Recent European Court of Justice developments on international protection

12 Feb 2024


The Court of Justice of the European Union (CJEU) has recently delivered two significant rulings in relation to international protection. An Advocate General of the CJEU also delivered their opinion on Member States recognising refugee status issued by other Member States.

Procedural guarantees and indirect refoulement under the Dublin III Regulation

On 30 November 2023, the CJEU delivered a preliminary ruling in relation to the provision of information to international protection applicants by second Member States and whether there is an obligation to consider ‘indirect refoulement’.

The judgment arises out of a preliminary ruling in response to 5 Italian cases with similar circumstances. The cases related to international protection applicants in Italy who were found to have previously lodged applications in other Member States and had lodged subsequent applications in Italy. They were subject to the ‘take back procedure’ under the Dublin III Regulation to transfer them back to the first Member State. The first question asked of the court was about the right to information and the provision of a personal interview for applicants who had lodged a subsequent application and were subject to a take back procedures. It was held that because the applicants can submit evidence and considerations that may alter the transfer decision, they had a right to information and should have access to a personal interview. The failure to do so by a Member State may be cause for a national court to invalidate transfer decisions.

Secondly, the court also clarified that the second Member State cannot examine, in the context of a transfer decision, the risk of “indirect refoulement” by the first Member State unless there are systemic flaws in the asylum procedure and reception conditions in that first Member State. Non-refoulement is a central principle of international refugee and human rights law that prohibits states from returning individuals to countries or territories in which they may face persecution, torture, inhuman or degrading treatment or any other human rights violation. Indirect refoulement is considered as removal to a third – intermediary – country from which the individual may then be removed to the country in which they face persecution or serious harm. In this context, the Court also considered Article 17(1) of the Dublin III Regulation (known as the ‘sovereignty clause’). Article 17(1) provides that a Member State can assume responsibility for the processing of an international protection application even though it is not initially found to be responsible. The Court stressed that it is an optional and discretionary clause. It held that this article does not require the second Member state to assume responsibility for the case where it disagrees with the assessment of the risk of refoulement in the first Member State and where there are no systemic flaws in the asylum procedure or reception conditions in that first state.

This decision clarifies the Dublin procedure in second Member States in terms of procedural guarantees for applicants subject to a transfer decision, as well as the consideration of ‘indirect refoulement’ in this procedure.


Gender-based violence as a form of persecution and a ground for international protection

On 16 January 2024, the CJEU ruled that “women, as a whole, may be regarded as belonging to a social group” and therefore are entitled to claim international protection if they are subjected to gender-based violence. The judgment found that the Qualification Directive 2011/95/EU, which outlines the conditions that must be satisfied to grant international protection, must be interpreted consistently with the Istanbul Convention which is binding on the EU and recognises gender-based violence against women as a form of persecution.

In Ireland, the International Protection Act 2015 regulates the conditions for obtaining international protection and contains some gender-specific considerations in the definition of persecution and when defining membership of a social group. While Ireland does not participate in the 2011 recast of the Qualification Directive, it does participate in the 2004 Qualification Directive and has ratified the Istanbul Convention in 2019.

In a recent EMN Ireland news story on Ireland’s baseline report on the implementation of the Istanbul Convention, it was noted that statistics are not collected on the number of applications made on the basis of gender-based violence and similarly, there is no data on decisions taken. As a result, the report recommended the collection of data to be able to assess to what extent refugee status or subsidiary protection are granted on the basis of gender-based violence against women as a form of persecution.


Recognition of refugee status issued by another Member State

On 25 January 2024, an Advocate General of the CJEU presented their Opinion in a case that asked whether a second Member State is bound to recognise the refugee status granted by a first Member State, without further examination of the material conditions necessary to qualify for refugee status. An Advocate General (AG) assists the CJEU in the performance of its functions and their Opinions, while non-binding, inform the final decision of the judges of the CJEU.

The case concerns a Syrian woman who had been granted refugee status in Greece and had subsequently applied for international protection in Germany. In Germany, she was not granted refugee status but was granted subsidiary protection on the basis that the living conditions for beneficiaries of international protection in Greece presented a serious risk of suffering inhuman or degrading treatment. The applicant appealed the refusal of the German authorities to grant her refugee status.

The AG held that there is no provision in the relevant EU law for the principle of mutual recognition of refugee statuses issued by Member States. In other words, a Member State is not bound by a previous decision of a different Member State to grant a person refugee status. The AG sets out how, where a person cannot be returned to the first Member State due to the living conditions there, the second Member State must conduct a new assessment of the international protection application. In conducting this assessment, it can nonetheless take into consideration the fact that the applicant was previously granted refugee status in another Member State.

The AG also stressed that the second Member State must prioritise the examination of the subsequent application and must consider using the mechanisms for exchanging information between Member States as provided for in the Dublin III Regulation.

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