November 29
2021
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16th November 2021
Employment & Immigration Human Rights Justice & Litigation

Op-Ed: “To Derive or not to Derive? On the Due Deference of the Common European Asylum System to the International System for Refugee Protection in LW (C-91/20)” by Janine Silga

Although the Common European Asylum System (CEAS) clearly acknowledges the importance of maintaining the family unity of refugees and beneficiaries of subsidiary protection, it does not explicitly address the question of the legal status of their family members. In particular, it remains unclear whether EU law allows for the extension of the refugee status to the family members of refugees when they are not entitled to asylum on an individual basis.

This question lies at the heart of the Court of Justice’s Grand Chamber ruling issued on 9 November 2021 in LW (C-91/20), on the determination of the legal status of the minor child of a refugee. In this case, the Court ruled in favour of extending the refugee status to the minor child whose nationality differs from her parent refugee. In doing so, the Court seemed to rightly take into consideration the international system for refugee protection by acknowledging not only the 1951 Geneva Convention relating to the Status of Refugees but also subsequent relevant developments stemming from the United Nations High Commissioner for Refugees (UNHCR).

This short comment will first start by presenting the background to the case, before examining the extent to which the Court’s approach concurred with the one of its Advocate General (AG), while they reached different conclusions. This Op-Ed argues that the main factor explaining this divergence lies in their different approach when it comes to the extent to which the CEAS should be deferent to the international system for refugee protection.

Background to the case

The applicant in this case is a child born in 2017 in Germany to a Syrian father and a Tunisian mother. As such, the child is a Tunisian national but it is unclear if she also holds Syrian nationality. Her father was granted refugee status in October 2015, while her mother’s application for international protection was rejected.

By a decision of 15 September 2017, the German Federal Office for Migration and Refugees rejected the applicant’s individual claim for asylum. This was later confirmed by a judgment of the Administrative Court of Cottbus dismissing the applicant’s action. The Administrative Court especially argued that – as a Tunisian national – the applicant could avail herself of the protection of this State, owing to the subsidiary nature of international protection. The applicant then brought an appeal before the German Federal Administrative Court, which referred three questions to the Court of Justice.

The litigation focused on some national provisions of the German Law on the right of asylum, which provide that a derived refugee status is to be granted to the unmarried minor child of a person entitled to refugee protection. This practise appears to be uncontroversial with respect to family members of the same nationality as the refugee, as the Court of Justice itself ruled in Ahmedbekova (C‑652/16, paragraphs 72-74) and it is widespread among Member States (LW, paragraph 57). In this respect, the referring court wondered if granting refugee status to the minor child of a refugee who might avail herself of the protection of her country of nationality – which was different from her father’s – was compatible with the Qualification Directive 2011/95/EU (‘Qualification Directive’) in two main respects. First, Article 3 allows Member States to introduce or retain more favourable standards for the determination of international protection – including the refugee status – only ‘in so far as those standards are compatible with this Directive.’ Second, Article 23(2) of the same instrument requires Member States to ensure that family members who do not qualify individually for international protection can claim most of the rights to which their family member who is a refugee or a beneficiary of subsidiary protection is entitled, based on the principle of family unity. These rights include being issued a residence permit (Article 24 of the Qualification Directive), without specifying what the legal status of family members of the refugee should be. In this sense, Article 23(2) of the Qualification Directive only mentions that the rights stemming from the refugee status should be granted to the family members of a refugee only as far as this is compatible with their ‘personal legal status’.

The underlying question in this case consisted, therefore, in establishing the extent to which granting a derivative refugee status to the minor child of a refugee was compatible with the EU system of international protection, in view of the fact that she could – at least hypothetically – avail herself of the protection of her country of nationality. In relation to this question, the referring court also asked about the necessity to assess the possibility for the child and her parents to reside in her country of nationality.

Two (partially) concurring approaches leading to opposite conclusions

Although the Court of Justice and AG Richard de la Tour disagreed on the answer to give to the main question at stake, they agreed on the basic tenets of the case.

First, they concurred on the fact that the applicant did not qualify personally for refugee status. This stems from the definition of a ‘refugee’ according to Article 2(d) of the Qualification Directive, which essentially reproduces Article 1(A)(2) of the 1951 Geneva Convention relating to the status of refugees whereby only a person with a well-founded fear of persecution for limited grounds and who does not benefit from the protection of their country of nationality is a refugee. This corresponds not only to the individual nature of the refugee status but also to what both the Court and AG Richard the la Tour identify as the principle of the subsidiarity of international protection.

Second, the Court and its AG agreed that the principle of family unity requires that Member States ensure that a child in the same position as the applicant must be allowed to stay in the Member State that has granted the refugee status to one of her parents. In this sense, they both found that it is irrelevant to ascertain whether the child and her parents could relocate to her country of nationality as a way of maintaining the unity of their family.

