1st joint EUAA

and NSJ Conference

Between the refugee and pandemic crisis:
A judicial understanding of key aspects
of the Common European Asylum System
12 – 13 May 2022
National School of the Judiciary,
Thessaloniki, Greece
 Session 1:
The CEAS and the reformed Greek asylum system - Key challenges
Chair: Dimitrios Skaltsounis, President, Council of State, Greece
1st joint EUAA and NSJ
Conference
Between the refugee and pandemic crisis: A judicial understanding
of key aspects of the Common European Asylum System
 EUAA Operations in Greece
EASO supports the Greek authorities since 2011
First Operation Plan signed on April 2011
On 19th January 2022, the Regulation on the EUAA entered in force
EUAA signed the Operational Plan 2022 - 2024 on December 2021
The Amendment was signed in April 2022
4
EUAA Operations in Greece
Locations
45
Asylum Support
Reception Support
Unaccompanied Children
Asylum (10)
Support
Reception (28)
Asylum & Reception (7)
Temporary Protection
Support
Deployments Interpreters
446 personnel 217
 EUAA Operations in Greece
Areas of support
Asylum Support
Reception Support
• Strengthened quality review, training and
• National Reception Strategy,
coaching package
harmonized procedures, strengthened
• Asylum processing at first instance –
training programme & self-assessment
reduced CWS by half – registration,
tool (ARC)
interview/opinions - islands, Project North &
• 1st & 2nd Line - Reception management
South & Surge Team
– site management, information
• Asylum processing at second instance
management, logistics, case
• Relocation – finalizing last pledges
management, vulnerability & CIP
• Processing of Dublin requests – outgoing &
• Pre-integration/community engagement
info
in Reception
Unaccompanied Children
Temporary Protection
Support
Support
• Operational framework for guardianship,
• To Asylum Service with Temporary
BIA/BID & SILs
Protection registrations
• Assessment & monitoring of UAC
• To Reception and Identification
reception conditions
Service with information provision
• Coordination of EU relocation scheme
at border and telephone helpline
• Implementation of referral and placement
mechanism/NERM
• Mentorship programme
6 • Training
EUAA’s Support to the Appeals Authority
Processing applications Statistical analysis
Professional
for international and operational
development
protection in second support to Appeals
activities and COI
instance Committees
country briefings
Essays for the Appeals Professional development events for judges
Committees and workshops delivered to rapporteurs
1 840 in 2021 45 participants in 2021
459 in 2022 3 sessions
EUAA’s Asylum Support
Temporary Protection
EUAA continues to support with the elimination of the asylum
backlog, with enhancing remote asylum processing capacity in
reception centres across Greece and with strengthened training
and quality assurance mechanisms
31 Embedded Personnel
Registrations Persons covered by an
10 989 in 2021 interview
2 479 in 2022 20 663 in 2021
3 646 in 2022
5 Locations
Athens, Thessaloniki,
GAS and EUAA personnel Persons covered by opinions Serres, Elefsina,
trained Promahonas Border
9 196 in 2021
1 418 in 2021 1 062 in 2022
175 in 2022
Candidates successfully Outgoing Dublin requests
7903
matched for relocation 2 593 in 2021 Temporary Protection Registrations
4 531 529 in 2022
since 2020
8
 EUAA’s Support in Reception and Unaccompanied Children
Support to development of a national reception
strategy, self-monitoring mechanisms,
harmonized SOPs and operational tools and
practical support in reception centres on site
management, logistics, communication and
information provision, and vulnerability
assessment
▪ 566 Participants in training from RIS and EUAA in
2021 and 82 in 2022
▪ 1 883 Persons covered by transfers in 2022
▪ 1 442 Individual assessments conducted in 2022 (1st
and 2nd line)
▪ 1 600 Referrals in 2022 (1st and 2nd line)
▪ 20 480 Participants in Information Provision
sessions/campaigns in 2022 (1st and 2nd line)
9
1 200 UAC successfully
relocated
76 UAC benefitted from the
mentorship programme
✓ National Strategy for the Protection
of Unaccompanied Minors
✓ Legal and operational framework for
the abolition of the protective
custody, reform of the guardianship
system and enhanced specialized
UAM accommodation system
✓ National Emergency Response
Mechanism (NERM) developed and
coordinated with EUAA support in
collaboration with UNHCR Greece
✓ Mentorship programme
implemented with EUAA support
Support is our mission
www.euaa.europa.eu
 The EUAA’s cooperation
with courts and tribunals
11 | SlideSalad | Date 2018
EUAA support to members of courts and tribunals
WHY ? HOW?
