or violence which the person suffers at the hands of his persecutors.9 Hathaway and Foster suggest that the assessment of state protection in the country of origin expresses the goal of the 1951 Convention to serve as a backup for a lack of protection against serious harm, also called ‘­surrogacy’: the 1951 Convention serves to enfranchise with a national home those disenfranchised by ‘a fundamental breakdown in the relationship between an individual and her State’.10 Hathaway and Foster suggest that, contrary to other approaches, a two-tier definition of persecution allows for the establishment of a causal nexus between a failure of state protection in the country of origin and a Convention ground in cases where the harm itself is not inflicted for reasons of a Convention ground – race, religion, nationality, political opinion or and Immigration v Mayers [1993] 1 fc 154), from the uk (Islam and Shah (n 6); Horvath v Secretary of State for the Home Department [2000] ukhl 37 [2001] ac 489), from Ireland (Msengi v Minister for Justice, Equality and Law Reform, [2006] iehc 241) and from Australia (Khawar (Aus. hc, 2002); Rajaratnam v Minister for Immigration and Multicultural Affairs [2000] 62 ald 73; Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] 197 alr 389; nagv and nagw of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] 222 clr 161). 8 Horvath (n 7). 9 Ibid. 10 Hathaway and Foster (n 7) 288 and 17–23.

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­ embership to a particular social group.11 This linking between the causal m nexus and a failure of state protection is apparent not only in the uk case of Shah and Islam,12 but also the Australian High Court decision in Khawar.13 In that case, the Court recognized a female victim of domestic violence was a refugee, holding that the 1951 Convention’s causal nexus can relate to the harm element of ‘being persecuted’ as well as to the failure of state protection.14 Thus, Matthew, Hathaway and Foster argue that ‘failure to acknowledge the relevance of State protection as a part of the risk of ‘being persecuted’ would result in an under-inclusive application of the Convention’ where it is the question of the lack of state protection, rather than the harm inflicted, that is linked to a Convention ground.15 The conception of persecution as a two-tier sum of harm and the failure of state protection has, however, been criticised.16 Wilsher argues that this composite definition makes the lack of state protection a defining element in the refugee definition.17 It thereby overstresses the motivation of state authorities in refusing to provide protection and may also introduce two tests of state protection into status determination – one assessing the well-founded fear of the asylum applicant and one assessing the persecution itself.18 Similarly, in respect of Canadian law this approach was criticised on the basis that the twotier definition of persecution set an inadequate standard of protection.19 There has also been criticism of the first approach highlighted above, namely analysing state protection in countries of origin by relying only on the second limb of Article 1A(2). Specifically, it has been argued that it could 11 Ibid. 12 Lord Hoffman in Islam and Shah (n 6) stating that the motivation of the perpetrators of harm was not motivated by a Convention ground, but the lacking state protection was. 13 Minister for Immigration and Multicultural Affairs v Khawar [2002] hca 14. 14 Ibid. 15 P. Mathew, J.C. Hathaway and M. Foster, ‘The Role of State Protection in Refugee Analysis’ (2003) 15 ijrl 444. 16 Horvath (n 7) builds on Islam and Shah (n 6), which coined the formula that ‘persecution = serious harm + failure of state protection’. 17 D. Wilsher, ‘Non-State Actors and the Definition of a Refugee in the United Kingdom: Protection, Accountability or Culpability?’ (2003) 15 ijrl 68, 80–90. 18 Ibid. Similarly, Nykänen proposes to assess state protection as an element of the wellfounded fear test, rather than as part of a composite definition of persecution, see E. Nykänen, Fragmented State Power and Forced Migration – Study on Non-State Actors in Refugee Law (University of Turku 2012) 132–137. 19 P. Zambelli, ‘Problematic Trends in the Analysis of State Protection and Article 1 F(a) Exclusion in Canadian Refugee Law’ (2011) 23 ijrl 252.

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­neither be expected of the State to ‘[…] provide effective protection to an individual who fears persecution by Non-State agents’ nor of the applicant to ‘[…] seek the protection of the State as a pre-condition for qualifying as a refugee (namely, to exhaust local remedies) […]’.20 Yet, even those who criticise the role of state protection in refugee status determination (rsd) acknowledge that it is relevant in assessing whether a person indeed has a well-founded fear of persecution.21 This third approach does not place as much emphasis on the analysis of state protection in the country of origin, suggesting that this is simply part of the analysis of risk that adjudicators consider in any case. In sum, there is agreement that assessment of the country of origin’s response to harm inflicted by non-state actors matters in refugee status determination – regardless of where the basis of this component is in the text of Convention and what relationship there is between such an assessment and the principle of surrogacy. 2.2 What Standard of Protection should be Applied? The standard to be applied to state protection in countries of origin has been discussed at length, primarily in relation to the late 1990s quarrel over whether the actions of non-state actors were relevant for the 1951 Convention’s notion of being persecuted.22 At the core of this quarrel lay the following question: does a person fall within the refugee definition where the State of origin is willing, but not able, to protect her against risks of harm from non-state actors? Germany and France were influenced by the standards of state responsibility to answer this question. In consequence, they did not include in the refugee definition 20 21

22

Fortin (n 5) 574. Ibid. Fortin also argues that protection is relevant only to the extent that it is ‘an essential factor for assessing the well-foundedness of the person’s fear of persecution by non-State agents’. See also unchr, Interpreting Article 1 of the 1951 Convention Relating to the Status of Refugees (n 5) para 15. W. Kälin, ‘Non-State Agents of Persecution and the Inability of the State to Protect’ (2000) 15 Geo Imm L J 415; R. Marx, ‘The Notion of Persecution by Non-State Agents in German Jurisprudence’ (2001) 15 Geo Imm L Jl 448; J. Moore, ‘From Nation State to Failed State: International Protection from Human Rights Abuses by Non-State Agents’ (1999–2000) 31  Col Hum Rts L Rev 81; J. Moore, ‘Whither the Accountability Theory: Second-Class Status for Third-Party Refugees as a Threat to International Refugee Protection’ (2001) 13  ijrl 32; C. Phuong, ‘Persecution by Non-State Agents: Comparative Judicial Interpretations of the 1951 Refugee Convention’ (2003) 4 ejml 521; B. Vermeulen, T.  Spijkerboer, K. Zwaan and R.  Fernhout, Persecution by Third Parties (University of Nijmegen 1998); Nykänen (n 18).

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people who were at risk of harm from acts of non-state actors for which the State was not legally responsible, by tolerating or condoning these acts.23 According to the opposing viewpoint, the 1951 Convention focuses on the de-facto nature of harm and the reality of the risk to an individual, so that responsibility considerations do not feature in the question as to whether the actions of non-state actors are relevant to the refugee definition. Accordingly, not only the State of origin’s commitment, tolerance, or condoning of harm inflicted by non-state actors is relevant, but also their practical inability to protect against harm by non-state actors.24 According to the uk House of Lords in Adan, ‘if for whatever reason, the state in question is unable to afford protection against factions within the state, then the qualifications for refugee status are complete’.25 Yet, even under this inclusive view there were variances as to the standard of protection to be applied. In Horvath, the uk House of Lords argued for a somewhat limited standard of protection because of the principle of surrogacy. According to Lord Hope: ‘[…] the application of the surrogacy principle rests upon the assumption that, just as the substitute cannot achieve complete protection against isolated and random attacks, so also complete protection against such attacks is not to be expected of the home state. The standard to be applied is therefore not that which would eliminate all risk and would thus amount to a guarantee of protection in the home state. Rather it is a practical standard, which takes proper account of the duty which the state owes to all its own nationals.26 Lord Clyde specified the basis for this rationale, maintaining that the State must install and have a ‘reasonable willingness’ to operate ‘a system of domestic protection and machinery for the detection, prosecution and punishment

23

24 25 26

Marx (n 22). For the description of the approaches, see also Adan and Aitseguer v Secretary of State for the Home Department [2001] 2 wlr 143. Germany’s position was influenced in particular by the principles on attribution of conduct. The most relevant principles are that conduct by third parties is attributable to a State if that party acts under control of the State or if the State acknowledges and adopts conduct as its own. Today, these principles are reflected in the Articles 8 and 11 of the Articles on state responsibility. See International Law Commission, Responsibility of States for Internationally Wrongful Acts (2001) yilc vol. II (Part Two). Adan v The Secretary of State [1999] 1 A.C. 293; Adan and Aitseguer (n 23). Adan (n 24). Horvath (n 7).

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of actings [sic] contrary to the purposes which the Convention requires to have protected’.27 Lord Clyde also stated that ‘the corruption, sympathy or weakness of some individuals in the system of justice does not mean that the state is unwilling to afford protection’.28 The standard of protection developed in Horvath resembles an analysis of state responsibility for a human rights violation, because it refers to the reasonableness of state protection in the country of origin and puts emphasis on the State’s willingness to protection.29 Subsequent jurisprudence in the uk has to a certain degree adjusted this assessment of state protection and moved away from state responsibility, by stressing that protection has to be effective for the particular applicant in question. This jurisprudence emphasises that the standard in Horvath does not mean that there is state protection ‘every time the authorities are doing their best’30; and assesses the reasonableness of protective efforts towards a single applicant, rather than a general ‘system’ of protection.31 The effectiveness of this protection was determined by its capacity to deter or prevent the infliction of harm from non-state actors, rather than merely act as measures of ex-post criminal punishment.32 Yet, ‘effective protection’ here does not mean that it obviates the risk of harm.33 In sum, even in countries which rejected the state responsibility approach (or ‘accountability theory, as it was called in academia and by the courts) to an analysis of state protection in countries of origin, there remained some 27 Ibid. 28 Ibid. 29 Indeed, in the first instance decision preceding R (on the application of Yogathas and another) v Secretary of State for the Home Department [2001] ewca Civ 1611, the Court held that: ‘There must of course be a reasonable willingness to enforce the prohibitions and enforce the sanctions, in accordance with the concept of sufficiency of protection examined in Horvath’. But the evidence before this Court supports the view that the German authorities apply essentially the same approach in that respect, looking to whether the State will provide adequate protection in practice. For a discussion of the many positive aspects of the Horvath Judgment, see H. Lambert, ‘The Conceptualisation of “Persecution” by the House of Lords: Horvath v. Secretary of State for the Home Department’ (2001) 13 ijrl 16. 30 Kacaj v Secretary of State for the Home Department [2001] ukiat 0018. 31 Harakal v Secretary of State for the Home Department [2001] ewca Civ 884. 32 Banomova v Secretary of State for the Home Department [2001] ewca Civ 807; McPherson v Secretary of State for the Home Department [2001] ewca Civ 1955; Kinuthia v Secretary of State for the Home Department [2002] inlr 133. 33 McPherson v Secretary of State for the Home Department [2002] inlr 139, 147.

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ambiguity as to the appropriate standard of protection to be employed in such cases. In light of the confusion, Hathaway and Foster suggest that rather than ‘effectiveness’ or ‘adequacy’ of protection, the 1951 Convention’s ‘endogenous standard of “well-founded fear”’ should serve to ‘assess when there is a legally relevant failure of State protection’.34 In applying the ‘real chance’ standard – the usual well-founded fear test – in relation to the failure of state protection limb, a decision-maker will inevitably consider what measures a home state has adopted or will embark upon to provide the infrastructure of protection required – such as legislation, police protection, and other enforcement measures – and the extent to which such measures are effective, meaningful, adequate, and accessible […] The ultimate question is not, however, whether the home state has complied with any particular standard of conduct, but whether the result of even the best intentions and most diligent efforts is to ‘reduce the risk of claimed harm below the well-founded fear threshold’.35 This forward-looking approach to assessing the standard of protection provided in the country of origin means that past failure on the part of the asylum applicant to turn to state authorities in the country of origin for protection does not determine whether there is in fact state protection against harm. It also means that an assessment of state protection has to go beyond a general enquiry as to the State of origin’s overall willingness and ability to protect an individual. In particular such an examination must go beyond a presumption that such protection is generally available.36 3

‘Protection Analysis’ under the 2004 eu Qualification Directive

When the eu Qualification Directive was adopted in 2004, one of its key provisions was its Article 6 on harm from non-state actors. According to Article 6(c) of the Directive, non-state actors can be considered to be ‘actors of persecution’ when actors of protection are ‘unable or unwilling to provide protection 34 35

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Hathaway and Foster (n 7) 318. Ibid, 319 with reference to the United States (us) Department of Homeland Security, Asylum Officer Basic Training, Female Asylum Applicants and Gender-Related Claims (us Department of Homeland Security 2009) 25. Hathaway and Foster (n 7) 319–332.

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against persecution or serious harm […]’.37 The Qualification Directive therefore rejected the view that harm from non-state actors was only relevant for rsd where the State was legally responsible for the harm inflicted by non-state actors, for instance because it tolerated, condoned or failed to prevent the harm. The Qualification Directive leaves open the question of where in rsd to assess state protection in these cases. However, the Directive defines persecution, in Article 9, not as a composite of harm and failure of state protection but simply as (human rights) harm.38 Meanwhile, on first blush, Article 7 not only guides the application of Article 6 but also significantly constrains it. Article 7(2) for the first time circumscribed the standard of protection to be applied in cases involving non-state actors, providing that: Protection is generally provided when the actors mentioned in paragraph 1 take reasonable steps to prevent the persecution or suffering of serious harm, inter alia, by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm, and the applicant has access to such protection. eu Member States thus chose to define an abstract standard of protection in the Qualification Directive, and to treat protection from harm in refugee- and subsidiary status determinations equally. The wording of Article 7(2) of the Directive is clearly influenced by Lord Clyde’s standard of protection developed in Horvath.39 Article 7 of the Qualification Directive evolved to some extent from the first draft prepared by the European Commission.40 According to Article 9 of the original proposal, it was for Member States to ‘evaluate’ the effectiveness of state protection under the criteria of a ‘system of domestic protection and machinery for the detection, prosecution and punishment of actions which 37 38

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Emphasis added. Article 9 of the Qualification Directive provides that acts of persecution must either ‘be sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under […] the […] [European Convention on Human Rights (echr)] or be an accumulation of several measures with the same effect’. See Section 2.2. eu Commission, Proposal for a Council Directive on Minimum Standards for the Qualification and Status of Third Country Nationals and Stateless Persons as Refugees or as Persons Who Otherwise Need International Protection, com(2001) 510 final, 12 September 2001.

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constitute persecution or other serious and unjustified harm’.41 In contrast to the text that was finally adopted, the Commission chose to make explicit that available state protection in the country of origin meant that ‘fear of being persecuted or otherwise suffering serious unjustified harm shall not be considered to be well founded, in which case Member States shall not recognize the need for protection’.42 Thus, this formulation located the analysis of state protection not in the definition of persecution as such, but in the assessment of risk to the asylum applicant. In its explanatory memorandum, the European Commission also elaborated on the relationship between the well-founded fear of being persecuted element of the refugee definition on the one side, and protection against risks of being persecuted, on the other. The Commission stated that: In evaluating the effectiveness of State protection where the threat of persecution or other serious unjustified harm emanates from non-State actors, Member States shall consider whether the State takes reasonable steps to prevent the persecution or infliction of harm, and whether the applicant has reasonable access to such protection. There must be in place a system of domestic protection and machinery for the detection, prosecution and punishment of actions which constitute persecution or other serious and unjustified harm.43 In this respect, the Commission’s proposal leant towards state responsibility as the relevant standard for the analysis of state protection in the country of origin. This approach was strongly criticised by the European Parliament, which proposed deleting the reference to reasonableness and rather tying state protection to a probability standard. According to the European Parliament, ‘[…] [for] the system to offer effective protection, the State must be able and willing to operate it, such that there is no significant risk of persecution or other serious harm being realised’.44

41 42 43 44

Ibid, 17. Ibid, 44. Ibid, 44 [emphasis added]. European Parliament, Committee on Citizens’ Freedoms and Rights, Justice and Home Affairs, Report on the Proposal for a Council Directive on Minimum Standards for the Qualification and Status of Third Country Nationals and Stateless Persons as Refugees or as Persons Who Otherwise Need International Protection (com(2001) – 510 C5-0573/2001 – 2001/0207(cns)), A5-0333/2002 (2002).

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The Commission’s original proposal also listed factors that served to evaluate the effectiveness of state protection. According to the Commission, […] Member States should consider the following factors: (a) General conditions in the country of origin (b) The State’s complicity with respect to the infliction of harm at stake (c) The nature of State’s policies with respect to the harm at stake, including whether there in force a criminal law which makes violent attacks by persecutors punishable by sentences commensurate with the gravity of their crimes (d) The influence the alleged persecutors have with State officials (e) Whether any official action taken is meaningful or merely perfunctory, including an evaluation of the willingness of law enforcement agencies to detect, prosecute and punish offenders (f) Whether there is a pattern of State unresponsiveness (g) A denial of State’s services (h) Whether any steps have been taken by the State to prevent infliction of harm In the second part of this evaluation, relating to the determination whether the applicant has reasonable access to State protection, Member States should consider the following factors: (i) Evidence by the applicant that the alleged persecutors are not subject to the State’s control (j) The qualitative nature of the access the applicant has to whatever protection is available, bearing in mind that applicants as a class must not be exempt from protection by the law (k) Steps, if any, by the applicant to obtain protection from State officials and the State response to these attempts.45 Yet none of these criteria made their way into in the Commission’s actual proposal for the Qualification Directive. Similarly, the evidentiary rules in Article 4 of the Directive do not list any standards to be considered when assessing state protection in the country of origin. 45

eu Commission (n 40) 17–18.

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The result of this drafting process was a provision which carried the risk of abstract determinations as to the reasonableness of state protection, rather than providing concrete standards to be employed in assessments of the country of origin’s capacity to prevent harm inflicted by non-state actors. Yet, in its comments on the proposal, unhcr chose not to criticise the notion of ‘protection’ in Article 7 Qualification Directive, possibly because of its own internal quarrel over the role of protection analysis in status determination.46 unhcr did, however, caution that the assertion that effective state protection precluded a well-founded fear of being persecuted or otherwise be subject to serious harm was ‘too categorical’ and failed to ‘adequately express the complexities of the assessment’.47 unhcr did not however make this point clearer in its comments on the final Qualification Directive.48 In their criticisms of Article 7, non-governmental organizations (ngos) focused on the notion of reasonableness. The European Council on Refugees and Exiles (ecre) recommended that Member States should ‘implement higher standards when applying article 7(2), and evaluate the actual availability of protection, rather than merely whether the state of protection “take[s] reasonable steps to” prevent persecution or serious harm’.49 The Court of Justice of the European Union (cjeu) has not resolved the tension that is apparent between the responsibility-based and nonresponsibility-based analyses of state protection. However, it has eased this tension somewhat. Although there has been no case to date on the application of Article 7 in status determination, the cjeu elaborated on the requirements of Article 7 in the case Aydin Salahadin Abdulla, which primarily revolved

46 47

For the unhcr view, see Fortin (n 5). unhcr, unhcr’s Observations on the European Commission’s Proposal for a Council Directive on Minimum Standards for the Qualification and Status of Third Country Nationals and Stateless Persons as Refugees or as Persons Who Otherwise Need International Protection (Brussels, 12 September 2001, com(2001) 510 final, 2001/0207 (cns)) (unhcr 2001). 48 See unhcr, unhcr Annotated Comments on the ec Council Directive 2004/83/EC of 29 April 2004 on Minimum Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Refugees or as Persons Who Otherwise Need International Protection and the Content of the Protection Granted (OJ L 304/12 of 30.9.2004) (unhcr 2005). 49 ecre, The Impact of the eu Qualification Directive on International Protection (ecre 2008).

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around cessation of refugee status.50 In this case, the question before the Court was to what extent conditions in a refugee’s country of nationality have to change for an individual’s refugee status to cease. According to the Court: […] [The] circumstances which demonstrate the country of origin’s inability or, conversely, its ability to ensure protection against acts of persecution constitute a crucial element in the assessment which leads to the granting of, or, as the case may be, by means of the opposite conclusion, to the cessation of refugee status. […] In order to arrive at the conclusion that the refugee’s fear of being persecuted is no longer well founded, the competent authorities, by reference to Article 7(2) of the Directive, must verify, having regard to the refugee’s individual situation, that the actor or actors of protection of the third country in question have taken reasonable steps to prevent the persecution, that they therefore operate, inter alia, an effective legal system for the detection, prosecution and punishment of acts constituting persecution and that the national concerned will have access to such protection […]. That verification means that the competent authorities must assess, in particular, the conditions of operation of, on the one hand, the institutions, authorities and security forces and, on the other, all groups or bodies of the third country which may, by their action or inaction, be responsible for acts of persecution against the recipient of refugee status if he returns to that country. In accordance with Article 4(3) of the Directive, relating to the assessment of facts and circumstances, those authorities may take into account, inter alia, the laws and regulations of the country of origin and the manner in which they are applied, and the extent to which basic human rights are guaranteed in that country.51 The Statement by the cjeu concerning Article 7 contains two principle elements. First, the Court makes clear that the level of analysis ought to ‘have regard to the […] individual situation’ of the asylum applicant. Therefore, the cjeu relates general or systemic factors, such as the operation of an effective legal system, to the effects on the individual in question. In particular, the con50

51

Joined Cases C-175/08, C-176/08, C-178/08 and C-179/98 Aydin Salahadin Abdulla, Kamil Hasan, Ahmed Adem, Hamrin Mosa Rashi and Dler Jamal v Bundesrepublik Deutschland [2010] ecr I-01493. Ibid, paras 68–71 [emphasis added].

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crete conditions of how the State’s security forces operate have to be assessed and weighed against the actions of those inflicting harm. This corresponds to the opinion of Advocate General Mazák, who stressed that ‘[…] the requirement of protection imposed pursuant to Articles 11(1)(e) and 7(2) of Directive 2004/83 does not exist in the abstract but rather in concrete, tangible and objective terms’.52 The reference to ‘responsibility’ for harm, by act or omission, could be read as an unfortunate re-introduction of state responsibility-based arguments in such cases, but was probably rather a result of inattentive drafting of the opinion. Second, in its ruling the cjeu specifies what ‘facts and circumstances’ should be considered by courts when assessing the availability of state protection in the country of origin. The cjeu not only refers to the application of laws and regulations, but also to compliance with basic human rights standards. Thus, the Court makes clear that the general human rights situation in a country can be instructive and indicate whether state protection against specific harm is effective, even if the human rights violations being assessed do not form the basis for a claim of a well-founded fear of ‘being persecuted’ as such. In sum, Article 7 of the 2004 Qualification Directive represents the accumulation of pre-existing doctrines on how to analyse the willingness and capacity of the State of origin to protect individuals in cases of harm emanating from non-state actors. Although Article 6 of the Directive is clear in rejecting a state responsibility-based approach to such protection analysis, Article 7 to some extent incorporates a reasonableness criterion. The jurisprudence of the cjeu has contributed to a re-emphasis of non-responsibility-based approaches to the protection analysis. Despite these inconsistencies, the application of Article 7(2) of the Qualification Directive has so far been researched in detail only in a 2007 unhcr Study which reviewed jurisprudence of France, Germany, Greece, Slovakia, and Sweden.53 At the time, Article 7(2) of the Directive had only been transposed into the domestic law of Slovakia. In respect of all countries surveyed unhcr found that Article 7(2) of the Qualification Directive was hardly applied at all: Most of the decisions […] did not spell out any established or specific criteria relating to the adequacy or effectiveness of protection along the lines of Article 7(2). There was no reference to the content of Article 7(2) 52 53

Opinion of Advocate General Mazák, delivered on 15 September 2009 in ibid, para 53. unhcr, Asylum in the European Union. A Study of the Implementation of the Qualification Directive (unhcr 2007).

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in terms of what constitutes ‘reasonable steps to prevent persecution or serious harm’, and rarely any analysis of whether actors of protection operated an ‘effective legal system’ as provided for in the Qualification Directive. […] in general, the decisions screened provided scant evidence of assessment of the adequacy and effectiveness of protection. Decisions tended, at best, to reflect the conclusion arrived at with regard to ability to protect, rather than provide evidence of the criteria employed or an assessment of the quality of the protection provided.54 Therefore, doubts still remain as to the impact and the application of Article 7(2) of the Qualification Directive on Member States’ jurisprudence. 4

‘Protection Analysis’ in eu Member States

4.1 Points of Uncertainty and Contention The debates surrounding cases involving harm inflicted by non-state actors and the 2007 unhcr Study on the application of the Qualification Directive raises five points of uncertainty or contention: 1. 2. 3. 4. 5.

whether Article 7(2) is applied at all in eu Member States; if it is applied, where this analysis is located in status determination; what standard of protection is applied in these cases; whether the analysis of state protection adopted in eu Member States leads to restrictive interpretations of the refugee definition; what the impact of the qd is on domestic practice in this area.

In respect of the ‘location’ of such ‘protection analysis’ and the standard of protection to be applied in this respect, there are in particular two points of uncertainty: first, the relationship between a failure of state protection and the causal nexus and, second, the degree to which state responsibility-based criteria continue to influence analyses of state protection in these cases. The following section attempts to clarify these points of contention in respect of the jurisprudence in Germany, the uk and the Netherlands. As part of the research, 105 relevant post-Qualification Directive decisions from Germany were analysed, as were 28 from the Netherlands and 10 from the uk.

54

Ibid, 50–51.

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4.2 Germany 4.2.1 The Location of the ‘Protection Analysis’ and Its Link to the Causal Nexus Requirement German law does not specify whether ‘protection analysis’ in the refugee definition is part of the well-founded fear test or a two-tier definition of ‘being persecuted’. However, almost all the decisions reviewed considered protection analysis as part of an assessment of the likelihood of harm. German courts do not normally link the absence of state protection to one of the 1951 Convention grounds. There was only one case analysed which linked the lack of state protection to a 1951 Convention ground. This case concerned a trafficked women from Nigeria.55 According to the Court, while it was true that the perpetrators where private actors, state protection provided to victims of trafficking was lower than the protection provided for other forms of crime. The prevalent discrimination against women, incidences of gender-based violence by the police and the stigmatization of prostitutes in Nigeria meant that state protection here was insufficient.56 4.2.2 The Standard of Protection In 37 decisions analysed as part of this research, German courts did not substantiate their conclusions on state protection: the analysis here took only a marginal share of no more than one paragraph of the judgments in question. The majority of these decisions, however, resulted in recognition of refugee status or subsidiary protection status. In six decisions analysed in which the protection analysis does not exceed one paragraph, refugee and/or subsidiary status was denied. Four of these decisions concerned assaults by the ethnic majority in Kosovo; two cases revolved around gender based violence. All these decisions included arguments concerning the responsibility of state authorities in the country of origin: in the Kosovar cases, German courts highlighted the efforts undertaken by state authorities to protect individuals from such violence,57 the failure by the applicant to have rebutted a presumption of protection,58 the argument that there can be no ‘perfect’ form of state protection in any case59 and the simple assertion that protection was provided by the State.60 In the two cases on gender-based violence, the German courts noted 55 vg Wiesbaden, 14 March 2011, 3 K 1465/09.WI.A. 56 Ibid. 57 vg Düsseldorf, 23 November 2005, 7 K 3570/02.A. 58 VG Braunschweig, 8 February 2005, 6 A 541/04. 59 VG Saarland, 9 March 2005, 10 K 328/03.A; 26 January 2005, 10 K 84/03.A. 60 VG Braunschweig 28 November 2006, 6 A 589/05.

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that there was a functioning judiciary in the country of origin61 and that there was a lack of complicity on the part of the State.62 In the remaining decisions analysed, the German courts attempted to substantiate the conclusion that there was or not state protection provided in the country of origin, rather than merely asserting the availability or lack of such protection without relevant support. In approximately half of these cases, refugee status or subsidiary protection status was granted to the individual in question. Closer scrutiny of the ‘protection analysis’ employed in these cases reveals that courts still refer to arguments concerning state responsibility when denying refugee status. This most obviously concerned arguments which framed the ability or inability to protect individuals in terms of the complicity of the country of origin.63 In one such case, a higher administrative court recognized the change of law introduced by the Qualification Directive, but stated that because absolute protection was not possible in Kosovo, what mattered was merely that the authorities had control over the territory.64 In another case, the  Court held that the legal framework in place concerning gender-based ­violence in Turkey, in particular in relation to blood feuds, indicated that the  Turkish State was not complicit in such acts of violence perpetrated by private actors.65 Although open reference to arguments of complicity were relatively rare in the cases analysed, a variation of complicity arguments was more often made. For example, courts affirmed the availability of protection against harm because there was ‘no perfect’ protection against such harm possible in the country of origin. Courts therefore referred to the efforts of state authorities to protect the individuals concerned66 and argued that ‘effective protection’ in  these cases was relative to the means available to the State to address these issues.67 A second problem concerned the strong deference of German courts to the protective capacity of state authorities in the country of origin, which in a 61 62 63

64 65 66 67

VG Arnsberg, 7 January 2010, 6 K 197/09.A. VG Gera, 25 November 2004, 4 K 20215/01.GE. VG Lüneburg, 10 May 2005, 3 A 118/04 (Turkey); VG Aachen, 14 December 2004, 9  K  3309/04.A (Kosovo); VG Aachen, 15 October 2004, 9 K 1480/03.A (Kosovo); OVG Saaraland, 11 May 2005, 1 Q 16/05. OVG Saaraland, 11 May 2005, 1 Q 16/05. VG Aachen, 23 October 2006, 6 K 2348/05.A. VG Düsseldorf, 23 November 2005, 7 K 3570/02.A. VG Aachen, 20 April 2005, 9 L 224/05 (Sierra Leone); VG Aachen, 14 December 2004, 9 K 3309/04.A; VG Ansbach, 25 January 2005, AN 19 04.32135; VG Karlsruhe, 23 June 2005, A 2 K 11324/04.

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number of cases resulted in a failure to rebut an implicit presumption of available protection. For instance, the administrative Court Saarland stated that the state authorities’ calling on an applicant to defend herself with a gun did not illustrate that the Kosovar authorities were not, ‘on the whole’, in a position to grant protection.68 Similarly, it appeared commonplace for German courts to state that the past failure of state authorities to protect against harm inflicted by non-state actors was not indicative of the State lacking capacity to protect more generally. For instance, an administrative court argued that ‘even if in individual cases the police did not grant effective protection it cannot be asserted that the Serbian State as a whole is not willing or able to protect Roma from assaults by third parties’.69 The Court pointed to the findings of the Foreign Office, to the effect that where the authorities of the country of origin remained inactive, potential victims could complain to the Ministry of the Interior.70 Strong deference to the capacities of the State was also evident in cases where German courts referred to the legal and institutional framework of a State to illustrate effective protection. For instance, in a Kosovar case a German administrative court referred to the Council of Europe’s Framework Agreement on the Protection of National Minorities, the creation of a ministry for human rights and the existence of an ombudsperson.71 In status determination decisions concerning claimants from Kosovo, German courts also pointed to the number of law enforcement personnel and their equipment to justify the decision that state protection was effective in these cases.72 In most of decisions analysed as part of this research, German courts did not discuss whether the claimant should have turned to state authorities to remedy the harm inflicted by non-state actors. Nine decisions were an exception to this rule; in these cases the German courts held that such requests should have been made, notably with the authorities of Kosovo, Turkey, Serbia and South Africa.73 However, only in the Kosovar cases neither refugee nor subsidiary status was recognized. In sum, Articles 6 and 7 of the Qualification Directive appear to have prompted German courts to analyse state protection in the country of origin 68 VG Saarland, 13 May 2009, 10 K 1067/08. 69 VG Ansbach, 13 August 2008, AN 11 K 08.30252. 70 Ibid. 71 VG Berlin, 30 January 2009, 37 X 193.05. 72 VG Minden, 18 August 2008, 7 K 790/08.A; VG Karlsruhe, 3 March 2005, A 4 K 10294/02. 73 VG Ansbach, 13 August 2008, AN 11 K 08.30252; VG Saarland, 4 July 2008, 10 L 602/08; VG Aachen, 23 October 2006, 6 K 2348/05.A; VG Aachen, 11 October 2006, 6 K 4487/04.A; VG Aachen, 10 June 2005, 9 K 4171/04.A; OVG Saarland, 11 May 2005, 1 Q 16/05; VG Stuttgart, 17 January 2005, A 10 K 10587/04.

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differently from the way in which this aspect of the refugee definition had been analysed previously. More specifically, prior to the adoption of the Qualification Directive, German courts had only rarely recognized as refugees those at risk of harm by non-state actors. However, in more recent decisions courts still fail to place due emphasis on Article 7 in status determinations, do not generally substantiate their conclusions on state protection and continue to employ state responsibility arguments in their ‘protection analyses’. The United Kingdom The Location of the ‘Protection Analysis’ and Its Link to the Causal Nexus Requirement The uk expressly locates its ‘protection analysis’ in a bifurcated definition of ‘persecution = serious harm + failure of state protection’. Although it has been argued that such an approach does allows linking the harm itself to a Convention ground, but rather the failure to protect against it (see Section 2.1.), this has not been remedied in recent case law.

4.3 4.3.1

4.3.2 The Standard of Protection Prior to the adoption and entry into force of the Qualification Directive, the uk already had established case law on ‘protection analysis’ for cases concerning persecution from non-state actors. The standard of protection elaborated in Horvath and in subsequent jurisprudence from before the 2004 Directive continue to apply. There still remain some doubts as to the extent to which courts employ state responsibility arguments when considering state protection in the country of origin. The House of Lords in Bagdanavicius, albeit an Article 3 case, also explicitly stated that the ratio behind a failure of state protection was state responsibility: Non-state agents do not subject people to torture or the other proscribed forms of ill-treatment, however violently they treat them: what, however, would transform such violent treatment into article 3 ill-treatment would be the State’s failure to provide reasonable protection against it.74 Moreover, in Hussein, the Scottish Court of Session appears to have interpreted the Horvath standard strictly, holding that ‘[…] it is not enough to point to corruption, inefficiency or incompetence on the part of individual members of 74

Bagdanavicius and another v Secretary of State for the Home Department [2004] 1 wlr 1207, para 24 [emphasis added].

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the police, prosecution or justice system. There must be evidence of systemic or “institutionalised” unwillingness to afford protection to the victims of persecution by non-State actors’.75 While there clearly remain elements of the state responsibility approach to ‘protection analysis’ in the uk case law on non-state actors, the deci­ sions reviewed as part of this research, handed down by the Upper Tribunal (Immigration and Asylum Chamber), and its predecessor, the Asylum and Immigration Tribunal (ait), have all overturned first instances decisions which made findings on available state protection in the country of origin. These have mostly not concerned errors of law, but either the relevance of general factors of protection to the particular applicant’s case, or improper conclusions on general or individual factors relevant to an analysis of state protection. In sk, the Tribunal recognized that a woman fearing honour killings in Turkey could not obtain protection against this harm from the State.76 According to the Court, compliance with human rights law in practice in Turkey was not sufficient: ‘non-discrimination in the actual enjoyment of the rights and remedies and the actual protection that they are designed to offer, is not yet delivered to women in Turkey in accordance with the law’.77 This meant that some women could not obtain sufficient protection against harm inflicted by non-state actors, particularly in relation to honour killings. The applicant in question was part of this group of women who could not obtain protection, because a male relative of hers was a member of the police force. In am and bm, the ait quashed a decision that concerned a trafficked woman from Albania.78 The first instance Tribunal had held that the authorities in Albania were making ‘significant efforts’ to protect victims of trafficking from harm inflicted by non-state actors, including prosecution and conviction of traffickers. However the ait held the first instance Tribunal had not sufficiently taken into account factors particular to the individual applicant. In sa (political activist), the lower instance decision was overturned because the Tribunal had not considered elements that were relevant to the possibility for the State to provide protection to the asylum applicant. In a past case of assault, the police had failed to prosecute the perpetrators.79 The relevance of

75 Hussein v Secretary of State for the Home Department [2005] sc 509. 76 sk (‘honour killings’ – Article 3; yk 2002 cg distinguished) Turkey [2006]. 77 Ibid. 78 am and bm (Trafficked women) Albania cg [2010] ukut 80 (iac). 79 sa (political activist – internal relocation) Pakistan [2011] ukut 30 (iac).

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the corruption of state authorities in these cases was also confirmed in the case of rk (India).80 In md (Ivory Coast), the Upper Tribunal considered that legal discrimination against women who had committed adultery (as compared to men who had committed adultery), the prevalence of the societal inferiority of women in the country and the pervasiveness of gender-based violence were indicators for lacking effective state protection for women.81 According to the Court: Whilst the prevalence of these attitudes varies from area to area, the fact that such attitudes survive is evidence of the State’s reluctance or inability to stamp them out. It seems to us unlikely that the arm of the state operates with consistent force throughout the country. Indeed, it cannot do so if the law provides for the criminalisation of a particular form of conduct and yet the incidence of the practice suggests in some areas it is almost universal […].82 In rk (India), Lord Jones considered whether a failure to appeal to local authorities had any bearing on the question of sufficient protection in the country of origin.83 In the lower instance Court, the claim of an Indian national had been rejected because he had not appealed to ‘any higher authorities within the police force or any other government bodies in India’.84 Lord Jones, however, held that the question of whether a person sought help from the authorities had no bearing on the assessment of the sufficiency of protection in these cases.85 In sum, uk jurisprudence on cases involving state protection against harm inflicted by non-state actors has not developed as a result of the Qualification Directive, but rather draws on case law handed down prior to the adoption of the instrument. Although the standard of protection employed in uk case law resembles the state responsibility approach to a certain extent, this has not led to restrictive decision-making against asylum seekers fleeing harm by nonstate actors – at least not at the second instance level.

80 81 82 83 84 85

rk (India) v Secretary of State for the Home Department [2012] csoh 194, para 49. md (Women) Ivory Coast cg [2010] ukut 215 (iac). Ibid, 276. rk (India) (n 80) para 49. Ibid, para 22. Ibid, para 51.

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The Netherlands The Location of the ‘Protection Analysis’ and Its Link to the Causal Nexus Requirement The Dutch Immigration Act does not provide any hint as to the location of the ‘protection analysis’ within RSD. However, the 2000 Circular on Foreigners (Vreemdelingencirculaire 2000) provides that ‘there can only be persecution if it is established that the State or parties or organizations are unable or unwilling to provide protection against persecution’.86 Despite the logical flaw in this wording, it may point to ‘protection analysis’ being ­considered as part of the definition of persecution. Yet, analysis of Dutch case law indicates that courts locate this aspect of the refugee definition in the ­well-founded fear analysis.87 Among the cases reviewed as part of this research, there were no cases in which courts established a nexus to a Convention ground with reference to the lack of state protection, rather than in relation to the infliction of harm. 4.4 4.4.1

4.4.2 The Standard of Protection Prior to the entry into force of the 2004 Qualification Directive, Dutch courts recognized as refugees people fleeing harm from non-state actors. There was also jurisprudence concerning state protection against such harm.88 There was no general state responsibility -focused protection standard elaborated by Dutch courts prior to the adoption of the Qualification Directive. In the decisions reviewed, however, the Council of State (Raad van State) rejected the appeal of a woman fearing slavery in Ivory Coast, as the Court held that it could not be concluded from the country material that slavery would occur with the consent or instigation of the authorities.89 Dutch jurisprudence was and remains first and foremost focused on establishing whether an asylum applicant is expected to turn to local authorities in their country of origin before seeking protection abroad. The Dutch Council of State, in two cases prior to the Qualification Directive, held that an individual 86 87 88

89

Vreemdelingencirculaire 2000, para 2.3.3 [author’s translation]. See, for instance, Rechtbank’s-Gravenhage, 16 November 2004, awb 03/29538. Rechtbank’s-Gravenhage, 16 November 2004, awb 03/29538; Rechtbank’s-Gravenhage, 3 May 2004, awb 02/41254; Rechtbank’s-Gravenhage, 29 March 2004, awb 01/29869; Rechtbank’s-Gravenhage, 30 December 2003, awb 02/85508; Rechtbank’s Gravenhage, 25  November 2003, awb 02/25468, 02/25473; Rechtbank’s-Gravenhage, 21 November 2003,  awb 01/69346; Rechtbank’s-Gravenhage, 25 July 2003, awb 03/37082, 03/37080; Rechtbank’s-Gravenhage, 15 November 2001, awb 01/57057, 01/57063, 01/57058, 01/57065; Rechtbank’s-Gravenhage, 18 January 2001, awb 00/854. Raad van State, 1 March 2003, 200607024/1.

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would be expected to turn to state authorities in order to receive protection against harm before leaving his or her country of origin, unless the general information on the country shows that this would have been meaningless or dangerous.90 Recently, the State Council confirmed this jurisprudence in a case concerning Article 3 of the European Convention of Human Rights and involving an Iraqi applicant. In this decision, the State Council found that when there is, according to general country of origin information, ‘generally’ protection against harm inflicted by non-state actors, then the burden is on the applicant to demonstrate that seeking protection from the authorities would have been meaningless for her.91 In line with this jurisprudence, most of the Dutch case law appears to revolve around the question of whether country of origin information which indicates that turning to state authorities for protection would be meaningless or dangerous is sufficient to relieve an applicant of the expectation to turn to state authorities for protection. Prior to the entry into force of the Qualification Directive, there were two decisions in which the Dutch courts held that not enough evidence had been produced to conclude that it would have been meaningless for the applicant to turn to the authorities for protection. One of these cases concerned an applicant for subsidiary protection, a Bangladeshi national fearing violence from non-state armed groups.92 In the other case, on a plaintiff from Nagorno-Karabakh, the Court held that a general failure of state protection was not supported by the facts, although the perpetrator of the feared harm was a regional military commander.93 In contrast, there were a number of cases in which the Dutch courts overturned decisions made by the immigration authorities on the basis that general country information was insufficient to conclude that there was effective state protection in the country of origin − either because the decisions had not been backed up with country of origin information,94 because the immigration authorities had failed to acknowledge the past handling of the applicant’s case by state authorities in the country of origin95 or because of factors including 90

Raad van State: 19 July 2002, 200202206/1; 28 April 2003, 200300547/1; 27 February 2012, 201110164/1/V2. 91 Raad van State, 27 February 2012, 201110164/1/V2. 92 Rechtbank’s-Gravenhage, 25 July 2003, awb 03/37082, 03/37080. 93 Rechtbank’s-Gravenhage, 10 June 2003, awb 01/50117 BEPTDN. 94 Rechtbank’s-Gravenhage, 16 November 2004, awb 03/29538; Rechtbank’s-Gravenhage, 29 March 2004, awb 01/29869; Rechtbank’s-Gravenhage, 15 November 2001, awb 01/57057, 01/57063, 01/57058, 01/57065; Rechtbank’s-Gravenhage, 18 January 2001, awb 00/854. 95 Rechtbank’s-Gravenhage, 3 May 2004, awb 02/41254 (Russia).

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the applicant’s young age and widespread corruption among state authorities in the country of origin.96 Dutch case law analysing state protection against harm inflicted by nonstate actors has not changed with the adoption of the Qualification Directive. The question of whether there was a general failure of state protection in the country of origin, which relieves applicants from the burden of demonstrating that in their particular case it was meaningless to turn to the authorities, still dominates judicial decisions. Nine out of the 17 decisions reviewed (and handed down after the entry into force of the 2004 of the Qualification Directive) revolved around this issue. In three of these cases, the courts held that protection was generally available in the country of origin. In a case concerning gender-based violence in Uganda and one concerning religious extremism in Serbia, the Dutch courts maintained that it was not enough for the asylum applicant to demonstrate that state authorities in the country of origin had failed to protect individuals in other, similar cases.97 In a gender-based violence case concerning a national of Turkey, the Dutch State Council held that there were no reasons to believe that there was generally no protection in the country of origin, despite the fact the applicant had appealed to the police for help three times. This was because of various general steps taken by the police in the area, including distributing a circular on domestic violence and improving police training in relation to gender-based violence.98 When Dutch courts held that there was not sufficient state protection ­available in the country of origin, they did so with reference to the influence of the perpetrators on state authorities,99 state authorities’ general ineffectiveness100 and corruption101 past unsuccessful attempts to engage the authorities102 or a lack of evidence sufficient to assume that effective state protection existed.103 A particularly striking feature of recent ‘protection analysis’ undertaken by the Dutch courts is that applicants are expected to have appealed to a higher authority in the country of origin when previous appeals to local authorities 96 Rechtbank’s Gravenhage, 25 November 2003, awb 02/25468, 02/25473 (Vietnam). 97 Raad van Staate, 9 March 2011, 201006822/1/V2; Rechtbank’s-Gravenhage, 15 January 2010, awb 09/47171 (verzoek) en awb 09/47169 (beroep). 98 Raad van State, 29 July 2010, 201000726/1/V3. 99 Rechtbank’s-Gravenhage, 27 April 2006, awb 05/9509, 05/9511; Raad van State, 12 February 2010, 200909235/1/V2. 100 Rechtbank’s-Gravenhage, 9 October 2012, awb 11/32480. 101 Rechtbank’s-Gravenhage, 8 October 2010, awb 10/32872 en 10/32868. 102 Rechtbank’s-Gravenhage, 25 March 2010, 09/11135 en 09/14677. 103 Rechtbank’s -Gravenhage, 3 May 2012, awb 12/10228, 12/10230, 12/10227 en 12/10229.

