CJEU: Opinion AG Mengozzi in Case C-585/16 Alheto, 17 May 2018

Thursday, May 17, 2018

On 17 May 2018, Advocate General Mengozzi delivered his opinion in Case C-585/16 Alheto, which concerns the interpretation of Article 12(1)(a) of the recast Qualification Directive and the recast Asylum Procedures Directive in a case concerning a stateless woman from Palestine who is registered as a refugee with the UNRWA and whose application for asylum in Bulgaria was denied.

Firstly, AG Mengozzi recalled that the preliminary questions had to be answered in the light of the 1951 Refugee Convention, the cornerstone of international protection, and, more specifically to the case in question, its Article 1D. In his opinion, while this article establishes an exclusion clause for those who are “receiving protection or assistance” from UN organs or agencies other than UNHCR, such as the UNRWA, that same article contains an inclusion clause for those who, for any reason, no longer receive that protection. According to the Advocate General, when a person who has been recognised as a refugee by the UNRWA applies for international protection in a Member State, it suffices for national authorities to examine the discontinuity of the protection or assistance once granted by UNRWA, be it due to armed conflicts or to a general situation of violence or insecurity making that protection or assistance ineffective, which led the person concerned to leave the area of operation of that agency. It would not be necessary, therefore, for such an asylum applicant to demonstrate a well-founded fear of persecution, as his or her refugee status was already recognised by the UNRWA.

Secondly, in the Advocate General’s opinion, Article 12(1)(a) of the recast Qualification Directive contains a sufficiently precise and unconditional provision which can be directly relied upon before national courts. The fact that a party concerned has not raised such a provision of direct effect during the court proceedings is not a bar to a national judge to apply that provision if deemed necessary.

Thirdly, while AG Mengozzi found the remaining questions inadmissible for different reasons, he briefly analysed these questions. He advanced, inter alia, that while the 1951 Refugee Convention neither foresees nor excludes measures based on the “first country of asylum” or “safe third country” concepts, such measures will only be compatible with the 1951Refugee Convention where they guarantee the fulfilment of the human rights of refugees in accordance with that Convention. It is the obligation of Member States to ensure that an effective protection will be afforded in the third country, particularly where that country already hosts a considerable refugee population.

Based on an unofficial translation by the ELENA Weekly Legal Update.

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Exclusion from protection
First country of asylum
International armed conflict
Safe third country