• EUAA’s specific • The Courts and
mandate WHAT? Tribunals Sector
• A strong network
• Capacity building
activities • Judicial Experts
Pool
• Fostering judicial
dialogue
• Expert materials for
judges
 Courts and Tribunals in the EUAA Regulation
Art. 2.1 (d) Art. 13.3
Art. 8.4
training to members of courts consultation with judicial
associations and expert Full respect of principle of
and tribunals
networks independence
Art. 8 Art. 8.4
cooperation with FRA, Judicial Associations, ensuring greater convergence of
Training Networks and Organisations decision and legal practices
 EUAA Judicial Workshops
In English,
at the EUAA HQ,
in Brussels
or online
CLICK TO EDIT
MASTER TITLE
STYLE
Full overview Led by 2 judges
of judicial workshops members
in the online catalogue Based on the of the EUAA
EUAA professional judicial expert’s pool
development series
 Fostering Judicial Dialogue
National and EUAA
Regional Expert
Conferences CLICK TO EDIT
Panels
MASTER TITLE
High Level
Conference
STYLE
with CJEU and
ECtHR
15
 Paris Luxemburg
25 March 17-18 November
Conference for French High Level
speaking members of courts Conference –
and tribunal in cooperation Roundtable / CJEU
with the Cour nationale du
droit d’asile
Thessaloniki
12 -13 April
Vienna
28–29 April 1st Joint EUAA –
Hellenic National
Conference for German School of the
speaking members Judiciary Conference
of courts and tribunals
16
 Dedicated Support to the Greek Judiciary
April and June 2017: May and June 2021: November 2021:
first workshops for the members Two online MoU with NSJ
of the Independent Appeals workshops for signed on 25.11.2021
Judges
Committees
October 2016: July 2019: November 2021: 2022:
the first EASO dedicated workshop on Professional Development Judicial workshops in
the use of COI for legal cooperation with NSJ
conference in rapporteurs of the Workshop for Rapporteurs
Athens for Independent Appeals on 15c, ECA
administrative judges Committees
17
Professional Development Series (PDS)
Professional Development Series
• Introduction to the Common European Asylum
System for courts and tribunals
Judicial analysis • Article 15(c) Qualification Directive (2011/95/EU)
/ Judicial
practical guide
Compilation of
jurisprudence
Judicial trainers’
guidance note CLICK TO EDIT
•
•

Exclusion : Articles 12 and 17 Qualification

Directive (2011/95/EU)
Ending international protection: Articles 11, 14, 16
and 19 Qualification Directive (2011/95/EU)
MASTER TITLE
•
•

Qualification for international protection

(Directive 2011/95/EU)
Evidence and credibility assessment in the
context of the Common European Asylum
•
•
STYLE
System
Asylum procedures and the principle of non-
refoulement
Country of origin information
• Detention of applicants for international
protection in the context of the Common
European Asylum System
• Reception of applicants for international
protection (Reception Conditions Directive
2013/33/EU)
• Vulnerability in the context of applications for
international protection
Courts and Tribunals Network
NCPs from the 27 MS (+ NO & CH)
Court of Justice of the European Union (CJEU)
European Court of Human Rights (ECtHR) CLICK TO EDIT
UN High Commissioner for Refugees (UNHCR)
MASTER TITLE
European Fundamental Rights Agency (FRA)
Academy of European Law (ERA)
STYLE
European Judicial Training Network (EJTN)
International Association of Refugees & Migration Judges (IARMJ)
Association of European Administrative Judges (AEAJ)
 CLICK TO EDIT
MASTER TITLE
STYLE
Support is our mission
www.euaa.europa.eu
 EUAA and NSJ Conference organize at the premises of the Hellenic
School of Judiciary in Thessaloniki, Greece a discussion for the theme:
“Between the refugee and pandemic crisis: A judicial understanding of
key aspects of the Common European Asylum System”
12th & 13th May2022
Maria Fokianou
Administrative Director of Appeals Authority
General Secretariat of Migration Policy
Ministry of Migration and Asylum
▪ The Appeals Authority was established with Ar. 3 of L.
