The provisions of a directive that allow a member state to refuse or to revoke refugee status do not infringe the Geneva Convention and are, therefore, compatible with the Treaty on the Functioning of the European Union (TFEU) and the Charter of Fundamental Rights, argued Advocate General Melchior Wathelet in an opinion delivered on Thursday 21 June (joined cases C-391/16, C-77/17 and C-78/17).
The three cases at issue relate to three third country nationals: one from Cote d’Ivoire, a second from Congo and a third from Chechnya. Belgium refused to grant refugee status to the first of these three and withdrew refugee status from the second, and the Czech Republic withdrew refugee status from the third. In the three cases, the two member states invoked Directive 2011/95 which makes it possible to refuse or revoke refugee status if a person represents a threat to security or has been convicted of particularly serious crimes.
The Belgian Conseil du contentieux des étrangers (Council for asylum and immigration proceedings) and the Czech Nejvyšší správní soud (Supreme Administrative Court) asked the European Court of Justice whether the provisions in the directive infringe the Geneva Convention are, consequently, invalid in the light of the provisions of the Charter of Fundamental Rights and of the TFEU, by virtue of which the common asylum policy must comply with that convention.
In his opinion, the Advocate General says that they do not. He observes that the situations in which a member state may refuse or revoke refugee status correspond to the circumstances in which the Geneva Convention authorises the return of a refugee.
He points out, however, that the obligations of the member states in matters of the protection of fundamental rights broadly counteract their ability to return refugees. Where a refugee cannot be returned, despite the fact that he constitutes a danger, the member state concerned may, pursuant to the qualification directive, deprive that individual of his refugee status.
The Advocate General points out that the revocation of or the refusal to grant refugee status does not have the result that the individual concerned is no longer a refugee. He argues that it is apparent that being a refugee and having refugee status are two distinct concepts.
Refugee status derives from the sole fact that a person qualifies as such, irrespective of any recognition by a member state.
Refugee status, within the meaning of the provisions of the qualification directive designates the benefit of rights deriving from the recognition of refugee status pursuant to that directive.
The Advocate General observes that some of those rights, such as the right to a residence permit, the recognition of qualifications, and healthcare, have no equivalent in the Geneva Convention, and that others, such as the right to access to employment, housing and social assistance, are guaranteed by that convention only to refugees who are legally resident in the country of refuge.
Consequently, the Advocate General considers that the revocation of or refusal to grant refugee status leads to the individual concerned not, or no longer, benefiting from the rights provided for by the directive, such as the rights to non-discrimination, access to justice and state education as well as protection against deportation.
Nevertheless, the person remains a refugee and retains all the rights guaranteed by the Geneva Convention for any refugee irrespective of the lawfulness of his residence.
Furthermore, the refusal to grant refugee status does not discharge the member state concerned from its obligation to examine the application for asylum submitted to it and to recognise the applicant’s refugee status, where appropriate, at the conclusion of that examination.
The Advocate General concludes that the provisions of the qualification directive do not infringe the Geneva Convention. (Original version in French by Mathieu Bion)