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for help and assistance have been unsuccessful. This is evident in a 2010 domestic violence case concerning a Ugandan woman,104 and in a lower court ­decision on protection concerning a former Member of the Nepali Congress Party who feared harm from a non-state armed group.105 In relation to the standard of protection to be employed in these cases, Dutch courts did not hold that the effectiveness of state protection in the country of origin should be determined by reference to the means at the disposal of that country. However, the Council of State in a 2013 decision argued that ‘advice and assistance’ provided to a woman fearing domestic violence in Kosovo was indicative of State protection. According to the State Council: Unlike the alien has argued, it can be seen from the official country report that although domestic violence is a major problem in Kosovo and that only a small number of cases are being reported [by the victims, A.N.], the authorities are not unwilling or unwilling to provide protection. The fact that the degree of effectiveness of protection is not clear from the outset […] does not as such mean that the applicant cannot obtain protection. Unlike the alien has argued, it follows from the official country report that it is possible, albeit on a limited scale, and independent from the ‘gender officers’ [of the Kosovo police, A.N.], to receive advice and assistance.106 In sum, Dutch courts have created a presumption of state protection in the country of origin which in effect imposes an additional test on the asylum applicant. This doctrine has been applied more or less strictly in the different cases analysed as part of this research. While, in contrast to the uk case law, there are no references to a state responsibility standard when assessing protection in the country of origin, the requirements of Dutch case law pose equally high hurdles for asylum applicants. As appears to be the case in the uk, but not in Germany, the Qualification Directive has not changed how Dutch courts analyse state protection in the country of origin. 5

‘Protection Analysis’ in the Recast Qualification Directive

The Recast Qualification Directive, adopted in 2011, amended the articles ­relevant for ‘protection analysis’ in the country of origin. In contrast to 104 Rechtbank’s-Gravenhage, 15 January 2010, awb 09/47171 (verzoek) en awb 09/47169 (beroep). 105 Decision summarised in Rechtbank’s-Gravenhage, 9 October 2012, awb 11/32480. 106 Raad van Staate, 6 August 2013, 201205299/1/V1.

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the 2004 Qualification Directive, ‘protection analysis’ features prominently in the Directive’s Preamble, which provides that it was necessary to introduce ‘common concepts of […] sources or harm and protection, internal protection and persecution’ to assist Member States in interpreting Article 1 of the 1951  Convention.107 The Preamble further specifies that, ‘Where the State or  agents of the State are the actors of persecution or serious harm, there should be a presumption that effective protection is not available to the applicant’. The Preamble further states that in the context of unaccompanied minors such analysis should include ‘the availability of appropriate care and custodial arrangements, which are in the best interest of the unaccompanied minor’.108 The Recast Qualification Directive does not clarify where protection analysis should be located in status determination. The definition of persecution has remained unchanged; still referring to harm only, rather than to a composite definition of ‘harm  +  a failure of state protection’ modeled on the uk approach. However, Article 9(3) was amended so as to reflect the position that a causal nexus can also be established in relation to the failure of state protection: 3. In accordance with point (d) of Article 2, there must be a connection between the reasons mentioned in Article 10 and the acts of persecution as qualified in paragraph 1 of this Article or the absence of protection against such acts.109 The Directive thereby effectively adopts the approach taken by the uk in Shah and Islam. However, strictly speaking, the uk approach, which entails linking the failure of state protection to a Convention ground, also requires separating the notion of ‘being persecuted’ into two elements – the harm and the failure of state protection in the country of origin. This is because the 1951 Convention’s refugee definition requires a causal nexus between the persecution feared and a Convention ground, rather than between the well-founded fear itself and a Convention ground. The Directive’s definition of persecution is clearly not ‘bifurcated’ in the same manner as the uk approach. 107 Directive 2011/95/EU (n 4), Recital 25 in conjunction with Recital 24. 108 Ibid, Recital 27. 109 See also Ibid., Recital 29, according to which: ‘One of the conditions for qualification for refugee status within the meaning of Article 1(A) of the Geneva Convention is the existence of a causal link between the reasons for persecution, namely race, religion, nationality, political opinion or membership of a particular social group, and the acts of persecution or the absence of protection against such acts’.

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The Recast Qualification Directive also amended Article 7(2) on the standard of protection to be applied in these cases. According to Article 7(2): Protection against persecution or serious harm must be effective and of a non-temporary nature. Such protection is generally provided when the actors mentioned under points (a) and (b) of paragraph 1 take reasonable steps to prevent the persecution or suffering of serious harm, inter alia, by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm, and when the applicant has access to such protection. Thus, the Recast Qualification Directive introduced a requirement of effectiveness and durability. However, the Recast Qualification Directive linked this to the more concrete standard of protection drawn from the uk decision in Horvath. The requirement that protection has to be ‘effective’ also existed in uk jurisprudence prior to the adoption of the Qualification Directive. There remains tension between this requirement of effectiveness and the determination that such protection is ‘generally provided’ where the State takes ‘reasonable’ steps to prevent harm. Just as in the case of the 2004 Qualification Directive, the Recast Qualification Directive leaves it to the interpretative latitude of Member States to determine when state protection in the country of origin is effective. In this respect, the Recast Qualification Directive is unlikely to significantly impact on existing jurisprudence concerning ‘protection analysis’ in countries of origin. In the past ten years, courts’ decisions in Germany, the Netherlands and the uk were influenced more by their respective patterns of domestic practice than by the Qualification Directive. Only when this domestic practice explicitly contradicted the wording of the Directive, as was the case in Germany, was the influence of Article 7 of the Qualification Directive notable. 6

Conclusion: Can Courts in the eu Get It Right?

Ten years after the adoption of the Qualification Directive, a review of case law from Germany, the uk, and the Netherlands gives a mixed picture of domestic analysis of state protection against harm emanating from non-state actors. In Germany, Articles 6(c) and 7(2) of the 2004 Qualification Directive led courts to address the interplay between harm and protection against that harm differently than they had done previously. In the uk, the Qualification Directive had no discernible impact on jurisprudence, as the dominant approach in this

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country had been elaborated before the adoption of the Directive, and even influenced the formulation of the relevant provisions of the Qualification Directive itself. Similarly, in the Netherlands jurisprudence originating before the entry into force of the Qualification Directive still appears to play a greater role in domestic decisions than Article 7 of the Directive. This research revealed stark differences in the countries examined in relation to (i) how much emphasis courts placed on ‘protection analysis’ generally, (ii) where they located protection analysis within the status determination, (iii) whether they linked this analysis to the nexus requirement, (iv) whether they expected individuals to appeal to authorities in the country of origin (v) in the elements they considered relevant for reaching a conclusion as to whether there was sufficient state protection against harm in the country of origin, and (vi) whether they substantiated their conclusions. In each of the countries examined, different jurisprudential features were apparent: in many German decisions the conclusions on state protection in the country of origin were not substantiated. The ‘protection analysis’ in these cases often appeared to be a brief pro forma exercise which was automatically answered by the assessment of a well-founded fear. In a few cases analysed, the issue of available state protection in the country of origin was decisive in determining whether or not the individual was to be recognized as a refugee. In those decisions which led to the finding that the applicant was a refugee, courts pronounced findings relating to available protection on the basis of the general protection available in the country of origin, or measured effective protection in relation to the means available to the State. In the uk, courts still use a standard of protection that resembles that of state responsibility. However, the appeal decisions analysed here reveal that it has not been this standard of protection that has led to restrictive decisionmaking against asylum seekers fleeing harm from non-state actors. Rather, the higher Court overturned first instance decisions in which a finding for an individual case was made on the basis of general information relating to protection in the country of origin, or which had failed to take into account factors relevant to state protection. In the Netherlands, courts have created a procedural presumption of available protection in the country of origin. This doctrine appears to have led to the most restrictive practice among the three countries under examination here. Remarkably, Dutch courts appear to place the ‘protection analysis’ in the well-founded fear test of the 1951 Convention’s refugee definition. In contrast to the warnings advanced by unhcr and academics in the field, the location of this ‘protection analysis’ in status determination appears to have no effect on whether this analysis is applied restrictively in practice.

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Neither has the human rights approach – the approach that employs human rights law to guide what is to be considered relevant harm in these cases – encouraged restrictive decision making. Finally, attribution of failure of state protection to a Convention reason was virtually absent from the decisions analysed, regardless of where protection analysis was placed in the refugee definition. In both Germany and the Netherlands, this absence was compensated for with a lax application of the 1951 Convention’s nexus criterion. The Qualification Directive allows for these differences in ‘protection analysis’ between eu Member States because it’s Article 7(2) leaves sufficient interpretative latitude to States to sustain domestic practice that developed before the Directive entered into force. Article 7(2) thereby also illustrates the challenges involved in harmonising asylum law in the eu. Can courts in the eu get ‘protection analysis’ right? Yes. The Qualification Directive neither prescribes analysing state protection relative to the means at a State’s disposal, nor does it introduce a presumption of state protection in cases involving harm inflicted by non-state actors. Indeed, the 2011 Recast Qualification Directive places emphasis on the ‘effectiveness’ of protection in the country of origin. However, eu asylum law is unlikely to meaningfully affect domestic practice where it leaves States such interpretative latitude.

chapter 5

The Persecution of Disabled Persons and the Duty of Reasonable Accommodation An Analysis under International Refugee Law, the eu Recast Qualification Directive and the echr Stephanie A. Motz1 1 Introduction In recent years there has been a growing recognition of the need for a disability-sensitive refugee definition, particularly since the adoption of the Conven­ tion on the Rights of Persons with Disabilities (crpd) on 13 December 2006.2 One question that must be considered in the refugee context is whether violations of the rights enshrined in the crpd can be drawn upon in interpreting the notion of persecution. In particular, it is yet to be fully explored whether a violation of a core principle of the crpd, the duty to make necessary and app­ ropriate adjustments for disabled persons (the duty of reasonable accommodation, Article 2 crpd), may amount to persecution.3 In this chapter I will examine how courts and tribunals have assessed the asylum claims of disabled persons and the extent to which the crpd has been turned to when assessing persecution. In particular, I will analyse in what situations violations of the duty of reasonable accommodation may amount to 1 The author would like to thank Vincent Chetail and the reviewers for their helpful comments on an earlier draft. All remaining errors are those of the author. 2 crpd, 2515 unts 3, 13 December 2006 (entry into force 3 May 2008). This is particularly so amongst scholars, see e.g. C. Straimer, ‘Vulnerable or Invisible? Asylum Seekers with Disabi­ lities in Europe’ (2010) 194 unhcr New Issues in Refugee Research Series; M. Crock, C. Ernst and R. McCallum, ‘Where Disability and Displacement Intersect: Asylum Seekers and Refugees with Disabilities’ (2012) 24 ijrl 735. See also J.C. Hathaway and M. Foster, The Law of Refugee Status (2nd edn cup 2014) 201, 205, 451–452, and the United Nations High Commissioner for Refugees (unhcr), unhcr Executive Committee (ExCom), Conclusion No 110 (LXI) of 2010. 3 I will refer to ‘disabled persons’ rather than ‘persons with disability’ for reasons of style, but I do not wish to stress the membership of the disabled community (disabled person) rather than the human condition (person with disability), see further A. Hendriks, M. Ventegodt Liisberg, ‘Disability Rights – Overview’ in D.P. Forsythe (ed), Encyclopedia of Human Rights (vol 2 oup 2009) 34.

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persecution in international refugee law and under the 2011 Recast Qualification Directive of the European Union (eu) as well as the European Convention on Human Rights (echr).4 In Section 2, I will provide a brief overview of the crpd, focusing particularly on the novel aspects of the human rights approach enshrined in the Convention, including the duty of reasonable accommodation, the denial of which constitutes discrimination pursuant to Article 2 crpd. In Section  3, I will consider the relevance of the crpd to the notion of persecution within the broader context of the human rights paradigm in international refugee law. My focus will lie on the case law of Australia, New Zealand, Canada and the United Kingdom (uk). In Section 4, I will analyse existing case law on disabled asylum seekers through the lens of the crpd and the duty of reasonable accommodation. Section  5 will focus on the extent to which a disabilitysensitive definition of persecution is compatible with, or even required by, eu asylum law. Finally I will look at the approach taken to the refoulement claims of disabled persons by the European Court of Human Rights (ECtHR). I will conclude that a denial of reasonable accommodation has so far been found to amount to persecution only if the case involved either cumulative forms of harm or cumulative vulnerabilities. However, a more inclusive approach would be appropriate in that this would not only be in accordance with the Handbook of the United Nations High Commissioner for Refugees (unhcr), but is also required of eu Member States by virtue of eu law. 2

An Overview of the United Nations Convention on the Rights of Disabled Persons

Rationale and Adoption of the Convention on the Rights of Persons with Disabilities The crpd is the most recent group-rights treaty in international human rights law. The late adoption of this treaty is in part due to the formerly prevai­ling assumption that the human rights of disabled persons were sufficiently protected under existing human rights treaties, particularly the International 2.1

4 See respectively Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on Standards for the Qualification of Third-Country Nationals or Stateless Persons as Beneficiaries of International Protection, for a Uniform Status for Refugees or for Persons Eligible for Subsidiary Protection, and for the Content of the Protection Granted (recast), oj L 337/9, 20 December 2011; and echr, ets No 005, 4 November 1950 (entry into force: 3 September 1953).

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Covenant on Civil and Political Rights (iccpr) and the International Covenant on Economic, Social and Cultural Rights (icescr).5 Yet, disabled persons remained largely invisible in the field of international human rights law.6 After a number of soft law instruments and measures had proven ineffective,7 a specific treaty on the human rights of disabled persons was called for.8 The need for such a treaty was accepted after a study commissioned by the United Nations (un) Office of the High Commissioner for Human Rights found that it would ‘immeasurably advance the rights of persons with disabilities, while at the same time enhancing the capacity of the existing instruments to respond appropriately’.9 Thereafter, the crpd was rapidly negotiated within an exceptionally short time period of four years, and adopted by the General Assembly on 13 December 2006 entering into force on 3 May 2008. To date there have been 147 ratifications and accessions (including the eu and Palestine) and 158 signatories.10 5

iccpr, 999 unts 171, 16 December 1966 (entry into force: 23 March 1976); and icescr, 993 unts 3, 16 December 1966 (entry into force 3 January 1976). There was considerable reluctance among States Parties to accept the need for a disability-specific human rights treaty, on this see A. Lawson, ‘The United Nations Convention on the Rights of Persons with Disabilities: New Era or False Dawn?’ (2007) 34 Syracuse J Int’l L & Com 563, 573. 6 There were a few notable exceptions, particularly the United Nations Committee on Econo­ mic, Social and Cultural Rights (cescr), General Comment No. 5: Persons with Disabilities, un Doc E/1995/22, 9 December 1994; United Nations Human Rights Committee, Hamilton v Jamaica, un Doc CCPR/C/66/D/616/1995, 18 July 1999; both of which displayed an understanding of disability as an equality issue, but had hardly any broader impact, see further on this Lawson, ‘The United Nations Convention on the Rights of Persons with Disabi­lities’ (n 5) 577–578, 583–584. 7 United Nations General Assembly (unga), Declaration on the Rights of Mentally Retarded Persons, un Doc A/RES/2856(XXVI), 20 December 1971; unga, Declaration on the Rights of Disabled Persons, un Doc A/RES/3447(XXX), 9 December 1975; unga, World Programme of Action Concerning Disabled Persons, un Doc A/RES/37/52, 3 December 1982; unga, Talinn Guidelines for Action on Human Resources Development in the Field of Disability, un Doc A/RES/44/70, 8 December 1989; unga, Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care, un Doc A/RES/46/119, 17 December 1991. 8 In 2000 the Beijing Declaration on the Rights of Persons with Disabilities in the New Century, adopted on 12 March 2000 at the World ngo Summit on Disability, called for the drafting of an international convention, which then led to first steps to examine the need for a specific treaty. 9 G. Quinn and T. Degener, Human Rights and Disability: The Current Use and Future Potential of u.n. Human Rights Instruments in the Context of Disability, un Doc HR/PUB/02/1, 2002, 9. 10 See u.n. Enable accessed on 6 December 2014.

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2.2 The Rights and General Principles of the crpd The crpd is a hybrid convention containing civil and political rights as well as economic, social and cultural rights. Like other human rights treaties, such as the Convention on the Rights of the Child (crc), the crpd does not designate specific rights as civil and political or socio-economic rights.11 Such designation was avoided partly because many of the provisions enshrine aspects of both types of right, and partly in order ‘to avoid creating any hierarchy of rights’.12 The crpd does not seek to create new human rights. Rather, it elaborates on existing international human rights for the specific protection of persons with disabilities and thereby sets out ‘a code of implementation for governments’.13 This is illustrated by General Comment No. 2 on the right to accessibility (Article 9 crpd) recently published by the crpd Committee. While this right may appear like a novel addition to the pre-crpd international human rights regimes, the Committee clearly grounded it in previously existing international human rights norms.14 At the same time, the crpd has brought about a paradigm shift in the human rights protection of disabled persons. The underlying approach of the Convention is to view disabled persons as subjects and rights-holders rather than objects of charity; as autonomous persons who participate actively in society on an equal footing with others and whose dignity must be respected.15 11 12

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crc, 1577 unts 3, 20 November 1989 (entry into force: 2 September 1990). D. MacKay, ‘The United Nations Convention on the Rights of Persons with Disabilities’ (2007) 34 Syracuse J Int’l L & Com 323, 330; B.G. Flóvenz, ‘The Implementation of the un Convention and the Development of Economic and Social Rights as Human Rights’ in O. Mjöll Arnardóttir and G. Quinn (eds), The un Convention on the Rights of Persons with Disabilities: European and Scandinavian Perspectives (Martinus Nijhoff Publishers 2009) noting that Israel’s suggestion for a list of socio-economic rights in Article 4(2) was eventually successfully opposed by other governments. MacKay (n 12) 327. See also O. Mjöll Arnardóttir, ‘A Future of Multidimensional Disadvantage Equality?’ in O. Mjöll Arnardóttir and G. Quinn (eds), The un Convention on the Rights of Persons with Disabilities: European and Scandinavian perspectives (Martinus Nijhoff Publishers 2009) 44. un Committee on the Rights of Persons with Disabilities, General Comment No. 2: Article 9: Accessibility, un Doc CRPD/C/GC/2, 11 April 2014, paras 1–5; referring to the udhr, the iccpr, the cerd and the icescr (n 5); W. Kälin and J. Künzli, The Law of International Human Rights Protection (oup 2009) 356 previously questioned the mere codification of existing rights in relation to Article 9 (the right to accessibility), Article 20 (the right to personal mobility) and the right to live independently and to be included in the community (Article 19). Flóvenz (n 12) 259; Mjöll Arnardóttir (n 13) 41; MacKay (n 12) 328; Quinn and Degener (n 9).

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In this regard it is noteworthy that the guiding principles of the crpd include, amongst others, respect for the inherent dignity, individual autonomy, nondiscrimination, full and effective participation and inclusion in society, respect for difference, equality of opportunity and accessibility of disabled persons (Article 3 crpd). This paradigm shift is also evident from Article 1 crpd, which does not rely on a medical model of disability,16 but on a social model recognizing persons with disabilities to be ‘those who have long-term […] impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others’.17 Unlike the crc, however, the crpd does not specifically guarantee the rights of disabled refugees and asylum seekers.18 Nevertheless, the Convention makes specific reference to the rights of disabled persons in situations of risk and humanitarian emergencies. Its Article 11 provides for States Parties to take all necessary measures in accordance with their international law obligations to ensure the protection and safety of persons with disabilities ‘in situations of risk, including situations of armed conflict, humanitarian emergencies and the occurrence of natural disasters’. It is, however, not clear whether this duty only applies to situations of risk in the country of origin or whether it is also applicable to persons applying for protection abroad. The Reporting Guidelines of the crpd Committee focus on the former by requiring reporting on ‘measures taken in national emergency protocols’, as well as ensuring that ‘huma­ nitarian aid relief is distributed in an accessible way’ and that ‘measures to ensure that sanitation and latrine facilities in emergency shelters and refugee camps are available and accessible’.19 Although the crpd does not expressly cover disabled refugees, persons who are seeking asylum from situations of risk abroad, such as armed conflict or humanitarian emergencies, are not 16

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For an overview of the theoretical approaches to the social model, see C. Thomas, ‘Disability Theory: Key Ideas, Issues and Thinkers’ in N. Watson (ed), Disability: Major Themes in Health and Social Welfare (Routledge 2008) 360–377. Emphasis added. The reference to ‘disability’ was deliberately not included in the definitional Article 2 so as to avoid minute legalistic arguments on its scope, see Lawson, ‘The United Nations Convention on the Rights of Persons with Disabilities’ (n 5) 594. Article 22 crc sets out the rights of refugee and asylum-seeking children; the un Committee on the Rights of the Child has also set out the relevance of other crc rights to such children in un Committee on the Rights of the Child, General Comment No. 6: Treatment of Unaccompanied and Separated Children outside their Country of Origin, un Doc CRC/GC/2005/6, 1 September 2005. crpd Committee, Guidelines on Treaty-Specific Document to be Submitted by States Parties under Article 35, Paragraph 1, of the Convention on the Rights of Persons with Disabilities, un Doc CRPD/C/2/3, 18 November 2009.

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explicitly excluded from the ambit of Article 11 by the wording of this provision or the Reporting Guidelines.20 Further, the crpd contains an express right to liberty of movement and nationality in Article 18, which encompasses the right to ‘utilise relevant processes such as immigration proceedings, that may be needed to facilitate exercise of the right to liberty of movement’. This reflects, to a large extent, the language of the right to liberty of movement in Articles 12 and the right of children to a nationality in Article 24 iccpr in the context of disabled persons. However, it goes further than the iccpr by extending the right to a nationality to disabled adults on an equal basis with others and by providing for a right to obtain, possess and utilise ‘documentation of their nationality or other documentation of identification, or to utilize relevant processes such as immigration proceedings, that may be needed to facilitate exercise of the right to liberty’. The crpd thus adopts a holistic approach which embraces both the social model and a human rights-based approach to disability.21 The approach ado­ pted under the crpd to discrimination and particularly one aspect of it, the denial of reasonable accommodation, will be explored in more detail in the next subsection. A Core Principle of the crpd: The Duty of Reasonable Accommodation The crpd displays a broad understanding of the notion of discrimination in line with that of the Committee on Economic, Social and Cultural Rights in its General Comment No. 5 on the Rights of Disabled Persons.22 In addition to direct and indirect discrimination, a denial of reasonable accommodation is recognized as a form of discrimination in Article 2 crpd (emphasis added):

2.3

Discrimination on the basis of disability means any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the 20

21 22

This chapter does not explore the question of whether Article 11 crpd contains a nonrefoulement obligation, so that a Contracting Party must not return disabled persons to their country of origin if this would expose them to a situation of risk, such as armed conflict, humanitarian emergency and natural disasters, but see crpd Committee, ‘Persons with Disabilities “Forgotten Victims” of Syria’s Conflict – un Committee’ Press Release (17 September 2013) referring also to disabled refugees outside Syria. Straimer, ‘Vulnerable or Invisible?’ (n 2) 3. cescr (n 6) para 14.

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political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation. .

What the duty of ‘reasonable accommodation’ requires is defined in Article 2 crpd as: necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms. The concept of reasonable accommodation is firmly embedded in the crpd and is expressly mentioned in Articles 13, 14, 24 and 27 crpd. In addition, Article 5(3) crpd requires that States Parties ‘take all appropriate steps to ensure that reasonable accommodation is provided’. This is an overarching duty which applies in relation to all the substantive rights under the crpd.23 Several aspects of the duty of reasonable accommodation are particularly noteworthy when compared to other forms of discrimination. Firstly, the duty of reasonable accommodation focuses on the needs of a particular person (‘where needed in a particular case’) rather than an entire group of disabled people. It also overtly imposes positive obligations on States Parties, providing for a substantive, rather than a formal, notion of equality.24 Given the duty imposed on States Parties under Article 5(3) crpd to ensure that reasonable accommodation is provided, a positive obligation arises on States ‘to identify barriers in the way of a disabled person’s enjoyment of their human rights and to take appropriate steps to remove them’.25 The extent of a State’s positive obligations was highlighted by the Committee in the communication of Szilvia Nyusti and Péter Takács v Hungary.26 The Committee made clear that the rights under the crpd entail far-reaching obligations on the State Party in relation to private actors, including the creation of a legislative framework ‘with concrete, 23

24 25 26

A. Lawson, ‘The un Convention on the Rights of Persons with Disabilities and European Disability Law: A Catalyst for Cohesion?’ in O. Mjöll Arnardóttir and G. Quinn (eds), The un Convention on the Rights of Persons with Disabilities: European and Scandinavian Perspectives (Martinus Nijhoff Publishers 2009) 103. A. Lawson, Disability and Equality Law in Britain: The Role of Reasonable Adjustment (Hart Publishing 2008) 187–188. Lawson, ‘The United Nations Convention on the Rights of Persons with Disabilities’ (n 5); see also Flóvenz (n 12) 60; Lawson, Disability and Equality Law in Britain (n 24) 273. crpd Committee, Szilvia Nyusti and Péter Takács v Hungary, un Doc CRPD/C/9/D/1/2010, 16 April 2013.

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enforceable and time-bound benchmarks for monitoring and assessing the gra­ dual modification and adjustment by private financial institutions’.27 While the Committee did not consider the case under the duty to make reasonable accommodation, preferring to examine the issue under the substantive right to accessibility in Article 9, this decision indicates the wider ramifications of the crpd including the duty of reasonable accommodation. Secondly, it is important to note that the duty of reasonable accommodation is not subject to progressive realisation, even when invoked in the context of economic, social or cultural rights. Although the crpd, like other treaties such as the icescr and the crc, enshrines the principle of progressive realisation in relation to economic, social and cultural rights in its Article 4(2), this does not apply in the context of the duty of reasonable accommodation. Indeed, Article 5(2) of the crpd explicitly provides that any form of discrimination has to be prohibited with immediate effect. Thus, a denial of reasonable accommodation must also be prohibited immediately.28 This is in accordance with international human rights law according to which the prohibition of discrimination falls within the category of civil and political rights which are not subject to progressive realisation but have immediate effect.29 The notion of reasonable accommodation thus challenges the traditional division between civil and political rights and economic, social and cultural rights. It ensures that all types of rights ‘become available, in a meaningful sense, to disabled people’.30 The third aspect, which is immediately apparent, is the fact that the duty of reasonable accommodation is subject to the qualification that only ‘reasonable’ adjustments are required and that any adjustments or modifications must not impose a ‘disproportionate or undue burden’ on the State. The Committee found a violation of the duty of reasonable accommodation and the prohibition of discrimination under Article 5(1) and (3) in hm v Sweden.31 The communication concerned the refusal of building permission for the construction of a hydrotherapy pool for the rehabilitation of a person with a physical disability, which the State justified on grounds of incompatibility of the extension in question with the city development plan. The Committee found a violation of 27 28 29

30 31

The Committee found that the State Party was under an obligation to remedy the lack of accessibility to the banking card services of a private bank’s atms, ibid, para 10. Lawson, ‘The United Nations Convention on the Rights of Persons with Disabilities’ (n 5). Lawson, ‘The un Convention on the Rights of Persons with Disabilities and European Disability Law’ (n 23) 103–104; Flóvenz (n 12) 268; see also the approach under Article 4 crc and Article 2(1) icescr and General Comment No 3 of the cescr. Lawson, ‘The un Convention on the Rights of Persons with Disabilities and European Disability Law’ (n 23) 104. crpd Committee, hm v Sweden, un Doc CRPD/C/7/D/3/2011, 21 May 2012.

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the duty of reasonable accommodation, because access to a hydrotherapy pool was essential and the only effective means to meet the disabled person’s health needs. The State Party had not advanced any reason as to why a departure from the development plan would constitute an undue or disproportionate burden on the State Party, thus leading the Committee to find a violation of the prohibition of discrimination. In the context of asylum claims, however, this qualification could have a significant impact on the rights of disabled persons, given the prevailing financial constraints in many countries of origin of asylum seekers. Although reasonable accommodation measures have to be introduced immediately, ‘their practical manifestations are likely to differ markedly from country to country’.32 While the principle of progressive realisation does not apply to the duty of reasonable accommodation, the obligation still needs to be approached with some degree of relativity by virtue of the concepts of ‘reasonableness’ and ‘undue burden’. In particular, there is a pervasive feeling that disability-related refugee claims will inevitably be based on the need for the provision of medical care potentially leading to a heavy financial burden on the State.33 This would likely mean that the denial of reasonable adjustment regarding medical care would not amount to persecution (see below Section 4.1). However, there are several reasons why such a view is misguided and overly simplistic. First, such an approach is reminiscent of the medical model of disability.34 It has been pointed out that the social model and human-rights based approach underlying the crpd, which encompasses the right to inclusion and participation in society, often provides for more cost-effective solutions than the medical model.35 Secondly, this view is also based on the mistaken belief that reasonable adjustment duties are less cost-effective.36 Where the provision of reasonable accommodation, for instance by inclusive schooling rather than separate schooling, would in fact be more cost-effective, a denial of such accommodation could not be justified on the basis of it being unreasonable or imposing an undue burden on the State. It must thirdly be remembered that 32 33

Lawson, ‘The United Nations Convention on the Rights of Persons with Disabilities’ (n 5) 598. C. Straimer, ‘Between Protection and Assistance: Is There Refuge for Asylum Seekers with Disabilities in Europe?’ (2011) 26 Disability & Society 537, 546 points out that a broader eu Directive on non-discrimination of disabled persons faces strong opposition based on the financial costs linked to reasonable accommodation for persons with disabilities. 34 Straimer, ‘Vulnerable or Invisible?’ (n 2) 6. 35 Lawson, Disability and Equality Law in Britain (n 24) 276–279, providing the example of re-scheduling a class to the ground floor class room. 36 Ibid, 243–258.

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the persecution of disabled persons is often closely linked to societal discrimination and superstitious beliefs about particular types of disability, such as mental illness or albinism.37 On the one hand, such societal discrimination may contribute to a finding of persecution if it produces ‘a feeling of apprehension and insecurity as regards [the person’s] future existence’ as provided in paragraph 55 of the unhcr Handbook. On the other, a State’s failure to take steps against such societal discrimination would constitute an indication of the State’s complicity in the discriminatory attitude taken towards disabled persons, rendering it more difficult to justify a denial of reasonable accommodation on objective grounds. Finally, it is important to note, in relation to the notions of ‘reasonableness’ and ‘undue burden’, that the allocation of resources in countries with serious financial constraints can be motivated by overtly discriminatory considerations. Where discriminatory policies lead to the underresourcing of medical, educational or other services for disabled persons, it is even more likely that a failure to provide reasonable accommodation in this context could not be justified as being reasonable or imposing an undue burden on the State.38 A final noteworthy aspect of the duty of reasonable accommodation is the term ‘equal to others’ referred to in both the definition of discrimination and that of reasonable accommodation. In the context of refugee claims the issue arises whether the ‘other’ is a person from the country of origin or from the country of asylum. Given that the relevant question for the purpose of establishing persecution is whether the country of origin has complied with its reasonable adjustment duties, equal treatment will necessarily be assessed in relation to someone in the country of origin.39 The case law examined below illustrates how decision makers have turned to the situation of people in the 37

38 39

See e.g. Australia: Refugee Review Tribunal, rtt Research Response, Tanzania, TZA30242, 13 June 2006, 4 accessed 6 December 2014; International Federation of Red Cross and Red Crescent Societies, Through Albino Eyes. The Plight of Albino People in Africa’s Great Lake’s Region and a Red Cross Response. Advocacy Report (International Federation of Red Cross and Red Crescent Societies 2009)

accessed 6 December 2014; for the persecution of Albinos in Egypt see ac (Egypt) [2011] nzipt 800015; also note the eugenics movement during the Third Reich described in Hendriks and Ventegodt Liisberg (n 3) 35. M. Foster, International Refugee Law and Socio-Economic Rights – Refuge from Deprivation (cup 2009) 10–13. It is a separate question, not studied here, whether non-refoulement obligations arise from various articles in the crpd, including the prohibition of discrimination. In such a case, the necessary comparator would be in the country of asylum. For a case in which such a

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country of origin as the relevant parameter, assessing the medical, educational or other services available to the general public there.40 Nevertheless, in some cases decision makers have also relied on the situation in the host country, highlighting the positive impact of the more specialised services and more inclusionary treatment received there, which in turn indicated the seriousness of the harm suffered in the country of origin.41 This section has sought to highlight some of the most pertinent aspects of the duty of reasonable accommodation, with a particular focus on the context of asylum claims. The duty of reasonable accommodation displays certain strengths for asylum adjudication, such as the focus on individual circumstances and its immediate applicability. On the other hand, it is accompanied by inherent limitations posed by the concepts of reasonableness and undue burden, which are to be assessed on a case-by-case basis and against the background of the situation in the country of origin. Before embarking on an analysis of the case law on disabled refugees (in Section 4 below), it is necessary to consider the relevance of international human rights norms, such as the crpd, to the interpretation of the term persecution. 3

The Relevance of Human Rights to the Interpretation of Persecution

3.1 General Principles of a Human Rights Approach to Persecution The term persecution is imprecise and not specifically defined in the 1951 Con­ vention Relating to the Status of Refugees (Refugee Convention) or any other international law instrument, leaving much scope for interpretation.42 While a purely literal approach to the term persecution is too simplistic and fails to

40

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claim was considered, see rs & Ors (Zimbabwe – aids) Zimbabwe cg [2010] ukut 363 (iac). In Canada see Covarrubias v Canada 2006 fca 365 (Federal Court of Appeal (Canada)); in Australia see Immigration and Refugee Protection Act s 97 (1) (b) (iv); in New Zealand see Immigration Act 2009 (New Zealand) s 131 (5) (b); see also Foster (n 38) 226–234. ac (Egypt) (n 37) para 26; Dena Hernandez v Canada (Citizenship and Immigration) [2010] fc 178, paras 31–32; X (Re) [2007] irb TA5-11242. Geneva Convention Relating to the Status of Refugees, 189 unts 137, 28 July 1951 (entry into force: 22 April 1954); J.C. Hathaway, The Law of Refugee Status (1st edn Butterworths 1991) 42; unhcr, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (unhcr 1979, reprinted December 2011) para 51.

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account for its full meaning, a subjective interpretation focusing on standards such as tolerability is highly problematic and considered too restrictive in practice.43 The proponents of an interpretation of ‘persecution’ with reference to international human rights law generally emphasise the Preamble to the Refugee Convention.44 The Preamble is pertinent both as context and as indication of the object and purpose of the Refugee Convention in accordance with Article 31 of the Vienna Convention on the Law of Treaties (vclt).45 The Preamble to the Refugee Convention confirms the signatories’ commitment to basic human rights as enshrined in ‘the Charter of the United Nations and the Universal Declaration of Human Rights’ (udhr) affirming ‘the principle that human beings shall enjoy fundamental rights and freedoms without discrimination’ and that the un has ‘manifested its profound concern for refugees and endeavoured to assure refugees the widest possible exercise of these fundamental rights and freedoms’.46 Further, international human rights law is also considered to constitute the pertinent normative context prevailing at the time of the interpretation of the term persecution under Article 1(A)(2), thus permitting an evolutive interpretation of the term persecution.47 A human rights approach also reflects the surrogate nature of refugee protection.48 Deborah Anker has 43

Hathaway and Foster (n 2) 186–193; for an overview of the various arguments in favour of a human rights approach, see H. Storey, ‘Persecution: Towards a Working Definition’ in V. Chetail and C. Bauloz (eds), Research Handbook on Migration and International Law (Edward Elgar Publishing 2014) 459. 44 For a full defence of the human rights paradigm against various objections, see Hathaway and Foster (n 2) 198–207; see also K. Jastram, ‘Economic Harm as a Basis for Refugee Status and the Application of Human Rights Law to the Interpretation of Economic Persecution’ in J.C. Simeon (ed), Critical Issues in International Refugee Law, Strategies Toward Interpretative Harmony (cup 2010) 143; Foster (n 38) 157–168. 45 Vienna Convention on the Law of Treaties, 1155 unts 331, 23 May 1969 (entry into force: 27 January 1980), Article 31(1) and (2); Hathaway and Foster (n 2) 193–195, referring to unhcr, ‘The International Protection of Refugees: Interpreting Article 1 of the 1951 Convention Relating to the Status of Refugees’ (2001) 20(3) rsq 77, 78; unhcr, Handbook and Guidelines (n 42) para 60. 46 udhr, unga Res 217 A (III), 10 December 1948. 47 V. Chetail, ‘Are Refugee Rights Human Rights? An Unorthodox Questioning on the Relations between Refugee Law and International Human Rights Law’ in R. Rubio-Marín (ed), Human Rights and Immigration (oup 2014) 25, referring to Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) icj Rep 1971, 31 and to Article 31(1)(c) vclt. 48 Hathaway, The Law of Refugee Status (n 42) 135; D. Anker, ‘Refugee Law, Gender, and the Human Rights Paradigm’ (2002) 15 Harv Hum Rts J 133, 135.

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succinctly summarised the complementary aims of the refugee and human rights law regimes: To paint with a broad brush, the international community created two regimes to address human rights abuses: one, the human rights regime, to monitor and deter abuse, and the other, the refugee regime, to provide surrogate protection to some of those who are able to cross borders.49 But the human rights approach to interpreting the term persecution can be endorsed not only on a principled basis, but also for practical reasons. An interpretation of the term persecution in light of international human rights law permits of a dynamic and evolutive interpretation ‘essential for adapting the Geneva Convention to the ever changing reality of forced migration’.50 Further, international human rights law offers both detailed51 and universal52 minimum standards, which have been accepted by the majority of States and thus ensure consistency amongst the various States Parties of the Refugee Convention in their interpretation of the term persecution.53 However, the human rights approach to persecution raises further interpretative questions: Does every human rights violation constitute persecution? Or is there a hierarchy of rights, which provides for a distinction between violations of ‘primary’ human rights norms (such as the prohibition on torture and inhuman and degrading treatment), which always constitute persecution, and other human rights, the violation of which only constitute persecution, for instance, when this goes to the core of the right or occurs on a cumulative basis? One of the first proponents to systematise a human rights approach to persecution in 1991, James Hathaway, suggested ‘the sustained or systemic denial of core human rights’ as the appropriate standard to be adopted. In order to determine what would constitute such a denial of core human rights, 49 50 51

52 53

Anker (n 48) 135. Chetail (n 47) 25–26; see also Hathaway and Foster (n 2) 194–195. Chetail (n 47) 22 highlighting that given the subsequent interpretation of human rights norms by treaty bodies they appear more precise than refugee law; J.C. Hathaway, ‘The Relationship between Human Rights and Refugee Law: What Refugee Law Judges Can Contribute’ in International Association of Refugee Law Judges (iarlj) (ed), The Realities of Refugee Determination on the Eve of a New Millennium: The Role of the Judiciary (iarlj 1998) 86 stressing that international human rights law is constantly being authoritatively interpreted by un bodies. Chetail (n 47) 26; Hathaway and Foster (n 2) 194. Hathaway, ‘The Relationship between Human Rights and Refugee Law’ (n 51) 85–86; Hathaway and Foster (n 2) 194; Chetail (n 47) 25–26.

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he distinguished between first-category rights (non-derogable iccpr rights), second-category rights (derogable, but immediately applicable iccpr rights), third-category rights (icescr rights subject to progressive implementation), and fourth-category rights (udhr rights neither enshrined in the iccpr nor the icescr).54 This four-tiered approach was subsequently misinterpreted by decision makers in New Zealand, the United Kingdom, Canada, Australia and the United States, who tended to equate the level of the right in Hathaway’s model with the level of seriousness of the violation required for it to amount to persecution.55 Michelle Foster drew attention to this tendency and instead advocated a ‘core obligations approach’, according to which a violation of the unrelinquishable core of a human right would always constitute persecution. In order to determine the unrelinquishable core of a human right, Foster relied on the analysis of the Committee on Economic, Social and Cultural Rights in its General Comments.56 In the second edition of Hathaway’s Law of Refugee Status, co-authored with Michelle Foster, the two authors now expound the 1991 Hathaway approach somewhat differently, rejecting the categorisation of different rights based on their derogability. Instead, they now focus first on the general acceptance of the human rights norm, finding that all the rights contained in the udhr, the iccpr, the icescr, the Convention on the Elimination of All Forms of Racial Discrimination (cerd),57 the Convention on the Elimination of Discrimination against Women (cedaw),58 the crc and the crpd meet this threshold.59 Secondly, they stress that some human rights permit limitations on certain grounds of public interest and others can be derogated from in a situation of public emergency. They thus underline that not every interference with a human right constitutes a pertinent violation so as to amount to persecution. Thirdly, they rely on a de minimis test, which requires a sufficiently serious level of harm.60 Both the approach adopted by Foster and that advanced in the second edition of The Law of Refugee Status expressly reject any distinction between the 54 Hathaway, The Law of Refugee Status (n 42) 109; other approaches to a hierarchical model have also been adopted, e.g. by J.-Y. Carlier, ‘General Report’ in J.-Y. Carlier, D. Vanheule, K. Hullmann and C. Pena Galiano (eds), Who is a Refugee? A Comparative Case Law Study (Kluwer Law International 1997) 683. 55 Foster (n 38) 120–127. 56 Ibid, 195–201. 57 cerd, 660 unts 195, 7 March 1966 (entry into force: 4 January 1969). 58 cedaw, 1249 unts 13, 18 December 1979 (entry into force: 3 September 1981). 59 Hathaway and Foster (n 2) 201–202, 204–205. 60 Ibid, 200–208.

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violation of negative and positive human rights obligations, or between civil and political rights on the one hand, and economic, social or cultural rights on the other.61 This is important for the present chapter as the duty of reasonable accommodation clearly imposes positive obligations on States (see above Section 2.3). The rejection of such distinctions in human rights practice and doctrine can be traced back to Henry Shue’s Basic Rights: Subsistence, Affluence and u.s. Foreign Policy.62 Shue explained that the protection of basic rights entails three levels of correlative duties,63 which muddle the boundaries bet­ ween positive and negative duties: the duty to avoid depriving someone of the right, the duty to protect others from its deprivation and the duty to aid the deprived,64 later reformulated as duties to respect, to protect and to fulfil.65 This typology is now well-established and is regularly referred to by the Committee on Economic, Social and Cultural Rights.66 It is well-recognized that civil and political rights also involve positive obligations and have resource-implications.67 In the context of the adjudication of asylum claims, there are various types of cases involving positive obligations, for instance claims involving domestic violence.68 The fact that disability-related claims may involve positive obligations is thus not a bar to them succeeding as claims for refugee status. As will be set out below (Section 3.2), all of the common law jurisdictions considered in this chapter accept the relevance of human rights to the interpretation of ‘persecution’ (‘the human rights approach’) either expressly or implicitly. This approach is gaining in recognition amongst civil law countries, 61

For a detailed discussion of the reasons against any such normative hierarchy between human rights see Foster (n 38) 157–168; Hathaway and Foster (n 2) 207–208. 62 O. de Schutter, International Human Rights Law – Cases, Materials, Commentary (cup 2010) 242–256 with various further references; Kälin and Künzli (n 14) 96–113; I.E. Koch, ‘Economic, Social and Cultural Rights as Components in Civil and Political Rights: A Hermeneutic Perspective’ (2006) 10 ijhr 405, 406. 63 H. Shue, Basic Rights: Subsistence, Affluence and u.s. Foreign Policy (2nd edn Princeton University Press 1996) 32–33; at the same time a four-tiered approach was suggested by A. Eide, The Right to Adequate Food as a Human Right, un Doc E/CN4/Sub2/1983/25, 1983. 64 Shue (n 63) 52–53. 65 Ibid, Afterword. 66 cescr, General Comment No. 3: The Nature of States Parties’ Obligations (Art. 2, Para. 1, of the Covenant), un Doc E/1991/23, 14 December 1990.; and see e.g. cescr, General Comment No. 12: The Right to Adequate Food (Art. 11), un Doc E/C12/1999/5, 12 May 1999, para 15. 67 For an overview of some of the case law under the echr affecting socio-economic issues, see e.g. Koch (n 62) 408–409. 68 For a discussion of the various issues in such cases, see S. Mullally, ‘Domestic Violence Asylum Claims and Recent Developments in International Human Rights Law: A Progress Narrative?’ (2011) 60 iclq 459.