3907/2011 and it operates in accordance with Ar. 5 of L.
4375/2016, as in force.
▪ The Appeals Authority examines at second instance,
(quasi-judicial) appeals against 1st degree decisions
issued by the Asylum Service.
▪ The Appeals Authority reports to the Secretary General
of Migration Policy (presidential decree 106/2020).
▪ The Appeals Authority is managed by the
Administrative Director of the Central Administration
Service according to articles 27 and 36 of Law
4825/2021.
▪ The Central Administration Service consists of the
following departments:
▪ Department of Legal Support, Training and
Documentation
▪ Department of Administrative and Operational
Support
▪ Twenty-one (21) Independent Appeals Committees
operate under the Appeals Authority.
▪ The three-member Appeals Committees are
composed by three active Administrative Judges
(appointed by the General Commissioner of the
Administrative Courts upon their request).
▪ The members of the Appeals Committees meet in a
three-member and single-member bodies and
enjoy personal and operational independence.
▪ The operation of the Appeals Authority and
specifically the Independent Appeals Committees
are regulated by the Regulation of Operation of the
Appeals Authority.
 Second Instance Procedure
•Appeal on 1st Instance
1st Instance Decisions [Subsidiary
Decision Protection or Negative
Decisions].
•The applicant should appear
Examination of the before the competent
Appeal Independent Appeals Committee,
in accordance with A.97 p.2
L.4636/2019.
• If the Independent Appeals
In depth examination of Committee deemed it
each individual case by necessary, invites the applicant
the Independent to an oral hearing.
Appeals Committees
Issue of 2nd Instance
Decision by the
Independent
Appeals Committee
Filling of Application
of Annulment and/or • In accordance with
of Application for A.108 L.4636/2019 and
Suspension to the
Administrative A.3 p.57 L.4689/2020.
Courts
The Minster of Migration and
Asylum can also file an
Application of Annulment in
accordance with A.108
L.4636/2019
 Second Instance Data on Appeals Lodged
The reporting period is from 2014 until 30/04/2022
Table 1: Appeals per Appeal Year and Location until 30/04/2022
Total Sum
Appeal Year 2014 2015 2016 2017 2018 2019 2020 2021 2022
Mainland 8 485 2.475 9.530 13.424 13.057 8.479 12.406 5.025 64.889
Island 1 1.608 2.154 1.936 2.388 4.576 5.125 569 18.357
Total Sum 8 486 4.083 11.684 15.360 15.445 13.055 17.531 5.594 83.246
 Second Instance Data on 2nd Instance Decisions
The reporting period is from 2016 until 30/04/2022
Table 2: Second Instance Decisions per Decision Year and Location until 30/04/2022 Total
Decision Year 2016 2017 2018 2019 2020 2021 2022 Sum
Mainland 765 4.149 7.574 12.486 19.626 10.401 5.730 60.731
Island 432 2.387 1.465 2.087 5.345 5.548 711 17.975
Total Sum 1.197 6.536 9.039 14.573 24.971 15.949 6.441 78.706
 European Union
Agency for Asylum
and
Appeals Authority
 The Appeals Authority has been cooperating effectively
with EUAA since 2017 in the framework of annual
programs.
Certainly, in the area of immigration, the needs are
constantly changing and are being met at the discretion
of EUAA.
European Union Agency
for Asylum
and EUAA provides Appeals Authority with
Appeals Authority ▪ Human Resources
▪ Trainings
▪ Documentation
▪ Technological Equipment
 European Union Agency for Asylum
and
Appeals Authority
5 EUAA Legal Rapporteurs are currently
embedded in Appeals Authority, in
accordance with A.101 p. 2 L.4461/2017.
Legal
Their duties are in accordance with A.62 p.6
Rapporteurs
L.4375/2016 and A.95 p.4 L.4636/2019.
Human
Resources
Administrative/ Statistics
Operations Assistants
Assistants
2 EUAA Statistics Assistants are embedded in
6EUAA Administrative/Operations Appels Authority. Their duties are collection
Assistants are embedded in Appeals and cleaning of 2nd Instance Data and reporting
Authority. Their duties include a the 2nd Instance Data to the Minister and
variety of administrative procedures. Ministry of Migration and Asylum to national
and international organizations and to various
nonprofit and migration entities.
