Saturday, 14 January 2017

Non-refoulement: is part of the EU’s qualification Directive invalid?

By Pieter Boeles, visiting professor migration law, VU University Amsterdam, emeritus professor University Leiden


The absolute character of the principle of non-refoulement – the ban on removal to an unsafe country – is widely acknowledged. Still, there is confusion and insecurity on this point with regard to the Qualification Directive, which defines how to determine if someone enjoys refugee or subsidiary protection status within the EU. On 14 July 2016, a Czech Court (the Nejvyšší správní soud) asked the Court of Justice EU whether Article 14(4) of the EU Qualification Directive, allowing for revoking, ending or refusing to renew refugee status for reasons of criminal behaviour or a security risk, is invalid in the light of the principle of non-refoulement (Case C-391/16). In its explanation, the Czech Court points out that ‘the binding nature of the prohibition on the return of persons in contravention of the principle of non-refoulement forms part of the obligation not to subject anyone to torture or inhumane or degrading treatment or punishment under Article 3 ECHR and Article 4 and Article 19(2) of the Charter, and it applies whenever there is a real risk of such treatment occurring as a result of forced deportation or extradition’.

The question of the Czech court is important. In my view, a well-reasoned answer can only be given if the ambivalent structure of the Qualification Directive on this point is acknowledged and addressed.  In this comment I will try to analyse the problems to be solved. 

One sole principle of non-refoulement in EU law

Basically, the dogmatic point of departure is simple: the EU principle of non-refoulement is anchored in Article 19(2) of the Charter of Fundamental Rights of the EU, which contains a prohibition to remove, expel or extradite any person to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment. The Charter should govern the uniform interpretation of the principle of non-refoulement in Union law, both in the Treaties and in secondary legislation (like the Returns Directive and the Qualification Directive). As the prohibition of refoulement is absolute in the ECHR, it should universally be interpreted to be absolute regardless of the legal context of EU law in which it appears. Article 19(2) of the Charter corresponds to Article 3 ECHR, and so must be interpreted the same way (Article 52(3) of the Charter). See the ECtHR ruling in Chahal, and more case law in Kees Wouters, International Legal Standards for the Protection from Refoulement, Intersentia, 2009, p. 307 – 314. The Court of Justice has recognized the absolute nature of the rule in its judgment in Aranyosi (paras 85-87).  

Article 19(2) Charter, derived from Article 2 and 3 ECHR, is not only relevant for persons with subsidiary protection but equally for refugees. Refugees are protected against a danger, formulated (in Article 1.A of the Refugee Convention, as well as the EU Qualification Directive) as persecution on grounds of race, religion, nationality, political opinion or membership of a particular social group. The persecution feared must be of a certain level of severity, which will normally coincide with death penalty, torture or other inhuman or degrading treatment or punishment. Under the uniform meaning of non-refoulement in Article 19(2) of the Charter, absolute protection against refoulement must be granted on an equal basis to both refugees and subsidiary protected persons. As the principle of non-refoulement is a prevailing general principle of EU law in the sense of Article 6 TEU, secured by the Charter, it follows that the Qualification Directive grants stronger protection to refugees than the Refugee Convention alone does.  This is also what the Czech court asserts.

The stronger protection does not undermine any of the rights for refugees granted in the Refugee Convention.  But it may mean that non-refoulement has a wider meaning for refugees within the scope of EU law. Although the wording of Article 14(4) of the Qualification Directive matches the exception to the non-refoulement rule in the Refugee Convention, the Charter sets a higher standard for non-refoulement (as confirmed by reference to Chahal).

This is not unequivocally visible in the text of the Qualification Directive  The seminal Article 21(1) of the Directive, which deals with non-refoulement directly, does not say straightforwardly that Member States shall respect ‘the absolute principle of non-refoulement’, or ‘the principle of non-refoulement in accordance with Article 19(2) the Charter of Fundamental Rights’. True, the present text of the first paragraph of this article, stating that Member States shall respect the principle of non-refoulement ‘in accordance with their international obligations’, can be interpreted that way, especially because the ‘international obligations’ must be deemed to include those under Article 2 and 3 ECHR. But if that is the correct interpretation, it is difficult to understand what the reasonable meaning can be of the second paragraph of Article 21, stating that refoulement of a refugee is nevertheless allowed in some cases, ‘where not prohibited by the international obligations’. In suggesting that refoulement would nevertheless be allowed under certain conditions, Article 21(2) Qualification Directive is confusing. Obviously, Article 21(2), like Article 14(4) of the Directive, implicitly refers to the exception to the non-refoulement rule set out in Article 33(2) of the Refugee Convention, as it is phrased nearly identically.  Article 21 thus begs the question what must be considered  to be the prevailing norm informing the ‘principle of non-refoulement’. The absolute norm of Article 19(2) in the Charter - or the non-absolute norm of the Refugee Convention?