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a point that is also due to the fact that the eu Qualification Directive and its Recast incorporate, at least to a certain extent, a human rights approach to the definition of persecution in its Art. 9(1) (see below, Section 5.1).69 This has led to a further increase in the number of countries effectively recognizing a human rights approach to the definition of persecution. Such an approach is also supported by unhcr in its Handbook and Guidelines70 and by the Inter­ national Association of Refugee Law Judges (iarlj).71 It is not the focus of the present chapter to assess the persuasiveness of the different human rights approaches to interpreting the term persecution. As will be shown in the next section, many of the jurisdictions considered here refer to the 1991 Hathaway approach.72 It remains to be seen how the recently published second edition of The Law of Refugee Status will influence decision makers in the context of refugee cases involving disabled persons. The Human Rights Approach in Canada, United Kingdom, Australia and New Zealand As already mentioned above, all of the presently considered jurisdictions accept the human rights approach to the refugee definition. Canada was one of the earliest to have done so, applying a human rights approach as early as 1979.73 In 1993, the Supreme Court of Canada endorsed the human rights paradigm 3.2

69

See eg. Cases C-199/12 and C-201/12 X, Y, and Z v Minister voor Immigratie en Asiel (cjeu, 7 November 2013); Cases C-71/11 and C-99/11 Federal Republic of Germany v Y and Z (cjeu, 5 September 2012) in these cases the cjeu drew on the human rights of the person concerned as pertinent to the definition of persecution in Art. 9(1); see further on this M. Symes and P. Jorro, Asylum Law and Practice (2nd edn Bloomsbury Professional 2010) para 3.5; Jastram (n 44) 163; Hathaway and Foster (n 2) 195–196; see also Foster’s earlier description of this as the dominant view in Foster (n 38) 31 with further references in n 14. 70 unhcr, Handbook and Guidelines (n 42) e.g. paras 38, 53–55; unhcr, Guidelines on International Protection No. 6: Religion-Based Refugee Claims under Article 1A(2) of the 1951 Convention And/or the 1967 Protocol Relating to the Status of Refugees (unhcr 2004); unhcr, Guidelines on International Protection No. 7: The Application of Article 1A(2) of the 1951 Convention And/or 1967 Protocol Relating to the Status of Refugees to Victims of Trafficking and Persons At Risk of Being Trafficked (unhcr 2006); unhcr, Guidelines on International Protection No. 8: Child Asylum Claims under Articles 1(A)2 and 1(F) of the 1951 Convention And/or 1967 Protocol Relating to the Status of Refugees (unhcr 2009); unhcr, Sexual and Gender-Based Violence against Refugees, Returnees and Internally Displaced Persons. Guidelines for Prevention and Response (unhcr 2003). 71 J.C. Simeon, Human Rights Nexus Working Party – Rapporteur’s Report (iarlj 2000) 314. 72 It is noteworthy, however, that reference was also made to Foster’s book in ac (Egypt) (n 37). 73 Hathaway, The Law of Refugee Status (n 42) 108 citing Veloso, Immigration Appeal Board Decision 79–1017 (24 August 1979), referred to in Symes and Jorro (n 69) para 3.3 fn. 8.

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in its landmark decision of Canada (Attorney General) v Ward.74 The Supreme Court based its human rights approach on the Preamble to the Refugee Convention and went on to confirm the definition of persecution formulated by Hathaway in 1991 as ‘actions which deny human dignity in any key way’ and as the ‘sustained or systemic denial of core human rights’.75 The Sup­reme Court subsequently reaffirmed the ‘overarching and clear human rights object’ of the Refugee Convention as the background against which the interpretation of its provisions must take place.76 In the uk, the judiciary has generally accepted that human rights instruments may inform the interpretation of the refugee definition,77 and more specifically the notion of ‘persecution’.78 In the seminal case of Islam and Shah the House of Lords confirmed the relevance of the Preamble to the Refugee Convention and its reference to the udhr as showing ‘that a premise of the Convention was that all human beings shall enjoy fundamental rights and freedoms’ and that ‘counteracting discrimination, which is referred to in the first preamble, was a fundamental purpose of the Convention’.79 The human rights paradigm subsequently found general acceptance in uk asylum case law.80 The uk courts have also endorsed Hathaway’s definition of persecution and stressed the substitute or surrogate nature of refugee protection.81 In K and Fornah, Lord Bingham held that it is ‘well established that the Convention must be interpreted in accordance 74

Canada (Attorney General) v Ward [1993] 2 scr 689; see also Chan v Canada (Minister for Employment and Immigration) [1995] 3 scr 593. 75 Hathaway, The Law of Refugee Status (n 42) 104–105, 108; Canada (Attorney General) v Ward (n 74), at 733E-734E (La Forest J). 76 Pushpanathan v Canada (Minister of Citizenship and Immigration) [1998] 1 scr 982, para 57 (Bastarache J). See also Chan v Canada (Minister for Employment and Immigration) (n 74) paras 69–71. 77 For the chain of case law developed from Ravichandran [1995] Imm ar 96 (ca) see Symes and Jorro (n 69) para 1.14 n. 2 and 3.3. 78 See Ravichandran v Secretary of State for the Home Department [1996] Imm ar 97 (ca); Jain v Secretary of State for the Home Department [2000] Imm ar 76 (ca) (Schiemann lj). 79 Islam v Secretary of State for the Home Department; R v iat, ex parte Shah [1999] 2 ac 629 (hl) concerning adultery allegations against Pakistani women (Lord Steyn). 80 Horvath v Secretary of State for the Home Department [2001] 1 ac 489 (hl)(Lord Clyde); Sepet and Bulbul v Secretary of State for the Home Department [2003] 1 wlr 856 (hl) para 41 (Lord Hoffman); hj (Iran) and ht (Cameroon) v Secretary of State for the Home Department [2011] 1 ac 596 para 14 (Lord Hope). 81 Horvath v. Secretary of State for the Home Department (n 80) (Lord Hope); Ullah, R (oao) v Special Adjudicator [2004] 3 er 785; Sepet and Bulbul v Secretary of State for the Home Department (n 80) para 7 (Lord Bingham); hj (Iran) and ht (Cameroon) v. Secretary of State for the Home Department (n 80) para 52 (Lord Rodger).

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with its broad humanitarian objective having regard to the principles, expressed in the Preamble, that human beings should enjoy fundamental rights and freedoms without discrimination’.82 Lord Rodger stressed in hj (Iran) that the surrogate human rights protection afforded by the Convention means that people are able to live openly and free from fear of persecution because ‘they are, say, black, or the descendants of some former dictator, or gay’.83 The New Zealand Refugee Status Appeals Authority (rsaa) has also adopted a human rights based approach to the refugee definition.84 Following the line of reasoning of the Canadian Supreme Court in Ward and the uk House of Lords in Shah and Islam, the rsaa has in particular relied on the Preamble to the Refugee Convention as well as the 1991 Hathaway definition of ‘persecution’.85 In its decision concerning a gay asylum seeker from Iran in Refugee Appeal No. 74665, the rsaa endorsed Hathaway’s approach and held that the denial of a core right, if accompanied by the threat of ‘serious harm’, amounts to persecution even if the person could forego the right (in this case by being discreet) and thus avoid the serious harm.86 This approach has been adopted in different contexts, including persecution based on gender, sexual identity, racial discrimination, privacy, religion and family rights.87 Reliance has been placed on various international human rights treaties in interpreting the term ‘persecution’,88 for instance in the context of women, children, members of the lesbian, gay, bisexual, transgender and intersex community and, as will be seen further below, disabled persons.89 By contrast, the Australian High Court has not yet expressly endorsed the human rights approach in interpreting the Refugee Convention. However, it has 82

K and Fornah v Secretary of State for the Home Department [2007] 1 ac 412 (hl) (House of Lords) para 10. 83 hj (Iran) and ht (Cameroon) v. Secretary of State for the Home Department (n 80) para 53, the case concerned two gay asylum seekers, one from Iran and one from Cameroon. 84 Refugee Appeal No 2039/93 Re mn (rsaa) para 40; referring to Refugee Appeal No 1039/93 Re hbs and lby paras 19–20. 85 Refugee Appeal No 71427/99 [2000] nzar 545; approved in dg v Refugee Status Appeals Authority [2001] High Court Wellington CP213/00, paras 19, 22; cited in R. Haines, qc, The Domestic Application of International Human Rights Standards in New Zealand: The Refugee Convention (University of Auckland 2004) para 24. 86 Refugee Appeal No 74665 [2005] nzar 60 (rsaa) para 114. 87 Haines, qc (n 85) 25 with further references. 88 Refugee Appeal No 1039/93 Re hbs and lby (n 84) referring to cedaw; Refugee Appeal No 76226 and 76227 [2009] nzrsaa 3 referring to the crc; Refugee Appeal No 76512 [2010] nzrsaa 73 referring to the cerd; ac (Egypt) (n 37) referring to the crpd. 89 Refugee Appeal No 2039/93 Re mn (n 84); Refugee Appeal No 76044 [2008] rsaa 80; Refugee Appeal No. 74665 (n 86); bs (Fiji) [2012] nzipt 800041; ac (Egypt) (n 37).

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accepted that the Preamble of the Refugee Convention indicates that the Con­ vention has as its object and purpose the protection of the equal enjoyment by every person of fundamental rights and freedoms.90 This has led the Australian courts to rely on major human rights treaties in the interpretation of the refugee definition, including the iccpr, cedaw and Convention against Torture.91 In the 2002 case of nabd concerning a male Iranian who had converted to Christianity and his right to religious freedom, Kirby J held that ‘the Convention is a practical means of “providing tangible redress from certain basic human rights violations”’.92 Implicit acceptance of the human rights approach is thus suggested by various dicta, including those referred to above.93 In addition, the human rights approach is enjoying increasing acceptance at the level of the Refugee Review Tribunal (rrt) and the Federal Court.94 At present the term persecution is defined in Section  91R(1) of the Australian Migration Act as requiring ‘serious harm to the person’ and ‘systematic and discriminatory conduct’ (s.91R(1)(b) and (c)). Forms of serious harms are also set out in a nonexhaustive list95 in this provision and include, in addition to forms of physical violence, various denials of socio-economic rights, such as ‘significant economic hardship’, ‘denial of access to basic services’ and ‘denial of capacity to earn a livelihood of any kind’ (subparas (d)-(f)). Furthermore, it is an express requirement for each of the socio-economic rights that the situation denying socio-economic rights ‘threatens the person’s capacity to subsist’, thus setting a higher threshold for these rights.96 In summary, all the jurisdictions considered here accept either expressly or implicitly a human rights approach to the interpretation of persecution, which, 90

91 92 93 94 95

96

A v Minister for Immigration and Ethnic Affairs [1997] 190 clr 225 (Brennan cj); Minister for Immigration and Multicultural Affairs v Khawar [2002] hca 14 (Kirby J); nabd of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] hca 29 paras 108–109. Minister for Immigration and Multicultural Affairs v Khawar (n 90); Duzkiker v Minister for Immigration and Multicultural Affairs [1999] fca 391. nabd of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (n 90) para 110. Hathaway and Foster (n 2) 197 with further references in n 87 and n 88. Foster (n 38) 28 n 8 with further references. This is apparent from the wording of Section 91R(2) (‘Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm…’). The Federal Court of Australia has also stressed that s 91R(2) does not seek to define the expression ‘serious harm’, but the examples inform its meaning, see mzwpd v Minister for Immigration & Multicultural Affairs & Indigenous Affairs [2006] fca 1095, paras 82–83. On this see Jastram (n 44) 149.

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despite certain differences in approach between these jurisdictions, is important for the present analysis. The Relevance of the crpd to the Interpretation of the Refugee Definition The next issue to be considered is which international human rights can be drawn upon in the interpretation of the refugee definition. For the purpose of the present chapter, the issue is in particular whether the crpd can be relied upon in refugee status determinations. The unhcr Executive Committee has made it clear in its Conclusion on Refugees with Disabilities and Other Persons with Disabilities Protected and Assisted by unhcr (Conclusion No. 110 (LXI) of 2010) that the obligations under the crpd are also owed to asylum seekers and refugees that are present on a State Party’s territory.97 The question remains, however, whether the crpd is pertinent to the interpretation of persecution under Article 1(A)(2) of the Refugee Convention. It is generally agreed amongst proponents of the human rights approach that the iccpr and the icescr can be relied upon in the interpretation of perse­ cution in addition to the udhr as the three of them taken together constitute ‘the International Bill of Human Rights’.98 In 1998 Hathaway advocated for the following two considerations as relevant benchmarks for additional human rights treaties: firstly, only legal standards and not soft law can be directly relied upon (although soft law may provide relevant context), and secondly: 3.3

it is important not to rely on treaties that remain short on serious support from States. Until and unless we are able honestly to say that a given treaty enjoys general support, it ought not to be used to interpret a term in what is meant to be a universal treaty on refugee protection. In practical terms, one might reasonably consider looking for ratification of a given treaty by a respectable super-majority – for example, two thirds of the United Nations membership, including some support in all major geo-political groupings.99 Hathaway and Foster set out a similar approach in the second edition of The Law of Refugee Status, stating that ‘one should expect to see the norm having been ratified by a super-majority of states across a politically and geographically 97

That this is also correct as a matter of international human rights law and treaty interpretation is noted in Crock, Ernst and McCallum (n 2). 98 Hathaway, The Law of Refugee Status (n 42) and see various examples from case law below. 99 Hathaway, ‘The Relationship between Human Rights and Refugee Law’ (n 51) 86–87.

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diverse range of states’.100 They conclude that this litmus test is today met by the crpd as well as by the cerd, cedaw and the crc.101 The New Zealand Immigration and Protection Tribunal has reached the same conclusion regarding the crpd after an exemplary analysis in the case of ac (Egypt) by indirectly relying on Hathaway’s approach.102 The Tribunal found: As at the date of this decision, some 105 States have ratified or acceded to the cprd including States from the geographic north and south. States parties embrace a variety of political systems and religious traditions; see, . Egypt itself ratified the crpd on 14 April 2008. Taking these factors into account, it is therefore appropriate that the Tribunal treat the cprd as an international law treaty which identifies forms of serious harm and failures of State protection for the purposes of refugee status determination; see, Refugee Appeal No 74665 [2005] nzar 60 at [68]–[69].103 Despite this persuasive analysis, decision makers in the other jurisdictions considered in the present chapter have so far been more hesitant with regard to the crpd. In the case law of the Australian rrt, the crpd has only been referred to as relevant for setting out the country of origin’s obligations (in cases where the country of origin has ratified the crpd), rather than as a human rights law framework relevant to the interpretation of ‘persecution’.104 Similarly, Canadian decision makers have so far refrained from referring to the crpd as relevant to the refugee definition. Interestingly, in both Canada and Australia, prior to the adoption of the crpd, reference had nevertheless been made to soft law instruments on disabled persons, namely the un General Assembly Declaration on Rights of Disabled Persons of 1975 and the un General Assembly Declaration on the Rights of Mentally Retarded Persons of 1971.105 100 Hathaway and Foster (n 2) 205. 101 Ibid, 201, 205; see also for Hathaway’s assessment in 1998 and thus pre-crpd Hathaway, ‘The Relationship between Human Rights and Refugee Law’ (n 51) 87. 102 ac (Egypt) (n 37) para 70 referring to the analysis in Refugee Appeal No 74665 at paras 68–69, which set out the Hathaway approach. 103 ac (Egypt) (n 37) para 70. Today 147 States and the eu have ratified or acceded to the crpd. 104 rrt Case No 1219395 [2013] rrta 633; rrt Case No 071972350 [2008] rrta 220; rrt Case No 1203800 [2012] rrta 850; rrt Case No 1008207 [2010] rrta 1117. See also on this issue Hathaway and Foster (n 2) 199–200. 105 Olga Denissenko v Christine Haskett and miea [1996] fca 1513 where the reference had been made by the rrt; X (Re) [2000] irb A99-01121.

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In the uk, decision makers have so far refrained from relying on the crpd in order to define persecution. The only time the Immigration and Asylum Chamber of the Upper Tribunal was asked to rely on the crpd, in the case of rs & Ors (Zimbabwe – aids) Zimbabwe cg, was not in the context of the definition of persecution but as a legal basis for a right of stay in uk in its own right as well as in the context of the uk Disability Discrimination Act.106 The Upper Tribunal had to decide whether the crpd gave rise to justiciable legal obligations on the part of the Secretary of State. In rejecting this argument, it relied on the fact that the uk has specifically entered a very broad reservation to the liberty of movement guaranteed under Article 18 of the crpd.107 The implications and validity of this reservation cannot be considered in detail here, although it must be noted that there may well be valid arguments supporting the incompatibility of this vague and broad reservation with the objects and purpose of the crpd itself.108 It is also important to reiterate that the crpd aims to elaborate on the rights enshrined in the International Bill of Rights, the crc, cedaw and cerd in the context of disabled persons, and does not seek to create new rights. The effectiveness of the reservation is thus also questionable, given that the uk remains bound by its other international human rights obligations. Finally, as will be further considered below (in subsection 5.1.4) the eu has acceded to the crpd, thus making the crpd pertinent to the interpretation of eu law, such as the Qualification Directive. It seems, however, that this reservation in addition to the restrictive approach to medical cases adopted by the ECtHR (discussed below, Section 5.2) currently prevents the development of more disability-sensitive case law in the uk.109 106 rs & Ors (Zimbabwe – aids) Zimbabwe cg (n 39). 107 Ibid, 282–286. 108 Justice (on behalf of the ngo Human Rights Forum), Review of the uk’s Reservations to International Human Rights Treaty Obligations (Justice 2002) accessed 6 December 2014 criticising the almost identically worded former uk reservation to the crc; Appendix 2 contains further references regarding this crc reservation to supporting citations from the uk Joint Committee on Human Rights and the un Committee on the Rights of the Child. 109 An indication of the potential effect of this reservation can be gleaned from developments under the crc, to which the uk had entered an almost identically worded reservation. Since the withdrawal of this reservation to the crc in 2008 several policy documents and a substantial body of case law on child asylum seekers and refugees have been developed in the uk; regarding the current reluctance of Counsel to raise disability-sensitive arguments, see for instance ms (Coptic Christians) Egypt cg [2013] ukut 00611 (iac), para 154 where Counsel expressly stated that the son’s disability was not relevant to the asylum claim; hh (ap) v Secretary of State for the Home Department [2012] csoh 83; sa (Iran) v

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In conclusion, out of the jurisdictions considered here only New Zealand has so far expressly relied on the crpd in order to define persecution, whereas the other jurisdictions have displayed a reluctance to expressly refer to the crpd. However, analysis of the case law of these jurisdictions in the next section will demonstrate that decision makers in Australia and Canada have nevertheless shown openness to the social model of disability and sometimes implicitly relied on rights now enshrined in the crpd. 4

The Denial of Reasonable Accommodation of Disabled Persons in the Case Law of Australia, Canada, New Zealand and the uk

When it comes to positive asylum decisions concerning disabled persons, it is important to stress at the outset that none of the decision makers in the existing case law refer to a denial of reasonable accommodation as a form of persecution in express terms. Nor do they, with a few exceptions, expressly rely on the crpd when adjudicating the asylum claims of disabled persons. In relation to some of the case law, this can be explained by the fact that it predates the adoption of the crpd. These decisions are nevertheless discussed below where they provide interesting insights into the international human rights law analysis undertaken, given that the crpd merely elaborates on existing human rights norms. The main issue in relation to a disability-sensitive definition of persecution is the fact that many instances of what is typically described as discrimination are not considered to be sufficiently serious to amount to persecution.110 For the purposes of the present chapter, the notion of discrimination assumes a particularly important role because it focuses on one particular form of discrimination, the denial of reasonable accommodation. The refugee definition is intrinsically linked to the notion of discrimination. The concept of discrimination is regularly invoked in two opposing ways, in an including and an excluding sense. On the one hand, discrimination is considered to be an integral element of the refugee definition.111 On the other, the Secretary of State for the Home Department [2012] ewhc 2575 (Admin); sq (Pakistan), R (on the application of ) v The Upper Tribunal Immigration and Asylum Chamber [2013] ewca Civ 1251, all based on Article 8 echr taken with Article 3 crc, but not formulated as asylum claims based on disability. 110 Crock, Ernst and McCallum (n 2). 111 K and Fornah v Secretary of State for the Home Department (n 82) para 13 (Lord Bingham): ‘the Convention is concerned not with all cases of persecution but with persecution which is based on discrimination, the making of distinctions which principles of fundamental human rights regard as inconsistent with the right of every human being’.

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notion of discrimination is regularly drawn upon in order to distinguish less serious or ‘merely discriminatory’ acts from persecution. The expression ‘mere discrimination’ is referred to in order to differentiate between discriminatory acts and persecution, on the basis that the former are not considered sufficiently serious as to amount to persecution.112 On this exclusionary reading of the notion of ‘mere discrimination’ the courts have, often in reliance on the definition of ‘persecution’ in the unhcr Handbook, developed a notion of cumulative discrimination which is sufficiently serious to amount to persecution.113 It is argued in this chapter that there are two types of cumulative discrimination. One is called cumulative forms of (discriminatory) harm, also sometimes referred to as the ‘cumulative effects’ of discrimination. This refers to several parallel discriminatory violations of different human rights, such as parallel violations of the right to education, the right to work and the right to health, which taken on their own may not be considered sufficiently serious to amount to persecution, but which taken cumulatively affect human dignity in such a fundamental way as to amount to persecution.114 The second type of cumulative discrimination is referred to here as cumulative or multiple vulnerabilities.115 This refers to the situation where a person is being discriminated against on several bases, for example a disabled child belonging to an ethnic minority, who is being discriminated against on the grounds of his age, his disability and his ethnic origin. By virtue of the multiple vulnerabilities, a single human rights violation would be sufficiently serious as to impact on the human dignity in a key way and thus constitute persecution. It is argued that on both of these cumulative bases discrimination in the form of a denial of reasonable accommodation has been recognized as amounting to persecution, as illustrated by the case law analysed below, thus demonstrating 112 R. Dowd, ‘Dissecting Discrimination in Refugee Law: An Analysis of Its Meaning and Its Cumulative Effect’ (2011) 23 ijrl 28, para 2.2.2. 113 unhcr, Handbook and Guidelines (n 42). 114 Ibid, para 54; and see for instance ae & Anor v Secretary of State for the Home Department [2003] ewca Civ 1032 (ca) para 38, cited in; Symes and Jorro (n 69) para 3.6 n 4; szmzd v mia [2009] fmca 554; the failure to undertake a cumulative analysis of the various forms of harm has resulted in a number of remittals from the Federal Court of Australia: mzwpd v Minister for Immigration & Multicultural & Indigenous Affairs [2006] fca 1095. See further Dowd (n 112) 53 n 67. 115 See e.g. Liang v Canada [2008] fc 450, para 22 holding that: ‘In evaluating the Applicants’ case, their personal circumstances and vulnerabilities including age, health, and finances must be taken into consideration as forming part of the factual context, consistent with the unhcr Handbook excerpted above’.

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the slow beginning of a more disability-sensitive refugee definition. However, as will be shown, a proper understanding of the notion of persecution does not necessarily lead to the conclusion that only cumulative measures of discrimination or single measures of discrimination, which affect a person with multiple vulnerabilities, constitute persecution. Discriminatory measures entailing a denial of reasonable accommodation for disabled persons taken on their own also amount to persecution, when they ‘lead to consequences of a substantially prejudicial nature’.116 Reasonable Accommodation and Cumulative Forms of Discrimination The first case to expressly recognize the relevance of the crpd to the interpretation of ‘persecution’ is the New Zealand precedent of ac (Egypt),117 which involved cumulative forms of discriminatory human rights violations. The case concerned an Egyptian Albino with a visual impairment, who was considered by the Egyptian Government to be disabled due to his visual impairment and the absence of melanin in his skin.118 He had lived a life of social marginalisation in Egypt, with discrimination and harassment at school and incidents of physical violence on isolated occasions. He had unsuccessfully tried to obtain work in both the public and the private sectors, and as a self-employed person with his own shop. He also tried to rely on Egyptian legislation on affirmative action seeking to promote disabled persons’ access to the labour market, all to no avail. During his final year in Egypt he stayed mostly at home, only venturing outside in the evenings. The New Zealand Tribunal stressed that the applicant had been denied the very core of the right to work, as he had exhaustively attempted to find work in the private and public sectors and to make a living as a self-employed person.119 In addition to this denial of the right to work, the Tribunal relied on the cumulative effects of the occasional violence, the substantial discrimination in his education and employment, and his life in a highly isolated environment intermingling only with his immediate family.120 The Tribunal’s reasoning is interesting in its analysis of Egypt’s failures under the crpd, which effectively amounted to cumulative denials of reasonable

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116 unhcr, Handbook and Guidelines (n 42) para 54. 117 ac (Egypt) (n 37). 118 Although it is not obvious that albinism necessarily constitutes a disability, it is arguable that it amounts to ‘perceived’ or ‘imputed’ disability given the fact that albinos in Egypt were treated by society as if they suffered from a long-lasting impairment. 119 ac (Egypt) (n 37) para 83. 120 Ibid, paras 80–88.

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accommodation concerning the right to work (Article 27 crpd) which was the main focus in this case,121 but also concerning discrimination in education and isolated physical violence.122 Although Egypt had enacted affirmative action legislation with a quota for the employment of disabled persons in the public sector, it had failed to implement the legislation, thus falling foul of its positive obligations under the crpd.123 Many cases of cumulative forms of discrimination include violations of the right to health. While a denial of health care is generally not recognized as amounting to persecution, health care that is being denied on a discriminatory basis may amount to persecution.124 The case law set out below also demonstrates that the cumulative denial of health care together with other human rights violations may amount to persecution. An example of a case involving the denial of health care cumulatively with different forms of discrimination is the Canadian case of Ampong v Canada.125 The case concerned a Ghanaian male who, as result of an assault in Canada, had suffered a serious spinal cord injury, with his legs paralysed and limited use of his arms. He was not able to stand or walk and was incontinent. Medical treatment of such patients was accepted to be a sub-specialised field not available in a developing country. Without such treatment the medical evidence indicated that he would develop medical complications with a high likelihood of serious illness and possible death. The Canadian Federal Court held that it was necessary to take into account not only the situation regarding health care, but also the cumulative effects of discrimination that the appellant would face in Ghana from home, the community and society at large, which also extended to seeking employment.126 The case was remitted for further consideration. Even though the case was decided after the entry into force of the crpd, the Federal Court failed to refer to the crpd or the duty of reasonable accommodation. This is striking given that it involved circumstances that would have provided the basis for a finding of a denial of reasonable accommodation regarding the right to health (Article 25 crpd) and the right to work (Article 27 crpd), but also other rights such as the right to be included in the community (Article 19 crpd). 121 122 123 124

Ibid, paras 67–69, 92, 93, 97. Ibid, paras 88–89. Ibid, paras 89–96. Foster (n 38) 226–234; in Canada see Covarrubias v Canada (n 40); in Australia see s. 97(1) (b)(iv) of the Immigration and Refugee Protection Act; in New Zealand see s. 131(5)(b) of the Immigration Act 2009. 125 Ampong v Canada (Citizenship and Immigration) [2010] fc 35. 126 Ibid, paras 42–43.

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An interesting example of a pre-crpd decision which made express reference to international human rights norms is the Australian rrt decision in rrt Case No N94/04178 concerning a hiv-positive male.127 The rrt specifically referred to Article 3 udhr on the right to life, liberty and security of the person, which it found directly affected by the denial of medical care. It further considered that ‘ostracism from one’s family and community may amount to persecution when it is in a severe form which deprives a person of social contact and human dignity’, a reasoning reminiscent of the social model of disability adopted in the crpd and the right to be included in the community later recognized in Article 19 crpd. A similar endorsement of the social model, albeit without reference to the crpd or other international human rights norms, can be found in the Cana­ dian case of X (Re), which predates the entry into force of the crpd, but postdates its adoption.128 The case concerned an Ethiopian woman with serious mental health issues, suffering from a bi-polar disorder with psychotic features, and who feared a lack of family or community support in Ethiopia and stigmatisation due to her illness. In this case the persecutory treatment came from the community who had previously pressured her to stop taking her medication and the considerable societal stigma which prevented mentally ill people from seeking professional help. As a mentally ill person she would have been excluded from community life. The Immigration and Refugee Board (irb) found that, [r]eturning to a culture where her mental illness is stigmatized, where it is regarded as a taboo, with people at best ostracizing her and at worst exerting negative pulls on her to interrupt medication and avoid seeking help, with the result that she could find herself in the absence of meaningful family supports a street vagrant, presents dangerous obstacles to the claimant. The cumulative effects of such discrimination were thus found to be persecutory. While the case focused on health issues, the reasoning was very much embedded in a lack of support from the community and general societal discrimination together with the State’s failure to implement positive obligations, thus reflecting the social model. Nevertheless, the opportunity was missed to make express reference to the right to be included in the community (Article 19 crpd) and the right to habilitation and rehabilitation (Article 26 crpd). 127 rrt Case No N94/04178 10 June 1994 (rrt). 128 X (Re) (n 41).

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These cases are indicative of the willingness to find that discrimination may amount to persecution, where there are ‘a number of discriminatory measures’ so that there is ‘a cumulative element’.129 However, while many of these decisions can be seen as effectively recognizing instances of a failure to make reasonable accommodation as amounting to persecution, only one judgment expressly referred to this duty and the crpd (ac (Egypt)).130 In addition, reference was made to the right to life, liberty and security of the person under the udhr in the pre-crpd case of rrt Case No N94/04178.131 However, it is clear that most decision makers do not yet expressly engage with a disabilitysensitive interpretation of persecution. The decisions, while receptive of the need to adopt a social model, also display a reluctance to embrace the human rights-based dimension and to recognize the relevance of the crpd. A possible reason for this can be seen in the fact that at the date of these decisions (the latest being from 2010, apart from ac (Egypt) which was handed down in 2011), the crpd had not yet gathered the requisite general support across major geopolitical groupings (see Section  3.3 above). However, today this explanation would no longer be valid, given the widespread acceptance of the crpd. Reasonable Accommodation and Cumulative or Multiple Vulnerabilities Some decisions involve cumulative or multiple vulnerabilities. In the context of these decisions, however, it is important to note that they could also be considered as adopting a core-rights approach and not requiring a cumulative violation of several human rights where socio-economic rights are concerned.132 However, at least in the context of disabled asylum seekers, the present analysis questions whether these cases are not properly considered to be examples of a second cumulative approach, namely the cumulative grounds of discrimination or multiple vulnerabilities. A good illustration of cumulative vulnerabilities in the context of the right to education of disabled children is the 2010 case Dena Hernandez v Canada.133 This case concerned a Mexican single mother with twins who suffered from cerebral palsy and were as a result paralysed from the pelvis down and incontinent. In Mexico, the children had been sent to a school for mentally disabled children, even though they were only physically, but not mentally disabled. Once in

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129 130 131 132 133

unhcr, Handbook and Guidelines (n 42) para 55. ac (Egypt) (n 37). rrt Case No. N94/04178 (n 127). See the approach advocated by Foster (n 38) Chapter 4. Dena Hernandez v Canada (Citizenship and Immigration) (n 41).

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Canada they had integrated well into a school for children with physical handicaps. After referring to paragraphs 53 and 54 of the unhcr Handbook, which specifically mentions the right to access normally available educational facilities134 the Federal Court held that being prevented from continuing one’s education for a Convention reason could amount to persecution.135 The Federal Court therefore remitted the case for further consideration. It appears that the multiple vulnerabilities, namely the young age and disability of the children, were critical to this decision, although again the opportunity was missed to make express reference to the crpd and the denial of reasonable accommodation. A similar example from New Zealand is Refugee Appeal No 76380.136 The case concerned a Czech family of Roma ethnicity where one child (XX) suffered from significantly impaired hearing on both ears and had to wear bilateral hearing aids. The rsaa held that the cumulative effects of being a Roma child who would be put in a separate school for this reason, and being physically but not mentally disabled meant that he would suffer serious harm if returned to his country of origin as he would be put at a significant learning disadvantage as he would not receive the education he required. Although this decision post-dates the entry into force of the crpd by several years, the rsaa contented itself with relying on the crc instead. It referred to the right to education without discrimination in Article 28 taken with Article 2 crc and stressed that the cumulative grounds for discrimination, namely being a Roma, being disabled and being a child would result in inferior education for XX affecting his development as a person. Together with the fact that he would be exposed to a certain level of harassment and discrimination as a Roma, this was sufficient to warrant a finding of persecution.137 This case is interesting because of its express reference to the crc and its prohibition of discrimination. However, again no reference was made to the crpd. This may again be explained by the fact that, at the time of this decision in 2010, the crpd was not yet enjoying sufficiently general support amongst States, which it does however enjoy today. In the context of multiple vulnerabilities, decision makers seem more willing to adopt a rights-based approach, referring to socio-economic rights such as the right to education. This may also be due to the fact that the unhcr Handbook expressly refers to a denial of access to normally available educational facilities as a possible form of persecution.138 The Handbook further 134 135 136 137 138

Ibid, para 39. Ibid, paras 38–39. Refugee Appeal No 76380 [2010] nzrsaa 88. Ibid, paras 150–157. unhcr, Handbook and Guidelines (n 42) para 54.

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recognizes that ‘various measures not in themselves amounting to persecution’ may, when ‘combined with other adverse factors’ produce an effect on the mind of the applicant that can justify a finding of persecution ‘on cumulative grounds’.139 Such ‘other adverse factors’ may include the particular vulnerability of an applicant, for instance by virtue of being a child. Nevertheless, no express reference has yet been made in these decisions to the crpd or the denial of reasonable accommodation. While demonstrative of a willingness to engage with disability-specific issues, they are not yet a basis for an expressly disability-sensitive reading of persecution. Reasonable Accommodation and Both Forms of Cumulative Discrimination Finally, there are examples of cases which involve both forms of cumulative discrimination, namely cumulative forms of discrimination and cumulative vulnerabilities. An early interesting example from 2000 in a disability-specific context is the Canadian case of a Lebanese single woman who suffered from a mental illness and was incapable of living independently.140 It was found that she would not be able to rely on family support or get any other support for herself without the support of family members. The irb found it relevant that the appellant was ‘a female and given her handicap, would be especially vulnerable to sexual exploitation’. While Lebanon was making efforts towards improving the situation of mentally ill people, the effectiveness of these measures was compromised by a lack of financial resources. The irb made express reference to the threat of violations of Article 3 udhr on the right to life, liberty and security of the person, Articles 11 and 12 icescr on the right to an adequate standard of living and the right to health, as well as the soft law un General Assembly Declaration on the Rights of Mentally Retarded Persons which further sets out the right to a qualified guardian to protect one’s well-being and interests and to protection from exploitation, abuse and degrading treatment. The cumulative violations of several core human rights together with the multiple vulnerabilities of mental health and gender thus led to a finding of persecution. This decision, which predates the crpd by several years, displays an early recognition of not just the social model but a human rights-based model of disability. A further instance of both cumulative vulnerabilities and cumulative forms of human rights violations predating the adoption of the crpd is the Canadian case of a divorced ethnic Russian mother from Kyrgyzstan with two children,

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139 Ibid, para 53. 140 X (Re) (n 105).

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who was suffering from paranoia and deteriorating mental and emotional health.141 In addition, she had experienced instability in her employment in her country of origin. While the irb found that the appellant would not, on the basis of her ethnic origin alone, face a serious possibility of persecution, special consideration was given to the situation of the children. The irb found that the appellants were particularly vulnerable, as a family led by a single parent who suffers from serious mental health problems in a country where the severe social and economic problems were having a documented negative effect on women and children. The irb found that the appellant’s mental health problems which rendered her confrontational would likely make her and her children’s Russian ethnicity more visible, thereby putting them all at risk with the authorities. Due to her mental health problems, she would not be able to access state protection, she would not as the principal caregiver of her children be able to work in the foreseeable future and there would not be appropriate care for the children. On the basis of their Russian ethnicity and the family’s membership of a particular social group, namely a family including two minor children led by a single parent female with serious mental health problems, they would face persecution on return.142 The case thus involved multiple vulnerabilities and cumulative forms of discrimination regarding health care, but also the right to work. However, no reference was made to international human rights norms. In conclusion, the above examination shows that in the case law from New Zealand, Australia and Canada involving cumulative forms of discrimination or multiple vulnerabilities a social model of disability is increasingly being recognized and a more general willingness to adopt a human rights-based approach to disability is being displayed. The United Kingdom is the exception for it has not yet applied a disability-sensitive approach. The reasons for this will be further considered below in Sections  5.1.4 and 5.2. Recognition of a more disability-sensitive approach to persecution is, however, still limited to cases involving either multiple vulnerabilities or cumulative forms of dis­ criminatory harm or both of these combined. The reasoning in these cases is reminiscent of paragraph 55 of the unhcr Handbook, which stresses that discriminatory measures may amount to persecution where they ‘produce, in the mind of the person concerned, a feeling of apprehension’ to be determined ‘in 141 X v Canada [2001] irb T98-03164. 142 A somewhat different example of cumulative grounds for discrimination is the Australian case of a Chinese disabled political opponent, where the combination of disability and political opinion had led to persecutory treatment regarding social assistance, work as well as instances of mistreatment: V95/03148 [1996] rrta 597.

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the light of all the circumstances’. The formulation ‘all the circumstances’ permits decision makers to take account of specific vulnerabilities, such as being a single woman in a society where this in itself is sufficient to expose the person concerned to assaults and exploitation. However, with the exception of children and the denial of access to normally available educational facilities, decision makers have so far failed to recognize a denial of reasonable accommodation on its own to amount to persecution, even though this may ‘lead to consequences of a substantially prejudicial nature’, such as restrictions on the right to earn a livelihood.143 5

Disability in eu Asylum Law and under the European Convention on Human Rights

The above section has set out the approaches to interpreting persecution in the context of disabled persons adopted so far in the jurisdictions of Australia, Canada, New Zealand and the uk. The present section explores the extent to which a disability-sensitive interpretation of persecution is recognized in eu law and how such cases have been approached under the echr.144 5.1 The Notion of Persecution in the eu Qualification Directive145 Within the Common European Asylum System (ceas), the criteria for qualification as a refugee are laid down in the eu Recast Qualification Directive.146 Article 2(d) of the Recast Qualification Directive defines the term ‘refugee’ in substantively the same way as Article 1(A)(2) of the Refugee Convention, except that the personal scope under the Recast Qualification Directive is limited to third-country nationals and thus excludes eu nationals. The term ‘persecution’ 143 unhcr, Handbook and Guidelines (n 42) para 54. 144 European Convention for the Protection of Human Rights and Fundamental Freedoms (as amended by Protocols Nos. 11 and 14), ets No 005, 4 November 1950 (entry into force: 3 September 1953). 145 It is beyond the scope of the present chapter to consider the qualification of disabled persons for subsidiary protection under Article 15 of the eu Qualification Directive. However, the analysis of the approach under the echr in Section 5.2 below will be pertinent to an interpretation of Article 15(b) of the Recast Qualification Directive, see Case C-465/07 Elgafaji v Staatssecretaris van Justitie [2009] ecr I-921, para 28. 146 All eu Member States but for the uk, Ireland and Denmark are bound by the Recast Qualification Directive. The uk and Ireland remain bound by the 2004 Qualification Directive. The definition of persecution in Article 9 of the Recast Qualification Directive is in most respects identical to Article 9 of the 2004 Qualification Directive.

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is more specifically defined in Article 9 Recast Qualification Directive, setting out the requisite level of seriousness and instances of acts and forms of persecution. Article 9 Recast Qualification Directive, however, does not refer to disability as pertinent to the meaning of acts and forms of persecution. Nor does it refer to the generic group of vulnerable persons or persons with ‘special needs’. This is particularly conspicuous given the Recast Reception Directive which expressly provides for disabled persons in its Article 21,147 and more generally for those with mental health issues in its Articles 11, 19 and 21. This omission also stands out because the only reference to ‘disabled people’ within the Recast Qualification Directive is contained in its Article 30(2) relating to the provision of health care for those recognized as refugees. This provision is thus concerned with the content of, rather than the qualification for, international protection. The absence of any reference to disability or a more general group of vulnerable persons for qualification as a refugee stands in stark contrast to the visibility of applicants who are traumatised, and to reference to gender and child-specific claims that appear in the Recast Qualification Directive.148 It is therefore necessary to examine to what extent the present definition of persecution in Article 9 Recast Qualification Directive allows for a disability-sensitive reading of the term in the absence of any express reference to disabled persons. 5.1.1

Persecution and Violations of ‘Basic Human Rights’ (Article 9(1)(a) of the Recast Qualification Directive) The seriousness of acts of persecution in the Recast Qualification Directive is defined by reference to ‘basic human rights’ and the echr. Acts of persecution must ‘be sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2)’ echr (Article 9(1)(a) Recast Qualification Directive). Article 9(1)(a) Recast Qualification Directive is restrictively worded, given that it refers to ‘basic’ human rights, which are defined in particular by reference to non-derogable rights. While this definition is to a certain extent reminiscent of Hathaway’s 1991 approach to persecution, it is narrower for several reasons. One is its reference to non-derogable rights under the echr, rather

147 Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (recast), oj L 180/96, 29 June 2013. 148 Straimer, ‘Vulnerable or Invisible?’ (n 2) 10.

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than under international human rights law. The scope of non-derogable rights under the echr is indeed more restrictive than under other international human rights treaties. This ‘list’ only includes the right to life (except for deaths resulting from lawful acts of war), the prohibition on torture and inhuman and degrading treatment or punishment, the prohibition on slavery and the principle of no punishment without law.149 The reference in Article 9(1)(a) of the Recast Qualification Directive to non-derogable rights under the echr would therefore exclude arbitrary denials of liberty, given that the right to liberty under Article 5 echr is not one of the non-derogable rights according to Article 15(2) echr. This stands in contrast to the view that a ‘threat to life or freedom’ precluding refoulement by virtue of Article 33(1) of the Refugee Convention informs the interpretation of persecution as relevant context in accordance with Article 31(1) vclt.150 Article 9(1)(a) of the Recast Qualification Directive also appears narrower than Hathaway’s acceptance of other human rights violations as capable of amounting to persecution and also paragraph 51 of the unhcr Handbook, which provides that ‘serious violations of human rights’ generally constitute persecution. However, given the non-exhaustive wording (‘in particular’) in Article 9(1)(a), there is no obligation on Member States to adopt this more restrictive standard. The provision however remains silent as to what other human rights violations can, taken on their own, amount to persecution.151 The reference to non-derogable rights in Article 9(1)(a) of the Recast Qualification Directive is not intended to exclude violations of all other human rights from the scope of ‘acts of persecution’. Rather, it is necessary to look to the remainder of Article 9(1)(a) of the Recast Directive in order to determine what other acts could constitute a ‘severe violation of basic human rights’. The present issue is whether a violation of a denial of reasonable accommodation to a disabled person, which under the crpd falls within the definition of discrimination, could fall within the scope of Article 9(1)(a) of the Recast Qualification Directive. Arguably, the prohibition of discrimination constitutes a basic human right. It has been found to have acquired the status 149 Article 15 (2) echr provides that only Article 2 (right to life, except for deaths resulting from lawful acts of war), Article 3 (prohibition on torture and inhuman and degrading treatment), Article 4 (1) (prohibition on slavery) and Article 7 (no punishment without law) are non-derogable; see also the analysis of H. Battjes, European Asylum Law and International Law (Martinus Nijhoff Publishers 2006) 233–234 who points out that under the iccpr the right to recognition as a person before the law and the right to freedom of thought, conscience and religion are also non-derogable. 150 unhcr, Handbook and Guidelines (n 42) para 51. 151 In a similar vein, see Battjes (n 149) 234; Storey (n 43) 471.