 European Union Agency for Asylum
and
Appeals Authority
e.g.
Asylum Procedures,
Judges Evidence and Credibility
Assessment
e.g.
Legal Workshop on COI,
Trainings Rapporteurs
vulnerability in the context of
applications for international
protection.
e.g.
Appeals Authority Asylum Procedures,
Staff E-Learning Seminars
 European Union Agency for Asylum
and
Appeals Authority
e.g.
Judges COI Queries
Documentation
Legal e.g.
Rapporteurs COI Queries
From the refugee crisis to the pandemic outbreak:
the impact on the asylum system, a judicial perspective
Chaido Evangeliou,
Associate Judge, Council of State, Greece
Policy and legal developments in the Greek Asylum System –
key issues and new questions
Aikaterini Koutsopoulou,
Judge, Administrative Court of First Instance, Greece
Policy and legal developments in the
Greek Asylum System – key issues and
new questions
Aikaterini Koutsopoulou,
Administrative Court of First Instance
3d Independent Appeals Committee
 2015
The largest movement of people the continent has seen since the
end of the Second World War.
 Greek hospitality
three grandmothers are taking care of a baby migrant
The closure of the Balkan Route
Crossing the Idomeni bridge
Pulitzer Prize
Dead Syrian child
EU-Turkey statement (18 March 2016)
Economic crisis
New legal provisions
▪ L. 4375/2016
– Regularization process [”old” procedure ceases]
– Transposition of the APD recast
– Detention grounds-Duration-“objections” against extension before
the Court
– Safe country concepts
– Border procedure
▪ L. 4399/2016
– Independent Appeals Committees (hereafter IAC)
Key issues 2015-2019
▪ Safe Third Country Concept
– 4159/2016, 4485/2016 (3d IAC)
– 2347, 2348/2017 Council of State (Plenary)
▪ Exclusion Clauses- ‘Serious non political crime’
– 22622/2017 (3d IAC)
– 1694/2018 Council of State (Plenary)
Greek-Turkish borders: Instrumentalization of
refugees and migrants
Greek Ministry of Migration and Asylum: Ε- Services
 2019
▪ L. 4636/2019: ▪ New questions
– Single piece of ▪ Judicial dialogue between the
legislation- CEAS IACs
– STC, SCO, list
– IACs: 3 judges
– Appeals before the
Courts of First Instance
(Athens/Thessaloniki) Contribution to the development
▪ L. 4686/2020 of case law
▪ L. 4825/2021
Is EU- Turkey Statement applicable?
364000/2021 (21st IAC)
▪ Turkey does not accept the
return of migrants/refugees
▪ practice followed either in
general or vis-à-vis specific
categories that returns will not
be accepted
▪ the application is not rejected
as inadmissible
239933/2022 (3d IAC)
▪ No official data
▪ vague references of some state
officials to the non-implementation
in general of the EU-Turkey Joint
Statement have no results
▪ Art. 38 (3) APD/= rejection as
inadmissible + document+ refusal
to permit the entry of the person
concerned into the territory=
substantive examination
How does the list of STCs work?
▪ 141325/2022 (11th IAC)
– the finding that Turkey
is a safe third country for
the applicant, is based
on the provisions of the
Joint Ministerial
Decision (JMD)
16738/2022 (3d IAC)
– the applicant assumes that his
application was rejected under
the JMD
– the first instance decision
rejected the application
following an individual
examination of the fulfilment of
the general criteria on safe third
country
Is the list of STCs legally issued?
▪ 136667/2022 (11th IAC)
– the verification of the compatibility of the JMD with the
Constitution is outside the competences of this
Committee and is left in accordance with article 93 para.
4 of the Constitution exclusively in the courts
▪ 141325/2022 (11th IAC)
– The JMD is not required to have a reasoning
Does Turkey provide protection against
persecution and serious harm?
24756/2021 (18th IAC)
202299/2021 (5th IAC)
▪ No family or social support
network in Turkey
▪ Gender-based violence
▪ Extremely young age
▪ 12667/2020 (11th IAC)
▪ sexually harassed by
drunken unknown Turks
▪ resided in Turkey for a
period of at least 3 months,
during which she circulated
freely, without facing any
particularly serious problem
Is the principle of non-refoulement observed
in Turkey?
