Judging the Charter

The Charter in judicial practise with a special focus on the case of protection of refugees and asylum seekers

The Charter and the Right to Asylum - Introduction

Sources of interpretation

The right to asylum is enshrined in Article 18 of the Charter under the Title II "Freedoms". The Article states that the right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty on European Union and the Treaty on the Functioning of the European Union. The legal basis of the provision can be found in Article 78 TFEU (ex Articles 63, points 1 and 2, and 64(2) TEC), which establishes EU competence in the fields of asylum, subsidiary protection and temporary protection, and calls for respect of the 1951 Geneva Convention on refugees (hereinafter, the Refugee Convention).[4]

At the outset, what may strike the prospective interpreter of Article 18 CFREU as odd is the fact that it appears to lack an autonomous definition of the concept of asylum, as well as of the scope and content of the protected right. It should, however, be recalled in this regard that, within the EU legal framework, practitioners often need to resort to secondary or external sources of law — such as the various working documents of the legislative procedure and the constitutional traditions common to the Member States — in order to be able to pinpoint the true meaning of a provision.[5] In the present case, the travaux preparatoires to the Charter showcase the tensions among its drafters with regards to the desired scope of the protection granted to asylum-seekers, which have led them to resort to this rather minimalistic wording, following the recommendations of the Office of the United Nations High Commissioner for Refugees (hereinafter, UNHCR).[6]

All interpretative approaches to Article 18 CFREU must, first and foremost, be guided by the Article’s text, as well as by the rules established in the Charter’s preamble with regards to the sources of law, which are to be employed for its interpretation. According to the latter, the Charter does not introduce novel rights to the EU legal order, but instead is aimed at sreaffirming, with due regard for the powers and tasks of the Union and for the principle of subsidiarity, the rights as they result, in particular, from the constitutional traditions and international obligations common to the Member States, the ECHR, the Social Charters adopted by the Union and by the Council of Europe and the case-law of the CJEU and of the ECtHR. In addition, due regard should be had to the explanations, which were prepared under the authority of the Praesidium of the European Convention, which drafted the Charter, and were updated under its responsibility.[7]

Of equal importance, especially as regards the right to asylum, in light of the rich case law produced by the Strasbourg Court in that particular field, is Article 52(3) CFREU, according to which insofar as the 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. These diverse sources of law, in conjunction with asylum-related secondary EU legislation, coalesce to formulate the unique content of asylum in an autonomous way, specific to the EU legal order.

Definition of asylum in EU law

Within the Common European Asylum System (CEAS), the notion of asylum is primarily understood as the protection afforded to those who qualify as refugees, according to the conditions laid down in the Qualification Directive (Directive 2011/95/EU, recast). It is worth noting that, while, as stated in its preamble (16), the directive seeks to ensure full respect for human dignity and the right to asylum, it does not, however, reference the term within its main body. Instead, it focuses on the "granting of refugee status" (Article 13), while underscoring the role of the Refugee Convention in establishing the content of the protection afforded to those enjoying said status (Article 20). In any event, the stated purpose of ensuring full respect for and observance of the right to asylum as enshrined in Article 18 CFREU is a common denominator in the CEAS legislation. [8]

At this point, in order to further define the content of the right to asylum as applied within the EU legal framework, it is useful to make recourse to the relevant UNHCR statement, issued in the context of a reference for a preliminary ruling addressed to the CJEU by the Administrative Court of Sofia in the case of Zuheyr Freyeh Halaf v. the Bulgarian State Agency for Refugees (C-528/11). [9] According to the guidelines provided therein, central to the realisation of the right to asylum is the principle of non-refoulement, described as the cornerstone of international refugee protection. The principle is instituted in Article 33 of the Refugee Convention, as well as Article 19(2) CFREU, and precludes the removal, expulsion or extradition of all persons to a State, where there is a serious risk that they would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment. Article 19(2) CFREU corresponds, within the meaning of Article 52(3) CFREU, to Article 3 ECHR, as applied in asylum cases, and its interpretation must incorporate the relevant Strasbourg case law. [10]

However, the protection afforded to asylum-seekers is not limited to the application of non-refoulement, but also encompasses, inter alia, (i) the access to fair and effective processes for determining their status and protection needs, consistent with the Refugee Convention;[11] (ii) the need to admit refugees to the territories of States; (iii) the need for rapid, unimpeded and safe UNHCR access to persons of concern; (iv) the need to apply scrupulously the exclusion clauses stipulated in Article 1F of the Refugee Convention; (v) the obligation to treat asylum-seekers and refugees in accordance with applicable human rights and refugee law standards; (vi) the responsibility of host states to safeguard the civilian and peaceful nature of asylum; and (vii) the duty of refugees and asylum-seekers to respect and abide by the laws of host States.[12] The outcome of the asylum procedure, i.e. the official recognition of a person applying for international protection as a refugee, or the rejection of their application, is of a purely declaratory character, as refugee status is acquired in the very moment a person fulfils the criteria set out to that effect. Hence, a division drawn between asylum-seekers and recognised refugees, as is the case with the Qualification Directive,[13] is inconsistent with the general teleology of the Refugee Convention.[14]

The Charter’s added value in terms of safeguarding asylum-seekers’ rights

In light of the above, one may ponder on the extent of the Charter’s contribution to the protection of asylum-seekers. Indeed, asylum, as an institution of international law, has a long history. It was first recognised as an individual right in Article 14 of the 1948 Universal Declaration of Human Rights, which states that everyone has the right to seek and to enjoy in other countries asylum from persecution. Nonetheless, as its name suggests, the Declaration is a non-binding document, while the nature of asylum as an individual right on the one hand side, and as a state prerogative on the other, remains disputed. In fact, at the time of the Charter’s adoption, the right to be granted asylum — not only to have access to the relevant procedure — was not explicitly recognised in any human rights instrument applicable at the international or EU levels, including the Refugee Convention.

