Asylum and refugees status for nationals of Member States

«This directive is without prejudice to the Protocol on asylum for nationals of Member States of the European Union as annexed to the Treaty Establishing the European Community» (Directive 2004/83/EC of 29 April 2004, considerando n. 13).

Here we have just three lines to remember the hypothesis of asylum of nationals of Member States generally forgotten.

It may sound strange but at least it is an unusual and not impossible situation also because we can’t forgive what considerando n. 14 of the same Directive tell us: “The recognition of refugees status is a declaratory act”. In other words, as it is formalised in article 9, nr. 1, a), in case of qualification for being a refugee, acts of persecution within the meaning of article 1 A of the Geneva Convention must «(a) be sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the European Convention for the Protection of Human Rights and Fundamental Freedom; or (b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a)».

Acts of persecution like those mentioned above can take the form of

(i)                 acts of physical or mental violence, including acts of sexual violence;

(ii)               legal, administrative, police, and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner;

(iii)             prosecution or punishment, which is disproportionate or discriminatory;

(iv)             denial of judicial redress resulting in a disproportionate or discriminatory punishment;

(v)               prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses as set out in Article 12(2);

(vi)             acts of a gender-specific or child-specific nature.

Communitarian dispositions we are used to keep under consideration about asylum are Articles 2 and 63 of the Treaty on European Union referred anyway to third countries nationals and stateless persons. The first one puts as an objective that of maintaining and developing an area of freedom, security and justice, in which the free movement of persons is assured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime. Article 63 has been modified by Treaty of Lisbon[1]. In particular it says:

«1. The Union shall develop a common policy on asylum, subsidiary protection and temporary protection with a view to offering appropriate status to any third-country national requiring international protection and ensuring compliance with the principle of non refoulement.

This policy 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.

2. For the purposes of paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures for a common European asylum system comprising:

(a) a uniform status of asylum for nationals of third countries, valid throughout the Union;

(b) a uniform status of subsidiary protection for nationals of third countries who, without obtaining European asylum, are in need of international protection;

(c) a common system of temporary protection for displaced persons in the event of a massive inflow;

(d) common procedures for the granting and withdrawing of uniform asylum or subsidiary protection status;

(e) criteria and mechanisms for determining which Member State is responsible for considering an application for asylum or subsidiary protection;

(f) standards concerning the conditions for the reception of applicants for asylum or subsidiary protection;

(g) partnership and cooperation with third countries for the purpose of managing inflows of people applying for asylum or subsidiary or temporary protection.

3. In the event of one or more Member States being confronted by an emergency situation characterised by a sudden inflow of nationals of third countries, the Council, on a proposal from the Commission, may adopt provisional measures for the benefit of the Member State(s) concerned. It shall act after consulting the European Parliament».

It is undoubted that these two articles define the general rules for asylum and refugees. What we have to understand is  if and in which way these general dispositions may be applied to asylum seekers from Member States and how different may seem conditions and cases of asylum for nationals of Member States.  

Communitarian laws on this matter are Protocol n. 29 to Treaty of Amsterdam as changed by Protocol 1 of Lisbon[2] and declarations n. 48, 49 and 56 annexed to Treaty of Amsterdam, a part the mentioned considerando n. 13 of Directive 2004/83/EC.

Fundamental points are represented by the fact that any application for asylum made by a Member State’s national may be taken into consideration or declared admissible for processing by another Member State only in the following cases:

1. if the Member State of which the applicant is a national proceeds after the entry into force of the Treaty of Amsterdam, availing itself of the provisions of Article 15 of the Convention for the Protection of Human Rights and Fundamental Freedoms, to take measures derogating in its territory from its obligations under that Convention

2. if the procedure referred to in Article 7(1) of the Treaty on European Union has been initiated and until the Council or, where appropriate, the European Council takes a decision in respect thereof with regard to the Member State of which the applicant is a national;

3. if the Council has adopted a decision in accordance with Article 7(1) of the Treaty on European Union in respect of the Member State of which the applicant is a national or if the European Council has adopted a decision in accordance with Article 7(2) of that Treaty in respect of the Member State of which the applicant is a national;

4. if a Member State should so decide unilaterally in respect of the application of a national of another Member State; in that case the Council shall be immediately informed; the application shall be dealt with on the basis of the presumption that it is manifestly unfounded without affecting in any way, whatever the cases may be, the decision-making power of the Member State.