▪ 260356,260375/2021 (2oth IAC)
– COI
– European Parliament : joint motion for a resolution of
10.03.2021 to call on Turkey and all countries in the region
to suspend the forced deportations of Syrians to Syria.
 Is there access to protection in Turkey in
accordance with the Geneva Convention?
22083/2021 (10th IAC)
▪ Voluntary Return Forms to Syria
▪ Temporary Protection Documents have been cancelled / difficulty to renew or
re-issue them
398486/2021 (21st IAC)
▪ Turkish forces launched a military attack in northern Syria
 What is the meaning of the’ link’ with
Turkey?
Not adequate time:
12366/2020 (5th IAC) 18 days,
12365/2020 (5th IAC) 15 days,
29458/2020 (21st IAC) 15 days,
260356, 260375/2021 (20th IAC): 2 – 3,5 months
3444/2020 (4th IAC) The military attack has irreparably broken any “link" of the
applicants with the Turkey / The applicant could not reasonably be required to go and
reside in the country responsible for creating the conditions which allegedly
necessitate his international protection
Systemic deficiencies in national health systems
(Art. 15 QIP)
▪ Subsidiary protection granted
▪ 4829/2020 (8th IAC) (Iran: not
adequate treatment on a
permanent basis for the
mentally ill persons)
▪ 52479/2021 (11th IAC) (Art. 3
ECHR)
▪ Rejected
▪ 10984/2021 (3d IAC): risk of
health deterioration doesn’t
arise from an intentional
refusal to grant medical
treatment to him
Harsh living conditions (Art. 15 QIP)
▪ Subsidiary protection granted ▪ Rejected
▪ 11761/2015 (14th IAC): poor ▪ 19th IAC: poor living conditions
living conditions+ young age+ + no discrimination
risk of trafficking
▪ 30955/2020 (6th IAC): poor
living conditions+ woman + no
support network
 Takeover of power by the Taliban
▪ 13159/20188 (8th IAC) (refugee status): ▪ 324673/2022 (19th IAC) (subsidiary
protection)
Threats to his uncle by the Taliban,
Particular social group, No state Xazaras
protection
▪ 253783/2022 (3d IAC ) (rejected):
▪ 207597/2021 (20th IAC) (refugee status):
Personal circumstances- no relation with
SHIʽA, young age, religion grounds Taliban
▪ 266205/2022 (3d IAC) (refugee status):
woman, threatened by Talibans,
Particular Social Group
 ‘Westernalisation’
221831/2022 (3d IAC):
▪ Is social conservatism included as a reason of persecution in the
Refugee Convention?
▪ Are people who do not wish to live in regimes where pluralist liberal
values are less respected protected under the Refugee Convention?
▪ Claims related to the freedom to enjoy a socially liberal way of life:
political beliefs?
 Art.29 APD
▪ Are the national authorities obliged to discontinue the
examination in case that no interview has taken place?
▪ Does the discontinuation of the examination results in the
loss of the status of asylum seeker?
▪ Can a decision to discontinue be accumulated by a return
decision?
4707/2020 (3d IAC) CoS
17593/2020 (3d IAC)
Art. 14 QIP
▪ Should the applicant be interviewed when there are
reasonable grounds for regarding him or her as a danger to
the security of the Member State in which he or she is
present?
▪ Is the criminal conviction an objective fact ? Should the
applicant be interviewed in those cases?
➢2242/2021 (19th IAC): No interview= criminal conviction
Article 6 Return Directive
▪ MS are allowed to return illegally staying third-country
nationals, provided that fair and efficient asylum systems
are in place which fully respect the principle of non-
refoulement.
▪ Right to stay for compassionate, humanitarian or other
reasons 11th IAC (Covid-19), 7th IAC (children at school),
▪ 85709/2022 (19th IAC) (referral to the competent police authorities +
postponement of removal)
Where to?