The incorporation of such a right within a legally binding instrument, specifically aimed at ensuring the protection of fundamental rights, and capable of overriding contrary national provisions, clearly indicates that the EU legislator has prioritised a rights-based approach in this case. Indeed, Article 18 CFREU has consistently been deemed to guarantee the individual right of every person, who meets the relevant requirements to be granted asylum and to enjoy international protection from persecution, in a way which mirrors the corresponding provisions of similar regional texts, such as the American Convention on Human Rights, and the African Charter on Human and Peoples’ Rights. [15]

Furthermore, the rights enshrined in the Charter, unless otherwise specified in its text, apply to all persons residing in EU territory, regardless of status or other individual characteristics.[16] Thus, the Charter protects EU citizens, third-country nationals, asylum-seekers, and beneficiaries of international protection equally, while discrimination on the basis of any ground, including sex, race, colour, ethnic or social origin, genetic features, religion or belief, political or any other opinion, membership of a national minority, disability, or sexual orientation, is strictly prohibited (Article 21(1) CFREU). Discrimination on grounds of nationality is also proscribed, within the scope of application of the EU Treaties, and without prejudice to their specific provisions (Article 21(2) CFREU), in particular thatof Article 18 TFEU, to which Article 21(2) CFREU corresponds and with which its application must comply.[17] This renders the differential treatment of asylum-seekers on the basis of their respective countries of origin highly problematic.

Finally, the Charter contains certain procedural safeguards, which are of great significance when it comes to securing the rights of asylum-seekers and guaranteeing a fair processing of their application. These include the right to good administration (Article 41 CFREU) and the right of access to documents (Article 42 CFREU), which both apply to all persons residing within the territory of the EU Member States, despite the fact that they are found under Title V on the rights of EU citizens, and guarantee their right to have their affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union, and to have access to all procedural documents, whatever their medium. Also of paramount importance to the protection of asylum-seekers is Article 47 CFREU on the right to an effective remedy and to a fair trial, which secures that everyone whose rights, as established in EU law, are violated will have access to a fair and public hearing, within a reasonable time, by an independent and impartial tribunal previously established by law. The Article also guarantees the right to seek legal advice, defence, and representation, as well as to have legal aid made available to those who lack sufficient resources, when necessary in order to ensure effective access to justice.

A detailed analysis of the particular human rights-related issues arising during the asylum process follows below.

[4] Explanations relating to the Charter of Fundamental Rights (2007/C 303/02), Explanation on Article 18 — Right to asylum.

[5] See Case 15/60, Simon v. Court of Justice of the European Communities [1961] ECR 225, 220.

[6] M.T. Gil-Bazo, "The Charter of Fundamental Rights of the European Union and the right to be granted asylum in the Union’s law", Refugee Survey Quarterly, Vol. 27, No. 3.

[7] Explanations to the Charter, ibid. 1.

[8] See, among others, Qualification Directive (2011/95/EU), preamble (16); Dublin Regulation (604/2013), preamble (39); Procedures Directive (2013/32/EU), preamble (60) et al.

[9] Available at www.refworld.org (accessed on 15/05/2018).

[10] Explanations to the Charter, ibid. 1, explanation on Article 19. See cases C-465/07 Meki Elgafaji, Noor Elgafaji v. Staatssecretaris van Justitie [2009] ECLI:EU:C:2009:94; joint cases C-411/10 and C-493/10, N.S. v. Secretary of State for the Home Department and M.E. and others v. Refugee Applications Commissioner, Minister for Justice, Equality and Law Reform [2011], ECLI:EU:C:2011:865. On the application of the principle by the ECtHR, see, among others, Ahmed v. Austria, judgment of 17 December 1996, 1996-VI, p. 2206, and Soering, judgment of 7 July 1989.

[11] In accordance with Article 47 CFREU on the right to an effective remedy.

[12] UNHCR statement ibid. 5.

[13] Articles 2(e), (i), 13, et al.

[14] S. Peers, EU immigration and asylum law (text and commentary) Volume 3, EU Asylum Law, Brill, 2015, p. 83.

[15] See, among others, Gil-Bazo, ibid; S.F. Nicolosi, Going Unnoticed? Diagnosing the Right to Asylum in the Charter of Fundamental Rights of the European Union, European Law Journal, Vol. 23, No. 1-2, August 2017, pp. 94—117.

[16] S. Peers, Immigration, Asylum and the European Union Charter of Fundamental Rights, European Journal of Migration and Law 3: 141—169, 2001.

[17] Explanations to the Charter, ibid. 1, explanation on Article 21.