Preliminary and instrumental to a correct interpretation of what previewed before are:

a)                  art. 7 of the Treaty on European Union which establishes a mechanism for the suspension of certain rights in the event of a serious and persistent breach by a Member State of those values;

b)                 question of extradition of nationals of Member States of the Union as addressed in the European Convention on Extradition of 13 December 1957 and the Convention of 27 September 1996 drawn up on the basis of Article 31 of the Treaty on European Union relating to extradition between the Member States of the European Union;

c)                  the respect the Protocol confirms of the finality and the objectives of the Geneva Convention of 28 July 1951 relating to the status of refugees;

d)                 in accordance with Article 6(1) of the Treaty on European Union, the Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights

e)                  pursuant to Article 6(3) of the Treaty on European Union, fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms, constitute part of the Union’s law as general principles

f)                  pursuant to Article 49 of the Treaty on European Union any European State, when applying to become a Member of the Union, must respect the values set out in Article 1a of the Treaty on European Union

g)                 each national of a Member State, as a citizen of the Union, enjoys a special status and protection which shall be guaranteed by the Member States in accordance with the provisions of Part Two of the Treaty on the Functioning of the European Union

h)            Member States be regarded as constituting safe countries of origin in respect of each other for all legal and practical purposes in relation to asylum matters.

Juridical perspective is completed by three declarations annexed to the final act of Amsterdam and precisely:

a) Declaration Nr. 48 relating to the Protocol on asylum for nationals of Member States of the European Union:

«The Protocol on asylum for nationals of Member States of the European Union does not prejudice the right of each Member State to take the organisational measures it deems necessary to fulfil its obligations under the Geneva Convention of 28 July 1951 relating to the status of refugees».

b) Declaration Nr. 49 relating to subparagraph (d) of the Sole Article of the Protocol on asylum for nationals of Member States of the European Union

«The Conference declares that, while recognising the importance of the Resolution of the Ministers of the Member States of the European Communities responsible for immigration of 30 November/1 December 1992 on manifestly unfounded applications for asylum and of the Resolution of the Council of 20 June 1995 on minimum guarantees for asylum procedures, the question of abuse of asylum procedures and appropriate rapid procedures to dispense with manifestly unfounded applications for asylum should be further examined with a view to introducing new improvements in order to accelerate these procedures».

c) Declaration Nr. 56 by Belgium on the Protocol on asylum for nationals of Member States of the European Union.

«In approving the Protocol on asylum for nationals of Member States of the European Union, Belgium declares that, in accordance with its obligations under the 1951 Geneva Convention and the 1967 New York Protocol, it shall, in accordance with the provision set out in point (d) of the sole Article of that Protocol, carry out an individual examination of any asylum request made by a national of another Member State».

 

The articles of Treaty on European Union here above refer to specific conditions in presence of which asylum for national of Member States can be admitted. The first of these conditions is represented by derogation from provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms availing of article 15 of the same Convention. In other words a national from a Member State might legitimately present his/her application for asylum if the Member State takes measures inconsistent with its obligations under international laws supposing as an excuse a time war or other public emergency threatening the life of the nation[3].

Second case is the application of procedure indicated in Article 7 (1) and (2) of EU Treaty in respect of the Member State of which the applicant is a national[4].

1. On a reasoned proposal by one third of the Member States, by the European Parliament or by the Commission, the Council, acting by a majority of four fifths of its members after obtaining the assent of the European Parliament, may determine that there is a clear risk of a serious breach by a Member State of principles mentioned in Article 6(1), and address appropriate recommendations to that State. Before making such a determination, the Council shall hear the Member State in question and, acting in accordance with the same procedure, may call on independent persons to submit within a reasonable time limit a report on the situation in the Member State in question.

The Council shall regularly verify that the grounds on which such a determination was made continue to apply.

2. The Council, meeting in the composition of the Heads of State or Government and acting by unanimity on a proposal by one third of the Member States or by the Commission and after obtaining the assent of the European Parliament, may determine the existence of a serious and persistent breach by a Member State of principles mentioned in Article 6(1), after inviting the government of the Member State in question to submit its observations.

(omissis)[5].

 

 In any case each Member States is regarded as constituting, as said before, safe countries of origin in respect of each other for all legal and practical purposes. This is a really important mutual admission for the consequences it has to have. First of all we are talking about European citizens. In other words we keep into consideration the hypothesis of a national of one of the Member States and in the same time a person with communitarian nationality who could be forced to present an application for asylum. Each country within EU can be assumed as an origin country and as a further consequence as a safe country of origin. But this quite obvious analysis is sufficient to emphasize also the limits of such a definition of ‘safe country of origin’ introduced into Directives referred to third country or stateless asylum seekers and refugees[6]. Not only, from this we enter directly into the question of interpretation of paragraph 1 and 3 of article 6 of the Treaty on European Union. This is due to the fact that now, more than before, interpretation is based on three elements: definition of refugee or asylum seeker; distinction between the principles guaranteed by European Convention for the Protection for Human Rights and Fundamental Freedoms which constitute part of the Union’s law and the values transposed from the Treaty on the Functioning of the European Union to the Charter of Fundamental Rights; jurisdiction of the Court of Justice of the European Communities to ensure that in the interpretation and application of Article 6 cited above the law is observed by the European Community.