Last, they both admitted that the applicant did not fall within the definition of a ‘family member’ as provided by Article 2(j) of the Qualification Directive, insofar as she was born in the host Member State rather than in the country of origin of her parents – and in particular, her father. However, as both the Court and the AG acknowledged, she is clearly a minor – in the sense of Article 2(k) of the same Directive – and therefore, her best interests must be taken into account as expressed – among others – in recitals 18, 19 and 38 and Article 20(5) of the Qualification Directive.

In spite of their agreement, it is remarkable that the Court and the AG reached opposite conclusions as to the main question of the case, that is, if a derivative refugee status could be granted to the applicant. In its judgment, the Court of Justice found that neither Article 23(2) nor Article 3 of the Qualification Directive prevent a Member State from granting a derived refugee status to a refugee’s minor child who is in a position similar to the applicant’s, unless this child is caught by a ground of exclusion as provided in Article 12(2) of the same instrument. On the contrary, AG Richard de la Tour had suggested that neither provision allowed for granting – almost automatically – a derived refugee status in this case, as a form of ‘collective effect’ of international protection.

The key issue: what scope for deference to the international system for refugee protection?

In my opinion, the divergence between the conclusions reached by the Court of Justice and by AG Richard de la Tour lies in their deeper disagreement on the degree of deference that the CEAS owes to the international system for refugee protection beyond the 1951 Geneva Convention and its Protocol.

As a preliminary remark, it is important to note that the CEAS has been shaped in accordance with the international system for refugee protection from which it originates. In this respect, Article 78(1) TFEU mentions that the common policy on asylum ‘must be in accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees, and other relevant treaties.’ Based on its earlier case law, this is duly acknowledged by the Court of Justice (judgment, paragraph 27) and by the AG (Opinion, point 64) as the fact that the Qualification Directive must be interpreted ‘in a manner consistent with the Geneva Convention’. As expressed by the Qualification Directive itself (recital 4) and the case law of the Court (see for example XT, C-507/19, paragraph 38), the Geneva Convention constitutes the ‘cornerstone of the international legal regime for the protection of refugees’. However, the international system for refugee protection as established by the 1951 Geneva Convention is not limited to this instrument and its Protocol, as it notably includes the recommendations of the UNHCR and its bodies, especially its Executive Committee.

The issue in this specific case was that as such neither the 1951 Geneva Convention, nor its 1967 Protocol provide for a clear answer to the question on the possibility for granting a derived refugee status to family members of refugees. In fact, neither instrument even mentions family unity. As both the Court and AG Richard de la Tour highlighted, this principle rather stems from the Final Act of the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons of 25 July 1951, which states that ‘…[t]he unity of the family, the natural and fundamental unit of society, is an essential right of the refugee…’

On this basis, the UNHCR Executive Committee has issued some recommendations for the Contracting Parties to follow. This is especially the case of its 1981 Conclusions no. 24 on Family reunification, whereby on the basis of the principle of family unity, it recommends that ‘[i]n order to promote the rapid integration of refugee families in the country of settlement, joining close family members should in principle be granted the same legal status and facilities as the head of the family who has been formally recogni[s]ed as a refugee.’ In this respect, AG Richard de la Tour also mentioned some recommendations of the Executive Committee on Family Protection Issues in 1999 echoing the 1981 Conclusions (Opinion, point 69).

Another key difference between the Court and the AG’s reasonings consists in the way in which they have approached the best interests of the child in this case. This principle, which stems from Article 3(1) of the 1990 United Nations Convention on the Rights of the Child, is formulated in Article 24 of the EU Charter of Fundamental Rights. The Court clearly relied on this principle to find that in the applicant’s situation, the ‘personal status’ that would be incompatible with granting her a derivative refugee status and the rights stemming from it according to Article 23(2) of the Qualification Directive, could only consist in a legal status giving her ‘the right to better treatment in th[e host] Member State than that resulting from such extension.’ (paragraphs 54 and 55). On the other hand, the AG considered that the best interests of the child do not necessarily require such an extension, as they can be adequately protected through other secondary legislation, such as the Family Reunification Directive 2003/86 (Opinion, points 131 to 141).

In its ruling, it seems that the Court rightly took into consideration the recommendations of relevant international institutions − and in particular the UNHCR − to interpret the relevant EU law provisions. Conversely, the AG adopted a rather formalistic approach by being overly attached to ensuring the ‘uniformity of asylum status and subsidiary protection’ (Opinion, point 102), which did not allow for paying full attention to the fundamental rights that were at stake in this case, namely the protection of family unity and the best interests of the child. While it is clear that the CEAS has been put to a severe test in the aftermath of the latest ‘migration crisis’, it should be remembered that its rationale remains the protection of persons rather than the preservation of a legal status.

 

Janine Silga is an Assistant Professor of EU Law at Dublin City University. Her recent publications include ‘Le droit au regroupement familial des réfugiés mineurs non accompagnés devenus majeurs: l’affaire A et S, entre progrès incontestable et portée relative’ (European Papers) and ‘The ambiguity of the European Union policy discourse on the Migration and Development Nexus: Perpetuating the Colonial Legacy?’ (UCLA Journal of International Law and Foreign Affairs).

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