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of jus cogens in international law by the Inter-American Court of Human Rights.152 According to Article 9(1)(a) of the Recast Qualification Directive, the ‘nature or repetition’ of violations of rights must be taken into account, when determining whether such a violation would be sufficiently serious as to ­constitute a severe violation of basic human rights. In the context of disabled persons, this means that the nature or repetition of a denial of reasonable accom­ modation should be taken into account when considering whether such a denial amounts to persecution. This assessment will depend on the circumstances of each individual case. For instance, the discriminatory denial of access to normally available educational facilities may by its nature or repetition – because it occurs on a repeated or irreversible basis – affect a disabled child sufficiently seriously as to constitute a severe violation of a basic right within the meaning of Article 9(1)(a) of the Recast Qualification Directive. The significance of the right to education is borne out by the fact that it is considered an ‘empowerment right’, meaning an ‘indispensable means of realizing other human rights’.153 In deciding what qualifies as an act of persecution, recourse can also be had to Article 9(2) of the Recast Qualification Directive, discussed further below, which sets out a non-exhaustive list of ‘forms of persecution’ pertinent to the interpretation of ‘acts of persecution’ under Article 9(1) of the Recast Directive. For instance, Article 9(2)(f) states that acts of persecution may take the form of acts of a ‘child-specific nature’. In this context Article 9(1)(a) of the Recast Qualification Directive is also in line with paragraph 54 of the unhcr Handbook which refers to ‘consequences of a substantially prejudicial nature’ including a denial of access to education. The case law set out above relating to the denial of reasonable accommodation regarding the right to education in subsection 4.2 further illustrates scenarios that could fall within the scope of Article 9(1)(a) of the Recast Qualification Directive.154 Similarly, the denial of reasonable accommodation in relation to the right to earn a livelihood – also referred to in paragraph 54 of the unhcr Handbook – of a disabled person may in itself constitute a severe violation of a basic right. In particular, if such a denial was based on legal and administrative measures 152 De Schutter (n 62) 66 with reference to the Advisory Opinion of the Inter-American Court of Human Rights OC-18/03 of 17 September 2003; the prohibition of racial discrimination has also been referred to as a ‘basic right’ by the International Court of Justice, see Barcelona Traction, Light and Power Company, Limited (Belgium v Spain), Judgment, icj Reports 1970, paras 33–34. 153 cescr, General Comment No 13: The Right to Education (Article 13 of the Covenant), un Doc E/C12/1999/10, 8 December 1999, para 1. 154 Dena Hernandez v Canada (Citizenship and Immigration) (n 41); Refugee Appeal No. 76380 (n 137).

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which discriminate in law or in fact against disabled persons this argument could be supported by reference to Article 9(2)(b) of the Recast Qualification Directive, which provides that persecution may take such forms, as discussed further below. However, the wording of Article 9(1)(a) of the Recast Qualification Directive, with its doubly high threshold – requiring a ‘severe’ violation of a ‘basic’ human right – is such that denials of reasonable accommodation for disabled persons likely only fall within its scope in rare cases. While the Recast Qualification Directive permits Member States to adopt more favourable standards (see Article 3 of the Recast Directive),155 this is yet another area in which the lack of an explicit reference to disability in Article 9 of the Recast Qualification Directive and the open-ended wording of the provision permits Member States to provide only the minimum level of protection spelt out expressly in the provision.156 Based on its wording, Article 9(1)(a) of the Recast Directive thus does not expressly require a disability-sensitive interpretation of persecution. At the same time, it leaves open the possibility to interpret the term in a way which would include denials of reasonable accommodation in certain cases. It will be further examined in subsection 5.1.4 below whether this is indeed required given the broader eu law context. Before examining this broader legal framework, however, the scope of acts of persecution under the Recast Qualifi­cation Directive, including violations of other human rights in certain circumstances set out in Article 9(1)(b) will be discussed. 5.1.2

Persecution and the Cumulative Violation of Human Rights (Article 9(1)(b) of the Recast Qualification Directive) In addition to the violation of basic human rights, the term ‘persecution’ as defined in the Recast Qualification Directive includes cumulative violations of human rights which are not considered ‘basic human rights’ within the sense of Article 9(1)(a) of the Recast Qualification Directive. According to Article 9(1)(b), persecutory acts can also take the form of ‘an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in point (a)’. This formulation is reminiscent of the final sentence of paragraph 55 of the 155 H. Lambert, ‘The eu Asylum Qualification Directive, Its Impact on the Jurisprudence of the United Kingdom and International Law’ (2006) 55 iclq 161, 161 noting that the wording of Article 3 could also be interpreted as meaning consistent, thereby not actually permitting more generous standards. 156 This is highlighted in the context of the lack of explicit reference to disability in the ceas Recast Directives in Straimer, ‘Vulnerable or Invisible?’ (n 2) 11.

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unhcr Handbook which refers to ‘a number of discriminatory measures’ that involve ‘a cumulative element’. The term ‘including’ in Article 9(1)(b) of the Recast Qualification Directive makes clear that such measures may, but do not necessarily need to, constitute human rights violations. It thus provides, like paragraph 55 of the unhcr Handbook, that an accumulation of ‘various measures’ other than human rights violations may also amount to persecution. Article 9(1)(b) of the Recast Qualification Directive provides an obvious fit for cases of cumulative forms of discrimination in the context of a denial of reasonable accommodation, such as those discussed above in subsections 4.1 and 4.3 which involve several discriminatory measures or human rights violations. For instance, the cumulative human rights violations and discriminatory measures in the case of ac (Egypt), which involved a denial of reasonable accommodation regarding the core of the right to work, taken cumulatively with occasional violence, discrimination in employment and education, as well as social isolation, illustrates a case scenario which could fall within the scope of Article 9(1)(b) of the Recast Qualification Directive.157 Similarly, the cumulative denials of reasonable accommodation regarding the right to health and the right to work, together with discrimination from the home, community and society at large in the case of Ampong v Canada could constitute such an example.158 The case of rrt Case No N94/04178 concerning an hiv-positive male could also include several discriminatory measures in the form of social exclusion and discrimination from the home and community together with a human rights violation, namely a violation of the right to medical care.159 It remains necessary, however, to consider whether other instances of a denial of reasonable accommodation may fall within the scope of persecution under Article 9 of the Recast Qualification Directive, in particular where no cumulative measures are involved. As already indicated in subsection 5.1.1 above, a further helpful indication on the intended scope of Article 9(1) of the Recast Qualification Directive is contained in Article 9(2), which sets out different ‘forms’ of persecutory harm. 5.1.3

Different Forms of Persecution (Article 9(2) of the Recast Qualification Directive) Article 9(2) of the Recast Qualification Directive sets out in a non-exhaustive list the various forms that persecution may take, thereby informing the interpretation of ‘acts of persecution’ in Article 9(1)(a). This list includes, amongst

157 ac (Egypt) (n 37) paras 80–88. 158 Ampong v Canada (Citizenship and Immigration) (n 125) paras 42–43. 159 rrt Case No. N94/04178 (n 127).

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others, ‘acts of physical or mental violence, including acts of sexual violence’ (Article 9(2)(a)), ‘legal, administrative, police, and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner’ (Article 9(2)(b)), and ‘acts of a gender-specific or child-specific nature’ (Article 9(2)(f)). These forms of harm are particularly pertinent to the asylum claims of refugees with disabilities. As already mentioned in subsection 5.1.1 above, the cases concerning the right to education and disabled children involve acts of a child-specific nature, as they concern the denial of a child-specific right, the right to education (Article 9(2)(f) of the Recast Qualification Directive). In addition, such cases may involve legal or administrative measures which are either discriminatory in themselves (for instance if they expressly exclude the right to education for disabled children) or are implemented in a discriminatory manner (because all children have the right to education, but disabled children are effectively disadvantaged by being provided with separate and inferior education) (Article 9(2)(b) of the Recast Qualification Directive). The forms of persecution of ‘acts of sexual violence’ and acts of a ‘genderspecific nature’ are also pertinent to the interpretation of the notion of persecution in case scenarios like X (Re) set out in Section  4.3 above. X (Re), concerning a Lebanese single woman suffering from a mental illness, provides an example of an applicant, who was, due to her disability, particularly vulnerable to sexual exploitation. The accumulation of the discriminatory measures she faced, including a threat to her right to life, liberty and security by virtue of sexual exploitation as well as to an adequate standard of living, included measures of a gender-specific nature and involved the risk of sexual violence.160 This case thus illustrates a scenario to which Article 9(1)(b) read together with Article 9(2)(a) and (f) of the Recast Qualification Directive could apply. In summary, Article 9 of the Recast Qualification Directive does not expressly provide for a disability-sensitive reading of the term ‘persecution’, but the wording of Article 9(1) and 9(2) of the Recast Directive provides several bases for recognizing a disability-sensitive approach to an interpretation of the term. The problem remains, however, that nothing in the Recast Qualification Directive expressly requires such an interpretation. In this vein, the next section will consider the wider eu law context regarding disability discrimination and the crpd. 5.1.4

Disability Discrimination in the eu and a Disability-Sensitive Reading of the Recast Qualification Directive The above analysis has demonstrated that Article 9 of the Recast Qualification Directive is worded in a way which could accommodate the cases concerning

160 X (Re) (n 105).

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disabled persons and denials of reasonable accommodation discussed in Section 4. However, given that the Recast Qualification Directive does not contain disability-specific provisions for the qualification for refugee status, the question remains how to mainstream a disability-sensitive reading within Article 9. One answer to this question is that the Directive could be amended in order to spell this out expressly. While this would certainly bring clarity into these issues, it does not however seem to be realistic in the immediate future.161 Another solution in the short term would be the issuance of policy guidance, something that already exists in relation to equal opportunities for disabled persons in the eu.162 The policy background on disability issues in the eu more generally supports a more progressive approach to disability in the context of eu asylum law. Like international human rights law, the eu has also shifted from the medical to the social model in the context of disabled persons, demonstrating a heightened awareness for the societal barriers which disabled persons face.163 Various provisions in eu law and ‘policy demonstrate a strong commitment to safeguarding the rights of persons with disabilities’.164 The European Disability Strategy also stresses that, on the basis of Article 1 of the 161 Straimer, ‘Vulnerable or Invisible?’ (n 2) 11–13 on the various policy reasons why no references to disability were included in Article 9 of the Recast Qualification Directive. 162 See the eu Commission, Communication from the Commission to the Council, the Euro­ pean Parliament, the European Economic and Social Committee and the Committee of the Regions, Equal Opportunities for People with Disabilities: A European Action Plan, com (2003) 650 final, 30 October 2003; eu Commission, Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions, Situation of Disabled People in the Enlarged European Union: The European Action Plan 2006–2007, com(2005) 604 final, 28 November 2005; eu Com­ mission, Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions, Situation of Disabled People in the European Union: The European Action Plan 2008–2009, com(2007) 738 final, 26 November 2007; and the Mid-Term Evaluation of the European Action Plan 2003–2010 on Equal Opportunities for People with Disabilities, Centre for Strategy & Evalu­ ation Services, June 2009. For the decade of 2010–2020 the European Disability Strategy has been adopted as a comprehensive framework for the implementation of the crpd, see eu Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, European Disability Strategy 2010–2020 – A Renewed Commitment to a Barrier-Free Europe, com(2010) 636 final, 15 November 2010. 163 Straimer, ‘Vulnerable or Invisible?’ (n 2) 5–6 referring to the European Commission Action plans on the Situation of Disabled Persons in Europe 2003, 2005, 2006–2007, 2008–2009. 164 Ibid, 6.

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Charter of Fundamental Rights of the European Union (the eu Charter) on human dignity, Article 21 on non-discrimination and Article 26 on the integration of disabled persons, the European Commission will both use ‘existing eu legislation to provide protection from discrimination’ and ‘implement an active policy to combat discrimination’.165 The Commission has also recently published a report on Reasonable Accommodation Beyond Disability in Europe? which focuses on the duties arising under the only Directive in eu law prohibiting disability discrimination, namely the eu Employment Directive 2007.166 The notion of reasonable accommodation is already firmly embedded in certain aspects of eu law and could thus be transposed into the area of eu asylum law. Guidance on a disability-sensitive interpretation of the Recast Qualification Directive would ‘allow filling normative gaps in the current regime and creating equal opportunities for all persons seeking asylum in the European Union’.167 A further possibility is to examine whether fundamental principles of eu law and the eu’s international law obligations already provide the interpretative framework mandating a disability-sensitive reading of ‘persecution’. In this respect, the following arguments could be advanced. Firstly, according to Article 78(1) of the Treaty on the Functioning of the European Union (tfeu), the eu common asylum policy must comply not only with the Refugee Convention and the Protocol thereto but also with ‘other relevant treaties’. Further, Recital 17 of the Recast Qualification Directive postulates that Member States are bound by their international law obligations, ‘including in particular those that prohibit discrimination’, with respect to the treatment of persons falling within the scope of the Recast Qualification Directive. The crpd is binding on both the eu and its Member States and contains obligations which directly concern the prohibition on discrimination. Based on Article 78(1) tfeu and Recital 17 of the Preamble to the Recast Qualification Directive, an interpretation of the Recast Qualification Directive must be compatible with the crpd.168 165 eu Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, European Disability Strategy 2010–2020 – A Renewed Commitment to a Barrier-Free Europe, com(2010) 636 final, 15 November 2010, 6. 166 E. Bribosia and I. Rorive, ‘Reasonable Accommodation beyond Disability in Europe? (eu Commission 2013) accessed 6 December 2014. 167 Straimer, ‘Vulnerable or Invisible?’ (n 2) 18. 168 European Council on Refugees and Exiles (ecre), ecre Information Note on the Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on Standards for the Qualification of Third-Country Nationals or Stateless Persons as Beneficiaries of

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Recital 16 of the Preamble to the Recast Qualification Directive further states that the Directive should be implemented with full respect for human dignity and the right to asylum, specifically referring to Articles 1, 7, 11, 14–16, 18, 21, 24, 34, and 35 of the eu Charter.169 Interestingly for present purposes, Article 21 of the eu Charter prohibits any discrimination on various listed grounds, including disability. This is pertinent to the interpretation of the Recast Qualification Directive. Even though reference to Article 26 of the eu Charter on the integration of disabled persons was omitted from the list in Recital 16 of the Preamble,170 this supports a reading of the Recast Qualification Directive, including its Article 9, which is sensitive to situations of discrimination against disabled persons. The express reference to the prohibition on discrimination also supports a reading of Article 9 which includes denials of reasonable accommodation of human rights to disabled persons as possible ‘act of persecution’. Of course, such denial of reasonable accommodation would still need to meet the seriousness threshold under Article 9(1) of the Recast Qualification Directive. Secondly, the fact that the crpd is so far the only human rights treaty to which the eu has acceded clearly strengthens this argument, as the eu is itself bound by the crpd. According to Article 216(2) tfeu, agreements concluded by the eu are binding on the institutions of the eu and on eu Member States when applying eu law. Given that both the eu and its Member States have signed the crpd, it is a so-called mixed agreement. This means that the crpd falls partly within the exclusive competence of the eu, partly within the exclusive competence of the Member States and partly within the area of shared competence. As a result of the eu’s accession to the crpd, this now forms an integral part of eu law.171 As an international agreement concluded by the eu, the crpd is superior to secondary eu legislation, such as the Recast Qualification Directive, and only inferior to the eu Treaties.172 Where the wording of eu

169 170

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International Protection, for a Uniform Status for Refugees or for Persons Eligible for Subsidiary Protection, and for the Content of the Protection Granted (Recast) (ecre 2013) 2. Charter of Fundamental Rights of the European Union, oj C 364/1, 18 December 2000 (entry into force: 1 December 2009). Straimer, ‘Between Protection and Assistance’ (n 33) 547 noting that the reason for this was according to a Commission official that ‘when we are talking about asylum seekers we are not talking about integration’. European Foundation Centre (efc), Study on Challenges and Good Practices in the Implementation of the un Convention on the Rights of Persons with Disabilities VC/2008/1214 (efc 2010) 29; referring to cjeu decisions such as Case C-12/86 Meryem Demirel v Stadt Schwäbisch Gmünd [1987] ecr 03719 on mixed agreements and Article 300(7) tec. Case C-244/04 iata v Department of Transport [2006] ecr I-403, para 35; referred to in G. Quinn and S. Doyle, ‘Taking the un Convention on the Rights of Persons with

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l­ egislation, such as the Recast Qualification Directive, is open to more than one interpretation, the interpretation which is compatible with the crpd ought to be preferred.173 This also means that secondary legislation must be drafted in a manner that is consistent with the eu’s obligations under the crpd.174 The lack of attention to disability issues during the drafting process of the Recast Qualification Directive is thus surprising.175 The failure to refer to the ­specific needs of disabled persons in Article 9 of the Recast Qualification Direc­ tive is a shortcoming in the recast process, albeit one which can be remedied through judicial interpretation as argued below. Concerning the recast process, it seems that the eu was of the view that the crpd would not affect qualification for refugee status or subsidiary protection. In Council Decision 2010/48/EC of 26 November 2009, the Council approved the crpd and authorised the President of the Council to sign the Convention on behalf of the European Community.176 In accordance with Article 44(1) crpd, which requires ‘regional integration organisations’ to declare in ‘their instruments of formal confirmation or accession, the extent of their competence with respect to matters governed by this Convention’, Annex II to Council Decision 2010/48/EC sets out the competence of the Euro­pean Community regarding the crpd. Further, an Appendix to Annex II sets out Community Acts, which refer to matters governed by the crpd. Neither Annex II nor the Appendix refers to asylum or the Recast Qualification Directive as matters within eu competence governed by the crpd. This illustrates the lack of awareness of the potential impact of the crpd in this area. However, from an eu law perspective, this is not the only relevant criterion. One of the criteria to determine the areas of eu law affected by the crpd is the legal basis on which the crpd was acceded to. Council Decision 2010/48/EC relies on Article 13 on non-discrimination and Article 95 on the internal market of the Treaty establishing the European Community (tec) in addition to Article 300(2) and (3) tec.177 However, the European Court of Justice has held that,

173 174 175

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Disabilities Seriously – The Past and Future of the eu Structural Funds as a Tool to Achieve Community Living’ (2012) 9 The Equal Rights Review 69, 70. Case C-61/94 Commission v Germany [1996] ECR-I 3989, para 52. Ibid, para 35. Straimer, ‘Vulnerable or Invisible?’ (n 2) 13–17 explains that there was a conspicuous lack of lobbying on the part of refugee or disability organizations during the policy process of the drafting of the recast directives. Council Decision of 26 November 2009 Concerning the Conclusion, by the European Community, of the United Nations Convention on the Rights of Persons with Disabilities (2010/48/EC), oj L23/35, Articles 1(1) and 2(1). For an analysis of the measures concerning disability adopted in these areas, see L.  Waddington, ‘Breaking New Ground: The Implications of Ratification of the un

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the fact that one or more provisions of the Treaty have been chosen as legal bases for the approval of an international agreement is not sufficient to show that those same provisions must also be used as legal bases for the adoption of measures intended to implement that agreement at Community level.178 The eu’s obligations arising out of the crpd can therefore also be implemented when legislating on the basis of (now) tfeu Articles other than those expressly mentioned in Council Decision 2010/48/EC.179 While it is difficult to define clearly which areas fall within the eu’s competence, the tfeu and secondary legislation can give an indication of such areas in relation to the crpd.180 The fact that Article 78 tfeu mandates the adoption of a common European asylum system, including a uniform status of asylum, and that the Recast Qualification Directive sets out common standards for the qualification for asylum, including a definition of persecution, demonstrates the eu’s competence in this area. Member States thus have a community law obligation, in addition to their obligations under international law, to implement the crpd where this falls within the scope of the eu’s competence on asylum, including the definition of persecution.181 They are further under a duty of loyal cooperation between one another and the eu under Article 4(3) of the Treaty on the European Union (teu).182 This also includes a duty to abstain from any act or measure which could jeopardise the attainment of objectives of the eu Treaties or from action taken by the eu institutions.183 Convention on the Rights of Persons with Disabilities for the European Community’ in O. Mjöll Arnardóttir and G. Quinn (eds), The un Convention on the Rights of Persons with Disabilities: European and Scandinavian Perspectives (Martinus Nijhoff Publishers 2009) 111. 178 Case C-178/03 Commission of the European Communities v European Parliament and Council of the European Union [2006] ecr I-00107, paras 40–46. 179 efc (n 171) 32. 180 Ibid, 38. 181 See eufc report, 29 and 33, and Decision of eu para 7 of Preamble. 182 A further interesting ramification of the eu’s accession to the crpd is its impact on the uk when applying the qd. The uk has entered a reservation to Article 18 crpd in order to prevent the crpd from having any impact on its asylum and immigration law in the following terms: ‘The United Kingdom reserves the right to apply such legislation, insofar as it relates to the entry into, stay in and departure from the United Kingdom of those who do not have the right under the law of the United Kingdom to enter and remain in the United Kingdom, as it may deem necessary from time to time’. 183 efc (n 171) 34.

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It is also noteworthy that in the first Report of the European Commission on the implementation of the crpd by the eu reference is made to asylum. This indicates that the eu was accepting that the crpd is also pertinent to matters relating to its competence on asylum. However, echoing the limited awareness of disability in the recast process of the ceas directives, the only reference to asylum in this report is made with regard to the right to liberty and security of the person under Article 14 crpd and reception conditions, a subject matter which is regulated in the Reception Directive with specific reference to groups with special needs.184 In conclusion, despite the lack of a reference to disability in the definition of ‘persecution’ in Article 9 of the Recast Qualification Directive, the eu’s obligations under the crpd should influence the interpretation of the Recast Qualification Directive and more specifically the term ‘persecution’. As has been argued above in subsections 5.1.1 to 5.1.3, Article 9 of the Recast Qualifi­ cation Directive is sufficiently open-ended to be interpreted in a disabilitysensitive way. The present subsection has demonstrated that it is not only permissible, but in fact mandated by the eu’s and its Member States’ legal obligations to interpret Article 9 of the Recast Qualification Directive in a manner which is compatible with the crpd. This includes an interpretation of ‘persecution’ which takes adequate account not only of the social model under the crpd, but also of the fact that a denial of reasonable accommodation constitutes a violation of the prohibition of discrimination under Article 2 crpd. Such an interpretation of Article 9 of the Recast Qualification Directive would not only be compatible with the eu’s and its Member Stats’ obligations under the crpd, but also with the general eu policy framework and general principles of eu law, including the eu Charter. In a final step, it will be considered how asylum cases involving disabled persons have been approached under the echr and how this compares to the approach provided for under the Recast Qualification Directive. 5.2 The European Convention on Human Rights The echr is a civil and political human rights treaty, which does not directly address refugee law or the question of persecution.185 However, the ECtHR regularly adjudicates on expulsion cases, which are domestically classified as 184 Commission Staff Working Document, Report on the Implementation of the un Convention on the Rights of Persons with Disabilities (crpd) by the European Union, swd(2014) 182 final, 5 June 2014, para 80. 185 The issue of the expulsion of aliens is only referred to in the optional protocols to the echr, see the prohibition on collective expulsion of aliens under Article 4 of Protocol 4

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asylum appeals, under the refoulement prohibition in Article 3 echr.186 Although the ECtHR has accepted that other echr Articles may also have extraterritorial effect so as to act as a bar to the expulsion of an applicant, the vast majority of asylum cases are decided under Article 3 echr.187 It is important to note that the refoulement prohibition under Article 3 echr – only relating to torture or inhuman or degrading treatment – is narrower than the definition of ‘persecution’ in international refugee law and in eu law. In international refugee law ‘persecution’ may take the form of ‘serious violations of human rights’ other than the prohibition on torture, as well as ‘discriminatory measures’, even where no human rights violation is involved.188 The wider ambit of the term ‘persecution’ is also illustrated by the case law set out in Section 4 above. Similarly, in European law the definition of ‘persecution’ in Article 9 of the Recast Qualification Directive clearly goes beyond the prohibition on refoulement in Article 3 echr and includes both severe violations of basic human rights other than Article 3 ehcr (in Article 9(1)(a) of the Recast Qualification Directive) and an accumulation of various measures that have a ‘sufficiently severe’ impact on the individual (Article 9(1)(b) of the Recast Qualification Directive) (see also Section 5.1 above). The scope of treatment which is sufficient to act as a bar to expulsion pursuant to Article 3 echr is thus narrower than under the Refugee Convention or Article 9 of the Recast and the right to certain procedural guarantees for lawfully resident migrants who face expulsion under Article 1 of Protocol 7. 186 For the refoulement prohibition in Article 3 echr see Soering v United Kingdom (1989) Series A no 161 and Chahal v United Kingdom (996) Reports of Judgments and Decisions 1996-V. 187 The ECtHR now accepts that the right to life also contains a refoulement prohibition, see Al-Saadoon and Mufdhi v United Kingdom Appl no 61498/08 (ECtHR, 2 March 2010); it also accepts that that a real risk of a ‘flagrant’ violation of the right to liberty under Article 5 echr and the right to a fair trial under Article 6 echr acts as a bar to removal, see Othman (Abu Qatada) v United Kingdom Appl no 8139/09 (ECtHR, 17 January 2012); and a ‘real risk of a flagrant denial’ of freedom of religion would act as a bar to expulsion, see Z and T v United Kingdom Appl no 27034/05 (ECtHR, admissibility decision, 28 February 2006). The ECtHR has further accepted that a real risk of a violation of the non-derogable principle of no punishment without law in Article 7 echr would act as a bar to expulsion, see Szabo v Sweden Appl no 28578/03 (ECtHR, admissibility decision, 27 June 2006); Csoszanski v Sweden Appl no 22318/02 (ECtHR, admissibility decision, 27 June 2006) and it has left open the possibility that a real risk of slavery contrary to the non-derogable Article 4 echr would prevent expulsion, see vf v France Appl no 7196/10 (ECtHR, admissibility decision, 29 November 2011). 188 See unhcr, Handbook and Guidelines (n 42) paras 51–53 on human rights violations and paras 54–55 on discriminatory measures not amounting to human rights violations.

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Qualification Directive, which are formulated in a more open-ended manner. It will be seen below, that this narrower scope has also led to a more restrictive approach in the context of expulsion cases under Article 3 echr. While the focus of the echr with its civil and political rights is traditionally on ‘negative liberty’, the ECtHR recognizes that such rights also involve positive obligations.189 It has also recognized that the rights contained in the echr, including Article 3 echr, may in certain situations cover socio-economic issues.190 In the context of expulsion cases, the ECtHR has applied Article 3 echr to cases involving medical issues,191 and to cases involving living conditions, including issues regarding the standard of living, housing and food.192 An early example concerning the expulsion of a disabled person and medical issues is D v the United Kingdom.193 The case concerned an aids sufferer who was a national of St. Kitts. No anti-retroviral treatment or social assistance would have been available in his country of origin. The ECtHR found a violation of the Article 3 refoulement prohibition in the light of the ‘very exceptional circumstances of this case and given the compelling humanitarian considerations at stake’, which included the fact that the applicant had reached the terminal stages of the disease, the lack of palliative or medical care in St. Kitts coupled with the absence of any moral or family support.194 The exceptionality finding in D was based on the fact that the ‘source of the risk of proscribed treatment in the receiving country stems from factors which cannot engage either directly or indirectly the responsibility of the public authorities of that country, or which, taken alone, do not in themselves infringe the standards’ of Article 3 echr.195 The Grand Chamber subsequently stressed in N v United Kingdom, concerning an aids-sufferer from Uganda, that it would only be ‘in a very exceptional case, where the humanitarian grounds against removal are compelling’ that the threshold of Article 3 echr would be reached in a medical 189 C. O’Cinneide, ‘Extracting Protection for the Rights of Persons with Disabilities from Human Rights Frameworks: Established Limits and New Possibilities’ in O. Mjöll Arnardóttir and G. Quinn (eds), The un Convention on the Rights of Persons with Disabilities: European and Scandinavian Perspectives (Martinus Nijhoff Publishers 2009) 168–170; see also Koch (n 62). 190 Koch (n 62) 408–409. 191 D v United Kingdom Appl no 30240/96 (ECtHR, 2 May 1997); N v United Kingdom Appl no 26565/05 (ECtHR (gc), 27 May 2008). 192 mss v Belgium and Greece Appl no 30696/09 (ECtHR, 21 January 2011); Sufi and Elmi v United Kingdom Appl nos 8319/07 and 11449/07 (ECtHR, 28 June 2011). 193 D v United Kingdom (n 191). 194 Ibid, para 54. 195 Ibid, para 49.

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case.196 No case since D has reached this exceptionality threshold again.197 The same exceptionality threshold has been applied in the context of cases involving serious mental health issues.198 However, in the context of cases concerning living conditions, no exceptionality threshold has been applied. The first successful expulsion case concerning Article 3 echr in the context of living conditions was mss v Belgium and Greece.199 The case concerned an Afghan asylum seeker who was to be returned from Belgium to Greece under the Dublin II Regulation.200 He had ‘spent months living in a state of the most extreme poverty, unable to cater for his most basic needs: food, hygiene and a place to live’ in addition to an ‘everpresent fear of being attacked and robbed and the total lack of any likelihood of his situation improving’.201 While the Grand Chamber found that Article 3 echr entailed no general obligation to provide everyone with a home or to give refugees financial assistance in order to attain a certain standard of living, it found that positive eu law imposed such obligations in relation to impoverished asylum seekers and this reflected ‘a broad consensus’ also at the international level of the need for their special protection.202 It also found pertinent that ‘the Greek authorities could have substantially alleviated [the applicant’s] suffering’ by determining his asylum request promptly.203 The Grand Chamber ruled that the Greek authorities were responsible for the applicant’s situation ‘because of their inaction’.204 It held: The Court considers that the applicant has been the victim of humiliating treatment showing a lack of respect for his dignity and that this 196 N v United Kingdom (n 191) para 42. 197 F. de Weck, ‘Das Rückschiebungsverbot aus medizinischen Gründen nach Art. 3 emrk’ (2013) Jusletter, Schwerpunktausgabe Migrationsrecht. 198 Bensaid v United Kingdom Appl no 44599/98 (ECtHR, 6 February 2001). 199 mss v Belgium and Greece (n 192); following the approach in mss the ECtHR recently found that living conditions in Italy are in breach of Article 3 echr for particularly vulnerable asylum seekers, such as families with children, see Tarakhel v Switzerland Appl no 29217/12 (ECtHR (gc), 4 November 2014). 200 Council Regulation (ec) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national, oj L 50/1, 25 February 2003. 201 mss v Belgium and Greece (n 192) para 254. 202 Ibid, paras 250–251, 263. 203 Ibid, para 262. 204 Ibid, para 263.

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situation has, without doubt, aroused in him feelings of fear, anguish or inferiority capable of inducing desperation. It considers that such living conditions, combined with the prolonged uncertainty in which he has remained and the total lack of any prospects of his situation improving, have attained the level of severity required to fall within the scope of Article 3 of the Convention.205 The Grand Chamber further held that the Belgian authorities had also breached Article 3 echr by expelling the applicant to Greece where he faced such degrading living conditions.206 While the findings in mss were expressly made in an eu law context, the ECtHR extended the applicability of Article 3 echr to inhuman and degrading living conditions outside the eu in the case of Sufi and Elmi v United Kingdom, which concerned the expulsion of two Somalian asylum seekers.207 The pertinent issue for present purposes was whether the applicants would face living conditions contrary to Article 3 echr if they relocated to a refugee camp or a camp for internally displaced people. In deciding this issue, the ECtHR introduced a distinction between the line of medical cases under D and N, which would involve an exceptionality threshold, and the decision on living conditions in mss v Belgium and Greece, which had not relied on any exceptionality threshold. The ECtHR found that Sufi and Elmi was more akin to the situation in mss. It distinguished N v United Kingdom on the basis that the source of the risk in N did not stem from factors within a State’s direct or indirect responsibility. It held that if ‘the dire humanitarian conditions in Somalia were solely or even predominantly attributable to poverty or to the State’s lack of resources to deal with a naturally occurring phenomenon, such as drought’, the test in N would have been applicable.208 However, finding that the humanitarian crisis was ‘predominantly due to the direct and indirect actions of the parties to the conflict’ in Somalia, the Court held that the test in mss was applicable. It was thus required to have regard to ‘the applicant’s ability to cater for his most basic needs, such as food, hygiene and shelter, his vulnerability to ill-treatment and the prospect of his situation improving within a reasonable time-frame’.209 In the context of expulsion cases involving socio-economic issues, the ECtHR has thus introduced a distinction based on the source of the risk between 205 206 207 208 209

Ibid, para 263. Ibid, paras 366–367. Sufi and Elmi v United Kingdom (n 192). Ibid, paras 281–282. Ibid, paras 282–283.

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s­ ituations where the proscribed treatment stems at least predominantly from intentional acts or omissions of the State or parties to a conflict (such as in Sufi and Elmi v United Kingdom) or at least ‘official indifference in a situation of deprivation of want incompatible with human dignity’ (such as in mss v Belgium and Greece) on the one hand,210 and situations where the source of the risk in the receiving country stems from factors which do not engage either directly or indirectly the responsibility of the public authorities of that country (such as in D and N v United Kingdom). In the context of cases involving some sort of ‘state responsibility’ of the country of origin, no exceptionality threshold has been applied and regard has been had to the living conditions and the ability of the applicant to cater for his most basic needs.211 In the context of cases involving no direct or indirect state responsibility, an ‘exceptionality’ threshold has been applied, which has proved to be virtually insurmountable. However, the dividing line between these two sets of cases is not very clear and the test of a ‘predominant cause’ of, or ‘official indifference’ towards, such conditions has proven problematic. Many situations of inhuman and degrading socio-economic conditions involve at least some sort of official indifference in a situation of deprivation.212 A lack of resources for medical care often combines with discriminatory societal attitudes, harassment and occasional acts of violence coupled with an intentional omission of state protection (see for instance the cases in Section 4.1 above). The difficulties with these two separate approaches were brought to the fore in an expulsion case concerning a disabled person. The case of shh v United Kingdom213 concerned an Afghan applicant who had been left seriously injured with one leg amputated during a rocket launch in Afghanistan. The ECtHR decided by four votes to three that the N exceptionality standard applied, rather than the standard set out in mss regarding the living conditions of asylum seekers in Greece who were faced with extreme poverty and unable to cater for their most basic needs.214 The majority in shh based its decision firstly on the fact that even though the applicant’s disability could not be described as a ‘naturally occurring illness’ any future harm in relation to living conditions as a disabled person in Afghanistan as a result of the poor provision for, and ignorance surrounding, persons with disabilities there would not 210 Ibid, para 282; mss v Belgium and Greece (n 192) paras 253, 263. 211 mss v Belgium and Greece (n 192) para 254. 212 The Court refrained from referring to this however in Tarakhel stating instead that the source of the risk is irrelevant, para 104. 213 shh v United Kingdom Appl no 6036710 (ECtHR, 29 January 2013). 214 mss v Belgium and Greece (n 192) paras 253–254.

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e­ manate from deliberate ill-treatment from any party, but from a lack of resources.215 Secondly, it found that mss was to be distinguished on the basis that the inaction on the part of the Greek authorities (by not determining his asylum claim), despite its positive eu law obligations to do so, had contributed to the applicant’s destitution. The ECtHR stated that Afghanistan had ‘no such similar positive obligations under European legislation and cannot be held accountable […] for failures to provide adequate welfare assistance to persons with disabilities’.216 Finally, the general situation of violence in Afghanistan was not comparable to the situation that appertained in Mogadishu at the time of the decision in Sufi and Elmi.217 This decision is highly problematic. In an attempt to widen the scope of D and N to cover situations which are effectively comparable to the situation in mss and Sufi and Elmi, the Court has introduced double standards depending on whether the country of destination is a European country or not. The ECtHR placed emphasis on the fact that Afghanistan was under no positive obligations under eu law, but entirely ignored the fact that Afghanistan nevertheless had obligations under international human rights law. At the date of the decision in shh, Afghanistan had not only ratified the icescr but also the crpd. In the majority’s view this did not, however, lead to the conclusion that the Article 3 threshold had been reached, effectively rejecting a disabilitysensitive interpretation of Article 3 echr.218 In a joint dissenting opinion Judges Ziemele, David Thór Björgvinsson and De Gaetano disagreed with the majority’s classification of the case as one which falls within the ‘exceptional’ category of the D and N, rather than the mss and Sufi and Elmi line of cases. They stressed that shh fell ‘somewhere in between the lines of the Court’s case-law and thus raise[s] a new issue before the Court’.219 On the one hand, the applicant’s disability could not be characterised as a naturally occurring illness in the sense of the D and N line of case law. On the other, the inhuman and degrading living conditions for the 215 shh v United Kingdom (n 212) para 89. 216 Ibid, para 90. 217 Ibid, para 91; in Sufi and Elmi v United Kingdom (n 192) it was held at para 248 that ‘the large quantity of objective information overwhelmingly indicates that the level of violence in Mogadishu is of sufficient intensity to pose a real risk of treatment reaching the Article 3 threshold to anyone in the capital’. The ECtHR has never since held that any other country situation would be sufficiently serious to pose a real risk of treatment contrary to Article 3 echr irrespective of any personal characteristics. 218 shh v United Kingdom (n 212) para 94. 219 Ibid, Joint Dissenting Opinion, para 3.

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disabled applicant in Afghanistan were also not predominantly due to the direct or indirect actions of the parties to the conflict in Afghanistan as had been the case in Sufi and Elmi. The minority called for a ‘disability-sensitive interpretation of the facts and of the application of the Court’s case-law’ under Article 3 echr in the light of the crpd and referred to the ‘nature of his disability and the lack of family or social infrastructure for him in Afghanistan’ as material to the determination of the claim.220 Since the decision in shh, the ECtHR has remained divided on the appropriate test under Article 3 echr in cases involving medical issues and living conditions. The subsequent decision in Mwanje v Belgium221 provides an even starker illustration of this division. In Mwanje, a case concerning the expulsion of an hiv-positive applicant to Cameroon where 98 per cent of hiv patients do not have access to necessary treatment, six out of seven judges wrote a separate concurring opinion in which they expressed their dissatisfaction with the state of the law under D and N and called on the ECtHR to re-examine these issues. While the exceptionality test has been applied in judgments following Mwanje,222 the request for a referral to the Grand Chamber has been accepted in sj v Belgium, which indicates a recognition of the need to consider the appropriate test for expulsion cases involving medical issues and living conditions in the forum of the Grand Chamber.223 sj v Belgium concerns an hivpositive Nigerian national who is the single mother of two children. In the Chamber Judgment the ECtHR found a violation of the accessory right to an effective remedy under Article 13 read in conjunction with Article 3 echr, but held that there had not been a violation of the substantive guarantees of Article 3 echr. The Grand Chamber has now accepted the requests for referral by both the applicant and the State Party. This will allow for a re-examination by the Grand Chamber of both findings, the finding of a violation of Article 13 taken with Article 3 echr and the finding of no violation of Article 3 on its own. Thus, while the current state of the law under the echr does not provide for a disability-sensitive interpretation of the refoulement prohibition under Article 3 echr, this issue may be re-examined in a forthcoming Grand Chamber judgment. The ECtHR has already recognized in its case law that the o­ bligations 220 Ibid, Joint Dissenting Opinion, para 6. 221 Appl no 10486/10 (2013) 56 ehrr 35. 222 sj v Belgium ( formerly known as Josef v Belgium) Appl no 7005510 (ECtHR, 27 February 2014); Paposhvili v Belgium Appl no 4173810 (ECtHR, 17 April 2014). 223 sj v Belgium ( formerly known as Josef v Belgium) (n 221) Grand Chamber referral accepted on 7 July 2014.

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of the Contracting Parties under international human rights law may be pertinent to the interpretation of Article 3 echr.224 The fact that the crpd has been ratified by most of the Contracting Parties, and even the eu, indicates that the rights contained in the crpd ought to be pertinent to the interpretation of Article 3 echr and that a disability-sensitive approach, as suggested by the minority in its Dissenting Opinion in shh, is necessary. In particular, it is important to recognize that the ‘official indifference’ or ‘inaction’ of a receiving State will amount to inhuman and degrading ‘treatment’, if this is done in the face of material want or living conditions which are incompatible with human dignity because of an applicant’s disability and the lack of support from the home or community. The ECtHR has recognized in Nasri v France, in the context of an expulsion case concerning a disabled person under Article 8 echr, that ‘an accumulation of special circumstances’ – including the applicant’s disability and his need for the support from his family in order to attain a ‘minimum psychological and social equilibrium’ – meant that his removal was disproportionate under Article 8 echr.225 In the context of Article 3 echr expulsion cases, the ECtHR has further accepted that a general situation of discrimination vis-à-vis a particular group of people constitutes pertinent background to the assessment of a real risk of ill-treatment on return.226 A disability-sensitive approach to Article 3 echr would recognize, in the case of disabled persons, the relevance of personal and disability-specific factors such as a situation of societal discrimination against the disabled, the need for support from the home, community or government authorities, or the need for medical care, are necessary to alleviate a situation incompatible with human dignity. 6 Conclusion As yet, decision makers in Australia, Canada, New Zealand and the uk have failed to find that violations of the duty of reasonable accommodation in the context of disabled persons can per se amount to persecution. Amongst these 224 See e.g. in relation to the pertinence of obligations under the crc: Muskhadzhiyeva and others v Belgium Appl No 4144207 (ECtHR, 19 January 2010) paras 43, 59–62; Mubilanzila Mayeka and Kaniki Mitunga v Belgium echr 2006-XI para 55; Popov v France Appl nos 3847207 3847407 (ECtHR, 19 January 2012) paras 102–105; Kanagaratnam and Ors v Belgium Appl no 1529709 (ECtHR, 13 December 2011) paras 67–72; Rahimi v Greece Appl no 868708 (ECtHR, 5 April 2011) para 86. 225 Nasri v France Appl no 1945692 (ECtHR, 13 July 1995) para 46. 226 sh v United Kingdom Appl no 19956/06 (ECtHR, 15 June 2010) para 70.

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jurisdictions, the New Zealand Tribunal is the first judicial instance to expressly base a finding of persecution on the provisions of the crpd in ac (Egypt).227 In contrast, uk decision makers have, based on the uk’s reservation to the crpd in relation to immigration and asylum cases, so far refrained from finding persecution in disability-related cases. Decision makers in Australia and Canada have been less reluctant, finding situations that de facto involved a denial of reasonable accommodation to amount to persecution, provided at least one of the two types of cumulative discrimination, either multiple vulnerabilities or cumulative forms of harm, were present. However, they failed to refer to the crpd or the duty of reasonable accommodation as pertinent to such a finding. Given the human rights-based approach towards the term ‘persecution’ prevalent in these jurisdictions, and in light of the general political support the crpd now enjoys, an interpretation of persecution which places express reliance on the crpd is necessary. Nevertheless, the case law set out in Section 4 constitutes a slow beginning of a more disability-sensitive interpretation of ‘persecution’ in these jurisdictions. In the eu law context, the present chapter demonstrates that the recast process was a missed opportunity for disability rights. Article 9 of the Recast Qualification Directive fails to expressly provide for a disability-sensitive definition of ‘persecution’, despite the eu’s prior accession to, and its resulting obligations under, the crpd. However, the Recast Qualification Directive is sufficiently flexible to permit a disability-sensitive interpretation of persecution and such a reading is even required by the eu’s and its Member States’ obligations under the crpd. In addition, a disability-sensitive reading of Article 9 Recast Qualifi­ cation Directive would bring the eu definition of persecution in line with the broader eu law framework, including the eu Charter of Fundamental Rights. In the context of the echr, the current division in the expulsion case law regarding socio-economic issues between mss and Sufi and Elmi-type cases on the one hand, and D and N-type cases on the other, has proven problematic in the case of the disabled applicant in shh. This case has highlighted the difficulty of classifying factual scenarios into just one of these categories. While the ECtHR in shh accepted the relevance of the crpd to Article 3 echr, the majority of the Court refrained from applying a disability-sensitive reading to Article 3 echr.228 However, this issue may be revisited by the Grand Chamber in a forthcoming judgment. Finally, it is important to stress that an interpretation of persecution which takes adequate account of the crpd should allow for a denial of reasonable 227 ac (Egypt) (n 37). 228 shh v United Kingdom (n 212) para 94.

