Sunday, 18 February 2024

Migration Policies of the European Union

Lecture V: Refugee status and subsidiary protection under EU law

I. Introduction

The history of human migration in need for asylum can be traced back to the XIII
cent. before Christ. Humans have always had the need for asylum.

But modern law of international protection of refugees can only be traced back
nearly 100 years, to legal and institutional initiatives taken by the League of
Nations in the inter-war period: appointment of a High Commissioner for
Refugees (1921), and issuing identity certi cates for Russians post-colapse of the
USSR.

Later, the UN established the International Refugee Organisation (IRO) (though

largely opposed to), which was replaced by the UNHCR in 1951. Its mandate was
general and universal, including refugees recognised under earlier agreements,
and those outside their country of origin unable or unwilling to return due to a well-
founded fear of persecution on grounds of race, religion, nationality or political
opinion. It went from being temporary to permanent.

The UNHCR’s protection responsibilities were complemented by the 1951

Geneva Convention on the Status of Refugees. But there were many major
di erences between it and the UNHCR’s mandate, and states were reluctant to
o er protection to some refugees.

The 1967 Protocol helped bridge the gap between the UNHCR’s mandate and
the 1951 Convention. In it, states agree to apply arts. 2 to 34 of the Convention to
refugees de ned in art. 1 thereof, as if the dateline were omitted (art. 1 Protocol
1967)

II. The Convention refugee de nition

Art. 1A(1) Convention 1951: refugees are any person considered a refugee under
earlier international agreements.

Art. 1A(2) Convention 1951, interpreted with the Protocol 1967: general de nition of
the refugee as including any person who is outside their country of origin and
unable or unwilling to return there or to avail themselves of its protection, owing to
the well-founded fear of persecution for reasons of race, religion, nationality,

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 membership of a particular social group (not contemplated in the UNHCR Statute),
or political opinion. Stateless persons may be refugees.

Outside the country of origin: having crossed an international frontier is an intrinsic

part of the quality of refugee.

Fear of persecution: it looks to the future. People might have left their countries for
other reasons, but can’t return in the future due to their fear of persecution.

A. Persecution and the reasons for persecution

A clear de nition is not present in the Convention 1951. It includes threats to life or
freedom, of death, of torture, of cruel, inhuman or degrading treatment or
punishment. Fear of persecution and lack of protection at the internal or external
level. Persecution may not be carried out by the government authority (e.g.: non-
state actors), but the refugee may be unable or unwilling to avail to its protection.

Reasons: race, religion, nationality, membership to a particular social group, or

political opinion. Persecution implies a violation of human rights of particular gravity,
as a result of cumulative events or systemic mistreatment, or as a result of a single
act of torture.

Exceptions:
- Palestinian refugees are outside its scope (they are under UNRWA);
- Those treated as nationals in their state of refuge;
- Anyone who there are serious reasons to believe has committed a war crime, a
serious non-political o ence prior to admission, or acts contrary to the purposes
and principles of the UN (e.g.: serious criminals and terrorists).

III. Refugee De nition and Protection beyond the Convention

The international legal protection of refugees bene ts from regional arrangements

which may be refugee speci c or oriented to the protection of human rights:
- 1969 Convention on the Speci c Aspects of Refugee Problems in Africa. It
incorporates the 1951 Convention de nition, but adds an approach re ecting the
social and political realities of contemporary refugee movements. It includes
those compelled to ee owing to external aggression, occupation, foreign
domination, or events seriously disturbing public order.
- 1984 Cartagena Declaration in Central America: added ight from generalised
violence, internal con icts, and massive violation of human rights.
- Soaring v UK: the ECHR laid the essential foundations for protection from
removal under the ECHR.

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 - 2001 Directive on Temporary Protection
- Directive 2004/83/EC on minimum standards for the quali cation and status of
third-country nationals or stateless persons as refugees or as persons who
otherwise need international protection
- Amended by the Directive 2011/95/EU, to re ect the Treaty of Lisbon’s
objective (arts. 78[1] and [2][a] and [b] TFEU) of developing a “common policy
on asylum” comprising a “uniform status” for refugees and other persons in
need of international protection.

IV. Quali cation: refugee status and subsidiary protection

The Directive 2011/95/EU de nes common (not minimum) standards for the
quali cation of third-country nationals as refugees or as bene ciaries of subsidiary
protection, and the content of each form of status.

A. De nitions: art. 2
- International protection: refugee status and subsidiary protection status, leaving
other forms of protection and European citizens outside its scope;
- Refugee: determined by a well-founded fear of persecution based on at least one
of the protected grounds and the absence of protection from the State of origin

B. Granting of Refugee status: art. 13

MSs are required to grant refugee status to the applicant if he quali es, having
direct e ect (Abdulla, CoJ).

C. Quali cation for subsidiary protection

A ‘person eligible for subsidiary protection’ means a third country national or a

stateless person who does not qualify as a refugee but in respect of whom
substantial grounds have been shown for believing that the person concerned, if
returned to his or her country of origin, or in the case of a stateless person, to his or
her country of former habitual residence, would face a real risk of su ering serious
harm […], and is unable, or, owing to such risk, unwilling to avail himself or herself
of the protection of that country. Serious harm consists of:
- Death penalty or execution; or
- Torture or inhuman or degrading treatment or punishment of an applicant in the
country of origin; or
- Serious and individual threat to a civilian's life or person by reason of
indiscriminate violence in situations of international or internal armed con ict.

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