International Journal of Refugee Law Advance Access originally published online on April 18, 2008
International Journal of Refugee Law 2008 20(1):1-49; doi:10.1093/ijrl/een012
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EU Refugee Qualification Directive: a Brave New World?
* Senior Immigration Judge, Asylum and Immigration Tribunal, UK
This article aims to map some of the major implications for asylum–related law in Europe of the Refugee Qualification Directive, which twenty-four EU Member States were required to implement by 10 October 2006. It seeks to build on important studies of the Directive completed by, among others, Hemme Battjes, in his book European Asylum Law and International Law, Nijhoff 2006, and Jane McAdam, in her book Complementary Protection in International Refugee Law, OUP 2007, albeit it takes a different view of some key questions.
Part 2 deals with the impact of the Directive on the application and interpretation of the 1951 Refugee Convention and its 1967 Protocol. It is argued that, even read simply as a set of provisions giving interpretive guidelines on the application of the Refugee Convention, it affects many things concerned with refugee eligibility, since these provisions cover key elements of the refugee definition.
Part 3 deals with the impact of the Directive on the asylum-related human rights jurisdiction that currently prevails in Europe in one form or another.1 It is argued that the effect of the Directive is and must be to render Article 3 ECHR protection – or its domestic equivalent – a largely residual category, save in exclusion cases.
Part 4 addresses to what extent, if at all, the Directive contains mandatory provisions and how, post-implementation, these can be integrated into the national law of Member States. It is argued that, considered in purely textual terms, the key definitional and interpretive provisions of the Directive are mostly in mandatory form. Further, that whilst, by virtue of being a minimum standards directive, the Directive allows Member States to introduce or retain more favourable standards (A3), the same article stipulates that such standards must be compatible with the Directive. That proviso is of some importance given that the Directive’s preamble (at R7) identifies as one objective the avoidance of secondary movements. In relation to articles of the Directive which specify in mandatory terms how elements of the refugee definition are to be applied, Member States cannot be free to introduce or retain differing standards.
Parts 5 and 6 analyse suggested differences, first, between the Directive’s refugee definition and the Refugee Convention (it is argued that the only potential difference of real significance concerns the Directive’s rendering of the Article 1F exclusion clauses of the Refugee Convention) and, secondly, between the Directive’s subsidiary protection definition and Article 3 ECHR. The extent of symmetry between the new subsidiary protection criteria and ECHR protection under Article 3 is explored, in particular, arguing that, whilst there are three respects in which subsidiary protection criteria are narrower (relating to personal scope; the existence of cessation and exclusion clauses; and limited application to ‘health cases’), there may be limited respects in which it may be broader in scope than Article 3 ECHR.
Part 7 examines patterns of implementation in the light of early evidence to hand from, for example, the November 2007 UNHCR survey of five Member States. The UK is considered as a further example, that of a member state where, despite it being seen as unnecessary to make any substantial changes, the implementing measures have required important changes in method of approach and in conceptual language.