The first element has been anticipated in the sense that considerando (or recital) 13 and 14 read together with art. 9, nr. 1, a), underline that violation of the Geneva Convention article 1 must be valuated with regards to art. 15 of Convention for the Protection of Human Rights. Paragraphs (1) and (2) of the Geneva Convention article 1 appear particularly important for us. And of the two paragraphs the nr. 2 is determinant here considering the particular political and geographical context potential asylum seekers come from, in other words European Union.

“(2) As a result of events occurring before I January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

In the case of a person who has more than one nationality, the term "the country of his nationality" shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national”.

 

We find here the causes of discrimination or violation of fundamental human rights and freedoms. But it is mentioned the possibility of a double nationality person may have. We cant’ forget also what it is written in article 1 of the Protocol relating to the Status of Refugees entered into forced 4 October 1967. In its paragraphs 2 and 3 it is clearly said that «the term of ‘refugee’ shall, except as regards the application of paragraph 3 of this article, mean any person within the definition of article 1 of the Convention as if the words “As a result of events occurring before 1 January 1951 and…” and the words “…as a result of such events”, in article 2 A(2) were omitted. 3. The present Protocol shall be applied by the States Parties hereto without any geographic limitation, save that existing declarations made by States already Parties to the Convention in accordance with article 1B (I) (a) of the Convention, shall, unless extended under article 1 B (2) thereof, apply also under the present Protocol». This represents an important admission of all possible hypothesis of asylum independently from geographic area and we are just in a particular case of asylum within an area apparently out of  situations that should justify an application for asylum.

Finally we arrive to those essential change introduced by Treaty of Lisbon with the substitution in the body of the Protocol nr. 29 of ‘principle’ with ‘value’ as a consequence of their transfer from the Treaty to the Charter. The change refers to the same rights Convention on Human Rights defines as ‘principle’ and the Treaty on European Union considers as ‘principles’ because deriving from the Convention.

Question is now on  if the term of value instead of principle may represent a deminutio, in terms of defence of rights and formal and substantial safeguard of human rights and freedoms. And here it could be reinforced the role of the Court of Justice of European Community. If it is philosophically and ethically comprehensible defining ‘common values’ human dignity, freedom, equality and solidarity, it is also particular the double identification of the same fundamental rights as principles and as values. As a consequence there could be a possible discussion about the interpretation of those fundamental rights according to different ethical approach to them seen as values instead of principles, a concept legally stronger then the other one.

In this contest a quick consideration has to be proposed with regards to the cited declarations and in particular declaration n. 49 which summarizes a basic problem referred to asylum but in connection to and in direct derivation from immigration. While EU Commission is going to propose a Common European Asylum System able to solve also mixture between legal and illegal immigration laws and different national asylum systems, declaration n. 49 remands us of point (d) of Sole Article of the Protocol n. 29 here under exam in order to underline the possibility of ‘manifestly unfounded applications for asylum’ as well as ‘the question of abuse of asylum procedure’. And also declaration n. 56 centralizes attention on the same point (d). This may signify that possibility of abuse is admissible such as the fact that a single Member State should unilaterally decide in respect of the application of a national of another Member State. In a similar situation ‘the application shall be dealt with on the basis of the presumption that ii is manifestly unfounded without affecting in any way, whatever the cases may be, the decision-making power of the Member State’. We see here the adoption of the same definitions and the emerging of the same difficulties which characterize applications presented by third country nationals and stateless persons.

The last question introduces us also to the more controversial element admitted in the Protocol n. 29 in its seventh recital where it is said that “the question of extradition of nationals of Member States of the Union is addressed in the European Convention on Extradition of 13 December 1957 and the Convention of 27 September 1996 drawn up on the basis of Article 31 of the Treaty on European Union relating to extradition between the Member States of the European Union”.

Some final considerations have to be done. The first is due to the surprise that in occasion of the Treaty of Lisbon, there has not been introduced the remind to European Convention of Extradition by the moment that from 2002 it has been adopted the framework decision on European Arrest Warrant. Second step is exactly on the framework decision 2002/584/GAI of 13 June 2002 on the European Arrest Warrant, which substitutes the Convention on extradition of 1957. It is a very important premises for two reasons. Rules for surrender are quite different and political asylum, which could represents one of the cases the quite general and generic Protocol n. 29 could contemplate, has been abolished. Moreover this could represent a really divergent disposal from directives on asylum where it is clearly said that Member States can make an exception [to the right to remain in the MS pending the examination of the application] only where, in accordance with Articles 32 and 34, a subsequent application will be further examined or where they will be surrender or extradite, as appropriate, a person either to another MS pursuant to obligations in accordance with a European Arrest Warrant or otherwise, or to a third country, or to international criminal courts or tribunals (art, 7, § 2, Directive 2005/85/EC of 1 Dec. 2005).

 So, in concrete terms, how could we interpret the application of asylum for nationals of a Member States? Surely we could reason in terms of cases of violations of fundamental rights and freedoms, for example discrimination or limitation to free sexual tendency or detention in prisons where it has been proved that systems do not guarantee human rights or at least they are proved admitting abuses, violence or inhuman treatments.

 

 

 

 

 

 

 

 

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