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accommodation on its own to be considered persecutory, where such a violation leads to ‘consequences of a substantially prejudicial nature for the person concerned’ or raises fears in the mind of the persons ‘regarding their future existence’.229 One of the further issues is that the psychological impact of discriminatory situations ought to be given due weight in the analysis of the intensity of persecution.230 While this is not the state of the current case law in the jurisdictions considered here, case law to date could serve at least as a starting point for a more disability-sensitive interpretation of persecution. 229 unhcr, Handbook and Guidelines (n 42) paras 54–55. 230 This is a criticism that has already been voiced generally in the context of discrimination and refugee law, see Dowd (n 112) Section 5.2.

chapter 6

Refuge from Climate Change-Related Harm Evaluating the Scope of International Protection within the Common European Asylum System Matthew Scott1 1 Introduction Natural hazard related disasters are a significant cause of harm worldwide, with floods, droughts and storms affecting more than 92 million people in 2013 alone and more than 1 billion people since 2007.2 As global average temperatures rise over the course of this century, the frequency and/or intensity of heavy precipitation events, droughts, tropical cyclone activity, and extreme high sea levels is predicted to increase.3 Indeed, there are indications that climate change is already playing a role in certain extreme weather events,4 although climate scientists consider it impossible to directly attribute any specific event to climate change.5 In this Chapter I use the term ‘disaster-related harm’ to refer to death, serious injury, disease, mental illness, homelessness, impacts on livelihoods, displacement and other forms of harm that occur within the context of a disaster and the humanitarian emergency that may follow. Where relevant, I also use the term ‘climate change-related harm’ to refer to disaster-related harm that can be linked to climate change and ‘environmentally-related harm’ where environmental factors not necessarily connected to a (climate change-related) disaster are in focus.

1 Support from the European Refugee Fund gratefully acknowledged. Particular thanks to Nuala Mole (aire Centre) for her insightful observations on the subject matter of this Chapter. Errors or omissions remain entirely the author’s responsibility. 2 The International Disaster Database (EM-DAT database) accessed 6 December 2014. See the EM-DAT glossary for definitions of ‘disaster’ and ‘affected’ accessed 6 December 2014. 3 Intergovernmental Panel on Climate Change (ipcc) (Working Group I Contribution to the ipcc Fifth Assessment Report), Climate Change 2013: The Physical Science Basis (cup 2013), 7. 4 Consider, for example, United Kingdom (uk) Met Office, ‘Human Influence on East Africa Drought’ News Release (uk Met Office 2013) accessed 6 December 2014. 5 See for example, World Meteorological Organization (wmo), The Global Climate 2001–2010: A Decade of Weather Extremes – Summary Report (wmo 2013).

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I adopt the definition of disaster formulated by the United Nations Inter­ national Strategy for Disaster Reduction (unisdr): A serious disruption of the functioning of a community or a society involving widespread human, material, economic or environmental losses and impacts, which exceeds the ability of the affected community or society to cope using its own resources.6 I adopt the definition of humanitarian emergency formulated by Väyrynen: ‘[…]a profound social crisis in which large numbers of people unequally die and suffer from war, displacement, hunger, and disease owing to human-made and natural disasters’.7 However, I refrain from using the term ‘natural disaster’ because it conceals the critical role of social factors in transforming natural hazards into disasters.8 People affected by disasters who remain within the territory of the affected State are, at least in principle, protected by the (non-binding) Guiding Prin­ ciples on Internal Displacement9 and, in some African countries, the 2009 Kampala Convention.10 These instruments provide a degree of legal and material 6 7

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unisdr, unisdr Terminology on Disaster Risk Reduction (unisdr 2009). R. Väyrynen, ‘Complex Humanitarian Emergencies: Concepts and Issues’ in E. Nafziger, F. Stewart and R. Väyrynen (eds), War, Hunger and Displacement: Volume 1 (oup 2000) 43, 49. Väyrynen uses the terms ‘humanitarian emergency’ and ‘humanitarian crisis’ interchangeably and I will do the same in this Chapter. For an extensive overview of the social construction of ‘natural’ disasters, see B. Wisner, P.  Blaikie, T. Cannon and I. Davis, At Risk: Natural Hazards, People’s Vulnerability and Disasters (2nd edn Routledge 2003). Guiding Principles on Internal Displacement, in United Nations Commission on Human Rights, Further Promotion and Encouragement of Human Rights and Fundamental Freedoms, Including the Question of the Programme and Methods of Work of the Commission, Human Rights, Mass Exoduses and Displaced Persons, Report of the Representative of the SecretaryGeneral, Mr Francis M. Deng, Submitted Pursuant to Commission Resolution 1997/39, un Doc E/CN.4/1998/53/Add.2, 11 February 1998, Addendum. See also The Global Database on the Guiding Principles Website, accessed 6 December 2014. Although the Guiding Principles themselves are non-binding, countries that adhere to the guiding principles may build protection of displaced populations into national policy or legislation, for example in the Philippines ( accessed 6 December 2014) as well as Angola, Burundi, Liberia, Uganda, Peru and Turkey ( accessed 6 December 2014). African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa, adopted by the Special Summit of the Union held in Kampala, Uganda, 23 October 2009 (entry into force: 6 December 2012).

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protection to people affected by disasters, including by confirming the right not to be forcibly returned to a place where there is a risk of harm, irrespective of whether the harm arises in the context of armed conflict or a disaster.11 However, there is no international or regional legal instrument that explicitly extends protection from refoulement to people affected by disasters who are outside their country of origin. Consequently, many see individuals who are outside their country of origin and who are unable or unwilling to return because of the risk of being exposed to disaster-related harm as falling through a ‘protection gap’.12 Apart from a handful of cases heard in Australia and New Zealand, the contours of the gap have not been fully explored in practice. Moreover, the cases that have been determined have been brought overwhelmingly by citizens of Pacific island developing States, including Tuvalu, Kiribati and Tonga, and have relied almost exclusively on the 1951 Convention relating to the Status of Refugees. Thus, neither the diversity of disaster-related harm scenarios, nor the potential scope of other protection instruments has been exhaustively judicially considered in any jurisdiction.13 1.1 Purpose of the Chapter The purpose of this Chapter is to examine the contours of the perceived protection gap that is discussed in relation to cross-border displacement in the context of climate change and to consider how the scope of protection may be extended through strategic litigation. Lessons are drawn from the Australian and New Zealand cases and applied in the context of the Common European Asylum System of the European Union (eu). 11 12

13

See Principle 15(d) of the Guiding Principles (n 9) and Article 9(2)(e) of the Kampala Convention (n 10). See for example W. Kälin and N. Schrepfer, ‘Protecting People Crossing Borders in the Context of Climate Change: Normative Gaps and Possible Approaches’ (2012) unhcr Legal and Protection Policy Research Series acce­ ssed 6 December 2014 for an in-depth consideration of the protection gaps regarding cross-border displacement in the context of climate change. Some examples can be found where legal arguments point to the challenges a claimant would face if returned in the aftermath of a disaster. For example, in ns (Relevance of children to removal – Art 8) Sri Lanka [2005] ukiat 00081 (unreported), Counsel for the appellant pointed to the hardships facing the inhabitants of Sri Lanka in the aftermath of the Asian Tsunami within the context of a claim based on Article 8 of the European Convention on Human Rights (echr, ets No 005, 4 November 1950 (entry into force: 3 September 1953)). However, these and other cases do not seek to make out an argument based exclusively on disaster-related harm.

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1.2 Structure of the Chapter In Section 2, I provide a brief summary of the Australian and New Zealand jurisprudence and draw some lessons from the fact that all claims have been dismissed. In Section 3, I briefly set out the latent potential of the eu Temporary Protection Directive before considering in more detail the three forms of protection available under the eu Qualification Directive: refugee status, subsidiary protection and the non-refoulement obligation of host States confirmed at Article 21. I identify some disaster-related harm scenarios that would engage European host States’ protection obligations. Having set out the relevant law, I proceed in Section 4 to consider one approach that would incrementally extend the scope of protection under the Directive by focusing on scenarios where the affected State can be seen to have ‘culpably exacerbated’ the impacts of a disaster. By way of conclusion, the Chapter observes that litigation can help to extend protection to a minority of individuals fearing climate change-related harm, but that normbuilding at the inter-state level is required to respond to the challenges of cross border displacement in the context of climate change. Judicial engagement with the range of relevant legal instruments and fact patterns may contribute to the gradual evolution of standards of protection in a warmer world. 2

The Australian and New Zealand Case Law

The Australian and New Zealand case law provides insight into how lawyers and judges engage with the phenomenon of climate change-related harm from an international protection perspective. In Australia, claims have only been considered under the 1951 Refugee Convention, and all claims have been dismissed. Reference is consistently made to the apparent lack of a causal nexus between the harm feared by the claimants and one of the five Convention reasons. In New Zealand, claims are considered under the Refugee Convention as well as the International Covenant on Civil and Political Rights (iccpr) and the Convention against Torture (cat).14 Even with a wider set of international protection instruments, all claims by individuals fearing climate changerelated harm brought in this jurisdiction have also failed. In addition to the nexus issue, determinations in New Zealand have also identified challenges with the threshold requirement, having regard to the degree of climate changerelated harm to which inhabitants of Tuvalu and Kiribati are currently exposed. In what follows I consider the jurisprudence from each country in turn. 14

iccpr, 999 unts 171, 16 December 1966 (entry into force: 23 March 1976) and cat, 1465 unts 85, 10 December 1984 (entry into force: 26 June 1987).

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2.1 The Australian Case Law The earliest case to consider the potential application of the Refugee Con­ vention in the context of climate change-related harm was N96/10806 [1996] rrta 3195 in Australia’s Refugee Review Tribunal (rrt).15 The unrepresented claimant, a 35-year old woman from Tuvalu, applied for a protection visa in Australia. She stated in her application that: ‘I left Tuvalu because I feared for my future as I found unsatisfactory means of supporting myself there. In Tuvalu there is only poverty for me […]’. In dismissing the claim, the Tribunal, expressly following Professor James C.  Hathaway, recognized the potential for socio-economic forms of harm to engage host state protection obligations under the Refugee Convention provided the causal nexus could be established between the harm feared and one of the five Convention reasons. In surveying the country of origin information, the Tribunal reviewed evidence suggesting that climate change was contributing to rising sea levels and more frequent and intense cyclones around Tuvalu. These manifestations of climate change were having a generalised adverse impact. The Tribunal concluded that the claimant was not entitled to refugee status because any adverse socio-economic impacts she would face on return were not the result of persecution. Again relying on Hathaway, the Tribunal concluded that the environmentally-related harm which the claimant may be exposed to on return did not engage Australia’s protection obligations because the impact of natural disasters is (considered to be) non-discriminatory. The perception that ‘natural’ disasters are non-discriminatory, which recurs in subsequent determinations in both Australia and New Zealand, is deeply problematic given the evidence of differential impact in disasters ranging from floods to drought to earthquakes. Wisner et al. describe the social context of disasters: The crucial point about understanding why disasters happen is that it is not only natural events that cause them. They are also the product of social, political and economic environments…Whether or not people have enough land to farm, or adequate access to water, or a decent home, are determined by social factors… And these same social processes also have a very significant role in determining who is most at risk from hazards: where people live and work, and in what kind of buildings, their 15

On the same day, in N95/09386 [1996] rrta 3191, the Tribunal reached the same conclusion on similar facts relating to an unrepresented male applicant from Tuvalu who was married to an Australian citizen and had a child living in the Australia.

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level of hazard protection, preparedness, information, wealth and health have nothing to do with nature as such, but are attributes of society. So people’s exposure to risk differs according to their class (which affects their income, how they live and where), whether they are male or female, what their ethnicity is, what age group they belong to, whether they are disabled or not, their immigration status, and so forth.16 Thus, although there is nothing in any of the Australian or New Zealand determinations to suggest a differential impact of climate change-related harm, there could well arise scenarios where discrimination for a Convention reason contributes to individual vulnerability and exposure to natural hazards in a way that could engage protection obligations. One of the first legally-represented claimants to rely on a climate changerelated harm argument in support of a claim for international protection was a citizen of the small island State of Kiribati, who appeared before Australia’s rrt in the case of 0907346 [2009] rrta 1168. The claimant’s legal representative submitted: […Village A] [sic] has been badly affected by sea water and regular wild storms. The crops are ruined and there is no fresh drinking water. Living in the village has become extremely difficult and it is anticipated that all the people of that village will have to relocate as they will not have any food, water or shelter. Relocation within Kirabati itself is difficult, as it is all a matter of short time before people are again affected by rising sea levels and have to relocate again. There is already a serious shortage of food, fresh water, shelter and energy and this must urgently be addressed now before the Island of Kirabati is completely submerged, which some estimate could be as early as 2050, according to a ipcc report […] it is extremely important that developed countries in the pacific recognise the effect of climate change on the people of Kiribati and have in place measures to accommodate the refugees affected by climate change.17 The legal representative went on to submit that the claimant was a member of a particular social group, namely ‘people from Kiribati and/or from the Island of Kiribati who have lost the capacity to earn a livelihood as a result of climate change’ and that Australian refugee law should be interpreted creatively to allow people like the claimant to be recognized as refugees. 16 Wisner et al. (n 8) 4–6. 17 0907346 [2009] rrta 1168, para 22.

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Although the Tribunal does not engage with the particular social group argument directly, it is not clear how either the ‘immutable characteristic’ or the ‘social perception’ test could be satisfied in relation to such a purported group. Dismissing the appeal, the Tribunal observed at paragraph 48: In this case, the Tribunal does not believe that the element of an attitude or motivation can be identified, such that the conduct feared can be properly considered persecution for reasons of a Convention characteristic as required. It has been submitted that the continued production of carbon emissions from Australia, or indeed other high emitting countries, in the face of evidence of the harm that it brings about, is sufficient to meet this requirement. In the Tribunal’s view, however, this is not the case. There is simply no basis for concluding that countries which can be said to have been historically high emitters of carbon dioxide or other greenhouse gases, have any element of motivation to have any impact on residents of low lying countries such as Kiribati, either for their race, religion, nationality, membership of any particular social group or political opinion… Although, as Foster observes, the requirement to establish a motive behind the persecutory conduct has been articulated in Australian, United States, United Kingdom (uk) and Canadian jurisprudence,18 the unhcr Guidelines on International Protection clarify that evidence of direct intent linked to one of the five Convention reasons by the actor of persecution is not always a requirement.19 The Guidelines give the example of a gender-based violence scenario where a husband abuses his wife. The discriminatory intent may not be established on the part of the husband, but where the State is indifferent to this form of violence and takes no steps to protect the victim, and that indifference is based on the wife’s status as a member of a particular social group, then the nexus requirement can still be satisfied. Hathaway considers circumstances in which state indifference to the impact of adverse environmental factors on certain individuals, owing to their

18 19

M. Foster, International Refugee Law and Socio-economic Rights: Refuge from Deprivation (cup 2009) 264. United Nations High Commissioner for Refugees (unhcr), unhcr Guidelines on International Protection No. 2: ‘Membership of a Particular Social Group’ within the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees (unhcr 2002).

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ethnicity or membership of a particular social group, can ground a claim for refugee status: Because the link to a ‘failure’ of state protection is all that must be shown under the bifurcated approach, it is sufficient to show that the government simply could not be bothered to protect a portion of the at-risk group – reasoning, for example, that because they are ‘only’ women or indigenous persons they were not worthy of an expenditure of government resources. In such circumstances, the failure of protection is causally connected to a Convention ground and refugee status should be recognised.20 On this analysis, it may be possible for an individual to establish an entitlement to refugee status in the context of climate change-related harm where, irrespective of the origin of the physical harm, the State is, for a Convention reason, indifferent to the harm and does not take steps to protect the individual from that harm. However, there is nothing in the Australian determinations to suggest that the Governments of Kiribati or Tuvalu were indifferent to the climate change-related harm faced by the claimants. Consequently, even a more nuanced approach to the nexus requirement would not have assisted the claimants in the above cases in securing refugee status. The Tribunal took the same approach to a claim by a citizen of Tonga in 1004726 [2010] rrta 845. The claimant’s submission in support of his protection claim is recorded at paragraph 29 of the determination: I need Refugee protection in Australia because I fear my life in Tonga is vulnerable to natural disasters and climate change in which it (is) predicted that most of the islands including Tonga will sink in future due to high sea levels and Tonga is a flat coral island. This is a real fear and significant disadvantage to my family is this climate change had already cost lives in Tonga in the tsunami that hit Samoa and Tonga recently and that’s a real fear that I need Refugee protection from. Again, the basis for dismissing the claim was the inability to establish a causal nexus between the harm feared and a Convention reason: ‘The harm he fears would reflect the reality of the prevailing economic conditions in Tonga as a whole and lacks any element of discrimination’.21 20 21

J.C. Hathaway, ‘Food Deprivation: A Basis for Refugee Status?’ (2014) 81 Soc Res 327. 1004726 [2010] rrta 845, para 46.

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The New Zealand cases discussed immediately below also find that the nexus requirement is not established in relation to the Tuvalu and Kiribati scenarios, and go on to identify a second significant challenge to the securing of refugee status in the context of climate change, namely the harm threshold. 2.2 The New Zealand Case Law One of the first cases to be considered by the then New Zealand Refugee Status Appeals Authority was Refugee Appeal No. 72186/2000. Summarising the basis of claim at paragraph 9, the Authority noted: […] the appellant complained, inter alia, that her family’s house in Tuvalu is five feet from the sea and when the tide was high, the land would be submerged in water. The coastlands of the island were suffering erosion. Her husband had problems with his legs and could not work and her own legs were also ‘not good’. Her biggest fear is that they would find it difficult to move around in the rising tide. There was also a shortage of drinkable water and medicine […]. The claimant attributed persecutory agency to the authorities of Tuvalu for negligently failing to protect them. The determination records the claim at paragraph 12: […] that the Tuvalu government failed in its duty of protecting the civil political, social, cultural and economic rights of the appellant for reasons of race (Tuvaluan), as nationals of Tuvalu (citizens) and as a member of a particular social group (defined as having no means to sustain themselves and survive). The Authority dismissed the appeal, concluding at paragraph 16 that there was no causal nexus between the harm feared and one of the five Convention reasons: Clearly, none of the fears articulated by the appellant vis-à-vis her return to Tuvalu, can be said to be for reason of any one of the five Convention grounds… This is not a case where the appellant can be said to be differentially at risk of harm amounting to persecution due to any one of these five grounds. All Tuvalu citizens face the same environmental problems and economic difficulties living in Tuvalu. Rather, the appellant is an unfortunate victim, like all other Tuvaluan citizens, of the forces of nature leading to the erosion of coastland and the family home being partially submerged at high tide.

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Thirteen years later, in af (Kiribati),22 the now Immigration and Protection Tribunal engaged in the most carefully considered determination of a climate change-related protection claim to date. The claim was brought by Mr Ioane Teitiota, a citizen of Kiribati. Mr Teitiota lived with his wife and three New Zealand-born children, although they were not parties to the appeal. In determining the claim, the Tribunal considered evidence from a country expert, who explained his view that Kiribati was a country in crisis as a result of population pressure and climate change. Population pressure was said to be increasing social tension and causing freshwater to be depleted faster than it could be replenished. Sea-level rise was resulting in increased salination of soil and freshwater supplies, including as a result of storm surges. Saltwater intrusion was said to be associated with an increased incidence of diarrhoea in children, which had resulted in some fatalities. Choosing to blame neither the international community for causing climate change, nor the Government of Kiribati for failing to protect the claimant out of persecutory intent, the claimant’s legal representative had argued that the passive ‘being persecuted’ at Article 1A(2) of the Refugee Convention did not require human agency at all, owing to the term’s original Latin meaning. This argument was rejected as not being based on the legal concept of persecution, which in New Zealand was Professor Hathaway’s ‘sustained or systemic violation of core human rights, demonstrative of a failure of State protection’. Such a conception was predicated upon human agency, either by state or non-state actors. Additionally, the Tribunal held that the cumulative impact of the difficulties that the Appellant would face on return to Kiribati would not amount to serious harm for the purposes of the Refugee Convention. Moreover, the evidence was that the harm was faced by the population on Kiribati generally, indicating a lack of a discriminatory Convention reason. There was also no evidence that the Government of Kiribati had failed to take steps to protect the population for a Convention reason. Consequently, the Tribunal determined that the claimant was not a refugee. The cat was not relied upon by the claimant in the proceedings, and the Tribunal at paragraph 78 simply commented on the lack of any indication that the claimant would face a risk of being tortured if returned to Kiribati. Disposing of the claim under Article 7 of the iccpr, the Tribunal referred to its detailed engagement with the concept of ‘treatment’ for the purposes of that Article in the earlier case of bg (Fiji),23 where it had declined to follow the jurisprudence of the European Court of Human Rights (ECtHR) in the line of 22 23

af (Kiribati) [2013] nzipt 800413 (unreported). bg (Fiji) [2012] nzipt 800091 (unreported).

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Article 3 medical cases beginning with D v United Kingdom.24 In bg (Fiji), and with reference to the preparatory works on the iccpr as well as academic commentary, treatment was distinguished from a ‘condition of existence’, the latter being outside the scope of protection of the Covenant and better addressed through New Zealand’s humanitarian provisions. The Appellant did not fear torture or cruel, inhuman or degrading treatment or punishment in Kiribati and was therefore not entitled to protection under Article 7 iccpr. Mr Teitiota appealed to the New Zealand High Court, which heard the case as Teitiota v The Chief Executive of the Ministry of Business Innovation and Employment.25 On the subject of persecution, the claimant now argued that climate change was an indirect but worldwide human agency, resulting from two centuries of greenhouse gas emissions, and individuals facing exposure to climate change-related harm were thus entitled to protection under the Refugee Convention. Priestly J concluded that Mr Teitiota, or others in similar circumstances, could not bring himself within the purview of the Refugee Convention. At paragraph 11 he noted: […] it is abundantly clear that the displacement of such refugees [i.e. from disasters] has not been caused by persecution. Nor, importantly, have they become refugees because of persecution on one of the five stipulated Refugee Convention grounds. A person who becomes a refugee because of an earthquake or growing aridity of agricultural land cannot possibly argue, for that reason alone, that he or she is being persecuted for reasons of religion, nationality, political opinion, or membership of a particular social group. He expressed the view that the Refugee Convention did not extend to economic and environmental migrants at paragraph 44: Humanitarian concerns and the issues of economic and environmental migrants or refugees are topics which individual States in the international 24

25

D v United Kingdom App no 30240/96 (ECtHR, 2 May 1997) established that a Contracting State would breach its obligations under Article 3 echr (regional equivalent of Article 7 iccpr) by expelling an individual who was in the last stages of terminal illness and could not expect to find any form of support on return to his home country of St Kitts. The ‘treatment’ in this case was considered by the Court to be the implementation of the decision to remove the applicant – see para 53. Teitiota v The Chief Executive of the Ministry of Business Innovation and Employment [2013] nzhc 3125.

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community generally have to consider. But the Refugee Convention is not an available avenue for such migrants and refugees. Certainly it is not available to this applicant and his family. The explicit public policy considerations are made clear at paragraph 51: On a broad level, were they [counsel’s submissions regarding climate change impacts amounting to persecution] to succeed and be adopted in other jurisdictions, at a stroke, millions of people who are facing mediumterm economic deprivation, or the immediate consequences of natural disasters or warfare, or indeed presumptive hardships caused by climate change, would be entitled to protection under the Refugee Convention or under the iccpr. It is not for the High Court of New Zealand to alter the scope of the Refugee Convention in that regard. Rather that is the task, if they so choose, of the legislatures of sovereign states. Leave to appeal against the determination of the Tribunal was refused, with the conclusion at paragraph 64 that ‘[t]he attempt to expand dramatically the scope of the Refugee Convention and particularly Article 1A(2) is impermissible’. Subsequently, the New Zealand Court of Appeal dismissed Mr Teitiota’s application for leave to appeal to the Court of Appeal, noting at paragraph 41: No-one should read this judgment as downplaying the importance of climate change. It is a major and growing concern for the international community. The point this judgment makes is that climate change and its effect on countries like Kiribati is not appropriately addressed under the Refugee Convention.26 Subsequent determinations in the New Zealand’s Immigration and Protection Tribunal (nzipt) have confirmed this position.27 2.3 Discussion Does the Teitiota case spell the end of litigation by claimants fearing climate change-related harm in their home countries? Unlikely. However, there is clearly no merit in pursuing claims for international protection under the Refugee Convention where, as appears to be the case in Tuvalu, Kiribati and 26 27

Teitiota v The Chief Executive of the Ministry of Business Innovation and Employment [2014] nzca 173, para 41. ac (Tuvalu) [2014] nzipt 501370–371.

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Tonga, there is no indication of discriminatory ill-treatment for a Convention reason, and where the harm threshold is not met. Several lessons can be learned from this survey of the case law. A first lesson to learn is that the Refugee Convention is not an ideal instrument for securing international protection from climate change-related harm per se. It is clearly possible for individuals who face discriminatory illtreatment in the context of a climate change-related disaster to be recognized as refugees under the Refugee Convention, but in such cases climate change and its impacts provide only the backdrop to an otherwise uncontroversial application of established principles of international refugee law.28 Thus, other instruments, where applicable in a given jurisdiction, will need to be considered in cases where there is no evidence of discriminatory ill-treatment for a Convention reason. Second, the degree of harm that a claimant risks being exposed to on return needs to be significantly more acute than what the claimants from Tuvalu and Kiribati feared. Although there are variations between different international protection instruments, a claim brought under any of them would need to demonstrate that the harm feared would attain a high level of severity. Claims relating to the adverse impact of sea-level rise do not appear, therefore, to have a strong prospect of success in any jurisdiction in the short term. Third, the more an individual is able to differentiate herself from the wider community in terms of the nature and severity of harm to which she will be exposed, the greater her prospect of securing international protection. A fourth and related lesson to take away from this survey of case law is that focusing on the role of climate change may not be an effective way of securing protection for an individual client, much less for developing the scope of international protection within such a context.29 Apart from the evidential challenges of establishing a causal link between climate change and the harm to 28

29

Cases where there is discriminatory ill-treatment for a Convention reason will plainly exist, for example where disaster relief is withheld on the basis of an individual’s political affiliation, as was the case in Mugabe’s Zimbabwe – see rn (Returnees) Zimbabwe cg [2008] ukait 00083 (unreported) para 249. See also af (Kiribati) (n 22) paras 56–65 and Professor Hathaway’s discussion (n 20). In another paper, M. Scott, ‘Natural Disasters, Climate Change and Non-Refoulement: What Scope for Resisting Expulsion under Articles 3 and 8 of the European Convention on Human Rights?’ (2014) 26(3) ijrl 404, I have considered the potential scope for relying on evidence of the role of climate change in particular disasters to support a protection claim under Articles 3 and 8 echr. I recognize there the significant challenges that would need to be overcome for such a claim to succeed.

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which an individual would be exposed on return, and the legal complexity of establishing persecution within such a context, judges will be wary of taking decisions that could potentially extend protection to an unquantifiable class of ‘environmental migrants’. Priestly J was explicit in his concern about setting such a precedent in Teitiota. One approach might therefore be to instead focus on a more incremental development of the forms of complementary protection, applying existing principles in slightly different circumstances. Some pathways to protection, to use the Tribunal’s choice of words in af (Kiribati), can be identified through the application of existing legal instruments in disaster-related harm scenarios. Thus, the concept of climate change-related harm is replaced by the broader concept of disaster-related harm, which comes closer to describing the kind of scenario in which international protection, on current authority, can be engaged. In this connection, the following section considers the rich framework of complementary protection that applies in the eu. 3

Protection from Disaster-Related Harm in the Common European Asylum System

International protection within the eu can be granted on an individual or group basis. Individual claims for international protection within the Union are regulated by the (Recast) Qualification Directive.30 The Temporary Prot­ ection Directive31 provides for temporary protection when a situation of ‘mass influx’ is declared by the Council of Ministers. I consider the potential scope of each instrument in the context of disaster-related harm below. 30

31

Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, oj L 304/12, 30 September 2004 (Qualification Directive). As part of the second phase of the Common European Asylum System, the eu adopted a revised version of the Directive: Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons ­eligible for subsidiary protection, and for the content of the protection granted (recast), oj L 337/9, 20 December 2011 (Recast Qualification Directive). Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof, oj L 212/12, 7 August 2001.

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3.1 The Temporary Protection Directive As a direct consequence of the influx of displaced people from Kosovo during the Balkan conflict in the 1990s, the Council and the Parliament adopted the Temporary Protection Directive to enable prima facie recognition of a right to international protection in situations of mass influx.32 Under Article 5, in order for temporary protection to apply, the Committee of Ministers, on receipt of a proposal from the Commission, must decide that a mass influx of displaced person exists. ‘Mass influx’ is defined at Article 2(d) as: […] arrival in the Community of a large number of displaced persons, who come from a specific country or geographical area, whether their arrival in the Community was spontaneous or aided, for example through an evacuation programme Article 2(c) provides a detailed definition of ‘displaced persons’ who may be entitled to refugee status or complementary protection, but where individual status determination may present a risk to the efficient operation of national asylum systems. Reasons for displacement include, ‘in particular’: (i) persons who have fled areas of armed conflict or endemic violence; (ii) persons at serious risk of, or who have been the victims of, systematic or generalised violations of their human rights[…]. Although there is an emerging consensus that the adverse impacts of climate change are unlikely to lead to a situation of mass influx,33 the Temporary Protection Directive clearly provides a potential source of protection for victims of disasters. Significantly, protection in this connection only becomes available as a result of a political decision of the Council of Ministers, and therefore cannot be considered as forming a part of host States’ international protection obligations. The fact that a situation of mass influx has not once been declared by the Council, even during the significantly increased scale of boat arrivals from North Africa during the Arab Spring,34 suggests that strong 32 33

34

See ibid, Recital 6. See for example uk Government Office for Science, Migration and Global Environmental Change: Future Challenges: Final Project Report (uk Government Office for Science 2011) accessed 6 December 2014. See the Chapter by M. Ineli-Ciger in this volume for a discussion of the future of the Directive in light of the crisis in the Mediterranean. For a collection of articles and eu

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political currents militate against the use of this instrument in even the circumstances explicitly envisaged in the text. Moreover, the Commission, in making a proposal to the Council, would need to motivate its submission with reference to the way(s) in which individuals forming part of the ‘mass influx’ would likely engage host States’ protection obligations if assessed under an individual procedure. Hence, protection from disaster-related harm hinges on the correct interpretation of the Qualification Directive even where circumstances may support invocation of the Temporary Protection Directive. 3.2 The Recast Qualification Directive The Recast Qualification Directive sets out the requirements for the grant of refugee status or subsidiary protection. It also confirms that Member States are bound by their non-refoulement obligations under international law. In what follows I consider the extent to which a person fearing disaster-related harm may be entitled to refugee status, subsidiary protection and protection from non-refoulement in turn. 3.2.1 Refugee Status The Refugee Convention and its Protocol are recognized at Recital 4 of the Recast Qualification Directive as forming ‘the cornerstone of the international legal regime for the protection of refugees’. Interpretation can therefore be aided by reference to case law in other jurisdictions, including Australia and New Zealand. Nothing in the Recast Qualification Directive offers room for arguing that individuals fearing disaster-related harm would be entitled to refugee status in the absence of persecution for a Convention reason and it is therefore likely that individuals seeking to establish a claim for refugee status based on a fear of disaster-related harm would confront the same obstacles as claimants in Australia and New Zealand have faced. However, it is worth recalling here that pathways to protection identified by the nzipt in af (Kiribati), including discriminatory state practice either before or in the aftermath of a disaster, could establish the necessary causal nexus required for the grant of refugee status. Indeed, one reading of Article 10(2) of the Recast Qualification Directive, which requires a ‘connection’ between the Convention reason and the acts of persecution, would see concepts of ‘motive’ or ‘intent’ that were central to the Australian determinations disappear.

documents relating to the ‘Arab Spring’ and the Temporary Protection Directive, see accessed 6 December 2014.

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3.2.2 Subsidiary Protection Claimants who cannot point to evidence of either direct or indirect discriminatory conduct on the part of the authorities in their country of origin, and who are therefore unable to establish an entitlement to refugee status, fall to have their eligibility for subsidiary protection considered under Article 2(f) of the Recast Qualification Directive. Eligibility for subsidiary protection requires the claimant to adduce substantial grounds for believing that she would face a real risk of suffering serious harm if returned to her country of origin or habitual residence. Article 15 defines ‘serious harm’ as: (a) the death penalty or execution; or (b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or (c) serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict. Neither Article 15(a) nor Article 15(c) appear to have direct relevance to an international protection claim based on a fear of disaster-related harm. However, there is some limited scope for the grant of subsidiary protection under Article 15(b) in the context of disaster-related harm. The language of Article 15(b) closely reflects the wording of Article 3 of the European Convention on Human Rights (echr), and the Court of Justice of the European Union (cjeu) considers that Article 15(b) corresponds ‘in essence’ to Article 3 echr.35 Consequently, relevant non-refoulement jurisprudence from the ECtHR will guide the interpretation of the scope of Article 15(b).36 Consequently, individuals who, in the aftermath of a disaster, would be exposed to treatment prohibited by Article 3, may be entitled to subsidiary protection where there is no internal flight alternative and actors of protection are unable or unwilling to provide it. A precedent establishing the availability 35 36

Elgafaji v Staatssecretaris van Justitie [2009] ecr I-00921, para 28. For the echr see (n 13). A potentially more restrictive interpretation of Article 15(b) would point out that the addition of the words ‘in the country of origin’ precludes the grant of subsidiary protection in cases such as D v United Kingdom where the requisite ‘treatment’ took place in the host country (the act of implementing the decision to remove – see n 24). However, the observation of the cjeu in Elgafaji (n 35) would provide a highly persuasive argument against such a restrictive interpretation.

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of subsidiary protection in such a disaster-related harm scenario would be helpful in confirming the scope of protection. There are currently three tests for determining whether a host State would breach its obligations under Article 3 echr by enforcing the return of an individual where substantial grounds were shown for believing that the individual would face a real risk of serious harm in his or her country of origin. The first test was established in Soering v United Kingdom.37 In that case, the Court recognized that Article 3 applied even in circumstances where the only action taken by the Contracting State was extraditing an individual to a country where there was a real risk that he would be tortured or subjected to inhuman or degrading treatment or punishment. The second test is set out in N v United Kingdom.38 In that case, the Grand Chamber decided that the uk would not breach Article 3 by enforcing the removal of an hiv positive Ugandan woman, notwithstanding the medical evidence that her current good standard of health would rapidly deteriorate if she was unable to access her anti-retroviral medication in Uganda, to a point where she would suffer ‘ill-heath, discomfort, pain and death within a few years’.39 Clarifying the scope of protection that was first developed in D v United Kingdom, the majority concluded that for a breach to be found in these medical treatment cases, the facts must be both ‘very exceptional’ and the ‘humanitarian considerations’ must be ‘compelling’.40 What made D ‘very exceptional’ was the fact that he ‘was critically ill and appeared to be close to death, could not be guaranteed any nursing or medical care in his country of origin and had no family there willing or able to care for him or provide him with even a basic level of food, shelter or social support’.41 Justifying a very high threshold in these cases, the Court observed at paragraph 43: […] it considers that it should maintain the high threshold set in D. v. the United Kingdom and applied in its subsequent case law, which it regards as correct in principle, given that in such cases the alleged future harm would emanate not from the intentional acts or omissions of public authorities or non-state bodies, but instead from a naturally occurring illness and the lack of sufficient resources to deal with it in the receiving country. 37 38 39 40 41

Soering v United Kingdom App no 14038/88 (ECtHR, 7 July 1989). N v United Kingdom App no 26565/05 (ECtHR, 27 May 2008). Ibid, para 47. D v United Kingdom (n 24) para 42. Ibid, para 42.

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Advocates of a restrictive approach to disaster-related protection claims would invite the Court to apply the N threshold when determining Member States’ obligations under Article 15b of the Directive. Some individuals may well be able to demonstrate a risk of harm attaining such a threshold, and it is in this connection that a deeper understanding of vulnerability in the context of dis­ asters is called for. For example, individuals dependent upon life-sustaining medical treatment, such as kidney dialysis, may arguably be protected from being returned to an environment where that treatment is not available owing to the impacts of the disaster, if the lack of such access would cause extreme suffering and possibly death. Additionally, it is arguable that elderly people or people with significant disabilities may be able to establish that they would face a risk of harm attaining the N threshold if they were to be returned to a situation of homelessness without access to food and fresh water, and where disease incidence was increased, although conclusions would have to be reached on a case by case basis in light of all of the facts. Equally, insecurity and breakdown of public services in the aftermath of a disaster can increase the incidence of sexual violence making gender-based vulnerability particularly pertinent in disaster-related harm claims.42 However, mainstream disaster epidemiology has for the past several decades appreciated that social factors have as much to do with the occurrence of disasters as do natural hazards.43 Consequently, ‘natural’ disasters can rarely be compared to ‘naturally-occurring illness and the lack of resources to treat them’. Although droughts, storms and heavy rains can trigger disasters, they will only do so where communities and individuals are exposed and vulnerable, having regard to a complex interaction of ‘settlement patterns, urbanization, changes in socio-economic conditions, as well as broader economic, social, geographic, demographic, cultural, institutional, governance, and environmental factors’.44 According to Väyrynen, ‘the root causes of crises are ultimately located in the domestic political and economic systems’.45 42

The risks faced by women and girls in Haiti in the aftermath of the 2010 earthquake provides one example of the treatment that could engage Article 15(b). See for example Human Rights Watch (hrw), ‘Nobody Remembers Us’: Failure to Protect Women’s and Girls’ Right to Health and Security in Post-Earthquake Haiti (hrw 2011) accessed 6 December 2014. 43 Wisner et al. (n 8) 114 identify K. Hewitt (ed), Interpretations of Calamity (Allen & Unwin 1983) as a turning point in the understanding of disasters as involving more than merely environmental factors. 44 ipcc, Managing the Risks of Extreme Events and Disasters to Advance Climate Change Adaptation (cup 2012) 7. 45 Väyrynen (n 7) 49.

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Within this matrix lies far more scope for culpable acts and omissions by human agents that would distinguish the harm to which an individual would be exposed in a disaster context from the at times less blameworthy naturallyoccurring illness and lack of medical treatment facilities.46 Consequently, an argument can be made that protection claims pointing to disaster-related harm fall to be assessed against a different threshold than that established by N. Recognizing a distinction between medical treatment cases and ‘humanitarian crisis’ scenarios, the Court in Sufi & Elmi v United Kingdom47 articulated a third test based on a ‘predominate cause’ principle which, where engaged, would displace the ‘exceptionality’ test set out in N. The Court explained the principle at paragraph 282: If the dire humanitarian conditions in Somalia were solely or even predominantly attributable to poverty or to the State’s lack of resources to deal with a naturally occurring phenomenon, such as a drought, the test in N. v. the United Kingdom may well have been considered to be the appropriate one. However, it is clear that while drought has contributed to the humanitarian crisis, that crisis is predominantly due to the direct and indirect actions of the parties to the conflict. The reports indicate that all parties to the conflict have employed indiscriminate methods of warfare in densely populated urban areas with no regard to the safety of the civilian population […]. This fact alone has resulted in widespread displacement and the breakdown of social, political and economic infrastructures. Moreover, the situation has been greatly exacerbated by alShabaab’s refusal to permit international aid agencies to operate in the areas under its control, despite the fact that between a third and a half of all Somalis are living in a situation of serious deprivation […]. Thus, where an individual faces return to a humanitarian crisis and where such conditions can be demonstrated to have been ‘predominantly caused’ by the culpable acts of state and/or non-state agents, then the ‘exceptionality’ test set out in N would be displaced by a test that considers an applicant’s ‘ability to cater for his most basic needs, such as food, hygiene and shelter, his v­ ulnerability 46

47

For insight into the politics of ‘naturally-occurring illness’ consider P. Farmer, Pathologies of Power (University of California Press 2005). There is impetus in this book for a challenge to the presumption in N that hiv and its consequences are naturally-occurring and that lack of adequate treatment is the result of a lack of resources, as opposed to deeprooted structures of violence. Sufi & Elmi v United Kingdom App no 8319/07 (ECtHR, 28 June 2011).

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to ill-treatment and the prospect of his situation improving within a reasonable time-frame’.48 In Sufi & Elmi, both claimants were adult men with no apparent vulnerabilities. The Court nevertheless determined that removal of both claimants to Somalia would breach Article 3 echr. The ‘exceptionality’ requirement in N is thus displaced by a fact-specific assessment of the harm that an individual is likely to face on return. The principle that a requirement of ‘exceptionality’ should not be imposed where human agents are the predominate cause of a humanitarian crisis shall be referred to as the Sufi & Elmi principle for the remainder of this Chapter. This Judgment sets an important precedent that extends the scope of protection for individuals facing inhuman or degrading conditions of existence arising in the context of an armed conflict, and where there is no internal relocation alternative. With climate change expected to increase competition for resources and, by exacerbating existing drivers such as poverty and economic shock, spark conflicts, humanitarian emergencies are likely to be a prominent feature of a warmer world.49 The Judgment therefore provides concrete protection in one disaster-related harm scenario. From a strategic litigation perspective, application of the Sufi & Elmi principle in the context of a different humanitarian crisis would help to entrench the principle within the Article 3 non-refoulement cannon and could lead to further development of the scope of protection. In Section 4 I consider one approach to developing the scope of protection from disaster-related harm by incrementally extending the Sufi & Elmi principle. 3.2.3 Non-refoulement under Article 21 Claimants who do not qualify for subsidiary protection, for example those against whom the exclusion clauses at Article 17 apply, are nevertheless protected from being returned by the principle of non-refoulement, which is confirmed at Article 21 of the Recast Qualification Directive: ‘1. Member States shall respect the principle of non-refoulement in accordance with their international obligations’. Protection here is arguably wider than what has been established in relation to Article 3 echr as the whole range of Member States’ international obligations are incorporated. Consequently, the wider non-refoulement obli­ gation that the Committee on the Rights of the Child has articulated at 48 49

Ibid, para 283. ipcc (Working Group II Contribution to the ipcc Fifth Assessment Report), Climate Change 2014: Impacts, Adaptation and Vulnerability, Technical Summary (cup 2014) 25.

