Judging the Charter
The Charter in judicial practise with a special focus on the case of protection of refugees and asylum seekers
The Qualification Directive (QD) 2004/83/EC was amended by the Directive 2011/95/EU in order to reflect the objective of the Lisbon Treaty to develop a common policy on asylum with a ‘uniform status’ for refugees and other persons in need of international protection. Directive 2011/95/EU had to be transposed by 21 December 2013. Denmark is not bound by the Directive; UK and Ireland chose not to opt in to the Recast Qualification Directive.
The Recast Qualification Directive regulates ‘subsidiary protection’ if protection on the basis of the Geneva Refugee Convention (GRC) is not possible.
The Directive is the first supranational codification of a specialist complementary protection regime based on general human rights obligations, in particular on the principle of non-refoulement. Apart from that, it contains the rights attached to refugee status and subsidiary protection status.
The Geneva Refugee Convention is regarded as the cornerstone of the regime. Standards of the Qualification Directive should "guide the competent national bodies of Member States in the application of the Geneva Convention". Interpretative guidance of the UNHCR is considered to be "valuable" in this context. But also "other relevant treaties" are of importance for the interpretation of the Directive. Standards for the definition and the content of subsidiary protection were drawn "from international obligations under human rights instruments and practices existing in Member States". Reference is made to the "best interests of the child" and the UN Convention on the Rights of the Child.
The Recast Qualification Directive refers in its preamble to the Charter: this Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. In particular this Directive seeks to ensure full respect for human dignity and the right to asylum of applicants for asylum and their accompanying family members and to promote the application of Articles 1 (human dignity), 7 (respect for private and family life), 11 (freedom of expression and information), 14 (right to education), 15 (freedom to choose an occupation and right to engage in work), 16 (freedom to conduct a business), 18 (right to asylum), 21 (non-discrimination), 24 (the rights of the child), 34 (social security and social assistance) and 35 (health care) of that Charter, and should therefore be implemented accordingly.
The Court of Justice has several times stressed the obligation to interpret the Directive in a manner which respects […] fundamental rights or in a manner consistent with the rights recognised by the Charter. Further, Member States must interpret their national law in a manner consistent with EU law and also make sure they do not rely on an interpretation which would be in conflict with the fundamental rights protected by the EU legal order or with the other general principles of EU law.
The Case A, B & C (C-148/13, C-149/13) concerned three men applying for asylum in the Netherlands. They claimed to fear persecution on account of their homosexuality. In all three cases the Staatssecretaris (and later the Rechtbank’s-Gravenhage, the District Court of The Hague) rejected the applications arguing that the statements concerning their homosexuality lacked credibility. In the appeals procedure, the Dutch Council of State referred a question to the Court of Justice asking whether, in light of the EU Fundamental Rights Charter (Article 3 CFREU, Right to the Integrity of the Person; Article 7 CFREU, Respect for Private and Family Life) there were any limitations regarding the verification of the sexual orientation of an applicant. The Court made in its reasoning clear that the Qualification Directive had to be interpreted in accordance with the Charter, in particular with Article 1 (Human Dignity) and Article 7 CFREU.
The Court stated in the operative part of the judgment, inter alia, that Article 4 of the Qualification Directive (‘assessment of facts and circumstances’) in the light of Article 7 of the Charter must be interpreted as precluding [[…]] the competent national authorities from carrying out detailed questioning as to the sexual practices of an applicant for asylum. Further, Article 4 of the Qualification Directive, read in the light of Article 1 of the Charter must be interpreted as precluding, [[…]] the acceptance by those authorities of evidence such as the performance by the applicant for asylum concerned of homosexual acts, his submission to ‘tests’ with a view to establishing his homosexuality or, yet, the production by him of films of such acts.
In the Case Y and Z (C-71/11 and C-99/11) two men, who had applied for asylum in Germany, claimed that their membership to the Muslim Ahmadi community had forced them to leave Pakistan. They argued that they had experienced persecution, and that, according to the Pakistani Criminal Code, members of the Ahmadi religious community may face imprisonment of up to three years, or may be punished by death or life imprisonment or a fine.
The first instance refused their claims. On appeal, the Federal Administrative Court decided to stay the proceedings and submitted a preliminary reference to the CJEU concerning the interpretation of Article 9.1(a) Qualification Directive (‘acts of persecution’). While the Federal Administrative Court referred in its question to Article 9 ECHR (freedom of religion), but not to the Charter, the Court of Justice interpreted the question as follows: Is Article 9.1(a) of the Directive to be interpreted as meaning that any interference with the right to religious freedom that infringes Article 10.1 of the Charter may constitute an ‘act of persecution’ [[…]]" and must "a distinction [[…]] be made between the ‘core areas’ of religious freedom and its external manifestation?