➢New Pact on Migration and Asylum
➢Temporary Protection
➢EU – Turkey II
➢“Externalization” of asylum procedures
➢Courts= case law
▪ Thank you for your attention
 Session 2:
The notion of protection in EU asylum law and ECtHR jurisprudence
Chair: Maria Karamanof, Vice President, Council of State
The notion of protection under EU asylum law
Hugo Storey,
Judge (Ret.), Member of the International Association of Refugee
and Migration Judges, United Kingdom
perspective
 Key CJEU cases on protection
Aydin Salahadin Abdulla and Others v Bundesrepublik
Deutschland, joined cases C-175/08, C-176/08, C-178/08 and
C-179/08, 2 March 2010, EU:C:2010:105 (hereafter Abdulla)
Secretary of State for the Home Department v OA, C-255/19,
EU:C:2021:36 CJEU, judgment of 20 January 2021,
(hereafter OA)
66
 Recital 27 QD(recast)
‘[w]here the State or agents of the State are the actors of
persecution or serious harm, there should be a presumption
that effective protection is not available to the applicant’.
67
 Article 6 QD(recast)
Actors of persecution or serious harm
Actors of persecution or serious harm include:
(a) the State;
(b) parties or organisations controlling the State or a
substantial part of the territory of the State;
(c) non-State actors, if it can be demonstrated that the actors
mentioned in points (a) and (b), including international
organisations, are unable or unwilling to provide protection
against persecution or serious harm as defined in Article 7.
68
 Article 7(1)QD(recast) - who can provide
protection
1. Protection against persecution or serious harm can only be
provided by:
(a) the State; or
(b) parties or organisations, including international
organisations, controlling the State or a substantial part of
the territory of the State;
provided they are willing and able to offer protection in
accordance with paragraph 2.
69
 Article 7(2) and (3) QD(recast) – qualities of
protection
2. Protection against persecution or serious harm must be effective and of a
non-temporary nature. Such protection is generally provided when the actors
mentioned under points (a) and (b) of paragraph 1 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 when the applicant has
access to such protection.
3. When assessing whether an international organisation controls a State or a
substantial part of its territory and provides protection as described in
paragraph 2, Member States shall take into account any guidance which may
be provided in relevant Union acts.
70
 CJEU, Abdulla, 2010, para 68:
‘[…] the circumstances which demonstrate the country of
origin’s inability or, conversely, its ability to ensure
protection against acts of persecution constitute a crucial
element in the assessment which leads to the granting of, or,
as the case may be, by means of the opposite conclusion, to
the cessation [or refusal] of refugee status.’
71
 Article 6 QD(recast) –ability and willingness
Actors of persecution or serious harm
Actors of persecution or serious harm include:
(a) the State;
(b) parties or organisations controlling the State or a substantial
part of the territory of the State;
(c) non-State actors, if it can be demonstrated that the actors
mentioned in points (a) and (b), including international
organisations, are unable or unwilling to provide protection
against persecution or serious harm as defined in Article 7.
72
 Article 7(1)QD(recast)-qualities of protection –
ability and willingness
1. Protection against persecution or serious harm can only be
provided by:
(a) the State; or
(b) parties or organisations, including international
organisations, controlling the State or a substantial part of the
territory of the State;
provided they are willing and able to offer protection in
accordance with paragraph 2.
73
 Article 7(2) and (3) QD(recast) – qualities of
protection –effectiveness and non-
temporariness
2. Protection against persecution or serious harm must be effective and
of a non-temporary nature. Such protection is generally provided when
the actors mentioned under points (a) and (b) of paragraph 1 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 when the applicant has access to such protection.
3. When assessing whether an international organisation controls a State
or a substantial part of its territory and provides protection as described
in paragraph 2, Member States shall take into account any guidance
which may be provided in relevant Union acts.
74
 Article 7(2) and (3) QD(recast)-qualities of protection
– eg effective legal system –
2. Protection against persecution or serious harm must be effective and of a non-
temporary nature. Such protection is generally provided when the actors
mentioned under points (a) and (b) of paragraph 1 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 when the applicant has access to
such protection.
3. When assessing whether an international organisation controls a State or a
substantial part of its territory and provides protection as described in paragraph
2, Member States shall take into account any guidance which may be provided in
relevant Union acts.
UK House of Lords in Horvath, judgment of 6 July 2000, Horvath v Secretary of
State for the Home Department, [2001] AC 489 [2000]
75
 Indicators of effectiveness of protection
(a) general conditions in the country of origin;
the State’s complicity with respect to the infliction of the harm at stake;
(b)
the nature of the State’s policies with respect to the harm at stake, including whether a criminal
(c) law is in force which makes violent attacks by persecutors punishable by sentences
commensurate with the gravity of their crimes;
the influence the alleged persecutors have with State officials;
(d)
whether any official action taken is meaningful or merely perfunctory, including an evaluation of
(e) the willingness of law enforcement agencies to detect, prosecute and punish offenders;
(f) whether there is a pattern of State unresponsiveness;
whether there is denial of the State’s services;
(g)
whether any steps have been taken by the State to prevent the infliction of harm.