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paragraph 27 of its General Comment No. 6 would fall to be considered under Article 21: 27. Furthermore, in fulfilling obligations under the Convention, States shall not return a child to a country where there are substantial grounds for believing that there is a real risk of irreparable harm to the child, such as, but by no means limited to, those contemplated under articles 6 and 37 of the Convention […]. The assessment of the risk of such serious violations should […] for example, take into account the particularly serious consequences for children of the insufficient provision of food or health services.50 Much more could be done with this guidance from the Committee, both within the context of disaster-related harm and more generally, particularly given its arguable incorporation into Article 21 of the Qualification Directive.51 4 Culpable Exacerbation of a Humanitarian Crisis: Incremental Extension of the Sufi & Elmi Principle In Sufi & Elmi it was the fact that the culpable acts of human agents could be seen as the predominate cause of the humanitarian crisis that justified the Court’s decision not to apply the exceptionality test set out in N. I will consider one way of potentially developing this precedent to extend to a wider group of people who would be exposed to disaster-related harm on return. The argument contends that the Sufi & Elmi principle may apply also in the context of sudden-onset disasters where the extreme weather event is plainly the ‘predominate cause’, but where human agents are responsible for exacerbating a humanitarian crisis. Insight will be taken from the humanitarian crisis that affected people in Myanmar in the aftermath of Cyclone Nargis in 2008. The following discussion is intended more as an exploration of the potential for, as well as the limitations of, incremental development of the law in the context of disaster-related harm, as opposed to being an outline of an argument to guide litigation. 50

51

Committee on the Rights of the Child, General Comment No.6: Treatment of Unaccompanied and Separated Children outside their Country of Origin, un Doc CRC/GC/2005/6, 1 September 2005. For a detailed treatment of non-refoulement under the Convention on the Rights of the Child, see J. McAdam, ‘Seeking Asylum under the Convention on the Rights of the Child: A Case for Complementary Protection’ (2006) 14 Int’l J Children’s Rts 251.

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4.1 The Response of the Burmese Authorities to Cyclone Nargis Tropical Cyclone Nargis made landfall in the Ayeyarwady Division of Myanmar on 2–3 May 2008. Approximately 138,000 people were killed and 2.4 million people were affected.52 The authorities’ initial refusal to permit delivery of humanitarian relief supplies and to grant visas to international humanitarian relief experts in the aftermath of the cyclone generated debate about the applicability of the ‘Responsibility to Protect’ doctrine.53 The same refusal by Al-Shabab in Somalia was considered by the Court in Sufi & Elmi to be a significant factor in identifying the ‘predominate cause’ of the humanitarian crisis in that country. Although international humanitarian supplies and personnel eventually reached affected populations and relief operations were carried out on a large and effective scale,54 the initial period of approximately two to four weeks following the landfall when severe restrictions were imposed on humanitarian operations arguably amounts to a culpable series of acts that exacerbated the humanitarian crisis. 4.2 Challenges Faced by the ‘Exacerbation’ Argument Those advocating against any expansion in the scope of the Sufi & Elmi principle would be able to advance persuasive arguments in support of their position. First, they may argue that the Sufi & Elmi principle should be restricted to the unique facts of the case. Few countries have experienced the near total collapse of infrastructure and social institutions against a backdrop of protracted armed conflict that has characterised Somalia for more than 20 years. Whilst the humanitarian crisis was not attributable to the intentional acts of state or non-state actors, it was also plainly not a naturally-occurring phenomenon. Consequently, neither of the then existing tests for engaging Article 3 non-refoulement obligations could apply (although the representatives for the uk Government argued that the N test should be applied).55 The principle in Sufi & Elmi therefore represented an exceptional extension of protection that 52 53

54

55

EM-DAT (n 2). See for example International Coalition for the Responsibility to Protect (ICRtoP), ‘The Crisis in Burma’ (ICRtoP undated) accessed 6 December 2014; R. Barber, ‘The Responsibility to Protect the Survivors of Natural Disaster: Cyclone Nargis, a Case Study’ (2009) 14 J Conflict & Sec L 3. Action Aid et al., Joint Response to ‘After the Storm: Voices from the Delta’ (Action Aid et al. 2009) accessed 6 December 2014. Sufi & Elmi (n 47) para 259.

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ought to only apply when all of the ingredients considered in that case are present. Indeed, in the Cyclone Nargis example, there was no state collapse or breakdown of social institutions. The scenarios are not easily comparable. In reply, one may argue that the Sufi & Elmi principle reflects an evolution in the Court’s approach to Article 3 more generally. The emerging principle, which was not articulated as being exceptional, is that there is a middle ground between intentional infliction of harm and purely naturally-occurring harm, where there is culpability for the harm, albeit not directly and intentionally inflicted. In this connection, the inability for international humanitarian actors to deliver emergency relief seems crucial. In most disaster scenarios, conditions may be abysmal, to the extent that there is even a risk to life or person on return. However, in holding with the reasoning set out in N that the Convention does not require States to ensure standards equivalent to those enjoyed in Europe, individuals forced to rely on international humanitarian assistance in the aftermath of a disaster will generally not, unless the circumstances are exceptional, be entitled to international protection. However, where that humanitarian assistance cannot be delivered, and particularly where human agents consciously and culpably obstruct the delivery, the deprivation falls more closely within the sphere of civil and political rights that are seen as being the principle concern of the Convention. In the case of Cyclone Nargis, individuals facing return to Myanmar in the weeks immediately following the disaster would, owing to the culpable acts and omissions of the State, be exposed to an exacerbated humanitarian crisis without international relief supplies or assistance. Myanmar’s obstruction of humanitarian relief brought condemnation by the international community to such an extent that invocation of the ‘Responsibility to Protect’ doctrine was seriously debated. Such a culpable exacerbation of the humanitarian crisis arguably warrants wider access to protection than the approach applied in the context of a purely naturally-occurring harm scenario allows. Reference to Article 53(2) of the eu Charter of Fundamental Rights,56 which establishes that the scope of protection of fundamental rights under the echr provides the minimum standard which can be superseded by more favourable eu law provisions, could be relied upon to support the articulation of a more extensive scope of protection under Article 15(b) of the Recast Qualification Directive read with Article 4 of the eu Charter as compared to Article 3 echr.

56

Charter of Fundamental Rights of the European Union, oj C 346/01, 18 December 2000 (entry into force : 1 December 2009).

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4.3 Harm Assessment However, if the Sufi & Elmi principle were to be applied in this extended context, a claimant would still have to establish a sufficiently serious impact on his ability to cater for his most basic needs, his vulnerability to ill-treatment and the prospect of his situation improving within a reasonable time-frame. In this connection, regard would necessarily also be had to the availability of an internal relocation alternative. Vulnerability to ill-treatment is a particularly problematic element in the Cyclone Nargis scenario. Although there may have been some increased incidence of violence in the aftermath of the disaster, reports on conditions prevailing in the aftermath of the cyclone do not highlight vulnerability to ill-treatment per se. Can the Sufi & Elmi test be satisfied if one of the elements is not made out? Might the test be seen more as a non-exhaustive set of relevant considerations? Additionally, and perhaps crucially, the duration of the restrictions on humanitarian relief was short-lived, suggesting that the situation for claimants would improve within a reasonable time frame. Moreover, not all parts of the country were as severely affected as the Ayeyarwady Division. More evidence than can be adduced in this Chapter would be needed to address these challenges. This very brief analysis demonstrates that even attempts to incrementally extend the scope of protection face substantial challenges in practice. Nonetheless, given that more than 500 ‘natural’ disasters affecting 174 million people worldwide have struck in the last two years,57 and considering the dominant view amongst climate scientists that rising global average temperatures are playing a role in increasing the frequency and intensity of extreme weather events, food insecurity and conflict, a factual scenario capable of both supporting the ‘culpable exacerbation’ argument and satisfying the relevant threshold test is likely to emerge, provided practitioners are alert to the potential arguments and required evidence. 5 Conclusion This Chapter opened with reference to the ‘protection gap’ that has been identified in relation to individuals who are outside their country of origin and fear climate change-related harm on return. However, the ‘gap’ has been shown to have different contours depending on the region in which a c­ laimant is seeking 57

EM-DAT (n 2).

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international protection. In Australia, the rrt has only considered claims under the Refugee Convention, whereas in nzipt must also apply the cat and the iccpr. The eu offers a still wider scope of protection, with the Recast Qualification Directive incorporating the echr in the context of ­subsidiary protection, as well as the Convention on the Rights of the Child and the Charter on Fundamental Rights in the non-refoulement provision at Article 21. Notwithstanding the pathways to protection identified in this Chapter, the vast majority of individuals facing increased exposure to disaster-related harm, and particularly those affected by slower-onset processes such as drought and sea-level rise, will not be able to engage existing protection obligations in a European host State. This remaining ‘protection gap’ is, however, not reserved for victims of climate change. The international protection system’s elevation of harm intentionally inflicted by human agents to a position above harm arising from systemic economic deprivation and environmental degradation, whilst grounded in the realities of the aftermath of the Second World War, increasingly appears predominantly to serve the interests of limiting the number of people entitled to remain in a host State owing to a well-founded fear of serious harm. This underlying rationale is likely to become increasingly ent­ renched as global wealth inequalities, population pressures, resource scarcity and climate change impacts continue to engender disasters and associated population displacements.58 In this connection, claimants who seek to ‘dramatically’ develop the scope of protection by advancing arguments about diffuse culpability for climate change-related harm will need to contend with significant public policy considerations that will militate against opening the ‘floodgates’ to an unknown number of individuals increasingly at risk of disaster-related harm. An incremental approach may therefore prove more effective in clarifying and developing the scope of protection. However, litigation alone will not address the protection needs of the millions of people who are already facing climate change-related harm. Development of guiding principles that States are willing to adhere to in the context of disasterinduced cross-border displacement is a clear priority in an era of climate change. This work is currently underway under the auspices of the Nansen Initiative.59 58 59

This is likely to be the case even when most displacement is expected to be internal. ‘The Nansen Initiative is a state-led, bottom-up consultative process intended to build consensus on the development of a protection agenda addressing the needs of people displaced across international borders in the context of natural hazards, including the effects of climate change’ from The Nansen Initiative website: accessed 6 December 2014.

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Jurisprudence that engages with specific forms of disaster-related harm can ­provide valuable material for the gradual development of a protection framework suited to the unprecedented humanitarian challenges that will emerge in the coming years. In order for such jurisprudence to emerge, it falls to lawyers in diverse jurisdictions to identify clients facing disaster-related harm and to make the risk of being exposed to such harm an element of that client’s international protection claim.

Part 3 Missed Opportunities and Problematic Developments

∵

chapter 7

Has the Temporary Protection Directive Become Obsolete? An Examination of the Directive and Its Lack of Implementation in View of the Recent Asylum Crisis in the Mediterranean Meltem Ineli-Ciger1 1 Introduction Council Directive 2001/55/EC of 20 July 2001 on Minimum Standards for Giving Temporary Protection (the Temporary Protection Directive) entered in force in 2001; it was the first European Union (eu) directive on international protection that was adopted after the entry into force of the Treaty of Amsterdam in 1999.2 The Directive defines temporary protection as an exceptional procedure to be used in mass influx situations when persons displaced by an armed conflict or violence cannot be returned to their country of origin.3 The Directive introduces a comprehensive framework to deal with mass influx situations and is a practical tool that protects large groups of individuals seeking refuge in Europe without requiring individual status determination. Despite these positive aspects, the Temporary Protection Directive has yet to be implemented. The objective of the present chapter is to discuss the lack of implementation of the Directive in the past 13 years and explore the reasons behind this. In doing so, the chapter is structured along three different parts. Part two outlines the temporary protection regime set out in the Directive. The Directive’s scope, activation mechanism and the entitlements of temporary protection beneficiaries are explored, as are the Directive’s burden sharing 1 The author would like to thank Professor Achilles Skordas, Dr Céline Bauloz, Dr Sarah Singer and all commentators at the Second Refugee Law Initiative Postgraduate Workshop for their valuable comments on the chapter. 2 Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof, oj L 212/12, 7 August 2001; Treaty Amending the Treaty on the European Union, the Treaties Establishing the European Communities and Certain Related Acts of 2 October 1997, oj C 340/1, 10 November 1997 (entry into force: 1 May 1999). 3 Article 2 of the Temporary Protection Directive (n 2).

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004290167_008

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scheme and the provisions that regulate the end of a temporary protection regime. Part three examines the lack of implementation of the Directive and the reasons behind this. Two main explanations for its non-implementation are suggested. The first is the belief shared by Member States that activation of the Directive would create a pull factor for migrants seeking access to the eu. Related to this is the difficulty in securing a qualified majority vote within the Council, necessary for the Directive to be implemented. Against this background, part four explores the responses of the eu and its Member States to the arrivals of mixed flows from North African countries – most notably those that arrived in Lampedusa in 2011 – and the recent changes in the Dublin system. The objective here is to determine whether the Directive still constitutes a relevant piece of legislation in the future or if it has simply become obsolete. The chapter concludes with suggestions by which the likelihood of the Directive being implemented in the future would be increased. 2

Overview of the Temporary Protection Directive

Persons who can be protected under the Temporary Protection Directive are referred to as displaced persons. Article 2 of the Directive defines these ‘displaced persons’ as: Third-country nationals or stateless persons who have had to leave their country or region of origin, or have been evacuated, in particular in response to an appeal by international organisations, and are unable to return in safe and durable conditions because of the situation prevailing in that country, who may fall within the scope of Article 1 A of the Geneva Convention or other international or national instruments giving international protection, in particular: (i) persons who have fled areas of armed conflict or endemic violence; (ii) persons at serious risk of, or who have been the victims of, systematic or generalised violations of their human rights. The Directive clearly refers to refugees, persons fleeing armed conflict, endemic violence and victims of systematic human rights violations as persons eligible for temporary protection. Endemic violence is nonetheless not defined in the Directive. According to Allen, it refers to the violence associated with the process of state collapse.4 Skordas notes ‘if violence is below the threshold of an 4 C. Allen., ‘Warfare, Endemic Violence & State Collapse in Africa’ (1999) 26 roape 367.

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armed conflict but if it is endemic, that is an entrenched feature of a dysfunctional political system or of collapsing authority in failed States and capable of generating mass influx then the directive can be activated’.5 Following this definition, persons who have fled their country due to violence stemming from state collapse can be protected by virtue of the Directive. Given the categories of persons who may fall within the scope of the Directive – i.e., refugees, persons fleeing armed conflict, violence, and human rights violations – it can be concluded that the Directive has the potential to protect a broad range of individuals coming to the eu when a mass influx situation occurs. Eligibility for temporary protection is, however, subject to the Directive’s activation mechanism: for the Directive to be activated, in other words implemented, the existence of a mass influx situation has to be established by a Council decision adopted by a qualified majority.6 The Directive defines such a mass influx situation as the ‘arrival in the community of a large number of displaced persons, who came from a specific country or geographical area, whether the arrival in the Community was spontaneous or aided, for example through an evacuation programme’.7 This activation process can be triggered by a Member State. Upon a State’s request, the Commission can propose to activate the Directive. Nonetheless, such a proposal has to be discussed and adopted by the Council with a qualified majority vote.8 When this happens, the Council decision has to include a description of the specific group(s) to which the Directive will apply and the date for the temporary protection regime to take effect.9 While the European Commission is the only eu organ that can submit such a proposal, and has the right to propose specific groups that will receive temporary protection, the Council has the exclusive authority to determine who these groups are.10 This means the Council also has the ability to limit the category of persons who will receive temporary protection by excluding a specific group based on, for example, place of origin or ethnic origin. 5

6 7 8 9 10

A. Skordas, ‘Council of the European Union, Council Directive 2001/55/EC of 20 July 2001 on Minimum Standards for Giving Temporary Protection in the Event of a Mass Influx of Displaced Persons and on Measures Promoting a Balance of Efforts between Member States in Receiving such Persons and Bearing the Consequences Thereof’ in K. Hailbronner (ed), eu Immigration and Asylum Law Commentary on eu Regulations and Directives (Hart Publishing 2010) 828. Article 5(1) of the Temporary Protection Directive (n 2). Ibid, Article 2(d). Ibid, Recital 14 and Article 5. Ibid, Article 5(3). N. Arenas ‘Concept of Mass Influx of Displaced Persons in the European Directive Establishing the Temporary’ (2005) 7 ejil 447.

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The Council can also limit these categories by setting specific dates by which temporary protection beneficiaries should have left their country of origin or arrived to the eu territory. According to Article 7 of the Directive, Member States can grant temporary protection to additional groups of displaced persons provided that they are displaced for the same reasons and are from the same country or region of origin as those originally designated.11 In addition to the Directive’s activation mechanism, it is also necessary to explore how the Directive regulates the admission of groups who are designated as temporary protection beneficiaries to the territories of the eu Member States. In this regard, the Directive only notes that ‘Member States shall apply temporary protection with due respect for human rights and fundamental freedoms and their obligations regarding non-refoulement’.12 For Arenas, this provision confirms Member States’ general obligation to allow the entry of designated groups eligible for temporary protection or, at least, provide temporary protection in mass influx situations.13 It is, nonetheless, difficult to conclude that the Directive obliges States to secure admission to all ‘displaced persons’, as defined under Article 2, when there is a mass influx situation. It is true that, during the Directive’s drafting, the European Parliament proposed including the following requirements: The Member States shall give persons enjoying temporary protection access to their territory. Member States shall not impose any new measures, such as visa requirements or carrier sanctions, which may prevent refugees from gaining access to temporary protection. Where such measures are already in place, they should be temporarily suspended throughout the European Union in cases where they would restrict the rights of those covered by this Directive.14 However, this proposal was eventually not adopted by the Council.15 The abs­ ence of an explicit provision in this respect further supports the conclusion that the Directive does not clearly oblige Member States to admit all designated groups eligible for temporary protection to their territories in mass influx situations. 11 12 13 14 15

Article 7 of the Temporary Protection Directive (n 2); K. Kerber, ‘Temporary Protection Directive’ (2002) 4 ejml 198. Article 3(2) of the Temporary Protection Directive (n 2). Arenas (n 10) 437. ep A5-0077/2001, oj C 343/82 (2001) cited in Skordas (n 5) 832. Skordas (n 5) 832.

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With regard to refugees, Article 3(1) of the Directive nonetheless provides that ‘[t]temporary protection shall not prejudice recognition of refugee status under the Convention’.16 Therefore, the Directive does not prejudice the right of beneficiaries of temporary protection to apply for asylum at any time.17 However, States can postpone processing their asylum applications until the temporary protection regime comes to an end.18 The duration of temporary protection is one year and can be further extended by the Council for a maximum three years.19 As to the content of temporary protection, one of the objectives of the Directive is to establish minimum standards for granting temporary protection in the event of a mass influx of displaced persons.20 The Directive fulfils this aim relatively well by introducing a clear list of obligations that Member States have towards temporary protection beneficiaries in its Chapter III. For instance, Article 8 obliges Member States to provide residence permits to temporary protection beneficiaries.21 The Directive also allows such persons to engage in employed or self-employed activities, as well as in education or training related activities,22 though States can invoke labour market policies to give priority to eu citizens, citizens of the European Economic Area countries and documented migrants from third countries.23 States are further obliged to provide temporary protection beneficiaries with access to suitable accommodation, necessary assistance in terms of social welfare and means of subsistence and access to medical care, if they do not have sufficient resources.24 Those under 18 can also enjoy education under same conditions as nationals.25 Despite these benefits, the Directive does not provide temporary protection beneficiaries with an absolute right to family reunification,26 nor with a right to

16 17 18 19 20 21

Article 3(1) of the Temporary Protection Directive (n 2). Ibid, Article 17. Ibid, Article 17(2). Ibid, Article 4. Ibid, Preamble. Ibid, Article 3(2) which provides that: ‘Member States shall apply temporary protection with due respect for human rights and fundamental freedoms and their obligations regarding non-refoulement’. 22 Ibid, Article 12. 23 Ibid. 24 Ibid, Article 13. 25 Ibid, Article 14. 26 See ibid, Article 15.

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free movement within their host State.27 It further envisages the possibility of excluding certain persons from temporary protection if there are serious reasons for considering that they committed a crime against peace, a war crime, or a crime against humanity, an act contrary the purposes and principles of the United Nations or a serious non-political crime outside the host Member State prior to their admission therein.28 Exclusion decisions and refusal of family reunification can nevertheless be appealed in the host State.29 Chapter VI of the Directive provides rules with regard to state solidarity, as well as physical and financial burden sharing. Article 25 prescribes that: The Member States shall receive persons who are eligible for temporary protection in a spirit of Community solidarity. They shall indicate […] in figures or in general terms […] their capacity to receive such persons […] When the number of those who are eligible for temporary protection following a sudden and massive influx exceeds the reception capacity […], the Council shall, as a matter of urgency, examine the situation and take appropriate action, including recommending additional support for Member States affected.30 The Directive allows for transfers of protection beneficiaries between Member States following a voluntary offer from one of them and provided the transferees give their consent to such a transfer. Article 24 further provides that any measure of burden-sharing may benefit from the Refugee Fund.31 The burden sharing scheme introduced in the Directive, however, has some shortcomings. According to Kerber, a Member State is free to declare that it is unable to receive any temporary protection beneficiaries.32 The voluntary nature of the Directive’s burden sharing mechanism may therefore compromise the prospect of equitable burden sharing in mass influx situations. This would mean some States can choose not to participate in the burden sharing arrangement. However, in cases when the declared capacity of a State is exceeded 27

28 29

30 31 32

Article 8 of the initial European Parliament proposal included ‘a right to freedom of movement within the host State subjected to any restrictions imposed on the grounds of public health and safety’. But this provision was not adopted. See Skordas (n 5). See Article 28 of the Temporary Protection Directive (n 2). It is not clear whether Article 29 of the Directive gives a right of appeal only in cases when a person is excluded on the basis of Article 28. See for different views on the matter: Skordas (n 5) 868; Kerber (n 11) 213. Article 25 of the Temporary Protection Directive (n 2). Ibid, Article 24. Kerber (n 11) 212.

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because of the number of persons who have arrived on its territory, the Council may take appropriate action and provide additional support to those Member States that are affected more than others. The Council is in this respect free to introduce any measure with regard to burden sharing. The efficiency and success of the burden sharing mechanism established under the Directive will therefore greatly depend on the measures that the Council adopts and how well these measures are executed by Member States. If the Council adopts measures necessary to ensure equitable burden sharing, the burden sharing mechanism of the Directive may offer a more equitable and efficient system than the Dublin system based on the Dublin Regulations,33 the Eurodac Regulation and its 2013 Recast.34 Although not a burden sharing  mechanism per se, the Dublin system regulates the distribution of asylum seekers among Member States by laying down rules for determining the Member State responsible for examining asylum claims.35 Article 13 of the Dublin III Regulation notes that, when ‘[…] an applicant has irregularly crossed the border into a Member State by land, sea or air having come from a third country; the Member State thus entered shall be responsible for examining the application for international protection’.36 In light of the many asylum seekers 33

Convention Determining the State Responsible for Examining Applications for Asylum Lodged in One of the Member States of the European Communities [1997] oj C 254/1; Council Regulation (ec) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national replaced by Council of the European Union, Regulation (eu) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast), 29 June 2013, oj L 180/31, 29 June 2013 (Dublin III Regulation). 34 Regulation eu No 603/2013 of the European Parliament and of the Council of 26 June 2013 on the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of Regulation (eu) No 604/2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person and on requests for the comparison with Eurodac data by Member States’ law enforcement authorities and Europol for law enforcement purposes, and amending Regulation (eu) No 1077/2011 establishing a European Agency for the operational management of large-scale it systems in the area of freedom, security and justice (recast), oj L 180/1, 29 June 2013. 35 Chapter III of the Dublin III Regulation (n 33) sets the criteria for determining the Member State responsible for examining an asylum application. 36 Ibid, Article 13.

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irregularly arriving in the eu via boat and other means of transport, Member States at the external borders of the eu are under much greater pressure than others. When there is a mass influx situation and the Temporary Protection Directive is not implemented, the Dublin system regulates the distribution of refugee status applications between Member States without introducing any additional criteria to ease the asylum burden of these States which are affected more than others. This creates greater pressure on States such as Greece, Malta, Italy and Bulgaria due to their geographical locations.37 In situations of mass influx, the burden sharing measures adopted by the Council by virtue of the Temporary Protection Directive would therefore likely introduce a more equitable manner of distributing the asylum burden among Member States than the Dublin system. The temporary protection regime under the Directive comes to an end when the maximum duration specified in the Directive has been reached, or can be terminated at any time by a Council decision adopted by a qualified majority.38 This Council decision must be based on ‘the establishment of the fact that the situation in the country of origin is such as to permit the safe and durable return of temporary protection with due respect for human rights and fundamental freedoms by Member States’ obligations regarding non-refoulement’.39 Articles 20 to 23 of the Directive regulate the end of temporary protection and the return of beneficiaries to their country of origin or previous habitual residence. In addition, Article 21, which lays down state obligations with regard to the voluntary return of such individuals, also provides: ‘[…] the Member States may provide for obligations laid down in Chapter III of the Directive to be extended to individuals […] until the date of return’.40 Article 22 provides that States can enforce returns following the end of a temporary protection regime, provided that the person in question is not eligible for any other protection status.41 3

The Temporary Protection Directive and Its Lack of Implementation

As illustrated above, the Temporary Protection Directive provides a comprehensive framework to respond to mass influx situations. Despite the positive 37 38 39 40 41

E.R. Thielemann, ‘How Effective are National and eu Policies in the Area of Forced Migration?’ (2012) 31(4) rsq 21, 33–34. Article 6 of the Temporary Protection Directive (n 2). Ibid, Article 6(2). Ibid, Article 21. Ibid, Article 22(2) urges States to consider humanitarian exceptions.

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aspects of this system, it has so far never been implemented; the Council considered activating the Temporary Protection Directive when the number of asylum seekers from Iraq and Afghanistan rose in the beginning of 2000s; but no ensuing decision was finally adopted.42 Similarly, the Directive was not implemented following the substantial influx of asylum seekers fleeing the Arab Spring conflict which overwhelmed the asylum capacities of the Member States at the external borders of eu.43 As a result, many asylum seekers who could have fallen within the protective scope of the Temporary Protection Directive have thus far been dealt with under the eu (Recast) Qualification Directive.44 There are two reasons for the non-implementation of the Directive. The first is the belief shared by many Member States that activation of the Directive may create a ‘pull factor’ for migrants seeking entry to the eu.45 The second is the difficulty in securing a qualified majority vote in the Council in the face of an influx situation which only seriously affects a limited number of Member States.46 The belief shared by eu Member States, that activation of the Directive may create a ‘pull factor’, can be seen as one of the main reasons behind the lack of implementation of the Directive.47 Pull factors can be defined as factors that attract migrants, or in this case asylum seekers, to a certain host country.48 In a 42

43

44

45 46 47 48

A. Klug, ‘Regional Developments: Europe’ in A. Zimmermann (ed), The 1951 Convention Relating to the Status of Refugees and Its 1967 Protocol: A Commentary (oup 2011) 133; M. Ineli-Ciger, ‘Revisiting Temporary Protection as a Protection Option to Manage Mass Influx Situations’ in J.-P. Gauci, M. Giuffré and L. Tsourdi (eds), Exploring the Boundaries of Refugee Law, Current Protection Challenges (Brill forthcoming) 197–217. B. Nascimbene and A. Di Pascale, ‘The ‘Arab Spring’ and the Extraordinary Influx of People who Arrived in North Italy from North Africa’ (2011) 13 ejml 341, 346–347; IneliCiger (n 42). Council Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection gran­ ted oj L 337/9, 20 December 2011; H. Lambert, ‘The Next Frontier: Expanding Protection in Europe for Victims of Armed Conflict and Indiscriminate Violence’ (2013) 25(2) ijrl 207, 209–210; Klug (n 42). Klug (n 42) 133. Ineli-Ciger (n 42). Klug (n 42) 133. Push and pull factors are mainly theories that belong to migration studies. See further Thielemann, ‘How Effective are National and eu Policies’ (n 37) 22; E.F. Kunz, ‘The Refugee in Flight: Kinetic Models and Forms of Displacement’ (1973) 7(2) imr 125–146.

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sense, they affect a person’s decision to choose his/her destination country.49 By contrast, push factors refer to those factors that cause a person to leave his/ her country of origin.50 In the case of temporary protection beneficiaries, such push factors can take the form of an armed conflict, endemic violence or systematic human rights violations in their country of origin. According to Thielemann, the concern of Member States that activation of the Directive will act as a pull factor may well be overrated.51 In his article ‘National and eu Policies in Forced Migration’, the author argues that: ‘The Effectiveness of policies in regulating migration should not be overestimated. Migration flows are often shaped by push factors that are often beyond the direct control of policy makers in receiving countries’.52 An armed conflict would be one of the main decisive elements that increases the number of asylum applications lodged in a particular period.53 The armed conflict in Bosnia and Kosovo, for instance, was the main reason for the increase of asylum applications in the then 15 European States throughout the 1990s.54 As Thielemann argues, when there is a push factor as strong as this, the effects of state poli­cies intended to regulate the size of influx of asylum seekers may be limited.55 Persons fleeing armed conflict or violence do not necessarily look for a wealthier State or a State with better welfare conditions to flee to, but are in search of a secure place free from violence and persecution. Unlike many migrants, a substantial number of persons displaced by armed conflict do not seek a host State with better financial conditions but choose to flee to States with close proximity to their country of origin. This can be explained by the 49

50 51 52 53

54

55

Better security conditions and living conditions, job opportunities, political and religious freedom, and better quality of education, health system and justice can be referred to as general examples of pull factors. See Kunz (n 48) 125–146; J. Handmaker, ‘No Easy Walk: Advancing Refugee Protection in South Africa’ (2001) 48(3) Africa Today 98. Thielemann (n 37) 22. Ibid, 22; Kunz (n 48) 125–146. Thielemann, ‘How Effective are National and eu Policies’ (n 37) 36. E.R. Thielemann, ‘Why Asylum Policy Harmonization Undermines Refugee BurdenSharing’ (2004) 6(1) ejml 60; Thielemann, ‘How Effective are National and eu Policies’ (n 37) 23. These States are Austria, Belgium, Switzerland, Germany, Denmark, Spain, Finland, France, the United Kingdom, Greece, Ireland, Italy, Luxemburg, Netherlands, Norway, Portugal and Sweden. See Thielemann, ‘Why Asylum Policy Harmonization Undermines Refugee Burden-Sharing’ (n 53) 60; Thielemann, ‘How Effective are National and eu Policies’ (n 37) 25. Thielemann, ‘How Effective are National and eu Policies’ (n 37) 21–37.

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fact that many victims of armed conflict wish to go back to their country of origin once the conflict is over and it is safe to return. The figures concerning refugees that have fled the civil war in Syria support this argument. Data from the United Nations High Commissioner for Refugees (unhcr) suggests that, by 30 November 2013, nearly 2.2 million Syrians had left Syria and sought refuge in Egypt, Iraq, Jordan, Lebanon, and Turkey.56 The number of Syrian refugees registered outside of the region is ‘only’ 31,000.57 As these figures demonstrate, the majority of persons who fled Syria chose to stay in the same region, that is, mainly in States neighbouring their country of origin. This shows that the impact of pull factors should not be overstated when the reason for flight is an armed conflict or violence which constitutes an immediate threat to a person’s life and physical integrity. In these situations, whether European States offer temporary protection, subsidiary protection or any other form of protection status to such persons, it would not be expected that the number of persons seeking refuge in Europe would change significantly. Thus, implementation of the Temporary Protection Directive may not have that great an influence on the choice of asylum seekers to seek refuge in eu Member States. In any case, even if it is accepted that the Temporary Protection Directive would create a strong pull factor; such a pull factor could be countered, or at least mitigated, by measures introduced by the Council. As previously stated, the Council has the authority to determine the group of persons eligible for temporary protection. It can thus determine that only persons from a certain conflict area or of a particular ethnic origin or religion would be eligible for temporary protection. By limiting those eligible for temporary protection, the Directive would not create a pull factor for other groups of people. Groups left out of the Directive’s protection by the Council would have no reason related to the Directive to choose Europe or a particular Member State as their destination. The pull factor argument precluding the implementation of the Directive is therefore overstated. The second reason for the lack of activation of the Directive is the difficulty in securing a qualified majority vote in the Council. Some Member States, especially those that would be less likely affected by a mass influx situation, do not generally wish to activate the Directive as they do not want to share the burden that activation of the Temporary Protection Directive would bring with it. These States might therefore prefer the distribution of the asylum seekers to 56 57

unhcr, 2014 Syrian Regional Response Plan (unhcr 2014) accessed 6 December 2014, 6. Ibid, 6.

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be regulated by the Dublin system which places a disproportionate burden on States at the external borders of the eu. The lack of a meaningful and comprehensive burden sharing mechanism in the eu might explain why States are reluctant to activate the Directive.58 A qualified majority decision is not easy to achieve when a situation seriously affects only a limited number of Member States. In such cases, it is difficult to persuade a qualified majority of Member States to provide temporary protection to large numbers of people without introducing an efficient and practical burden sharing scheme.59 In mass influx situations the heaviest burden lies upon those States that are geographically close to the country of origin or, in the case of the eu, at the external borders of the Union. Due to their geographical location, some Member States will be affected by a mass influx to a much greater degree than others.60 This is illustrated by the Italian and Maltese calls to implement the Directive in 2011 in the face of mass arrivals of asylum seekers coming through the Mediterranean from North Africa.61 However, without the necessary qualified majority in the Council, the Directive was not activated.62 Taking into account the current migration crisis in the Mediterranean and the associated lack of solidarity shown by eu Member States, it is difficult to expect that, in a future mass influx situation, burden sharing in the eu will suddenly materialise. In the author’s view, it is clear that as long as no more than a few Member States’ interests are at stake, or the number of persons seeking refuge reaches a dramatic threshold, the Directive will not be implemented in the foreseeable future. 4

The Asylum Crisis in the Mediterranean and the Temporary Protection Directive

Having discussed the reasons behind the non-activation of the Directive, the present section examines whether the Temporary Protection Directive has any prospect in being implemented in the coming years in view of two main issues: first, the reaction and responses of the eu and its Member States to the recent arrivals of migrants from North African countries at the Italian island of 58 59 60 61 62

For a discussion on the lack of solidarity in the eu, See G. Noll, ‘Risky Games? A Theoretical Approach to Burden Sharing in the Asylum Field’ (2003) 16(3) jrs 236, 241. M. Fullerton, ‘A Tale of Two Decades: War Refugees and Asylum Policy in the European Union’ (2011) 10 Wash Uy Global Stud L Rev 100. Ibid, 100. Nascimbene and Di Pascale (n 43) 346–347. Ibid, 346–347.

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Lampedusa and, second, recent developments within the Common European Asylum System (ceas), and more specifically with regard to the creation of the European Asylum Support Office (easo) and the early warning mechanism under the Dublin system. 4.1 Arrivals at Lampedusa in 2011 The conflicts associated with the Arab spring played an important role in the collapse of border controls in Southern Mediterranean States in the early part of the 2010s. In 2011, the violence and conflicts which followed the fall of former President Zine el-Abidine Ben Ali compelled many Tunisians to flee the country.63 The fall of the Qaddafi regime in Libya and the associated North Atlantic Treaty Organization’s intervention also increased the number of asylum seekers arriving to European shores.64 Coupled with migrants from other African countries, a considerable number of individuals attempted to reach the eu via boats.65 In May 2011, the number of Tunisians who arrived at the Italian island of Lampedusa reached 26,000.66 Alarmed at the number of persons arriving in Italy, and in view of the number yet to come Members of the European Parliament Simon Busuttil and Salvatore Iacolino, of the European People’s Party, called on the European Commission to activate the solidarity mechanism envisaged in the Temporary Protection Directive.67 The formal requests made by the Italian and Maltese Governments were rejected by Member States in the Council meeting on the basis that the conditions for activation were not met.68 To justify this rejection, eu Commissioner Malmström noted that: 63 64 65

66

67 68

S. McMahon, North African Migration and Europe’s Contextual Mediterranean Border in Light of Lampedusa Migrant Crisis of 2011 (European University Institute 2012) 6. Ibid, 6. ‘On the backdrop of mounting civil war in Libya and subsequent outflows of migrants and refugees crossing its land borders, the European Commission’s Communication on Migration [com(2011) 248 final] in May 2011, acknowledged that 650,000 persons had fled Libya, and that the eu had responded to the crisis by repatriating 50,000 third country nationals to their countries of origin and providing humanitarian assistance to refugees in North Africa in the amount of 80.5 million Euros’: cited by P. Fargues and C. Fandrich, Migration after the Arab Spring (European University Institute 2012) 6. According to the Italian Government, the number of irregular arrivals from Tunisia and other North African countries between January and July 2011 was nearly 48,000. See Italian Ministry of Interior Press release cited in Nascimbene and Di Pascale (n 43) 343; S. Carrera, E. Guild, M. Merlino and J. Parkin, ‘A Race against Solidarity: the Schengen Regime and the Franco-Italian Affair’ (2011) ceps Liberty and Security in Europe Working Papers, 4; McMahon (n 63) 6. Nascimbene and Di Pascale (n 43) 346. Ibid, 347.

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At this point we cannot see a mass influx of migrants to Europe even though some of our Member States are under severe pressure. The temporary mechanism is one tool that could be used in the future, if necessary, but we have not yet reached that situation.69 The eu’s main response to these mass arrivals was to strengthen border controls and surveillance along the Mediterranean.70 The European Community also helped Italy by extending the duration of the European Agency for the Manag­ ement of Operational Cooperation at the External Borders of the Member States of the European Union (frontex) operations in the area, allocating funds as part of financial burden sharing and increasing the number of officials assigned to deal with the crisis, although this still fell short of the support needed.71 On 5 April 2011, Italy signed a technical agreement with Tunisia with the objective of strengthening border controls and facilitating the return of Tunis­ ians who arrived to Italy.72 The Italian Government issued temporary residence permits for humanitarian reasons and travel documents to persons who arrived in Italy before 5 April 2011.73 For persons who arrived at Lampedusa after this date, the repatriation process was initiated. It is, however, not clear whether the asylum claims of all Tunisians and Libyans who arrived at Lampedusa after 5 April 2011 were duly considered and processed by the Italian authorities.74 The humanitarian residence permits which were issued by the Italian authorities were valid for a six-month period and entitled its holders a right to free movement in the eu.75 Following the issuance of such permits, a number of persons who received them went on to other eu States.76 As a result, Italy was criticised for issuing the residence permits, particularly by France, Germany, and Austria.77 In protest, on 17 April 2011 France temporarily shut its border to flows of Tunisian migrants coming from Italy.78 Similarly, Belgium introduced additional entry 69

C. Malmström, Debate on Migration Flows (2011) accessed 6 December 2014. 70 L. den Hertog, Revolutions and Their Immigrants: eu’s Response (uaces 2011) accessed 6 December 2014. 71 For more information regarding the Frontex operation named hermes co, see ibid, 11. 72 The whole text is not made public. See Nascimbene and Di Pascale (n 43) 352. 73 McMahon (n 63). 74 Carrera et al (n 66) 5–7. 75 Nascimbene and Di Pascale (n 43) 353. 76 Carrera et al (n 66) 7; McMahon (n 63) 8–9. 77 Carrera et al (n 66) 11. 78 Ibid, 11.

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requirements and asked individuals holding Italian residence permits to prove that they had at least €10,000 per couple in order to enter Belgian territory.79 Following these tensions, the Commission adopted the Schengen Governance Package80 to amend the Schengen Border Code.81 The legality of the Italian residence permits and of France’s reintroduction of border controls has been extensively debated, and the conformity of these measures with the Schengen system disputed. In this regard, the Schengen Border Code is relevant to a discussion of the legality of the Italian residence permits. Its Article 5(4), before it was amended in 2013, entitled Member States to grant permission to persons who do not satisfy the first entry requirements of the Code82 and ‘to enter their territory on humanitarian grounds, on grounds of national interest or because of international obligations’.83 However, as Carrera et al note, if the main goal of the Italian permits was to encourage persons who had fled from North African countries to leave Italy, this could contradict Article 4(3) of the Treaty on European Union (teu)84 which calls for sincere and loyal cooperation among Member States.85 79

J. Dacey, ‘Tunisian Talks Held amid Growing Refugee Crisis’ Swissinfo (20 April 2011)

accessed 6 December 2014. 80 Regulation No 610/2013 of the European Parliament and of the Council of 26 June 2013 amending Regulation (ec) No 562/2006 of the European Parliament and of the Council establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code), the Convention implementing the Schengen Agreement, Council Regulations (ec) No 1683/95 and (ec) No 539/2001 and Regulations (ec) No 767/2008 and (ec) No 810/2009 of the European Parliament and of the Council oj L 182/1, 29 June 2013. 81 Regulation (ec) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders, oj L 105/1, 13 April 2006 (Schengen Border Code). 82 The first entry requirements are provided in Article 5 of the Schengen Border Code; please note this is the version of the Article before the amendment of the Code in 2013. 83 Ibid, Article 5(4). 84 Article 4[3a] of the teu is as follows: ‘Relations between the Union and the Member States’, Article I-5 (ex -Article 10 tec and Article 6(3) teu)] is as follows: ‘Pursuant to the principle of sincere co-operation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties. The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of  the Union. The Member States shall facilitate the achievement of the Union’s tasks and  refrain from any measure which could jeopardise the attainment of the Union’s objectives’. 85 Carrera et al (n 66) 10.

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Article 23 of the Schengen Border Code, before its amendment in 2013, allowed States to reintroduce internal border controls when there was a serious threat to public policy or internal security.86 At the time the French Gover­ nment reintroduced border controls the number of asylum seekers from Libya and Tunisia who had arrived at the French border was only 400.87 According to Carrera et al, the French reintroduction of border controls is problematic as it categorises the arrival of Tunisians as a serious threat to public policy.88 And yet it is hard to conceive that these 400 asylum seekers posed a serious threat to the public policy or internal security of France. It is also doubtful whether this classification is in conformity with the proportionality requirement, fundamental rights and non-discrimination guarantees provided under Article 6 of the Schengen Code.89 Despite these concerns, in a press release Commis­ sioner Malmström declared both the Italian and French measures to be in compliance with the Schengen rules.90 Although the legality of these actions are open to further debate, what is clear from this practice is that, for managing flows of individuals who fled from North African States, solidarity and equitable burden sharing among eu States did not materialise.91 A similar argument is reflected in one of the speeches of the Commissioner Malmström, where she noted that: […] No European State took any serious initiative to provide shelter on its own soil to those in need of international protection […] Instead of solidarity among Member States, France and Italy quarrelled about possible risks for their internal security, with France even reinforcing controls at the internal border with Italy. So, instead of reaching out and protecting, the eu Member States were inward-looking and security oriented.92

86 Regulation (ec) No 562/2006 (n 81). Please note that this particular provision is amended. 87 Carrera et al (n 66) 14. 88 Ibid, 14. 89 Ibid, 14–18. 90 eu Commission, Statement by Commissioner Malmström on the Compliance of Italian and French Measures with the Schengen Acquis, MEMO/11/538, 25 July 2011. 91 Carrera et al (n 66) 19. 92 C. Malmström, ‘Responding to the Arab Spring and Rising Populism: The Challenges of Buil­ ding a European Migration and Asylum Policy’ (2012) Lecture at Harvard Uni­versity’s Minda de Gunzburg Center for European Studies accessed 6 December 2014.

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A number of conclusions can be drawn from the Italian experience. First, the lack of burden sharing and non-implementation of the Directive forced the Italian Government to issue temporary residence permits with free movement within the eu as a tool of burden shifting. Second, criticisms from different Member States concerning Italy’s permits, and France’s reintroduction of internal border controls as well as Belgium’s introduction of additional entry criteria, seem to support the argument that, as long as their national interests are not at stake, eu Member States are not keen to participate in burden sharing arrangements. Third, the eu, and particularly the European Commission, did not help Italy throughout the crisis. The Council also did not introduce any significant policy to eliminate the root causes of the displacement or to provide Italy with the necessary tools to deal with persons who fled the Arab Spring conflicts. One can argue, as did the eu Commissioner, that the Temporary Protection Directive was not implemented in this case simply because there was not an actual mass influx situation. However, unhcr declares the number of persons who have arrived to Lampedusa by sea between 29 January 2011 and 21 Sep­ tember 2011 amounted to 55,298 (27,315 from Tunisia and 27,983 from Libya).93 Given the number of Tunisians and Libyans who arrived in Italy during that period and the Italian’s reception capacity, in the authors opinion this can be indeed defined as a large scale influx. One could also argue that, as no armed conflict existed in Tunisia and the level of violence therein was relatively low, the flows of Tunisians did not necessitate activation of the Directive. However, Article 2 of the Directive does not refer to any required level of violence, but only to ‘persons who leave their country or region of origin […] and are unable to return in safe and durable conditions because of the situation prevailing in that country’. Therefore, the level of violence in Tunisia cannot be the main reason the Directive was not implemented. In case of the displacements from Libya, it was clear that the main reason for the flight was an armed conflict and that such individuals could potentially fall within the scope of the Directive. Irregular arrivals of migrants and asylum seekers by sea remains one of the most pressing problems within the Union. With such a high number of persons arriving to the shores of Italy, Spain, Greece, and Malta, can it still be maintained that there is no mass influx situation? Thousands die every year in the Mediterranean Sea trying to reach Italian, Spanish, Maltese and Greek 93

unhcr figure cited Council of Europe, Parliamentary Assembly, Committee on Migration, Refugees and Population, Ad Hoc Sub-Committee on the Large-Scale Arrival of Irregular Migrants, Asylum Seekers and Refugees on Europe’s Southern Shores, Report on the Visit to Lampedusa (Italy) (23–24 May 2011), AS/Mig/AhLarg(2011) 03 Rev. 2, 30 September 2011.

