Advocate General’s Opinion in Joined Cases C-391/16 M v Ministerstvo vnitra, C-77/17 and C-78/17 X v Commissaire général aux réfugiés et aux apatrides, 21 June 2018

Thursday, June 21, 2018

On 21 June 2018, Advocate General Wathelet gave his Opinion in the joined cases of C-391/16 M v Ministerstvo vnitraC-77/17 and C-78/17 X v Commissaire général aux réfugiés et aux apatrides. The questions referred by the respective national courts concerned the interpretation of Article 14(4), (5) and (6) of the Qualification Directive and its conformity with the 1951 Refugee Convention. In sum, the national courts asked whether the aforementioned clauses of the Qualification Directive create new grounds for refusal [Article 14(5)] and withdrawal [Article 14(4)] of refugee status due to “danger to the security of the Member State” or previous conviction for a serious crime, which are not explicitly laid down in the 1951 Refugee Convention and, thus, whether they are invalid under Article 18 of the Charter of Fundamental Rights and Article 78(1) Treaty on the Functioning of the European Union.

According to the AG, Articles 14(4)-(6) are open to an interpretation in which it can be concluded that they are in compliance with Article 18 of the Charter and Article 78(1) TFEU. The AG’s conclusion in this respect is based on several main points.

First, unlike the application of a ground for cessation or exclusion, Articles 14(4) and (5) do not have the consequence of depriving the individual concerned of the ‘quality of refugee’. According to the AG, it is apparent from the text, objectives and overall scheme of that directive that qualifying as a refugee, on the one hand, and having refugee status or having refugee status withdrawn, on the other hand, are two distinct concepts.  Since the 'quality of a refugee' derives solely from the fact that a person qualifies as a refugee, irrespective of any recognition by a Member State, the cessation or exclusion of the 'quality of refugee' and the subsequent revocation of refugee status cannot be reduced to a single concept. Thus, a decision given under Article 14(4) does not affect the 'quality of a refugee'.

Second, and by contrast, the terms refugee status and status granted to a refugee as per Articles 14(4) and (5) refer only to the benefit of the rights provided for in Chapter VII of the Qualification Directive, without prejudice to the rights which must be granted to the refugee concerned under the Geneva Convention. Some rights contained within that Chapter have no equivalent in the Geneva Convention whereas some are guaranteed, by the Convention, to refugees who are legally resident.  The AG, therefore, surmises that if a Member State uses Articles 14(4) or (5) the refugee is still entitled to keep the 'quality of a refugee' and the rights set out in Articles 3, 4, 13, 16, 20, 22, 25, 27, 29, 31, 32 and 33 of the Geneva Convention irrespective of the lawfulness of his residence.

Last, the AG concludes that 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.

Based on an unofficial translation by the ELENA Weekly Legal Update


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Cessation of protection
Exclusion from protection