I cannot help suspecting that the Court of Justice was captured in this confusion, when earlier answering the questions asked in the case of H.T. (C-373/13), discussed here. The Court of Justice described the system of Article 21 Qualification Directive in paragraphs 41 – 44 of that judgment. In that description any explicit referral to the absolute character of the principle of non-refoulement is lacking. Strictly, the Court says nothing wrong, stating in paragraph 42 that Article 21(2) Qualification Directive, ‘whose wording essentially repeats that of Article 33(2) of the Geneva [Refugee] Convention, nevertheless provides for a derogation from that principle, allowing Member States the discretion to refoule a refugee where it is not prohibited by those international obligations (…)’.

It may be telling that the Court notes in para 65 that the principle of non-refoulement is guaranteed as a fundamental right by Articles 18 and 19(2) of the Charter of Fundamental Rights of the European Union. But the Court does not elaborate on that. Then again, I do not understand the extensive attention drawn to the alleged leeway granted by Article 21(2) of the Directive. Why suggest that there can be meaningful room for refoulement at all? Why make mention of ‘Member States, enjoying the discretion whether or not to refoule a refugee’ in paragraph 43? Why talk of a ‘derogation’ in paragraphs 42, 55, from this non-derogable principle? Why state in paragraph 72, that the consequences of applying Article 21(2) may be “very drastic” because the refugee ‘might be returned to a country where he is at risk’? Why keep secret that the whole exercise of explaining Article 21(2) is essentially futile because of the absolute character of the principle at stake?

Crucial impact of the case

The answer of the Court of Justice to the Czech court’s questions will be crucial for the future development of EU law. If the absolute character of the principle of non-refoulement is not clearly upheld now, we might be witnessing a gradual process of interpreting away the absolute character of non-refoulement. The first step could be, to frame the refugee status in the Directive as the primary status. The protection granted by Article 3 ECHR could then be downgraded as subsidiary and less important and only to be used as a safety net for persons who are not eligible for the first class protection. In such a construction, it could be argued that the international obligations referred to in Article 21 Qualification Directive are essentially obligations under Article 33 of the Refugee Convention.  This would grant Member States room for refoulement of refugees under Article 21(2) of the Directive in cases of criminal behaviour or security risks.  Then, if the ‘primary’ status would not be deemed connected to an absolute protection of non-refoulement, it could be considered weird to grant any better protection to the ‘lesser’ status.  

On the other hand, such a downgrading process may less easily develop if the importance of Article 19(2) of the Charter in this respect is acknowledged. In that respect, it is striking that the referral to the principle of non-refoulement in point 3 of the preamble of the Qualification Directive is solely linked to the Refugee Convention and not to Article 19(2) Charter. It is further conspicuous that point 16 of the Preamble mentions a whole range of relevant Charter provisions except for precisely Article 19(2).  

Complications: status, residence permit, expulsion

The discussion on this topic is complicated by a number of circumstances. First, refoulement only refers to deportation to the country where the person is in danger. Non-refoulement as such does not stand in the way of expulsion to other countries (as can be seen in Article 32 of the Refugee Convention allowing a limited possibility of removals to other countries, even if a refugee is ‘lawfully in [the] territory’). Further, the protection granted by the Qualification Directive takes the form of issuing statuses and residence permits, among other things, to protected persons.  What follows from this? Status and residence permit are two different things, as can be seen in Article 24 Qualification Directive. Revoking a residence permit cannot lead to the revocation of the refugee status (H.T. judgment, para. 74). Neither will the status of subsidiary protection be affected by revocation of the residence permit. What does the distinction between status and residence permit mean? And what is the relationship between a status and the obligation of non-refoulement?