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shores.94 States at the external borders of the Union are under constant pressure and have been seeking assistance from the eu to find solutions to these arrivals.95 So far, the eu has, however, not been able to formulate and implement a comprehensive plan to protect and secure the safety of irregular migrants and refugees arriving by boat. There is still no burden sharing scheme that engages States that are not primarily affected by these arrivals. This in turn begs the question: what do these developments imply for the potential future activation of the Directive? As previously stated, implementation of the Directive requires a qualified majority consensus. The lack of solidarity or a meaningful burden sharing scheme dealing with the flows from Tunisia and Libya tells us one thing about the prospect of the Directive’s implementation: under the current asylum trends in Europe, the chances of the Directive being implemented in the future are slim. Recent Developments in eu Asylum Law with Regard to Mass Flows of Persons Seeking Protection Recent developments in eu law on asylum and migration – more specifically the introduction of the ‘mechanism for early warning, preparedness and crisis management’ (the early warning mechanism) which can be found in Article 33 of the Dublin III Regulation, and the creation of easo, have given another dimension to the management of mass influx situations in the eu. The eu established easo in 2011 and mandated the Office to, inter alia, ‘coordinate and support common action assisting asylum and reception systems of Member States subject to particular pressure which places exceptionally heavy and urgent demands on their reception facilities and asylum systems’.96 According

4.2

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‘Between 1998 and 2012, more than 16,000 people are known to have died attempting to migrate to the European Union’. See S. McBain, ‘eu Immigration Policy is contributing to Sahara Migrant Deaths’ NewStatesman (2013) accessed 6 December 2014. ‘On 12.10.2013 there was another boat accident which killed more than dozen people and Italian authorities managed to rescue 100 persons. Lampedusa’s Mayor Giusi Nicolini said that ‘Lampedusa can’t deal with it. Europe needs to be aware of this. Lampedusa is too small to constitute a border and also support the weight of all this dreadful tragedy’: Euronews, ‘Lampedusa and Malta Call on eu to Help them to Cope after Migrant Shiprecks’ Euronews (2013) accessed 6 December 2014. Regulation (eu) No 439/2010 of the European Parliament and of the Council of 19 May 2010 establishing a European Asylum Support Office, oj L 132/11, 29 May 2010 (easo Regulation).

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to the easo Regulation, this ‘pressure’ may also flow from mass influx situations.97 When such pressure materialises, easo will coordinate ‘to facilitate an initial analysis of asylum applications under examination by the competent national authorities’.98 easo can also design an action plan that will ensure that appropriate reception facilities are made available by Member States, in particular emergency accommodation, transport and medical assistance.99 By virtue of Article 13 of the easo Regulation, when a situation resembles a mass influx and a Member State requests so, easo can coordinate the necessary technical and operational assistance to the requesting Member State(s) and the deployment, for a limited time, of an asylum support team.100 The early warning mechanism has two phases: a preventive phase and a crisis management phase.101 Article 33 of the Dublin Regulation provides that: Where, on the basis of, in particular, the information gathered by easo pursuant to Regulation (eu) No 439/2010, the Commission establishes that the application of this Regulation may be jeopardised due either to a substantiated risk of particular pressure being placed on a Member State’s asylum system and/or to problems in the functioning of the asylum system of a Member State, it shall, in cooperation with easo, make recommendations to that Member State, inviting it to draw up a preventive action plan.102 If this preventive plan fails, the Member State is then expected to prepare a crisis management action plan and implement it.103 Article 33 of the Dublin III Regulation provides an explicit legal basis for the Commission to decide to trigger the mechanism, after consulting easo as appropriate, in particular as regards situations which may put particular pressure on Member States.104 Throughout the entire process, the European Parliament and the Council also

97 98 99 100 101

Ibid, Article 8. Ibid, Article 13. Ibid, Article 13. Nascimbene and Di Pascale (n 43) 348. Article 33 of the Dublin III Regulation (n 33); eu Commission Services, Non Paper, A Mechanism for Early Warning, Preparedness and Crisis Management in the Dublin Area (2013) accessed 6 December 2014. 102 Article 33 of the Dublin III Regulation (n 33). 103 Ibid, Article 33. 104 eu Commission Services (n 101).

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have the ability to make recommendations to the Member State.105 Ultimately, this means that Article 33 of the Dublin III Regulation introduces a mechanism to assist Member States in mass influx situations. In the author’s opinion, these developments indicate strongly that the eu is looking for ways to avoid implementation of the Temporary Protection Directive by introducing alternative mechanisms to deal with mass influx situations and by supporting Member States when they face a large scale influx.106 This also supports the conclusion that, the Directive’s activation is conceived by the eu as a measure of last resort. The creation of easo and the recent changes in the Dublin Regulations may mean that the chances for the Temporary Protection Directive to be implemented are thus getting slimmer. As a result, a central question remains: will the Directive ever be implemented? As analysed in the present chapter, the decision to activate the Direc­ tive is conditional upon different elements such as the number of persons fleeing to eu Member States, the number of States affected by such flows of migrants, the reception capacities of host States and the reason for flight that initiated these mass flows. The Italian experience with irregular boat arrivals and the recent developments in the eu law on asylum demonstrate that as long as no more than a few Member States’ interests are at stake, it is difficult to imagine the Directive being implemented.107 Save for a dramatic number of persons fleeing to the eu and leaving no choice other than to activate the Directive, it will likely remain a dead letter. 5 Conclusion The Temporary Protection Directive has introduced a practical and efficient framework to deal with mass influx situations by formalising and harmonising 105 Article 33 of the Dublin III Regulation (n 33). 106 Parallel to the easo Regulation, European Council Conclusion adopted on 8 March 2012 entitled ‘Common Framework for genuine and practical solidarity towards Member States facing particular pressures on their asylum systems, including through mixed migration flows’ puts emphasis to two main institutions to be employed in emergency situations similar to mass influx situations and these are easo and frontex. The document mentions easo and frontex in more than 3 pages and yet only cites the Temporary Protection Directive in one paragraph. See eu Council, Council Conclusions on a Common Framework for Genuine and Practical Solidarity towards Member States Facing Particular Pressures on Their Asylum Systems, Including through Mixed Migration Flows, 3151st Justice and Home Affairs Council Meeting, 8 March 2012. 107 Ineli-Ciger (n 42).

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the protection standards to be introduced in mass influx situations. Refugees and persons fleeing armed conflict, violence and systematic human rights violations can be protected within the Directive’s framework for up to three years. The Directive provides a temporary protection status that confers temporary residence permits, emergency health care, shelter, social benefits, education for minors as well as limited access to the labour market and a right to family reunification. The qualified majority voting requirement and the belief of many States that the Directive’s activation would create a pull factor for migrants seeking to enter the eu undoubtedly explains the fact that the Directive has never been implemented in its 13 years of existence. However, the Directive’s activation might not in fact substantially influence the number of persons seeking refuge in a particular Member State or in the eu as a whole. Moreover, the Council is more than capable of making arrangements to limit such possible side-effects were the Directive to be activated. When the Italian reception capacity was tested by large numbers of irregular arrivals to its shores in 2011, Italy’s calls for solidarity remained ignored. The eu offered little support and France even went as far as to reintroduce internal border controls. These developments do not bode well for the future implementation of the Directive. On the contrary, unless the interests of the majority of eu Member States are at stake, or as long as the number of persons seeking refuge in particular European States is not so overwhelming that activation of the Directive is the only choice for managing mass flows, the Directive, as it stands, will not be implemented. A solution to facilitate the Directive’s activation in future instances of mass influx could be to amend its activation mechanism. One way to do so could be to replace the Council decision requirement with an objective and clear definition of a mass influx situation. This means that once the conditions that determine a mass influx situation materialise, the Directive would be activated. The definition of a mass influx could refer to a certain number of persons arriving in a particular Member State within a specific time frame. In this case however, the Council would still have the authority to decide which groups would be eligible for temporary protection. A second, and in the author’s opinion more feasible, option would be to introduce an amendment to the Directive to lower the qualified majority requirement. This could indeed increase the chances of the Directive being implemented. A recent Communication from the Commission to the Euro­ pean Parliament of 11 March 2014 notes that: ‘In order to enhance the preparedness of the Union to handle mass influxes, the existing framework on temporary protection should be evaluated, and if necessary, amended to make

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it a more practical and flexible instrument’.108 This signals the possibility of an amendment to the complicated activation mechanism of the Directive. As previously suggested, the introduction of a more practical activation mechanism could indeed improve the chances of the Directive being implemented in the future. 108 eu Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, An Open and Secure Europe: Making It Happen, com(2014) 154 final, 11 March 2014.

chapter 8

The Recast Eurodac Regulation

Are Asylum Seekers Treated as Suspected Criminals? Niovi Vavoula 1 Introduction In June 2013, the European Union (eu) completed the second phase of the Common European Asylum System (ceas), one ‘important tool’ of which is the operation of Eurodac.1 Eurodac is a biometric database which primarily stores the fingerprints of asylum seekers2 and its rules were recently amended by Regulation 603/2013 (Recast Eurodac Regulation).3 Compared to the legal instruments adopted in the field of asylum, the Eurodac system attracts rather modest interest, perhaps due to its inherently technical nature. However, the new Regulation introduces a notable and controversial change in the operation of the database; from 20 July 2015, law enforcement authorities and Europol will be granted access to Eurodac data for the purpose of preventing, detecting and investigating terrorist offences and other serious crimes. By critically analysing eu legislation and relevant material including articles, reports, policy briefs and accompanying documents, the present contribution explores how law enforcement access to Eurodac data may affect the fundamental rights of asylum seekers and the extent to which this new functionality signifies that asylum seekers are treated as a population suspected of criminality. For the purposes of this Chapter, the focus is specifically on ­asylum seekers

1 eu Commission, ‘Identification of Asylum Seekers – eurodac Operational Tomorrow’ (2003) IP/03/37 Press Release accessed 6 December 2014. 2 See (n 12). 3 Regulation No 603/2013 of the European Parliament and of the Council of 26 June 2013 on the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of Regulation (eu) No 604/2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person and on requests for the comparison with Eurodac data by Member States’ law enforcement authorities and Europol for law enforcement purposes, and amending Regulation (eu) No 1077/2011 establishing a European Agency for the operational management of large-scale it systems in the area of freedom, security and justice (recast), oj L 180/1, 29 June 2013.

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004290167_009

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rather than on those irregular migrants whose data may also be stored in the database. The Chapter is divided into six main sections. The second section outlines the original purpose and operation of Eurodac. The third sets out the historical background behind the adoption of the recast Regulation and follows the debates regarding access by law enforcement agencies. The fourth section then examines the main rules of the recast Regulation concerning the use of the database for the purposes of criminal law. The fifth section assesses this new functionality by explaining the concerns regarding the fundamental rights of asylum seekers and how the Regulation attempts to address these concerns. It is argued that as the legislation in question contains certain problematic features and the necessity of these new measures concerning access by law enforcement agencies has not been adequately demonstrated, it appears that asylum seekers are a priori considered a group of people suspected of committing criminal offences. This analysis is followed by a conclusion summarising the main findings of the Chapter. 2

What is the Eurodac Database?

Eurodac, which stands for European Dactyloscopy, was created by Regulation (ec) 2725/20004 and supplemented by Regulation (ec) 407/2002.5 The database became operational in 2003. Its original objective was to facilitate the application of the Dublin Convention6 (which was later replaced by the Dublin Regulations)7 in order to determine which country is responsible for considering 4 Regulation No 2725/2000 of 11 December 2000 concerning the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of the Dublin Convention, oj L 316/1, 15 December 2000 (2000 Eurodac Regulation). 5 Regulation No 407/2002 of 28 February 2002 laying down certain rules to implement Regu­ lation (ec) No 2725/2000 concerning the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of the Dublin Convention, oj L 62/1, 5 March 2002. 6 Convention determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities, oj C 254/1, 19 August 1997 (entry into force: 1 September 1997). 7 Regulation No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national, oj L 50/1, 25 February 2003 (Dublin II Regulation); Regulation No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a thirdcountry national or a stateless person (recast), oj L 180/31, 29 June 2013 (Dublin III Regulation).

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an asylum application. The United Kingdom has opted in, but Denmark and Ireland are not participating.8 The Eurodac scheme comprises: (a) a Central System, initially operated by the Commission but now managed by the eu Agency for large-scale it systems,9 which is a central database in which data is processed for the purpose of comparing the fingerprints taken by participating States; and (b) a communication infrastructure between the Central System and Member States.10 Each Member State has a single National Access Point through which communication between the central and the national part is established.11 The Eurodac system operates in the following manner: every asylum seeker over the age of 14 must enter their fingerprints when they apply for international protection in accordance with Article 20(2) of the Dublin III Regulation.12 The collected fingerprints are stored in the Central System and are compared with fingerprints that have already been transmitted and stored by other participating countries. Eurodac functions on a hit/no hit basis, meaning that the transmitted data is automatically checked against other stored fingerprints and whenever there is a match a notification is given.13 If a Eurodac check reveals that the fingerprints have already been recorded in another Member State, the asylum seeker may be returned to that Member State. Apart from biometric data, the database also includes information on the sex of asylum seekers, the date of registering the fingerprints and transmitting them to the Central System and the Member State of origin.14 The fingerprints of asylum seekers are retained for a period of ten years.15 If an asylum seeker is granted international protection, their fingerprints are not automatically 8 9 10 11 12

13 14 15

Recitals 51–53 of the Recast Eurodac Regulation (n 3). Ibid, Article 4. Ibid, Article 3(1). Ibid, Article 3(2). Ibid, Article 9(1). Additionally, Eurodac stores the fingerprints of irregular migrants who have been apprehended in connection with the irregular crossing of an external eu border (Articles 14–16). The fingerprint data of individuals found illegally staying in a Member State may be transmitted to the Central System for comparison with data of applicants for international protection, but no storage is envisaged (Article 17). Ibid, Article 9. Ibid, Article 11. Ibid, Article 12; nevertheless, according to Article 13(1), if a data subject acquires the citizenship of a Member States, the data stored should be erased. The fingerprint data of irregular migrants is stored for 18 months (Article 16(1)), unless the data subject is issued with a residence document, leaves the territory of the participating States or acquires the citizenship of any Member State.

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blocked and instead are marked for a period of three years. This means that this data is still at the disposal of national authorities and, upon the expiry of the three-year period, the data is blocked until it is erased.16 For data protection and privacy issues the person’s name and nationality are not included and, thus, the individual is defined by no more than their fingerprints.17 3

The Thorny Path towards the Adoption of the Recast Regulation

The opening up of Eurodac to law enforcement authorities and Europol has been a prolonged political process. In 2004, just one year after Eurodac had become functional, the Hague Programme called for the maximisation of effectiveness and interoperability of eu information systems and ‘an innovative approach to the cross-border exchange of law enforcement information’.18 In November 2005, the Commission published a Communication stating that ‘authorities responsible for internal security could […] have access to Eurodac in well-defined cases, when there is a substantiated suspicion that the perpetrator of a serious crime had applied for asylum’.19 A few months later, the political will to grant police access to Eurodac was expressed at the G-6 meeting of March 2006 in Heiligendamm.20 The German Presidency of the first half of 2007 then pushed for the drafting of a proposal amending the Regulation of 200021 and the Commission was eventually invited to draft a proposal in June 2007.22 16 17

18 19

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Ibid, Article 18. E. Guild, ‘Unreadable Papers? The eu’s First Experiences with Biometrics: Examining Eurodac and the eu’s Borders’ in J. Lodge (ed), Are You Who You Say You Are? The eu and Biometric Borders (Wolf Legal Publishers 2007) 32. eu Council, The Hague Programme: Strengthening Freedom, Security and Justice in the European Union, oj C 53/1, 3 March 2005, 7. eu Commission, Communication from the Commission to the Council and the European Parliament on Improved Effectiveness, Enhanced Interoperability and Synergies among European Databases in the Area of Justice and Home Affairs, com(2005) 597, 24 November 2005, 8. United Kingdom House of Lords, European Union Committee, Behind Closed Doors: The Meeting of the G6 Interior Ministers in Heiligendamm – Report with Evidence (2006) 40th Report of Session 2005–6, 10. eu Council, Draft Council Conclusions on Access to Eurodac by Member State Police and Law Enforcement Authorities as well as Europol, eu Doc 10002/07, 25 May 2007. eu Council, Note from the German Delegation to Police Cooperation Working Party, Policy Document Concerning Access to Eurodac by Member States’ Police and Law Enforcement Authorities, eu Doc 16982/06, 20 December 2006, 3; eu Council, Draft Council Conclusions

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The Commission drafted no less than four proposals (in 2008,23 2009,24 201025 and 201226). However, only the proposals of 2009 and 2012 attempted to regulate the access by law enforcement authorities to Eurodac data. The proposal of 2009 introduced the possibility of law enforcement authorities having access to Eurodac in relation to ‘the prevention, detection, and investigation of terrorist offences and other serious criminal offences’.27 Due to the then pillar structure of the eu, a proposal for a third-pillar decision concerning law

23

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27

on Access to Eurodac (n 21), 3; V. Eechaudt, Access to eurodac by Law Enforcement Authorities – An Assessment (University of Groningen 2011) accessed 6 December 2014. eu Commission, Proposal for a Regulation of the European Parliament and the Council Concerning the Establishment of ‘Eurodac’ for the Comparison of Fingerprints for the Effective Application of Regulation (ec) No […/…] [Establishing the Criteria and Mechanisms for Determining the Member State Responsible for Examining an Application for Interna­ tional Protection Lodged in One of the Member States by a Third-Country National or a Stateless Person] (recast), com(2008) 825, 3 December 2008. eu Commission, Amended Proposal for a Regulation of the European Parliament and of the Council Concerning the Establishment of ‘eurodac’ for the Comparison of Fingerprints for the Effective Application of Regulation No […/…] [Establishing the Criteria and Mechanisms for Determining the Member State Responsible for Examining an Application for Interna­ tional Protection Lodged in One of the Member States by a Third-Country National or a Stateless Person] (recast), com(2009) 342, 10 September 2009; eu Commission, Proposal for a Council Decision on Requesting Comparisons with eurodac Data by Member States’ Law Enforcement Authorities and Europol for Law Enforcement Purposes, com(2009) 344, 10 September 2009 (Proposal of 2009). eu Commission, Amended Proposal for a Regulation of the European Parliament and the Council Concerning the Establishment of ‘eurodac’ for the Comparison of Fingerprints for the Effective Application of Regulation (ec) No […/…] [Establishing the Criteria and Mechanisms for Determining the Member State Responsible for Examining an Application for International Protection Lodged in One of the Member States by a Third-Country National or a Stateless Person] (recast), com(2010) 555, 11 October 2010 (Proposal of 2010). eu Commission, Amended Proposal for a Regulation of the European Parliament and of the Council on the Establishment of ‘eurodac’ for the Comparison of Fingerprints for the Effective Application of Regulation (eu) No […/…] (Establishing the Criteria and Mechanisms for Determining the Member State Responsible for Examining an Application for Interna­ tional Protection Lodged in One of the Member States by a Third-Country National or a Stateless Person) and to Request Comparisons with eurodac Data by Member States’ Law Enforcement Authorities and Europol for Law Enforcement Purposes and Amending Regu­ lation (eu) No 1077/2011 Establishing a European Agency for the Operational Manage­ment of Large-Scale it Systems in the Area of Freedom, Security and Justice (recast), com(2012) 254, 30 May 2012 (Proposal of 2012). eu Commission, Proposal of 2009 (n 24) 2–3.

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enforcement access accompanied a proposal for a first-pillar Regulation. How­ ever, the proposals were severely criticised, especially by the European Data Protection Supervisor (edps),28 and were eventually blocked by the European Parliament.29 With the entry into force of the Lisbon Treaty and the abolition of the pillar structure of the eu, the proposal for a Decision lapsed. With a view to speeding up the negotiations on the completion of the ceas the proposal of 2010 did not refer to law enforcement access to Eurodac data. However, yet again no political agreement was reached. Therefore, Austria, backed by nine other Member States, insisted on re-introducing the provisions on law enforcement access, since the issue was perceived as an important tool in combating crime.30 In May 2012, the Commission released a fourth proposal in an attempt to put an end to the Eurodac saga. After a limited period of negotiations, the European Parliament – in a profound shift in its position – backed the Council and the Recast Regulation was adopted in June 2013. 4

The Modalities of Law Enforcement Access to Eurodac

The Recast Regulation brings about a significant change in the nature and objective of the Eurodac database: national enforcement bodies and Europol are permitted to consult Eurodac data for the purposes of preventing, detecting or investigating terrorist offences or other serious crimes. Terrorist crimes correspond or are equivalent to those referred to in Articles 1 to 4 of Framework 28

29

30

edps, Opinion of the European Data Protection Supervisor on the Amended Proposal for a Regulation of the European Parliament and of the Council Concerning the Establishment of ‘eurodac’ for the Comparison of Fingerprints for the Effective Application of Regulation (ec) No […/…] [Establishing the Criteria and Mechanisms for Determining the Member State Responsible for Examining an Application for International Protection Lodged in One of the Member States by a Third-Country National or a Stateless Person], and on the Pro­ posal for a Council Decision on Requesting Comparisons with eurodac Data by Member States’ Law Enforcement Authorities and Europol for Law Enforcement Purposes, oj C 92/1, 10 April 2010 (Opinion on the Proposal of 2009). Blocking the proposal is in line with the view taken when the setting up of the database was initially negotiated according to which the use of the system must under no circumstances be extended to cover wider areas of purpose. See Council Legal Service, Advice, eu Doc 5546/93 jur 25, 18 March 1993; I. van der Ploeg, ‘The Illegal Body: “Eurodac” and the Politics of Biometric Identification’ (1999) 1 Ethics and Information Technology 295, 299. eu Council, Outcome of Proceedings of cats on 25 and 26 October 2010, eu Doc 16006/10, 9 November 2010, 2.

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Decision 2002/475/JHA,31 while serious crimes are specified in Article 2(2) of Framework Decision 2002/584/JHA,32 if they are punishable under national law by a custodial sentence or a detention order for a maximum period of at least three years.33 The first issue to be examined in this respect is which national authorities may have access to this data. The discussion here revolves around the term ‘designated’ authorities. According to Article 5 of the Recast Regulation, Member States shall designate the authorities to be granted access to Eurodac for criminal law purposes. In a definition matching the one used in the Decision granting access to law enforcement bodies to the data stored in the Visa Information System (vis),34 designated authorities are those ‘responsible for the prevention, detection or investigation of terrorist offences or of other serious criminal offences’. Agencies or units exclusively responsible for intelligence relating to national security are verbatim excluded. Furthermore, lists of the designated authorities and the operating units within the designated authorities should be drafted by each Member State. The Recast Eurodac Regulation provides that a verifying authority shall be entrusted with the role of checking that the conditions of access (see below) are fulfilled.35 This body shall be a single authority or a unit of such an authority among the bodies responsible for the prevention, detection or investigation of terrorist offences and other serious crimes. Furthermore, in accordance with Recital 30 of the Regulation, the designated and verifying authority can be within the same organization. Originally there were no clarifications as regards the nature and structure of this body. However, the European Parliament expressed concerns regarding the autonomy of such a body in performing its tasks. It thus proposed an explicit reference to the need for independence of the authority, which should not receive instructions from the designated

31 32 33 34

35

Council Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism, oj L 164/3, 22 June 2002. Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, oj L 190/1, 18 July 2002. Article 2(1)(k) of the Recast Eurodac Regulation (n 3). Compare with Article 2(1)(e) of Council Decision 2008/633/JHA of 23 June 2008 concerning access for consultation of the Visa Information System (vis) by designated authorities of Member States and by Europol for the purposes of the prevention, detection and investigation of terrorist offences and of other serious criminal offences, oj L 218/129, 13 August 2008 (vis Decision). Article 6 of the Recast Eurodac Regulation (n 3).

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authorities regarding the outcome of the verification process.36 In recognition of the danger, this suggestion was incorporated in the final wording of Article 6. However, there seems to have been a particularly strong concern about this threat, as the reference to the independence of the verifying authority is emphasised by its replication thrice in the Preamble37 and a fourth time in Article 6.38 As for Europol access, a specialised unit within the organization but acting independently will take the role of the verifying authority.39 If the designated authorities and Europol wish to request comparison of fingerprint data with that already stored in Eurodac, they must follow a specific procedure. In particular, according to Article 19(1), they must submit a reasoned electronic request to the verifying authority via the National Access Point. After verification that the conditions for the request are met, the National Access Point will process the request transmitted by the verifying authority to the Eurodac Central System.40 It is noteworthy that once the verifying authority has determined that the conditions are fulfilled there is no other mechanism to ensure compliance with eu standards, because the verifying authority does not transmit the reasons provided by the designated authorities to the National Access Point.41 Furthermore, in exceptional urgent cases, in order to prevent an imminent danger relating to a terrorist offence or other serious crime, a request can be transmitted to the National Access Point for comparison and verification that the conditions were met will be provided ex-post and ‘without unduly delay’.42 The wording of this provision 36

37 38

39 40 41 42

eu Council, Note from General Secretariat to Permanent Representatives Committee (Part II), Amended Proposal for a Regulation of the European Parliament and of the Council on the Establishment of ‘eurodac’ for the Comparison of Fingerprints for the Effective Application of Regulation (eu) No. […/…] (Establishing the Criteria and Mechanisms for Determining the Member State Responsible for Examining an Application for International Protection Lodged in One of the Member States by a Third-Country National or a Stateless Person) and to Request Comparisons with eurodac Data by Member States’ Law Enforce­ ment Authorities and Europol for Law Enforcement Purposes and Amending Regulation (eu) No 1077/2011 Establishing a European Agency for the Operational Management of Large-Scale it Systems in the Area of Freedom, Security and Justice (recast), eu Doc 7476/13, 15 March 2013. Twice in Recital 29 and once in Recital 30 of the Recast Eurodac Regulation (n 3). In accordance with Article 43 of the Recast Regulation (ibid), Member States and Europol should have notified the Commission regarding the designated authorities and the verifying authority by 20 October 2013. As of February 2015, such publication had not taken place. Ibid, Article 7(1). Ibid, Article 19(2). Ibid, Recital 29. eu Commission, Proposal of 2012 (n 26) Article 19(3).

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was adopted at the behest of the European Parliament,43 since the proposal did not include any remark as to what qualifies as an exceptional case of urgency, a point that could potentially lead to diverging interpretations and uncertainty.44 With reference to the conditions of access, national authorities are not given a carte blanche. Requests for consulting Eurodac data are permitted ‘in specific cases and when it is necessary for the purposes of preventing, detecting or inves­ tigating terrorist offences or other serious criminal offences’.45 Fur­ thermore, the specificity of a case arises in particular when the request for comparison is connected to a specific and concrete situation or to a specific and concrete danger associated with a terrorist offence or other serious criminal offence, or to specific persons in respect of whom there are serious grounds for believing that they will commit or have committed any such offence. In addition, a specific case exists when the request for comparison is connected to a person who is the victim of a terrorist offence or other serious criminal offence.46 According to Article 20(1) of the Recast Regulation, three conditions must be fulfilled before the designated authorities may have recourse to Eurodac data. First, they must have consulted national fingerprint databases, as well as the automated fingerprinting identification systems (afis) of other Member 43

44

45 46

eu Council, Note from Presidency to jha Counsellors, Amended Proposal for a Regulation of the European Parliament and of the Council on the Establishment of ‘eurodac’ for the Comparison of Fingerprints for the Effective Application of Regulation (eu) No. […/…] (Establishing the Criteria and Mechanisms for Determining the Member State Responsible for Examining an Application for International Protection Lodged in One of the Member States by a Third-Country National or a Stateless Person) and to Request Comparisons with eurodac Data by Member States’ Law Enforcement Authorities and Europol for Law Enforcement Purposes and Amending Regulation (eu) No 1077/2011 Establishing a European Agency for the Operational Management of Large-Scale it Systems in the Area of Freedom, Security and Justice (recast), eu Doc 5155/13, 11 January 2013. edps, Opinion of the European Data Protection Supervisor on the Amended Proposal for a Regulation of the European Parliament and of the Council on the Establishment of ‘euro­ dac’ for the Comparison of Fingerprints for the Effective Application of Regulation (eu) No […/…] (recast Version), oj C 28/3, 30 January 2013 (executive summary), para 54 (Opinion on the Proposal of 2012); Standing Committee of Experts on International Immigration, Refugee and Criminal Law (Meijers Committee), Note on the Proposal for a Regulation on the Establishment of Eurodac (com(2012)254), cm1216, 10 October 2012, 5–6 (Note on the Proposal of 2012). Recital 31 of the Recast Eurodac Regulation (n 3). Ibid. Compare with eu Council, Note from the German Delegation (n 22) according to which law enforcement access could be ‘based on factual indications for believing that the data subject has committed or will commit a [serious] criminal offence’.

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States pursuant to Decision 2008/615/JHA (Prüm Decision)47 and the vis, and such consultation must have been futile. In the case of afis, such comparisons must have taken place where technically available, unless there are reasonable grounds to believe that a comparison with such systems will not lead to the establishment of the identity of the data subject.48 As Recital 32 explains, this situation may arise when ‘a case does not present any operational or investigative link to a given Member State’. Besides, the need to implement the Prüm Decision is a prerequisite for granting access to Eurodac data. Furthermore, in addition to consulting the aforementioned databases, the Regulation requires that the comparison must be necessary for the purpose of the prevention, detection or investigation of terrorist offences or of other serious criminal offences, which means that there must be an overriding public security concern which makes the searching of the database proportionate. The comparison must be necessary in a specific case and there must be reasonable grounds to consider that the comparison will substantially contribute to the prevention, detection or investigation of any of the criminal offences in question.49 Such reasonable grounds exist in particular where there is a substantiated 47

48

49

Council Decision 2008/615/JHA of 23 June 2008 on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime, oj L 210/1, 6 August 2008. This provision partly reflects the opinion of certain Member States (Germany, Finland and Austria) which suggested that instead of a comprehensive procedure including a comparison with all Member States’ national databases, targeted Prüm queries should suffice according to the specifics of each case. See eu Council, Note from General Secretariat of the Council of the eu to Asylum Working Party, Amended Proposal for a Regulation of the European Parliament and of the Council on the Establishment of ‘euro­ dac’ for the Comparison of Fingerprints for the Effective Application of Regulation (eu) No. […/…] (Establishing the Criteria and Mechanisms for Determining the Member State Responsible for Examining an Application for International Protection Lodged in One of the Member States by a Third-Country National or a Stateless Person) and to Request Comparisons with eurodac Data by Member States’ Law Enforcement Authorities and Europol for Law Enforcement Purposes and Amending Regulation (eu) No 1077/2011 Establishing a European Agency for the Operational Management of Large-Scale it Systems in the Area of Freedom, Security and Justice (recast), eu Doc 14559/12, 4 October 2012. The addition of the word ‘substantially’ was the subject of debate. In the Proposal of 2009 this reference is included, yet in the Proposal of 2012 was omitted although such reference would correspond to the wording of Article 5(1)(c) of the vis Decision (n 34). For criticism, edps, Opinion on the Proposal of 2012 (n 44) para 57; Meijers Committee, Note on the Proposal of 2012 (n 44) 6; eu Council, Note from Presidency to jha Counsellors (n 43) 134.

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s­ uspicion that the suspect, perpetrator or victim of a terrorist offence or other serious criminal offence is an asylum seeker whose data is recorded in the database. No routine access to the databases is allowed, which means that unless these conditions are fulfilled law enforcement authorities may not have access to Eurodac data as part of their investigative powers. As for the conditions of access by Europol, Article 21(1) of the Regulation prescribes that comparison of fingerprint data is allowed within the limits of Europol’s mandate and when it is necessary for the performance of the Agency’s tasks. In addition, comparisons with fingerprint data stored in any information processing systems that are technically and legally accessible by Europol must not have led to the establishment of the identity of the data subject. Furthermore, the comparison must be necessary in order to support and strengthen action by Member States in preventing, detecting or investigating terrorist offences or other serious criminal offences falling under Europol’s mandate. This means that in this case there must also be an overriding public security concern, which makes the searching of the database proportionate. The remaining conditions are the same as for Member States. Besides, the Member State which recorded the data must authorise the processing of data by Europol.50 In comparison with the proposal of 2012, the conditions for access by Europol have been largely improved and elaborated in order to match the respective conditions for Member States’ authorities and address a number of the concerns that were raised.51 Moreover, transfers of data to third countries, international organisations or private entities established in or outside the eu are forbidden.52 This prohibition also applies if the data is processed further at the national level or between Member States pursuant to Framework Decision 2008/977/JHA.53 Furthermore, personal data which originated in a Member State and is exchanged between Member States following a hit should not be transferred to third countries if there is a serious risk that as a result of such transfer the data subject may be subjected to torture, inhuman and degrading treatment or punishment or any 50 51

52 53

Article 21(3) of the Recast Eurodac Regulation (n 3). Europol, Joint Supervisory Body, Opinion of the Joint Supervisory Body of Europol with Respect to the Amended Proposal for a Regulation of the European Parliament and of the Council on the Establishment of eurodac, Opinion 12/52, 10 October 2012, 5–6; edps, Opinion on the Proposal of 2012 (n 44) paras 58–59; eu Council, Note from Presidency to jha Counsellors (n 43) 135–136. Article 35(1) of the Recast Eurodac Regulation (n 3). Council Framework Decision 2008/977/JHA of 27 November 2008 on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters, oj L 350/60, 30 December 2008.

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other violation of their fundamental rights.54 Nevertheless, these provisions do not apply to third States to which the Dublin III Regulation55 applies.56 As explained in Recital 41, the prohibitions serve to ensure the right to asylum and to protect asylum seekers from having their personal data processed by a third country. This is why the same Recital clarifies that, apart from fingerprint data, other data stored in the database must not be transferred. The rules on transfers of data to third parties were adopted under pressure from the European Parliament,57 which sought to address concerns regarding the ambiguity of the previous wording of the Proposal which appeared to allow for loopholes which could potentially result in asylum seekers’ data ending up in third countries.58 Other provisions of the Regulation which are of interest include the possibility for law enforcement authorities to conduct searches of Eurodac based on latent fingerprints. These are the fingerprints left on a surface which was touched by an individual and may be found in a crime scene.59 This is the first time that latent fingerprints can be used for search purposes; the legislative framework of the vis does not provide for such possibility. Additionally, asylum seekers should be informed on how their personal data shall be used including the possibility of the data being used for criminal law purposes.60 As for data protection rules, Framework Decision 2008/977/JHA61 is the 54 55 56 57 58

59 60 61

Article 35(2) of the Recast Eurodac Regulation (n 3). See (n 7). Article 35(3) of Decision 2008/977/JHA (n 53). eu Council, Note from Presidency to jha Counsellors (n 43) 197. It was suggested that transfer of data could take place after a ‘hit’ under Framework Decisions 2008/977/JHA and 2006/960/JHA. See edps, Opinion on the Proposal of 2012 (n 44) para 43; Meijers Committee, Note on the Proposal of 2012 (n 44) 6; United Nations High Commissioner for Refugees (unhcr), An Efficient and Protective Eurodac – unhcr Comments on the Commission’s Amended Proposal for a Regulation of the European Parliament and of the Council on the Establishment of ‘eurodac’ for the Comparison of Fingerprints for the Effective Application of Regulation (eu) No […/…] (Establishing the Criteria and Mechanisms for Determining the Member State Responsible for Examining an Application for International Protection Lodged in One of the Member States by a ThirdCountry National or a Stateless Person) and to Request Comparisons with eurodac Data by Member States’ Law Enforcement Authorities and Europol for Law Enforcement Purposes and Amending Regulation (eu) No 1077/2011 Esta­blishing a European Agency for the Operational Management of Large-Scale it Systems in the Area of Freedom, Security and Justice (recast) (unhcr 2012) 7–8. As mentioned in Recital 14 of the Recast Eurodac Regulation (n 3), the use of latent fingerprints is a ‘fundamental facility for police cooperation’. Ibid, Article 29. See (n 53).

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lex generalis,62 but where the Regulation itself provides for data protection safeguards, it prevails as lex specialis. Finally, the lawfulness of processing asylum seekers’ data is supervised by national supervisory authorities and the edps.63 5

Assessing the Use of Eurodac Data for Law Enforcement Purposes

5.1 Data Protection, Privacy and Beyond Since the beginning of discussions on law enforcement access to Eurodac data, numerous academics,64 the United National High Commissioner for Refugees (unhcr)65 and the edps66 have condemned the deviation from the original purpose of the database and the significant implications of this deviation for the fundamental rights of asylum seekers. Much of this criticism centred on the purpose limitation principle and the possibility of function creep.67 This is perhaps the most important principle of data protection law and is enshrined in Article 5(b) of the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data,68 Article 6 of Directive 95/46/EU69 and Article 3 of Framework Decision 2008/977/JHA.70 According to this principle, personal data should be collected for specified, explicit and legitimate purposes and must be processed for the same purpose for which it has been 62 63 64

65 66 67

68 69

70

Recital 39 and Article 33 of the Recast Eurodac Regulation (n 3). Ibid, Articles 30 and 31 respectively. For example E. Brouwer, Digital Borders and Real Rights – Effective Remedies for ThirdCountry Nationals in the Schengen Information System (Martinus Nijhoff 2008) 118–125; M. Tzanou, The Added Value of Data Protection as a Fundamental Right in the eu Legal Order in the Context of Law Enforcement (PhD Thesis European University Institute 2012) 1­ 94–199; Standing Committee of Experts on International Immigration, Refugee and Criminal Law (Meijers Committee), Note on the Proposal of the jha Council to Give Law Enforcement Authorities Access to Eurodac, CM0712-IV, 18 September 2007 (Note of 2007); see (n 44). unhcr, An Efficient and Protective Eurodac (n 58). edps, Opinion on the Proposal of 2009 (n 28) and Opinion on the Proposal of 2012 (n 44). For an analysis on the purpose limitation principle see among others E. Brouwer, ‘Legality and Data Protection Law: The Forgotten Purpose of Purpose Limitation’ in L. Besselink, F. Pennings and S. Prechal (eds), The Eclipse of the Legality Principle in the European Union (Kluwer Law International 2011) 273–294. Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, ets No 108, 28 January 1981 (entry into force: 1 October 1985). Directive 95/46/EU of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, oj L 281/31, 23 November 1995. See (n 53).

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collected. In the context of law enforcement, personal data may be processed for other purposes only if they are compatible with the original purpose and the principles of necessity and proportionality have been respected.71 Undoubtedly, the use of asylum seekers’ fingerprints for law enforcement purposes signifies a radical transformation of the database from a merely administrative tool to an instrument of criminal intelligence gathering.72 Biometric data will be collected for an additional purpose which is related to criminal investigations and it is not administrative in nature. Indeed, the original con­ ceptualisation of the database was directly linked to the Dublin system for preventing multiple asylum applications and at that time police access to the information was not contemplated. This deviation from the original purpose of the database signifies an interference with the right to data protection as encompassed in Article 8 of the eu Charter for Fundamental Rights.73 Furthermore, as the European Court of Human Rights (ECtHR) explained in Leander v Sweden,74 Rotaru v Romania,75 and Weber and Savaria v Germany,76 access by competent national authorities to such data constitutes a further interference with the fundamental right of private life under Article 8 of the European Convention of Human Rights (echr).77

71 72

73

74 75 76 77

Ibid, Article 3. edps, Opinion of the edps on the Communication from the Commission to the European Parliament and the Council – ‘Overview of Information Management in the Area of Freedom, Security and Justice’, oj C 355/16, 29 December 2010. Another interesting view is from Thomas Hammarberg who has pointed out that the purpose limitation principle requires that data collected for one specific purpose can only be used for another purpose if the data could have been independently collected for that second purpose; See Council of Europe, Commissioner for Human Rights, Protecting the Right to Privacy in the Fight against Terrorism, CommDH/IssuePaper(2008)3, 4 December 2008. Article 8 of the eu Charter (oj C 364/01, 18 December 2000 (entry into force: 1 December 2009)) mentions the following principles: (1) fair processing; (2) purpose specification (which is very closely linked to the purpose limitation principle); (3) the person concerned must have given their consent or there must be some other legitimate basis laid down by law; (4) the right of access to the data; (5) the right to have the data rectified and (6) supervision by an independent authority. Nevertheless, it should be pointed out that there is no definite list of data protection principles. A consolidated list of the most important principles can be found in Brouwer, Digital Borders and Real Rights (n 64) 204–205. Leander v Sweden Appl no 9248/81 (ECtHR, 26 March 1987) para 48. Rotaru v Romania Appl no. 28341/95 (ECtHR, 4 May 2000) para 46. Weber and Savaria v Germany Appl no. 54934/00 (ECtHR, 29 June 2006) para 79. echr, ets No 005, 4 November 1950 (entry into force: 3 September 1953).

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However, law enforcement access to Eurodac has also raised concerns for other reasons: first, asylum seekers are a particularly vulnerable group of people and thus require a high level of protection.78 On the basis of the Eurodac Regulation, it will be possible for an asylum seeker to be identified from a crime scene if their fingerprints are found, a possibility which does not exist for other categories of individuals since no such databases for other groups of people exist.79 The ruling of the Court of Justice of the European Union (cjeu) in the Huber case is useful in this regard.80 The case involved a German register which stored the personal data of foreign citizens, including eu nationals, living in Germany. The information was used for various purposes, such as the determination of lawful residence and law enforcement, but no comparable database for German nationals existed. The Court held that the systematic processing of personal data relating only to non-nationals for the purposes of combating crime was discriminatory on the ground of nationality.81 Moreover, law enforcement access could lead to increased stigmatisation of asylum seekers.82 The mere existence of the possibility of law enforcement authorities and Europol to have access to Eurodac data indicates that asylum seekers are considered as de facto persons suspected of criminality. This perception may influence the way society treats such individuals. Asylum seekers who have committed no crime could face a greater likelihood of being involved in criminal investigations than other individuals whose biometric data is not collected, stored and processed for the sole reason of having applied for asylum. This increased exposure of asylum seekers to criminal investigation disregards the principle of the presumption of innocence and could potentially fuel acts of xenophobia and racism on the basis of false notions that asylum seekers are intrinsically connected with serious crime and terrorism.83 This may also have a negative impact in other aspects of the lives of asylum seekers, as often 78 79

80 81 82

83

edps, Opinion on the Proposal of 2009 (n 28) para 17; edps, Opinion on the Proposal of 2012 (n 44) paras 37–38; unhcr, An Efficient and Protective Eurodac (n 58) 10–11. edps, Opinion on the Proposal of 2012 (n 44) para 38. This distinguishes Eurodac from the vis and the second generation Schengen Information System (sis II) because there is no singling out as a group of particular interest and scrutiny; unhcr, An Efficient and Protective Eurodac (n 58) 11. Case C-524/06 Heinz Huber v Bundesrepublik Deutchland [2008] ecr I-9705. Ibid, paras 75–81. Meijers Committee, Note of 2007 (n 64) 3; edps, Opinion on the Proposal of 2009 (n 28) para 47; edps, Opinion on the Proposal of 2012 (n 44) para 39; Meijers Committee, Note on the Proposal of 2012 (n 44) ch. 1; unhcr, An Efficient and Protective Eurodac (n 58) 10–11. unhcr, An Efficient and Protective Eurodac (n 58) 10–11.

