The Concept of ‘Protection’ by Non-State Actors in the Country of Origin and the Revocation of the Refugee Status

CJEU Case C-255/19, Secretary of State for the Home Department v. O A
July 16, 2021
By Dr. Marina Kaspar, LL.M. (University of Michigan Law School); Teaching and Research Associate, Department of Constitutional and Administrative Law, University of Vienna

I.         Introduction

In international refugee law and under EU asylum law, an individual must demonstrate both that they face a risk of serious harm and that they lack state protection from that harm to qualify for refugee status. On 20 January 2021, the CJEU delivered a judgement on the question of ‘protection’ in the country of origin and the revocation of the refugee status.[1] While this case presented a chance for the CJEU to clarify the meaning of protection by non-state actors in EU-asylum law, the Court primarily reiterated that mere financial support by family or clan members cannot constitute protection by non-state actors in the sense of Article 7(1)(b) Directive 2004/83/EC (“old Qualification Directive”).[2] That mere family support or financial assistance cannot be equated with effective state protection is, of course, reassuring. However, it does not really help in clarifying what requirements need to be fulfilled for a non-state actor to provide effective protection. Further, the question arises whether the protection by non-state actors as laid down in Article 7 old Qualification Directive is in accordance with international refugee law, especially because the text of the Refugee Convention refers to the protection of the country of origin.[3] As a practical matter, nevertheless, the growing level of assistance for refugees provided by non-state actors in refugee source countries requires a closer look at this issue.[4] Thus, this note aims to analyze this CJEU decision in the broader context of international refugee law and how other jurisdictions are dealing with the issue of protection by non-state actors.

II.         Protection by Non-State Actors under EU-Law

One of the main questions before the CJEU was whether the applicant still fulfills the criteria for refugee status. The question who qualifies as a beneficiary of international protection is essential for the establishment of a Common European Asylum System (CEAS). The Directive 2011/95/EU (“Qualification Directive”)[5], which revised the old Qualification Directive, lays down common criteria for the granting of refugee or subsidiary protection status and sets out the rights afforded to persons who have been granted international protection.[6] In this particular case, however, the old Qualification Directive constitutes the applicable EU law because the United Kingdom of Great Britain and Northern Ireland did not adopt its recast (Directive 2011/95/EU) and are therefore not bound by it.[7]

According to Article 11(1)(e) old Qualification Directive, a third-country national or stateless person ceases to be a refugee if he or she continues to refuse to avail himself or herself of the protection of the country of nationality, although the circumstances in connection with their recognition as a refugee have ceased to exist. In that regard, Member States shall consider whether the change of circumstances is of such a significant and non-temporary nature that the refugee’s fear of persecution can no longer be regarded as well-founded. Article 11(1)(e) old Qualification Directive has to be read in conjunction with Article 7(1) and (2) which provides that protection can be provided by the state, parties, or (international) organizations that control the state or a substantial part of the territory of the state. Protection is generally provided when these actors take reasonable steps to prevent the persecution or suffering of serious harm, and the applicant has also access to such protection.[8] Thus, EU law recognizes that non-state entities can be actors of protection although, as explained later, this can be seen critically under international refugee law.

III.         CJEU Case C-255/19, Secretary of State for the Home Department v. O A

A.         Facts and Procedural History

In 2003, the applicant OA, a Somali national, was granted refugee status in the United Kingdom as a dependent on his then-wife based on his membership in a minority clan, which was persecuted by majority clans. In 2016, OA’s status was revoked because of a non-temporary change of circumstances in the country of origin. Specifically, the United Kingdom presented two arguments. First, it argued that the minority clans were no longer subject to persecution by the majority clan in the Mogadishu region. Second, it argued that Somalia was now able to offer effective protection in that region. OA disputed those findings. He argued that Somali authorities could not protect him from serious harm and that the British Court erred in its interpretation that state protection is also available when provided by private actors, such as family or other clan members. The Upper Tribunal then stayed the proceedings and referred four questions to the CJEU regarding the meaning of protection in the country of nationality in the old Qualification Directive and the criteria to determine the availability of state protection in the case of a revocation of the refugee status.

B.         Reasoning of the CJEU

First, the CJEU held that Article 11(1)(e) old Qualification Directive “must be interpreted as meaning that the requirements to be met by the ‘protection’ to which that provision refers in respect of the cessation of refugee status must be the same as those which arise, in relation to the granting of that status.”[9] In its analysis whether social and financial support provided by private actors could constitute the level of protection required under the old Qualification Directive, the Court stated under reference to the opinion of Advocate General (AG) Hogan:

“protection is generally provided when the actors mentioned in paragraph 1 [of Article 7] take reasonable steps to prevent the persecution or suffering of serious harm, inter alia, by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm, and the applicant has access to such protection.”[10]

Subsequently, the Court concluded that under Article 11(1)(e) old Qualification Directive, read together with Article 7 of that Directive, mere social and financial support provided by private actors, such as the family or the clan of the third-country national concerned, is inherently incapable of constituting effective and available state protection.[11] Additionally, the CJEU reiterated that economic hardship cannot constitute ‘persecution,’ and thus, social and financial support by private actors is not a relevant factor in assessing the availability of state protection. The Court thereby reiterated that any social and financial support provided by civil society actors, falls short of what is required under the applicable EU law to constitute protection.

