Refugee Status, Subsidiary Protection, and the Right to Be Granted Asylum Under Ec Law

Abstract

On 29 April 2004, the Council of the European Union adopted the Directive 2004/83 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (the Qualifications Directive).

This paper undertakes an overall assessment of the value of this instrument for refugee protection in Europe by addressing some of the key issues raised by it in light of international refugee and human rights law. It is argued that by virtue of its incorporation in an instrument of EC legislation, the obligation of Member States to grant protection and to recognise socio-economic rights to refugees and to other persons in need of international protection confers upon these individuals a subjective right to be granted asylum, protected by the Community legal order and enforceable before national courts and the ECJ. Accordingly, its scope of application and the limitations and derogations to which it may be subjected on security and other grounds, are to be interpreted by reference to the Community's legal order and in particular, in light of the general principles of Community law, including human rights. The Directive therefore constitutes the first legally binding supranational instrument of regional scope in Europe that recognises the right of individuals to be granted asylum and the content of that status.

The paper addresses the relationship between the Directive, an instrument of secondary EC law, and international treaties, in particular the Geneva Convention, and other relevant international human rights instruments, thus establishing the legal framework within which the Directive is to be interpreted and applied. It then analyses the legal nature of the right of refugees and other persons to be granted protection and the scope of application of that right ratione personae. It further looks at the limitations that may be placed upon this right within the Community legal order, in particular on security grounds and in relation to the effective enjoyment of the status granted.