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police records (even if the person is found innocent) are consulted for potential employment or housing. As a result, they may face difficulties with regard to integration.84 Additionally, extending access to Eurodac data by law enforcement authorities may affect the right of asylum seekers to request international protection as prescribed in Article 18 of the eu Charter of Fundamental Rights.85 Even though asylum seekers are informed that their personal data may be used by law enforcement authorities, it should be recalled that they may have suffered abuse by police authorities in their countries of origin. Consequently, they may not feel at ease when asked to enter their fingerprints knowing that this data may end up in the hands of the police. As the collection of fingerprints is compulsory asylum seekers are left with two choices; either apply for asylum and have their data open to access by the police or not apply for international protection at all. Hence, law enforcement access to Eurodac data interferes with the rights to private life (Article 8 echr and Article 7 of the Charter), to data protection (Article 8 of the Charter) and international protection (Article 18 of the Charter) and is problematic with reference to the principle of non-discrimination. Given the profound deviation from the original purpose of data collection that these measures relating to access for law enforcement agencies represent, as well as the vulnerability of asylum seekers and associated risk of stigmatization and being singled out as a group of particular interest for criminal enforcement, it could be argued that the interference to the rights of asylum seekers is particularly serious. This means that when the Regulation stipulates the proportionality and necessity of law enforcement access, the margin of discretion for the EU legislator is significantly limited. How Does the Recast Regulation Address Concerns regarding Fundamental Rights? Recital 13 of the Recast Regulation concedes that access to Eurodac for criminal law objectives, ‘constitutes a change of the original purpose […] which interferes with the fundamental right to respect for the private life of individuals whose personal data are processed’.86 When assessing whether this interference

5.2

84

85 86

Ibid. The risk of stigmatisation was scrutinised by the Strasbourg Court in S. and Marper v the United Kingdom (Appl nos 30562/04 and 30566/04 (ECtHR, 4 December 2008)) where it was held that fingerprints are ‘capable of affecting the private life of an individual and the retention of this information without their consent cannot be regarded as neutral or insignificant’ (para 84). Meijers Committee, Note on the Proposal (n 44) 3. Emphasis added.

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breaches the right to private life, the eu legislator takes the same approach as the Strasbourg Court when dealing with Article 8 cases.87 In particular, the same Recital states that it needs to be examined: whether the interference is in accordance with the law, which must be formulated with sufficient precision to allow individuals to adjust their conduct and it must protect individuals against arbitrariness and indicate with sufficient clarity the scope of discretion conferred on the competent authorities and the manner of its exercise, whether the interference is necessary in a democratic society and whether there is a legitimate aim. The references to the right to private life do not end here. In order to clarify the proportionality of a measure, Recital 15 mentions that there must be in place ‘necessary safeguards to ensure protection of the fundamental right to respect for the private life of individuals whose personal data are processed’ in the context of access by law enforcement agencies. In particular, the strictness of the conditions of such access demonstrates that the individuals concerned ‘are not presumed to have committed a terrorist offence or other serious criminal offence’. From the wording of these recitals, it seems that the right to private life is given priority over the right to data protection when assessing the new functionality of the database. Accordingly, the change of purpose is interpreted as a privacy issue rather than a data protection one. Furthermore, the Preamble makes only limited references to the right to data protection, in particular that the Regulation respects the rights encompassed in the Charter, namely the right to data protection and the right to asylum.88 Similarly, any reference to data protection principles, such as the purpose limitation, is absent from the Regulation. Moreover, when assessing compliance with the right to private life, the Regulation refers to the strictness of the conditions for access in order to demonstrate that asylum seekers are not presumed to have committed a terrorist act or other serious offences. The strict conditions of access are intended to prove that asylum seekers are not treated as suspected criminals and terrorists. 87

88

This is in line with Article 52(3) of the Charter (n 73) which provides: ‘In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection’. Recital 50 of the Recast Eurodac Regulation (n 3).

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The emphasis of the Regulation on the right to private life should not be underestimated. The relationship between data protection and privacy has been the subject of extensive legal debate.89 De Hert and Gutwirth note that the two rights have different rationale, scope and logic; privacy is conceived as a tool of opacity and aims to protect individuals against illegitimate and excessive use of power, while data protection regulates how personal data can be processed legitimately.90 In contrast, Louvroy and Roullet regard both rights as tools through which human dignity and the right to individual personality are pursued.91 Furthermore, since the echr provides only for the right to private life, the ECtHR views data protection as part of this right.92 At the eu level, the Charter separates the two concepts and elevates data protection to the status of a fully-fledged right next to the right to privacy (Articles 7 and 8). Perceiving the change of purpose of Eurodac as a privacy problem is in conformity with the view of ECtHR that data protection principles are regulatory tools for examining compliance with the right to privacy. This approach also conforms with the view of the cjeu in Digital Rights v Ireland, a case concerning the validity of Directive 2006/24/EC on the retention of telecommunications data.93 It therefore appears that, by regarding the Eurodac problem as primarily a privacy problem where data protection safeguards are used as a means of ensuring that the right to privacy is respected, the eu legislator takes a stand as regards the relationship between the two rights. Furthermore, this approach marks a significant deviation from that taken when adopting the legislative framework on the vis; the latter refers only to the need for compliance with data protection law and the right to private life is neglected.94 Given the similar nature of 89

A concise overview of the different theories and their shortcomings is provided by Tzanou (n 64) 46–53. 90 P. De Hert and S. Gutwirth, ‘Privacy, Data Protection and Law Enforcement. Opacity of the Individual and Transparency of Power’ in E. Claes, A. Duff and S. Gutwirth (eds), Privacy and the Criminal Law (Intersentia 2006) 61–104. 91 A. Rouvroy and Y. Poullet, ‘The Right to Informational Self-Determination and the Value of Self-Development: Reassessing the Importance of Privacy for Democracy’ in S. Gutwirth, Y. Poullet, P. de Hert, C. de Terwangne and S. Nouwt (eds), Reinventing Data Protection? (Springer 2009) 45–76. 92 See (n 74, 75, 76 and 84) (among other cases). 93 Joined Cases C-293/12 Digital Rights Ireland Ltd v Ireland and C-594/12 Kärntner Landesregierung, Seitlinger, Tschohl and others, Judgment of 8 April 2014 (not yet reported). At para 53 the Court notes that the protection of personal data is ‘especially important for the right to respect for private life’. Then, in paras 54–68, it uses the data protection safeguards to assess whether the Directive violates the right to private life. 94 Recital 8 of vis Decision (n 34).

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both databases, this inconsistency is difficult to explain. As for the predominant importance of the right to private life over data protection, De Hert and Gutwirth are correct in arguing that data protection law presumes that national authorities can process personal data and, therefore, its rules focus on how this data should be lawfully processed. In contrast, the right to private life concentrates on the person and due to its more general and flexible nature may provide more holistic protection to individuals.95 Overall, one cannot deny that the conditions of access to Eurodac data for law enforcement purposes are clearly specified and carefully drafted. This achievement was at the behest of the European Parliament, which despite its limited period of negotiations with the Council – the proposal was released in May 2012 and the Regulation was adopted 13 months later – managed to vigorously negotiate numerous provisions of the Recast Regulation. In comparison with the original proposal, plenty thorny issues were addressed and certain safeguards were put into place or significantly strengthened.96 A comparison with the respective rules on law enforcement access to the vis also reveals significant differences. This means that the vulnerable position of asylum seekers was indeed taken into consideration. Recital 15 refers to the strict conditions of access by Member States and Europol to the stored data; however, these were not the only victories for the Parliament, which managed to largely clarify the delicate issue of transfer of data to third parties and to add explicit references concerning the independence of verifying authorities.97 5.3 Revisiting the Proportionality of Law Enforcement Access Although some challenging aspects of the Regulation were addressed during the negotiations, this does not mean that the instrument is not problematic in other respects. First, the possibility of transferring data in the criminal law context to countries where the Dublin III Regulation applies remains intact 95 96

97

V. Mitsilegas, ‘The Value of Privacy in an Era of Security: Embedding Constitutional Limits on Preemptive Surveillance’ (2014) 8 Int’l Pol Soc 100, 106. In particular, the conditions of access with regard to Europol referred vaguely to the general mandate of the Agency (Article 21 of the Proposal); there was no reference to the independence of the verifying authority (Article 6 of the Proposal); national intelligence authorities were not excluded from searching the database (Article 5 of the Proposal). Even though the Parliament succeeded in highlighting a number of concerns, it should be remembered that a very similar proposal for a Recast Eurodac Regulation, which included the possibility for law enforcement access to Eurodac data, was blocked in 2009. In this sense, the change of the position of the Parliament may be considered as a failure of the institution to effectively protect asylum seekers as it did with the Proposal of 2009.

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despite warnings from the edps that any transfer should be ruled out when fingerprint data is used for law enforcement purposes.98 A second problem relates to the type of national body that qualifies as a competent authority for the purpose of the Regulation. This is a recurring issue that has also emerged in the context of the vis.99 The definition of a ‘designated’ authority is insufficient, vague and leaves large amount of discretion to Member States to designate any authority they consider related to law enforcement. The sole requirement is the prior publication of a list of these bodies in the Official Journal which, nevertheless, is not controlled at eu level. As for the exclusion of national intelligence authorities, although this is certainly a welcome development, particularly because in the proposal this possibility was not ruled out, the eu does not have competence to legislate on issues of national security. It is therefore unclear how this provision will be enforced.100 Perhaps the most worrisome aspect relates to the functioning of the verifying authority. The respective provisions of the Regulation are problematic in several respects; first, the verifying authority is a law enforcement authority, which may also form part of the same organisation as the agency seeking access. This policy choice may seem to make practical sense, as the verifying authority could perhaps better understand the needs of a criminal investigation. However, it is likely that the decision regarding the fulfilment of conditions could be biased, particularly if the officials involved are situated within the same organisation and/or the same premises. The multiple references to the independence of the verifying authority in reaching their decisions which are spread throughout the Regulation, may prove inadequate. This is because once the verifying authority has concluded that the conditions of access have been fulfilled, there is no other mechanism to ensure that this assessment was indeed accurate. The verifying authority merely needs to transmit the request to the National Access Point without mentioning the reasons for the decision. It would have been preferable if the examination of the conditions for access was conducted by a judicial or national supervisory authority, or at least a review of the conditions by these authorities could take place. This would have been in line with the Judgment of the cjeu in Digital 98

edps, Opinion on the Proposal of 2012 (n 44) para 44. Ireland participates in the Dublin III Regulation (n 7) but not in the Eurodac Regulation (n 3). 99 V. Mitsilegas, ‘The Border Paradox: The Surveillance of Movement in a Union without Internal Frontiers’ in H. Lindahl (ed), A Right to Inclusion and Exclusion? Normative Faultlines of the eu’s Area of Freedom, Security and Justice (Hart Publishing 2009) 58. 100 C. Jones, Analysis – 11 Years of Eurodac (Statewatch 2014) accessed 6 December 2014.

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Rights v Ireland,101 according to which access to data by the competent national authorities should be made dependent on a prior review carried out by a court or an independent administrative body.102 Hence, the current wording of the provisions does not restrict the powers of the verifying authority in an effective manner. This could result in the strict wording of the provisions being ineffective in practice, and asylum seekers’ data processed for law enforcement purposes more systematically than intended. Furthermore, the possibility of consulting Eurodac for law enforcement purposes does not end with an asylum seeker’s acquisition of refugee status. As mentioned above, pursuant to Article 18 of the Recast Regulation, the data of beneficiaries of international protection are marked by the Member State which granted protection.103 This means that, for an additional period of three years starting from the date on which the asylum seeker was granted international protection, the data remains at the disposal of designated authorities and Europol. This is a novelty of the Regulation, since under the former regime when an asylum seeker was granted international protection their data was immediately blocked and no further use of the data could take place.104 Hence, the marking of data is an intermediate stage between the full use of the data of beneficiaries of international protection and the complete blocking of use of this data. This change in approach indicates that the cloud of suspicion also covers third-country nationals who have been officially recognised as particularly vulnerable and in need of protection. Finally, searches in the database based on latent fingerprints run counter to the data quality principle, which is a key principle of data protection law. This is because such searches may lead to a high number of possible matches, given the wider range of possible correlations with partial or fragmentary prints105 Furthermore, the rates of error (false matches) could increase and this could result in adverse consequences for innocent asylum seekers who may be wrongfully implicated in criminal investigations.106 Therefore, it becomes clear that despite the strictness of conditions of access to such data, numerous other provisions of the Regulation appear to be problematic and thus constitute a disproportionate intrusion in asylum seekers’

101 Digital Rights v Ireland (n 93). 102 Ibid, para 62. 103 See (n 16). 104 Article 12 of the 2000 Eurodac Regulation (n 4). 105 edps, Opinion on the Proposal of 2012 (n 44) para 61. 106 Ibid. unhcr, An Efficient and Protective Eurodac (n 58) 5–6.

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private lives. Consequently, the argument that asylum seekers are not considered to be suspected terrorists or criminals because the conditions of access are strict is seriously called into question. Examining the Necessity of Law Enforcement Access: Flawed Design of National Databases or a Flawed Perception of Asylum Seekers? As regards the proportionality stricto sensu of law enforcement access, the eu legislator attempted, albeit unsuccessfully, to provide for strict conditions of access to counterbalance the interference. However, it is striking that references to the necessity of the measure of granting such access to law enforcement agencies are minimal. The explanatory memorandum attached to the Proposal of 2012 mentioned that including law enforcement access for Eurodac ‘is needed as part of a balanced deal on the negotiations of the Common European Asylum System package’.107 In addition, the Recital 8 of the Recast Regulation states:

5.4

It is essential in the fight against terrorist offences and other serious criminal offences for the law enforcement authorities to have the fullest and most up-to-date information if they are to perform their tasks. The information contained in Eurodac is necessary for the purposes of the prevention, detection or investigation of terrorist offences…or other serious criminal offences. A connection between asylum seekers and criminality such as that inevitably made by the Regulation implies that asylum seekers as a group of people are targeted for compelling reasons and that such reasons ought to be adequately explained. The view of the edps in his Opinion on the Proposal of 2012 eloquently illustrates the problem: ‘It appears that the Commission understands this proposal as a technical exercise’.108 The edps further pointed out that: Just because the data has already been collected, it should not be used for another purpose which may have far-reaching negative impact on the lives of individuals. To intrude upon the privacy of individuals and risk stigmatising them requires strong justification and the Commission has simply not provided sufficient reason why asylum seekers should be singled out for such treatment.109 107 eu Commission, Proposal of 2012 (n 26) 3. 108 edps, Opinion on the Proposal of 2012 (n 44) para 13. 109 Ibid.

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This is true; both the Proposals of 2009 and 2012 did not provide sufficient and clear evidence that a link between asylum seekers and criminality exists. On the one hand, the impact assessment for the 2009 Proposal110 did not include concrete justifications as to how the proposal complies with fundamental rights. Neither did it provide for specific examples where access to Eurodac by law enforcement authorities and Europol would be beneficial. The impact asses­ sment merely explained that other instruments in place were insufficient and impractical in comparing fingerprints for the purpose of criminal investigation. It was pointed out that searching fingerprints through the national afis of other Member States using the Prüm Decision was not fully reliable because some Member States may not store the fingerprints of asylum seekers in their national afis unless they were related to crime. Moreover, Framework Decision 2006/960/JHA could only be used to collect data on asylum seekers if there were factual reasons to believe that the information was actually available in a specific Member State,111 while mutual legal assistance112 could be time consuming.113 However, the prioritisation of the implementation of already existing opportunities for information exchange should have taken place before creating new channels for exchanging information. Given the significant implications in terms of fundamental rights, a thorough evaluation of existing instruments should have been carried out so as to ensure they were indeed insufficient. This would have been in line with the Stockholm Programme, where it is highlighted that ‘increased attention needs to be paid in the coming years to the full and effective implementation, enforcement and evaluation of existing instruments’.114 110 eu Commission, Commission Staff Working Document – Accompanying Document to the Amended Proposal for a Regulation of the European Parliament and the Council Concerning the Establishment of ‘Eurodac’ for the Comparison of Fingerprints for the Effective Application of Regulation No […/…] [Establishing the Criteria and Mechanisms for Determining the Member State Responsible for Examining an Application for International Protection Lodged in One of the Member States by a Third-Country National or a Stateless Person] (Recast ver­ sion) and to the Proposal of a Council Decision on Requesting Comparisons with eurodac Data by Member States’ Law Enforcement Authorities and Europol for Law Enforcement Purposes – Impact Assessment, sec(2009) 936, 1 September 2009, 8. 111 Council Framework Decision 2006/960/JHA of 18 December 2006 on simplifying the exchange of information and intelligence between law enforcement authorities of the Member States of the European Union, oj L 386/89, 29 December 2006. 112 European Convention on Mutual Assistance in Criminal Matters, ets No 030, 20 April 1959 (entry into force: 12 June 1962). 113 edps, Opinion on the Proposal of 2012 (n 44) 5–6. 114 eu Council, Stockholm Programme – An Open and Secure Europe Serving and Protecting Citizens, eu Doc 17024/09, 2 December 2009.

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The Proposal of 2012 was not accompanied by a fresh impact assessment but was merely based on the findings of the first one, despite the fact this was harshly criticised. Since the first attempt to allow law enforcement access to the database was met with criticism and was even blocked by the European Parliament, it would have been appropriate for the Commission to conduct a brand new impact assessment clarifying the ambiguities of the previous one. Besides, the initial impact assessment was already out of date as it did not take into consideration the changes brought about by the Lisbon Treaty or the developments as regards the implementation of existing information exchange m ­ echanisms. The only information available as regards the links between asylum seekers and criminality can be found in Council document 16990/12.115 In this document, three Member States – namely Austria, the Netherlands and Germany – which were the principal proponents of law enforcement access to the Eurodac database – submitted evidence to the effect that access to the fingerprint data of asylum seekers was essential in the investigation of criminal cases. In particular, the Dutch representative pointed out that between 2007–2011 access to national asylum seekers’ fingerprints database was admitted in 356 cases and in 134 cases (38%) such comparison led to one or more criminal identifications.116 Furthermore, in Germany, where the national afis include the fingerprints of both asylum seekers cases and criminal cases, around 40% of criminal identifications resulted from a comparison with the fingerprints data of asylum ­seekers.117 No further details on the number of these cases are available. Moreover, in Austria, which applies the same system as Germany, between 2007–2011 criminal identifications were possible in 310 cases. Nevertheless, these submissions do not include any information on the criminal proceedings themselves nor final convictions. Also, the feedback from Germany and Austria does not only concern terrorism and serious crime, but all forms of crime.118 115 eu Council, Note from the Presidency to jha Counsellors, Amended Proposal for a Regulation of the European Parliament and of the Council on the Establishment of ‘eurodac’ for the Comparison of Fingerprints for the Effective Application of Regulation (eu) No […/…] (Establishing the Criteria and Mechanisms for Determining the Member State Responsible for Examining an Application for International Protection Lodged in One of the Member States by a Third-Country National or a Stateless Person) and to Request Comparisons with eurodac Data by Member States’ Law Enforcement Authorities and Europol for Law Enforcement Purposes and Amending Regulation (eu) No 1077/2011 Establishing a European Agency for the Operational Management of Large-Scale it Systems in the Area of Freedom, Security and Justice (recast), eu Doc 16990/12, 3 December 2012. 116 Ibid, 3. 117 Ibid, 4. 118 Eechaudt (n 22) 8.

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As for law enforcement access by Europol, this was justified on two bases.119 On the one hand, the Council argued that Europol receives information from different Member States and by combining this with its own analysis might establish reasonable grounds to consider that a comparison with the Eurodac database could result in the identification of a victim or a suspect of serious crime in a specific case. Thus, Europol is in a privileged position to identify unknown links based on information provided by Member States.120 Europol also receives information from third countries on the basis of operational agreements and can cross-match this with information received by Member States. Again, this cross-matching could give indications that a comparison with Eurodac information could identify a victim or a suspect of serious crime in a specific case.121 There was no reference to existing cases in which there were reasonable grounds to assume that access to Eurodac would aid in the prevention, detection or investigation of terrorist attacks or other serious crimes. As the Joint Supervisory Body has noted, it did not see any evidence from the Commission to prove that such access was necessary.122 Given this fragmentary information, no definite conclusions can be drawn as to whether or not access to Eurodac is necessary for fighting terrorism and serious crime. However, the submissions from Member States coupled with the reasons provided by the Commission when explaining the necessity for law enforcement access raise significant concerns for two reasons. First, it appears that six Member States and two other States that implement the Dublin acquis keep asylum seekers’ fingerprints in their afis.123 This ‘merging’ 119 eu Council, Note from Presidency to jha Counsellors, Amended Proposal for a Regulation of the European Parliament and of the Council on the Establishment of ‘eurodac’ for the Comparison of Fingerprints for the Effective Application of Regulation (eu) No. […/…] (Establishing the Criteria and Mechanisms for Determining the Member State Responsible for Examining an Application for International Protection Lodged in One of the Member States by a Third-Country National or a Stateless Person) and to Request Comparisons with eurodac Data by Member States’ Law Enforcement Authorities and Europol for Law Enforcement Purposes and Amending Regulation (eu) No 1077/2011 Establishing a European Agency for the Operational Management of Large-Scale it Systems in the Area of Freedom, Security and Justice (Recast), eu Doc 14081/12, 21 September 2012. 120 Ibid, 2–3. 121 Ibid, 3–4. 122 Europol, Joint Supervisory Authority (n 51) 2. 123 See n 110; it should be mentioned that it is not clear whether these databases contain information on other groups of individuals apart from criminals and asylum seekers. In any case, this does not undermine the argument of how worrying it is that data of an administrative nature and criminal nature are stored in the same database.

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design of national databases in certain Member States seems to have acted as a ‘stumbling block’ in certain respects. In particular, when a Member State wishes to consult information available in other Member States under Prüm, if the latter State has opted for a unified database, which contains information on both criminals and asylum seekers, then the requesting State automatically has access to data on asylum seekers. However, the requested Member State does not have that option. It comes as no surprise that the Member States which were pushing for the use of asylum seekers’ fingerprints in criminal cases were those whose national afis contained both asylum seekers’ and criminals’ data. It thus appears that the way domestic afis are constructed in some Member States, and the consequent lack of reciprocity in what is available in all Member States, had a significant impact in the adoption of the measure. As mentioned above, the eu legislator considers that the Prüm system is insufficient because some Member States do not store asylum seekers’ data with those of criminals. Second, the mere fact that in certain Member States asylum seekers’ data is stored within a unified database along with data on criminals is particularly worrying. This approach indicates that asylum seekers are indeed linked with criminality and form a suspect population whose data should be available for processing in the context of law enforcement and this view is supported at eu level. Therefore, though on the one hand it appears that certain Member States succeeded in making their internal problem of how their national afis were designed an eu problem, on the other, by allowing the police to have access to Eurodac data the Recast Regulation essentially remedies any inequalities in information exchange among Member States caused by the aforementioned ‘merging’ design of specific national afis. 6 Conclusion Opening up Eurodac to national law enforcement bodies and Europol has been a particularly controversial issue for almost a decade. The Recast Regulation puts an end to the Eurodac saga in a rather disappointing manner; despite harsh criticism from human rights experts, and although the European Parliament had refused a very similar proposal in 2009, police authorities and Europol will soon have access to asylum seekers’ data. The new functionality of the database affects the position of asylum seekers in many ways: their fingerprints will be collected and stored for a dual purpose which deviates from the original purpose for which the database was set up. This interferes with the right to private life as enshrined in Article 8 echr and

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Article 7 of the Charter as well as the right to data protection (especially with the purpose limitation principle) as prescribed in Article 8 of the Charter. Furthermore, this approach distinguishes asylum seekers from other categories of third-country nationals, which may lead to increased stigmatisation. Indeed, the right to seek international protection may be impaired especially in those cases where asylum seekers have suffered at the hands of police authorities in their countries of origin. Given the multiple rights at stake and the special vulnerable position of asylum seekers, it could be argued that these interferences are particularly serious. Thus, in order to justify them the threshold for proportionality and necessity is significantly high. While it is true that the European Parliament managed to secure strict conditions of access and improve the Commission’s proposal in numerous respects, it has been demonstrated that a number of issues remain problematic. Importantly, the necessity of law enforcement access to asylum seekers’ data is rather ambiguous. A comprehensive evaluation of the insufficiency of existing means of information exchange and a holistic, up-to-date and clear justification of how asylumseekers’ data would be beneficial to Member States and Europol should have taken place before the adoption of the Regulation. Indeed, it appears that the Member States lobbying for law enforcement access to Eurodac already stored asylum seekers’ data in their national afis. As a result, under Prüm they already share asylum seekers’ information with other Member States. This design of the national afis, which is rather disturbing in itself was part of the justification proposed by the Commission when explaining the necessity of the measure granting access to law enforcements agencies. Nevertheless, the eu legislator denies that the Regulation presumes asylum seekers as de facto criminals and terrorists. The loopholes found in certain provisions, the obscure justifications proposed by the Commission and the lack of clear non-fragmentary evidence point to a link between asylum seekers and criminality – a link which was broken when competence for asylum moved from the former third Pillar of the eu to the former first Pillar (ec) in 1999124 – that is still apparent. Until a ruling by the cjeu clarifies the aforementioned ambiguities, one can only await for an overall evaluation of Eurodac by the Commission in 2018, in which the Commission will examine the results achieved and the Regulation’s impact on fundamental rights, including whether law enforcement access has led to indirect discrimination against asylum seekers, and whether the underlying rationale of this new measure is still valid.125 124 Guild (n 17) 41–42. 125 Article 40(4)of the Recast Eurodac Regulation (n 3).

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Index accelerated procedures 36–38, 94, 96–100 access to justice 24–26, 31, 33 adequate support 88–89, 94–96, 98–99 Amsterdam Treaty (1997) 3, 5, 8, 34n, 225 Arab Spring (conflicts) 209, 233, 237, 241 arguable claim 52, 55 armed conflict (persons fleeing) 17n, 18, 145, 146n, 197, 209, 211, 215, 217, 225–227, 234–235, 241, 245 asylum interview (see also refugee status determination) 10, 13, 27, 38, 85, 101 right to 47, 70, 181, 258, 263 Asylum Procedures Directive Article 15 35, 38n Article 19 38n Asylum Procedures Directive (Recast) Article 15 85n Article 19 13n Article 20 38n asylum seeker(s) 1–4, 7, 10, 12–14, 16, 18–19, 23, 26, 32, 35, 46, 55, 71, 73, 76, 132, 139, 142, 145, 149, 158, 160, 162n, 168, 181n, 187–189, 231, 233–237, 240–241, 247–249, 257–259, 260–263, 265, 267–273 Australia Federal Court 159, 164n Refugee Review Tribunal N96/10806 [1996] rrta 3195 199 0907346 [2009] rrta 1168 200 1004726 [2010] rrta 845 202 boat arrivals 209, 232, 237, 242, 244 border control(s) 237–241, 245 procedures 94, 96–100 burden sharing 225, 230–232, 235–236, 238, 240–242 Canada, Immigration and Refugee Board 151n, 161n, 167, 170–171 Charter of Fundamental Rights (2000) 13, 17, 24–25, 34, 40, 51, 53, 54–56, 70, 83–84, 152, 180–181, 184, 193, 218, 220, 260, 262–264, 272–273 Article 41(2)(a) 83–84 Article 51(1) 83

child/children 23, 42, 62, 72, 82, 101n, 145n, 146, 158, 162n, 164, 168–173, 175, 178, 187n, 191, 199n, 204, 215–216 climate change (including climate change related harm) 17–18, 195, 197–200, 202–209, 215, 219–220 Common European Asylum System 1–14, 17–18, 24, 34–35, 37, 39, 56, 71n, 111n, 172, 176n, 183–184, 195, 197, 208, 237, 247, 252, 268 complementary protection (see also European Convention on Human Rights (1950), Article 3 and subsidiary protection) 208–209 Convention against Torture (1984) 54, 159, 198 Convention on the Elimination of all Forms of Discrimination against Women (1979) 154, 158n, 159, 161–162 Convention on the Elimination of all Forms of Racial Discrimination (1965) 144n, 154, 158n, 161–162 Convention on the Rights of Persons with Disabilities (2006) 17, 141–149, 150n, 151, 154, 158n, 160–163, 165–170, 174, 178, 179n, 180–184, 190–193 Convention on the Rights of the Child (1989) 144–145, 148, 154, 158n, 161–162, 163n, 169, 192n, 216n, 220 Convention Relating to the Status of Refugees (1951) 3n, 8, 14, 23–24, 43, 54, 111, 137n, 151–153, 157–160, 172, 174, 180, 185, 197–199, 204–207, 210, 220, 226 Article 1A 113, 115, 137n, 152, 160, 172, 204, 206, 226 core rights approach 168 Court of Justice of the European Union Case C-7/98, Krombach and Bamberski [2000] ecr I-1935 54n Case C-34/09, Gerardo Ruiz Zambrano v Office national de l’emploi (onem) [2011] ecri I-01177 34 Case C-402/05 P and C-415/05 P, Kadi et al. v Council and Commission, 2008 ecr I-6351 54n Case C-465/07 Elgafaji v Staatsecretaris van Justitie [2009] ecr I-921 15n, 17n, 172n, 211n

Index Case C-524/06 Heinz Huber v Bundesrepublik Deutchland [2008] ecr I-9705 261 Case C-617/10 Åklagaren v Hans Åkerberg Fransson (cjeu, 26 February 2013) 83 Joined cases C-175/08, C-176/08, C-178/08 and C-179/98 Aydin Salahadin Abdulla, Kamil Hasan, Ahmed Adem, Hamrin Mosa Rashi and Dler Jamal v Bundesrepublik Deutschland [2010] ecr I-01493 123, 124n Joined Cases C-293/12 Digital Rights Ireland Ltd v Ireland and C-594/12 Kärntner Landesregierung, Seitlinger, Tschohl and Others (cjeu, Judgment of 8 April 2014) 264n crimes against humanity 230 cumulative discrimination (see ­discrimination/non-discrimination) database 19, 247–249, 252, 255–261, 263, 265, 267–268, 270–272 data protection 250, 252, 258–260, 262–265, 267, 272 data retention period 262, 264 deportation (see also expulsion) 32, 43–44, 46, 51, 65, 80 designated authority 253–255, 266–267 detention 10, 32, 36, 74n, 75n, 88–89, 100, 106n, 253 disability 17, 85, 141–142, 143n, 145–146, 148–150, 155, 162–165, 167–173, 176–182, 184, 189–194 disaster (including disaster related harm) 17–18, 145, 146n, 195–199, 202, 205–216, 218–221 discretion 9, 13, 15n, 35, 37, 39, 43, 46, 57, 60, 71, 81, 86n, 95, 100, 101n, 107, 263, 266 discrimination/non-discrimination 127, 131–132, 142, 145–150, 152, 157–158, 162–171, 174, 175n, 177–178, 180–182, 184, 192–193, 194n, 200, 202, 240, 262, 273 Dublin system/mechanism (including Dublin Convention and Regulations) 2, 4, 7, 8n, 11, 14, 18, 59, 61, 72, 80, 100–107, 187, 226, 231–232, 236–237, 242–244, 248–249, 258, 260, 265, 266n, 271 education (right to) 23, 164–166, 168–169, 175, 177–178, 229, 234n, 245

293 effectiveness (see also effective remedy and European Convention on Human Rights (1950), Article 13) 40, 54, 77, 87, 118–122, 125–126, 136, 138, 140, 162, 170, 234, 250 effective remedy (see also effectiveness and European Convention on Human Rights (1950), Article 13) 12, 23–24, 32–35, 51, 55, 191 environment(al) (including environmentallyrelated harm) 165, 195–196, 199, 201, 203, 205, 208, 213, 220 equality of arms 28, 37–38 error of law 30, 131 Eurodac Eurodac Regulation 4, 231, 248, 261, 266n, 267n Eurodac Regulation (Recast) 7, 18–19, 231, 247, 249n, 253, 254n, 255n, 257n, 258n, 259n, 261, 263n, 265n, 273n European Asylum Support Office (easo) 18, 237, 242–244 European Commission on Human Rights 40–45, 47n, 48 European Convention on Human Rights Article 3 33–34, 51–52, 130, 134, 174n, 185–188, 190–193, 205, 207n, 211–212, 215, 217–218 Article 4 104, 106n, 174n, 185n Article 6 12–13, 23–24, 33–34, 40–48, 50–57, 185n Article 8 33–34, 40–42, 163n, 192, 197n, 207n, 260, 262–264, 272 Article 13 33–34, 51–52, 54, 56, 191 European Court of Human Rights Airey v Ireland (1979) 2 ehrr 305 55n, 57n D v United Kingdom Appl No 30240/96 (ECtHR, 2 May 1997) 186, 189, 190–191, 205, 211n, 212 Golder v United Kingdom (1975) 1 ehrr 524 33n Leander v Sweden (1987) 9 ehrr 433 33n, 260 Maaouia v France (2001) 33 ehrr 42 43, 45–47, 50–53 N and Others v United Kingdom, Appl No 16458/12 (ECtHR, 15 March 2012) 50– 52

294 European Court of Human Rights (cont.) N v United Kingdom Appl No 26565/05 (ECtHR (gc), 27 May 2008) 186–191, 212–215 Rotaru v Romania Appl No 28341/95 (ECtHR, 4 May 2000) 260 S and Marper v United Kingdom Appl Nos 30562/04 and 30566/04 (ECtHR, 4 December 2008) 262n shh v United Kingdom Appl No 6036710 (ECtHR, 29 January 2013) 189–193 Silver and Others v United Kingdom, Appl No 5947/72 (ECtHR, 25 March 1983) 33n Soering v United Kingdom Appl No 14038/88 (ECtHR, 7 July 1989) 185n, 212 ss v United Kingdom, Appl No 12096/10 (ECtHR, 24 January 2012) 46, 47n Sufi and Elmi v United Kingdom, Appl Nos 8319/07 (ECtHR, 28 June 2011) 15n, 186n, 188–191, 193, 214–219 Weber and Savaria v Germany Appl No 54934/00 (ECtHR, 29 June 2006) 260 European Data Protection Supervisor 252, 259, 266, 268 European Union Commission 5, 13, 17n, 37, 73n, 81, 82n, 89, 92, 95, 96n, 120–122, 180, 184, 209–210, 227, 237, 239, 241, 243, 245, 249–252, 254n, 268, 270–271, 273 Europol 247, 250, 252, 254, 257, 261, 265, 267, 269, 271–273 exclusion from refugee status 215, 230 expulsion (see also deportation) 32, 42–44, 46, 66, 103n, 184–189, 191–193 fair trial (see also European Convention on Human Rights (1950), Article 6) 24, 54, 185n fingerprints 247, 249–250, 254–255, 257–258, 260–262, 266–267, 269–272 Foster, Michelle 114–115, 119, 154, 160, 201 general principles of eu law 37, 40, 54–55, 83n, 184 harmonization of eu asylum law 2n, 3, 5, 6n, 10, 39

Index Hathaway, James 114–115, 119, 153–154, 156–158, 160–161, 173–174, 199, 201, 204 health care (including right to health care) 87, 91–92, 94, 100, 166, 171, 173, 245 human dignity 23, 157, 164, 167, 180–181, 189, 192, 264 humanitarian crisis 188, 196n, 214–218 human rights approach 140, 142, 151–153, 155–160 human rights law 1, 8n, 25, 56, 59, 70, 101, 106, 131, 140, 142–143, 148, 152–153, 155, 160n, 161, 163, 174, 179, 190, 192 human smuggling 77 human trafficking (including victims of human trafficking) 13, 14, 32, 58–72, 74–82, 84–88, 91, 93–94, 98, 100–101, 105–108 internal relocation 215, 219 internally displaced persons 188 International Covenant on Civil and Political Rights (1966) 54, 55n, 56n, 143, 144n, 146, 154, 159–160, 174n, 198, 204–206, 220 International Covenant on Economic, Social and Cultural Rights (1966) 143, 144n, 148, 154, 160, 170, 190 international law 24, 32, 55, 59, 61, 70, 78, 145, 151, 161, 175, 180, 183, 210 irregular migrants 241–242, 248, 249n judicial review 31 Kiribati 197–198, 200–208, 210 Lampedusa Island 18, 226, 237–238, 241, 242n law enforcement authorities 65, 80, 122, 129, 247–248, 250–251, 253, 257–258, 261–263, 266, 268–269, 272–273 legal aid/assistance/representation 10n, 12–13, 23n, 24–36, 38–40, 55–56, 94, 98, 269 Libya (asylum seekers from) 237–238, 240–242 Lisbon Treaty (2007) 6, 8, 25, 34, 40, 252, 270 margin of appreciation 49–51, 55n mass influx 208–210, 225, 227–230, 232, 235–236, 238, 241–245

Index Mechanism for Early Warning, Preparedness and Crisis Management 237, 242–243 medical care (see also health care and right to health) 149, 167, 177, 186, 189, 192, 212, 229 medical model 145, 149 merits-test 36, 38 minimum standards 5–6, 35, 50, 153, 218, 229 mirror principle 48n mixed agreement 181 mixed flows 226 natural disasters 18, 145, 146n, 196, 199, 202, 206, 213, 219 New Zealand Court of Appeal Teitiota v The Chief Executive of Business Innovation and Skills [2014] nzca 173 206 High Court Teitiota v The Chief Executive of the Ministry of Business Innovation and Employment [2013] nzhc 3125 205–206 Immigration Protection Tribunal Refugee Appeal No. 72186/2000 203 bg (Fiji) [2012] nzipt 800091 (unreported) 204–205 af (Kiribati) [2013] nzipt 800413 (unreported) 204, 207n, 208, 210 nexus requirement (causal nexus under the Refugee Convention) 16, 114–115, 126–127, 130, 133, 137, 139–140, 198–199, 201–203, 210 non-refoulement (see also European Convention on Human Rights (1950), Article 3) 8, 14, 15n, 18, 23, 33, 70, 150n, 198, 210–211, 215, 216n, 217, 220, 228, 229n, 232 opt in 24, 35, 39–40, 56 persecution 8, 16, 17, 32, 93, 111–116, 119–121, 123–124, 126, 130–131, 133, 137–138, 141–142, 149–178, 180–181, 183–185, 192–194, 199, 201, 203–206, 208, 210, 234 positive obligation(s) 33–34, 55, 80, 104, 106n, 147, 155, 166–167, 186, 190 presumption of innocence 261

295 protection in the country of origin 119, 127, 129, 136, 137, 139, 140 principle of necessity 260, 262, 273 proportionality 260, 262–263, 265, 268, 273 prioritization of examination 96, 99 procedural guarantees 12–14, 33–34, 37, 39, 44–45, 54, 59, 61, 71–72, 81–87, 94–99, 107–108, 185n pull factor(s) 226, 233–235, 245 purpose limitation principle 259, 260n, 263, 273 Qualification Directive (see also subsidiary protection) 4, 8n, 11n, 14, 15n, 16–17, 35, 47–48, 53–54, 71, 111–112, 119–120, 122–123, 125–126, 128–129, 130, 132–140, 156, 162, 172n, 198, 208, 210 Qualification Directive (Recast) Article 9 16n, 172n, 173–179, 181–182, 184–185, 193 Article 15(b) 172n, 211, 213n, 218 Article 15(c) 17, 211 rape 50, 72–73, 76–77, 85, 93, 96–97 readmission 68–69 reasonable accommodation 17, 141–142, 146–151, 155, 163–166, 168–170, 172, 174–177, 179–181, 184, 192–193 reflection period (recovery and reflection period) 65–66, 70n, 71, 101n, 102–104 refugee status determination 23, 72, 80–81, 87, 107, 112–113, 115–116, 120, 123, 126, 129, 130, 133, 137, 139, 160–161, 209, 225 reservation (to international treaty) 162, 183n, 193 Return Directive 72 right to health (see also health care and medical care) 164, 166, 170, 177 rule of law 53 Schengen Border Code 239, 240 serious crime(s) 247, 250–257, 261, 263, 268, 270–271 social model 145–146, 149, 163, 167–168, 170–171, 179, 184 solidarity 230, 236–237, 240, 242, 245 special

296 special (cont.) needs (see also disability and vulnerable persons) 81, 85–86, 89, 92, 107, 173, 184 procedural guarantees (see also vulnerable persons) 14, 59, 61, 71–72, 84–87, 95–99, 108 reception conditions/needs (see also human trafficking and vulnerable persons) 14, 59, 73–75, 78–79, 81–87, 90–94, 108 stigmatization 127, 262 strategic litigation 197, 215 subsidiary protection (see also complementary protection, European Convention on Human Rights, Article 3 and Qualification Directive) 6, 10–11, 14–15, 17–18, 47, 60n, 127–128, 134, 172n, 182, 198, 210–212, 215, 220, 235 suspensive effect 38, 96–100 Syria 146n, 235 temporary protection (including the Temporary Protection Directive) 4, 6n, 8n, 15n, 18, 198, 208–210, 225–230, 232–237, 241, 244–245 terrorism/terrorist(s)/terrorist offences 247, 251–257, 261, 263, 268, 270–271, 273 Tonga 197, 202, 207 torture, inhuman or degrading treatment or punishment (see European Convention on Human Rights, Article 3) transfer of data 258n, 265 Tunisia (asylum seekers from) 43, 237–238, 240–242 Tuvalu 197–199, 202–203, 206–207 undue burden 147–151 United Nations General Assembly 143, 161, 170 High Commissioner for Refugees 1n, 35, 36, 43, 111, 113, 123, 125–126, 139, 142, 156, 160, 201, 235, 241, 259 Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees 24n, 111, 142, 150, 151n, 152n, 156, 164, 165n, 168n, 169, 171, 172n, 174, 175, 177, 185n, 194n

Index Commissioner for Human Rights 143 Committee on Economic, Social and Cultural Rights 146, 148n, 154–155 United Kingdom Asylum and Immigration Tribunal mnm v Secretary of State for the Home Department [2000] ukiat 00005 43n ns (Relevance of children to removal – Art 8) Sri Lanka [2005] ukiat 00081 197n rn (Returnees) Zimbabwe cg [2008] ukait 00083 207n Court of Appeal Harakal v Secretary of State for the Home Department [2001] ewca Civ 884 118n mk (Iran) v Secretary of State for the Home Department [2010] ewca Civ 115 45n, 46–47, 48n, 50 R (Al-Skeini) v Secretary of State for Defence [2008] 1 ac 153 48 R (Ullah) v Special Adjudicator [2004] 2 ac 323 48–50, 157n Secretary of State for the Foreign Office and Commonwealth Affairs v E Maftah and A Khaled [2011] ewca Civ 350 45n, 46n House of Lords Horvath v Secretary of State for the Home Department [2000] ukhl 37 [2001] ac 489 114, 115n, 117–118, 120, 130, 138, 157n Ministry of Justice 26, 36 Supreme Court R(A) v Croydon lbc [2009] uksc 8 46n R (Adam and Limbuela) v Secretary of State for the Home Department [2005] ukhl 66 52n R v Horncastle & Others [2009] uksc 14 49 R (on the application of Nicklinson and another) v Ministry of Justice [2014] uksc 38 48 Upper Tribunal (Immigration and Asylum Chamber) am and bm (Trafficked Women) Albania cg [2010] ukut 80 (iac) 131

297

Index United States 119n, 154, 201 Universal Declaration of Human Rights 144n, 152, 154, 157, 160, 167–168, 170 verifying authority 253–254, 265–267 victims of human trafficking (see human trafficking and vulnerable persons)

Vienna Convention on the Law of Treaties 152, 174 vulnerability 73, 74n, 75–77, 85, 97n, 170, 188, 200, 213–214, 219, 262 vulnerable persons 12–14, 32, 58–59, 61, 71–79, 81–83, 85–94, 99, 105, 106n, 108, 173 work (right to work) 164–166, 171, 177