IV.         Non-State Actors of Protection under International Refugee Law?

Apart from the question answered by the CJEU in OA’s case on whether mere social and financial support by non-state entities fulfills the criteria of effective protection under Article 7 old Qualification Directive, another issue now presents itself: Is the notion of state protection as provided for in the applicable EU law consistent with international refugee law? Pursuant to Article 78(1) TFEU,[12] all legal acts within the CEAS must be in accordance with the Refugee Convention 1951 and 1967 Protocol (see also Recital 3 old Qualification Directive). Accordingly, the interpretation of state protection under EU law requires taking the Convention itself into account. Article 1(C)(5) and (6) Refugee Convention requires a two-pronged test whether the Convention will cease to apply: On the one hand, it has to be determined whether there is evidence of substantial and significant change that has eradicated the basis for the original risk, and on the other hand, whether those substantial changes have led to the availability of effective state protection. In that regard, the interesting interpretive issue here pertains to the second prong of the test: the meaning of “state protection.”

Taking a look at various state practices, a country’s relationship with a non-state entity has been used by that country as a basis to deny refugee status.[13] Among others, the United Kingdom, Canada, France, Germany, and Australia have argued that protection under international refugee law can also be provided by non-state actors.[14] For example, the Federal Court of Australia held that there is no difference between protection provided “entirely by government forces” or protection provided by “forces from a neighboring country or ally” or “mercenaries (alone or paid to assist government forces).”[15] Canada also accepts that non-state actors can offer effective protection, however, the non-state entity must exercise the powers and responsibilities of a state.[16] Similarly, EU member states have adopted a broad definition of non-state actors as defined by the Qualification Directive; this broad definition includes international organizations.[17] Yet there is no consensus as to the nature of such an organization, and state practice regarding the question of whether non-state actors can provide effective protection is inconsistent.[18]

International refugee law has already recognized that non-state actors can be agents of persecution under the Refugee Convention.[19] But the issue of whether “protection” is exclusively the domain of states—that is to say not the domain of non-state entities—is a completely different question. According to Hathaway and Foster, protection means state protection.[20] They point towards a literal and contextual interpretation of the Refugee Convention, arguing that ‘country’ means ‘state.’ Similarly, Battjes notes that “the Refugee Convention employs the term ‘territory’ where a geographical designation in contrast to the institutional entity ‘country’ is meant.”[21] The most compelling argument draws on the object and purpose of the Refugee Convention, namely that international refugee law affords an individual with surrogate state protection when the country of origin is unwilling or unable to do so.[22] Thus, the notion that private entities may be potential agents of protection ignores the special relationship between a state and its citizens. This special relationship constitutes more than a mere geographical link.[23] In particular, the legal duties and international responsibilities that a state has to protect its citizens are different in kind than those borne by private actors, even if those private actors operate an “effective legal system.”[24] Against the backdrop of these considerations, the question whether effective protection is available has to be answered in relation to the state itself and not private entities. Yet, under EU law protection can be provided not only by the state, but also by private parties, or (international) organizations that control the state or a substantial part of the territory of the state.

V.         Conclusion: Qualification Directive Incompatible with International Refugee Law?

The provision of the Qualification Directive on protection by non-state actors—both in the old Qualification Directive and in its recast—seems not to take full account of international refugee law. This is problematic against the backdrop of Article 78 TFEU, which requires that all legal acts within the CEAS must be consistent with the Refugee Convention. According to the CJEU, the provisions of the Qualification Directive must “be interpreted in the light of its general scheme and purpose, and in a manner consistent with the Geneva Convention.”[25] Accordingly, AG Hogan notes in his opinion to the here discussed case,[26] that the EU departed from the actual text of the Refugee Convention, which refers to the unwillingness or the inability of the country of origin to provide protection.[27] However, AG Hogan went on to say, that the provisions of the Qualification Directive must be interpreted in accordance with the underlying objectives of the Refugee Convention and, thus, protection by non-state actors can only mean the existence of a functioning legal and policing system based on the rule of law.[28]

The CJEU could have taken OA’s case as an opportunity to elaborate in more detail the circumstances wherein a non-state actor could provide effective protection pursuant to Article 7(1)(b) of the Qualification Directive. Yet by stating that mere financial support by family or clan members cannot constitute protection by non-state actors, the Court answered the most general question before it. This decision, however, does not change the fact that Article 7(1)(b) Qualification Directive seems not to be in accordance with the notion of state protection in the Refugee Convention.

 

 

[1] Case C-255/19, Secretary of State for the Home Department v. O A, ECLI:EU:C:2021:36 (Jan. 20, 2021). Another important case on cessation of the refugee status was Salahadin Abdulla and Others. In this case the Court decided that “Article 7(1) of the Directive does not preclude the protection from being guaranteed by international organisations, including protection ensured through the presence of a multinational force in the territory of the third country”. Joined Cases C-175/08, C-176/08, C-178/08 and C-179/08, Salahadin Abdulla, Hasan, Adem and Rashi, Jama v. Bundesrepublik Deutschland, ECLI:EU:C:2010:105, ¶ 75 (Mar. 2, 2010).