Principally, a status is recognition. Under Article 2(e) Qualification Directive, ‘refugee status’ means the recognition by a Member State of a third-country national or a stateless person as a refugee, and under Article 2(g) ‘subsidiary protection status’ means the recognition by a Member State of a third-country national or a stateless person as a person eligible for subsidiary protection.  As a status is equated with recognition, a status can only be terminated together with the recognition. The status intrinsically comprises recognition of the existence of an obligation of non-refoulement with respect to the person concerned.

(When I use the term ‘recognised refugee’ I am only dealing here with recognised refugees under the Qualification Directive. A recognised refugee under the Qualification Directive is in a different position from a person who is not recognised but who might still be a refugee under the Convention of 1951. It is the recognition under the Qualification Directive which puts beyond doubt that an the absolute EU principle of non-refoulement is applicable to the refugee as well).

Now, if a ‘status’ should be equated with ‘recognition’ of the danger threatening the person involved, it would be an anomaly to revoke a status in cases where the danger continues to exist, just because of criminal behaviour. That would amount to an arbitrary refusal to acknowledge the real and continuing risk against which the person seeks protection. More or less like revoking the medical acknowledgement of pregnancy of a woman because she stole a book, not because the pregnancy was over. However, under the Qualification Directive, termination of a status is made possible in cases where it is not established that an absolute prohibition of refoulement is no longer applicable to the person concerned. This is especially so with refugees. On the same grounds as set out in Article 21(2), but without the proviso of the ‘international obligations’ override, Article 14(4) Qualification Directive allows for revoking, ending or refusing to renew a refugee status. 

The wordings of Article 14(4) obviously refer to Article 33(2) Refugee Convention which also inspired the creation of a possibility of ‘refoulement’ under Article 21(2). In the beginning of my exploration, I stated that a correct interpretation of Article 21(1) compels non-application of the second (and consequently the third) paragraph. So, if the second and third paragraphs of Article 21 should be declared ‘dead letters’, is there still room for applying Article 14(4)?

The answer may depend on how consistency of the system of the Directive is valued. It is strange to refuse or terminate a status on grounds that have nothing to do with the danger against which the status is meant to offer protection. But, as long as there is no refoulement, the refusal or termination of the refugee status as cannot violate the principle of non-refoulement. 

Residence permit

In the H.T. judgment, para. 95, it is claimed that, even without his residence permit, the person concerned remains a refugee and as such remains entitled to the benefits guaranteed by Chapter VII of the Qualification Directive to every refugee, including protection from refoulement, maintenance of family unity, the right to travel documents, access to employment, education, social welfare, healthcare and accommodation, freedom of movement within the Member State and access to integration facilities. The same must be true for a person with the status of subsidiary protection (Article 20(2)).

However I have some difficulties with this passage. A number of rights mentioned in Chapter VII – like travel documents for travelling abroad, freedom of movement within the territory of the host state, access to employment -  would, under the Refugee Convention only be granted to ‘lawfully’ present refugees. I doubt it whether the Court took this aspect fully into account. In Chapter VII no clear distinction has been made between the rights correlating to the ‘status’ alone and rights specifically connected to ‘lawful residence’.  

I am therefore not convinced that para. 95 of the H.T. judgment is tenable. Is it really true that a ‘status’ alone already implies lawful presence? Is it not rather so, that a ‘status’ differs from a ‘residence permit’ precisely because a ‘status’ does not in itself regulate a right to lawful presence on the territory?

Whatever the right answer to that question is, even if we fully accept para. 95 of the H.T. judgment, a ‘status‘ only protects against refoulement, not against any form of expulsion to a safe country. That is why the residence permit offers more security. As long as a residence permit is granted to a status holder, the Member State guarantees not only non-refoulement to the country of origin but also non-expulsion to any other country and a full right to inclusion in society. This applies both to refugees and to subsidiary protected persons. With a residence permit the legal position of the person may become stronger through time and eventually lead to a permanent status or to nationality of the host state.

The principle of non-refoulement is, at least in abstracto, reconcilable with revoking, non-extending or refusing a residence permit.  Under Article 24 Qualification Directive, as explained in the H.T. judgment, a non-renewal or revocation of a residence permit is possible both for a refugee and for a subsidiary protected person in case of compelling reasons of national security or public order, while the status remains unaffected. So, measures to protect public order and public security may take the form of terminating or refusing a residence permit, but they may, according to what I said above never lead to refoulement as long as it is prohibited under Article 19(2) Charter.