The CJEU in its operative part interpreted Article 9.1(a) Qualification Directive as meaning that: not all interference with the right to freedom of religion which infringes Article 10.1 of the Charter [[…]] is capable of constituting an ‘act of persecution’ [[…]]. It also held that there may be an act of persecution as a result of interference with the external manifestation of that freedom, and for the purpose of determining whether interference with the right to freedom of religion which infringes Article 10.1 of the Charter [[…]] may constitute an ‘act of persecution’, the competent authorities must ascertain, in the light of the personal circumstances of the person concerned, whether that person, as a result of exercising that freedom in his country of origin, runs a genuine risk of, inter alia, being prosecuted or subject to inhuman or degrading treatment or punishment by one of the actors referred to in Article 6 of Directive 2004/83.
In Case M.M. (C-277/11) Mr M’s application for refugee status was rejected and afterwards a subsequent application for subsidiary protection as well. Mr M‚ appealed against the subsidiary protection decision before the High Court arguing that it did not comply with EU law, in particular with the right to defence since there was no oral hearing. The High Court stayed the proceedings and asked the CJEU whether the requirement to cooperate with an applicant (art 4.1 Qualification Directive) obliges the authorities of a Member State to supply an applicant for subsidiary protection (after the rejection of the application for refugee status) with the results of such an assessment before a negative decision is finally made so as to enable him or her to address those aspects of the proposed decision.
The Court answered in the operative part of its judgments that in the case of a system such as that established by the national legislation at issue [[…]], a feature of which is that there are two separate procedures, one after the other, for examining applications for refugee status and applications for subsidiary protection respectively, it is for the national court to ensure observance, in each of those procedures, of the applicant’s fundamental rights and, more particularly, of the right to be heard in the sense that the applicant must be able to make known his views before the adoption of any decision that does not grant the protection requested. The Court held that in a system as in Ireland, the fact that the applicant has already been duly heard, when his application for refugee status was examined, does not mean that that procedural requirement may be dispensed with in the procedure relating to the application for subsidiary protection.
In its reasoning the Court referred to the right to be heard in all proceedings, which would be now affirmed not only in Articles 47 and 48 of the Charter, which ensure respect of both the rights of the defence and the right to fair legal process in all judicial proceedings, but also in Article 41 thereof, which guarantees the right to good administration(para 82).
The Court specified that according to Article 41.2 CFREU the right to good administration would include the right of every person to be heard, before any individual measure which would affect him or her adversely is taken, the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy, and the obligation of the administration to give reasons for its decisions (para. 83).
The Court also stated that the provision was of general application (para. 84) and that the Court had always affirmed the importance of the right to be heard and its very broad scope in the EU legal order, considering that that right must apply in all proceedings which are liable to culminate in a measure adversely affecting a person (para. 85). The observance of this right would be required even where the applicable legislation does not expressly provide for such a procedural requirement (para. 86).
The Court also stressed that the right to be heard guarantees every person the opportunity to make known his views effectively during an administrative procedure and before the adoption of any decision liable to affect his interests adversely (para. 87) and that it requires the authorities to pay due attention to the observations thus submitted by the person concerned, examining carefully and impartially all the relevant aspects of the individual case and giving a detailed statement of reasons for their decision; the obligation to state reasons for a decision which are sufficiently specific and concrete to allow the person to understand why his application is being rejected is thus a corollary of the principle of respect for the rights of the defence (para 88).
The Court concluded that the right [[…]] of the applicant for asylum to be heard must apply fully to the procedure in which the competent national authority examines an application for international protection pursuant to rules adopted in the framework of the Common European Asylum System (para 89).
In Case El Kott (C-364/11) three men had to leave United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) refugee camps in Lebanon based on threats to their security. In Hungary, their asylum applications were rejected. Mr El Kott and Mr Radi were ordered not to be returned to Lebanon whilst Mr Ismail was granted a subsidiary protection. The applicants sought recognition as refugees based on Article 1D (2) Refugee Convention, to which the second sentence of art 12.1(a) Qualification Directive refers. The Budapest Municipal Court stayed the proceedings and asked the CJEU about the meaning of benefits of the Qualification Directive (recognition as a refugee; either of the two forms of protection covered by the Directive; or neither automatically but merely inclusion within the scope ratione personae of the Directive). The Court further asked the meaning of the cessation of UNRWA’s protection or assistance (residence outside its area of operations; cessation of UNRWA and cessation of the possibility of receiving UNRWA’s protection or assistance; or an involuntary obstacle caused by legitimate or objective reasons such that the person entitled thereto is unable to avail himself of that protection or assistance).
In its operative part the judgment of the CJEU answered that Article 12.1(a) Qualification Directive had to be interpreted as meaning that the cessation of protection/assistance from UN organs/agencies other than the UNHCR ‘for any reason’ would include the situation in which a person who, after actually availing him/herself of such protection/assistance, ceases to receive it for a reason beyond his or her control and independent of his or her volition. The second sentence of Article 12.1(a) Qualification Directive had to be interpreted as meaning that, if national authorities have established that the condition relating to the cessation of the protection/assistance provided by UNRWA is satisfied, the fact that the person is ipso facto entitled to the benefits of [the] Directive means that that Member State must recognise him as a refugee within the meaning of Article 2(c) of the Qualification Directive and that person must automatically be granted refugee status (if he or she is not caught by Article 12.1(b) or 2 and 3 of the Directive).
