Asylum Flashcards
Puidgemont (presidente of Catalunia) on the application of asylum law
He fled to Belgium to avoid arrest. He did not apply for asylum status because it would limit his political activities, and because he’s a citizen exercising his right of free movement. He had a EAW (european arrest warrant), but Belgium delayed his extradition by questioning if Spain had political motivations to charge him. He was arrested and quickly realeased in Italy, which is inconsistent to EAW rules. This case shows that even without asylum status, key asylum law principles are being applied.
Protocol 24 or Belgium protocol
Annexed to TFEU to avoid Belgium granting asylum to Spanish “terrorists”. The idea is that the level of protection of fundamental rights in the EU is already high, so EU citizens don’t normally need asylum protection in another MS.
Y and Z (2011) on acts of persecution
Two Pakistani citizens saught asylum in Germany, saying they were persecuted because of their religion in their home country. Germany refused it, arguing that they could still practice their religion in private. The Court held that no one should be deprived of their right of practicing their religion in public, and that persecution is not limited to cases where a person is completely prohibited of doing something, and in doing so it could amount to persecution. A MS cannot state that it is not an act of persecution if a person can express their religion privately.
The homosexuality case (2012)
This is a polemic case. A group of 3 persons applied for asylum because their home countries consider homosexuality a crime punishable either by a fine, by 10 years of imprisonment or by life imprisonment. The court held that a group is to be considered a “particular social group” if they share an INNATE CHARACTERISTIC and a DISTINCT IDENTITY, and confirmed that homosexuals form a particular social group. Even though the existence of laws criminalizing homosexuality does not mean automatic persecution, if these laws lead to serious consequences, it can be considered persecution under the qualification directive.
Loulani (2014), terrorist acts
A citizen of Marocco was living in Belgium where he was convicted for participation in a terrorist group by forgering passposts and providing logistic information. He then applied for asylum status, claiming he would be persecuted in Marocco if they demanded his return. Belgium denied his asylum application arguing that he is to be considered excluded from refugee status under art 12 of qualification directive (exclusion on grounds of terrorist acts). The court upheld Belgium decision, stating that participation to terrorist acts could lead to exclusion because he had an active role in facilitating terrorism, even if indirectly.
Abdulla (2008), cessation of status
In 1998 he applied for refugee status in Germany, claiming he fears persecution due to Saddam Hussein’s regime. But in 2004 the regime was overthrown and the serious risk of persecution ceased to exist, so the refugee status was revoked.
NS (2011), and its link with Dublin III regulation
Afghan national entered europe through Greece, wen to the UK and saught asylum there. UK had plans to send him back to Greece, because that’s where he first entered EU. He argued that Greece’s asylum system was dysfunctional and returnig there would expose him to degrading and inhuman treatment. Reports from human rights organizations showed that asylum seekers conditions were poor. The court held that EU law prohibits the transfer of asylum seekers to another MS in which there’s a real risk of inhuman or degrading treatment, and the the UK had to claim responsibility for this asylum application or find another MS that is safe for the applicant. This case was a catalyst for reforming the Dublin system and for replacing Dublin II reagulation with the Dublin III regulation, incorporating stronger human rights protection, but also to avoid “asylum shopping”, where an applicant “decides” which country is best according to their interests.