A thorny issue is how the concept of exclusion (as distinct from revocation of refugee status, and/or a residence permit) must be positioned under an absolute norm of non-refoulement.

The exclusion clauses of the Refugee Convention are transposed in Article 12 of the Qualification Directive. Further, in Article 17 of the Directive, the concept of exclusion is also applied to persons with subsidiary protection – a novelty. According to the wording of the Directive, exclusion may mean something different for refugees compared to subsidiary protected persons. In Article 12, a third-country national or a stateless person is excluded from being a refugee.  Thus, an excluded person ‘is’ not a refugee.  He is excluded from the definition. In the wording of the Court of Justice in B and D (paras 89, 91, 98, 100, 104 and 106), the person is excluded from refugee status. In contrast, under Article 17, a third-country national or a stateless person is excluded from being eligible for subsidiary protection. Here, the person is excluded from the ’eligibility’ to be protected, which may not be exactly the same as a status. However, for reasons of consistency with the language of the B. and D. judgment, it is perhaps preferable to see Article 17 as dealing with exclusion of the status of subsidiary protection, just like Article 12 is about exclusion from the status of refugee.

Anyhow, regardless of the potential differences between the two provisions, their common effect is that they prevent or undo the creation of a legal moment in which it must be assessed under the Qualification Directive whether the person concerned is in a situation where refoulement is prohibited, either because of well-founded fear for persecution or because of a real risk for life or of torture, inhuman or degrading treatment or punishment. Of course, non-assessment of a risk does not mean that it does not exist. Therefore, exclusion under the Qualification Directive leaves open that the principle of non-refoulement may still apply to excluded persons. Under Article 5 of the Returns Directive they still are protected against refoulement. So, it is not a priori allowed to send excluded persons back to their countries.

Above, I stated that the status embodies a recognition of an obligation of non-refoulement with regard to the person concerned. Accordingly, an exclusion from a status is equivalent to exclusion from recognition of an obligation of non-refoulement. As a consequence, there is no right to a residence permit either.

In fact, excluded persons are thrown out of the field of application of the Qualification Directive and are referred to the Returns Directive for further protection against refoulement. In accordance with the Abdida judgment, Court of Justice 18 December 2014, C-562/13, para 50 (discussed here), they must be able to avail themselves, in such circumstances, of a remedy with suspensive effect, in order to ensure that the return decision is not enforced before a competent authority has had the opportunity to examine an objection alleging infringement of the principle of non-refoulement laid down in Article 5 Returns Directive and Article 19(2) of the Charter.


In spite of its confusing content, Article 21 Qualification Directive is not invalid because it can be interpreted in accordance with the absolute prohibition of refoulement thanks to the words ‘in accordance with their international obligations’  in the first section. The effect of the correct interpretation is that refoulement of refugees is not allowed even in the cases formulated in paragraph 2. Consequently, neither the third paragraph of Article 21, dealing with revoking, ending or refusing to renew or to grant the residence permit of (or to) a refugee to whom paragraph 2 applies, can ever be applied. Correctly interpreted, the second and third paragraph of Article 21 must be regarded dead letters.

It is difficult to conclude what the ‘dead letter’ position of Article 21(2)(3) means for the validity of Article 14(4) which was based on the same Article 33(2) Refugee Convention. At any rate, Article 14(4) is not invalid for violating the absolute prohibition of refoulement as long as Article 21(2) is not applied. Still, there is something anomalous about Article 14(4). It compels Member States (‘shall’) to refuse or terminate a refugee status in cases where there is still an obligation to acknowledge the absolute prohibition of refoulement. If it would be accepted that a ‘status’ is equivalent to ‘recognition’, the ‘status’ should be maintained, also for persons committing crimes, as long as the ‘recognition’ has solid ground.    

In answering the questions of the Czech Court, the Court of Justice may also have to clarify (as it did in Abdida) how the protection against refoulement is divided between the Qualification Directive and the Returns Directive. Exclusion in the sense of Articles 12 and 17 of the Qualification Directive has the effect of throwing the applicants out of the protection system of the Qualification Directive and leaving their protection against refoulement to the Returns Directive, which entitles them to a remedy with suspensive effect for the examination of a claim of non-refoulement.

Barnard & Peers: chapter 9, chapter 26
JHA4: chapter I:5

Photo credit: Bryan Denton, New York Times

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