In its reasoning the CJEU referred also to the Charter: It held that the interpretation of the words ‘shall ipso facto be entitled to the benefits of [the] Directive’ [[…]] does not, contrary to what is maintained by a number of governments [[…]], lead to discrimination, prohibited by the principle of equal treatment enshrined in Article 20 of the Charter (para. 78).
The Case X, Y & Z (C-199/12, C-200/12) concerned three men from Sierra Leone, Uganda and Senegal applying for asylum in the Netherlands. They applied for asylum since they feared persecution given the criminalisation of homosexuality in their countries of origin (criminal offence punishable by a maximum life sentence in Sierra Leone and Uganda, and up to 5 years in Senegal). In none of the cases the applicants had demonstrated that they had already been persecuted or threatened with persecution on account of their sexual orientation.
The Dutch Council of State asked the CJEU: 1) whether third country nationals with a homosexual orientation form a ‘particular social group’ capable of qualifying for protection under art 10(1)(d) Qualification Directive; 2) whether they can be expected to conceal their orientation or exercise restraint in their country of origin in order to avoid persecution; 3) whether the criminalisation of homosexual activities and the threat of imprisonment in relation thereto constitute an act of persecution within the meaning of art 9(1)(a), read in conjunction with art 9.2(c) QD.
The CJEU answered that the existence of criminal laws [[…]], which specifically target homosexuals, supports the finding that those persons must be regarded as forming a particular social group in the sense of art 10(1)(d) Qualification Directive. Further, the Court held that the criminalisation of homosexual acts per se does not constitute an act of persecution while a term of imprisonment which sanctions homosexual acts and which is actually applied in the country of origin [[…]] must be regarded as being a punishment which is disproportionate or discriminatory and thus constitutes an act of persecution.
Finally, the CJEU stated that when assessing an application for refugee status, the competent authorities cannot reasonably expect, in order to avoid the risk of persecution, the applicant for asylum to conceal his homosexuality in his country of origin or to exercise reserve in the expression of his sexual orientation.
In its reasoning the CJEU referred to the Charter. The Court made it clear that the fundamental rights specifically linked to the sexual orientation concerned [[…]] such as the right to respect for private and family life, which is protected by Article 8 of the ECHR, to which Article 7 of the Charter corresponds, read together, where necessary, with Article 14 ECHR, on which Article 21(1) of the Charter is based, is not among the fundamental human rights from which no derogation is possible (paras 58-59). The Court also stated that the mere existence of legislation criminalising homosexual acts cannot be regarded as an act affecting the applicant in a manner so significant that it reaches the level of seriousness necessary for a finding that it constitutes persecution within the meaning of Article 9.1 of the Directive (para 55), but that the term of imprisonment which [[…]] punishes homosexual acts is capable, in itself of constituting an act of persecution [[…]], provided that it is actually applied in the country of origin which adopted such legislation. (para 56). Further, the Court held that a sanction infringes Article 8 ECHR, to which Article 7 of the Charter corresponds, and constitutes punishment which is disproportionate or discriminatory within the meaning of Article 9.2(c) of the Directive (para 57).
The Qualification Directive, but also national law, must be interpreted in the light of the Charter. However, even the Charter has alreadyplayed a certain role in the jurisprudence of the Court of Justice of the European Union, this could certainly be expanded.
Several judgments of the CJEU in the preliminary reference procedure concerning the interpretation of the Qualification Directive do not refer to the Charter. In many cases the Charter was only referred to in the reasoning of a judgment as an interpretative instrument, but without playing a substantive role. In a few cases, the Charter has played a substantive role — in these few cases in particular Articles 4, 9 and 12 of the Qualification Directive were interpreted in the light of the Charter. In particular, arts 1, 7, 10, 20, 21 and 41 CFREU were used to interpret the Directive.
There was only one case, where the question of the preliminary reference request referred itself to the Charter (A, B, & C: reference to Articles 3 and 7 CFREU). There were two cases, where the Court of Justice in the operative part of its judgment referred to the Charter (A, B, & C: Articles 1, 7 CFREU; Y and Z: Article 10 CFREU). In M.M. the Court referred to the right to be heard. There were several cases, in which the Court of Justice referred (solely or also) in its reasoning to the Charter (only in reasoning: El Kott: Article 20, M.M.: Article 41, also Article 47 and 48 CFREU; X, Y & Z: Article 7, also Articles 1 and 18 CFREU).
To sum up, the Charter could be used much more and play a more significant role in interpreting the Qualification Directive. However, also referring Courts should use the Charter more extensively in their questions referred to the Court of Justice.