[2] Council Directive 2004/83/EC of 29 April 2004 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, 2004 O.J. (L 304) 12-23.

[3] Convention Relating to the Status of Refugees, art. 1(A)(1), July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 150.

[4] See Maria O’Sullivan, Acting the Part: Can Non-State Entities Provide Protection under International Refugee Law?, 24 Int. J. of Refugee L. 85, 86 (2012).

[5] Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast), 2011 O.J. (L 337) art. 9(2).

[6] See Harald Dörig, Asylum Qualification Directive 2011/95/EU, in EU Immigration and Asylum Law art. 1 ¶2 (Kay Hailbronner & Daniel Thym eds., 2nd ed. 2016).

[7] Cf. recital 50 of Directive 2011/95/EU. See also Protocol (No 21) on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, 2010 O.J. (C 83/295).

[8] The recast of the old Qualification Directive maintained the provision under which non-State “parties or organisations” may be “actors of protection”. However, it clarifies that the list of actors that can provide protection is exhaustive, because according to Article 7(1) protection can “only” be provided by the actors mentioned explicitly. Further, it clarifies in para. 2 of Article 7 that “[p]rotection against persecution or serious harm must be effective and of a non-temporary nature (see also recital 26 of Directive 2011/95/EU). Cf. Peers Steve et al., EU Immigration and Asylum Law, Vol 3: EU Asylum Law 73 (2nd ed. 2015)

[9] Case C-255/19, Secretary of State for the Home Department v. OA, ECLI:EU:C:2021:36, ¶ 39 (Jan. 20, 2021).

[10] Id. at ¶ 43.

[11] Id. at ¶ 63.

[12] Treaty on the Functioning of the European Union, Oct. 26, 2012 O.J. (C 326) 47–390.

[13] James C. Hathaway & Michelle Foster, The Law of Refugee Status 289 (2nd ed. 2014).

[14] Maria O’Sullivan, supra note 2, at 86.

[15] Siaw v. Minister for Immigration and Multicultural Affairs [2001] FCA 953 (Jul. 23, 2001) (Austl.) at ¶ 7.

[16] Elmi v. Minister of Citizenship and Immigration [1999] IMM-580-98, Canada Federal Court, ¶ 17.

[17] Cf. Report from the Commission to the European Parliament and the Council on the Application of Directive 2004/83/EC of 29 April 2004 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, at 6, COM (2010) 314 final (Apr. 29, 2004).

[18] Maria O’Sullivan, supra note 4, at 101.

[19] Maria O’Sullivan, supra note 4, at 86.

[20] James C. Hathaway & Michelle Foster, supra note 13, at 289.

[21] Hemme Battjes, European Asylum Law and International Law 248 (2006).

[22] James C. Hathaway & Michelle Foster, supra note 13, at 291; Andreas Zimmermann & Claudia Mahler, Article 1 A, para.2 1951 Convention, in The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol 281, 459 ¶ 666 (Andreas Zimmermann ed., 2011). The only – contemporary not highly relevant – exception can be found in Article 1(D) Refugee Convention, which excludes a limited category of refugees from protection when they are receiving protection from organs or agencies of the United Nations.

[23] Maria O’Sullivan, supra note 4, at 102 et seq.

[24] James C. Hathaway & Michelle Foster, supra note 13, at 292.

[25] Cf. Case C-369/17, Ahmed, ECLI:EU:C:2018:713, ¶ 41 (Sep. 13, 2018).

[26] An AG writes – under specific circumstances – an impartial and independent opinion in a case in front of the CJEU which the judges consider before delivering a decision. See Article 19(2) TEU and Article 252 TFEU. An opinion by an AG is not binding, however it can be very influential.

[27] Also, the UNHCR has voiced doubts regarding the old Qualification Directive. “Under international law, international organizations do not have the abilities of a State. In practice, this generally has meant that their ability to enforce the rule of law is limited” See U.N. High Comm’r for Refugees, UNHCR Annotated Comments on the EC Council Directive 2004/83/EC of 29 April 2004 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, at 18 (2005) (http://www.unhcr.org/43661eee2.pdf). See also U.N. High Comm’r for Refugees, UNHCR comments on the European Commission’s proposal for a Directive of the European Parliament and of the Council on minimum standards for the qualification and status of third country nationals or stateless persons as beneficiaries of international protection and the content of the protection granted (COM(2009)551, 21 October 2009), at 5 (2010).

[28] Opinion of the Advocate General Hogan, Case C‑255/19 Secretary of State for the Home Department v. O A, ECLI:EU:C:2020:342, ¶ 78 (Apr. 30, 2020).

Suggested Citation: Marina Kaspar, The Concept of ‘Protection’ by Non-State Actors in the Country of Origin and the Revocation of the Refugee Status (July 16, 2021), https://reflaw.org/the-concept-of-protection-by-non-state-actors-in-the-country-of-origin-and-the-revocation-of-the-refugee-status/

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