(h)
76
 Article 7(1)QD(recast)-qualities of protection –
ability and willingness
2. Protection against persecution or serious harm must be effective
and of a non-temporary nature. Such protection is generally provided
when the actors mentioned under points (a) and (b) of paragraph 1 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 when the applicant has access to
such protection.
3. When assessing whether an international organisation controls a
State or a substantial part of its territory and provides protection as
described in paragraph 2, Member States shall take into account any
guidance which may be provided in relevant Union acts.
77
 Article 7(2) and (3) QD(recast) – qualities of
protection - accessibility
2. Protection against persecution or serious harm must be effective and of
a non-temporary nature. Such protection is generally provided when the
actors mentioned under points (a) and (b) of paragraph 1 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 when
the applicant has access to such protection.
3. When assessing whether an international organisation controls a State
or a substantial part of its territory and provides protection as described in
paragraph 2, Member States shall take into account any guidance which
may be provided in relevant Union acts.
78
 5 qualities of protection (so not ‘mere safety’)
ability
willingness
effectiveness
non-temporariness (durability)
accessibility
79
 Article 7(2) and (3) QD(recast)-qualities of
protection – e.g. effective legal system – two
step approach
2. Protection against persecution or serious harm must be effective and of
a non-temporary nature. Such protection is generally provided when the
actors mentioned under points (a) and (b) of paragraph 1 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 when
the applicant has access to such protection.
3. When assessing whether an international organisation controls a State
or a substantial part of its territory and provides protection as described
in paragraph 2, Member States shall take into account any guidance
which may be provided in relevant Union acts.
80
CJEU in O.A.:
52. Moreover, in so far as the doubts expressed by the referring court were to be understood as being
concerned with establishing whether, to the extent that the clans in Mogadishu may, in addition to their
providing social and financial support, also provide protection in terms of security, such protection may
be taken into account in order to ascertain whether the protection provided by the State meets the
requirements that arise, in particular, from Article 7(2) of Directive 2004/83, it must be recalled that, for
the purposes of determining whether a refugee’s fear of persecution is no longer well founded, the actor
or actors of protection with respect to which the reality of a change of circumstances in the country of
origin is to be assessed are, in accordance with Article 7(1)(a) and (b) of that directive, either the State
itself, or the parties or organisations, including international organisations, controlling the State or a
substantial part of the territory of that State (judgment of 2 March 2010, Salahadin Abdulla and Others,
C-175/08, C-176/08, C-178/08 and C-179/08, EU:C:2010:105, paragraph 74).
53 In accordance with the requirements described in paragraphs 38 and 43 to 46 of the present
judgment, any such protection in terms of security cannot, in any event, be taken into account in order
to ascertain whether State protection meets the requirements that arise, in particular, from Article 7(2)
of that directive.
63. In the light of the foregoing, the answer to questions 1 to 3 is that Article 11(1)(e) of Directive
2004/83, read together with Article 7(2) of that directive, must be interpreted as meaning that any social
and financial support provided by private actors, such as the family or the clan of a third country
national concerned, falls short of what is required under those provisions to constitute protection and is,
therefore, of no relevance either to the assessment of the effectiveness or availability of the protection
provided by the State within the meaning of Article 7(1)(a) of that directive, or to the determination,
under Article 11(1)(e) of that directive, read together with Article 2(c) thereof, of whether there continues
to be a well-founded fear of persecution.
81
Article 4(3) principle of individual (holistic)
assessment
3. The assessment of an application for international protection is to be carried out on an
individual basis and includes taking into account:
(a) all relevant facts as they relate to the country of origin at the time of taking a decision
on the application, including laws and regulations of the country of origin and the manner
in which they are applied;
(b) the relevant statements and documentation presented by the applicant including
information on whether the applicant has been or may be subject to persecution or serious
harm;
(c) the individual position and personal circumstances of the applicant, including factors
such as background, gender and age, so as to assess whether, on the basis of the
applicant’s personal circumstances, the acts to which the applicant has been or could be
exposed would amount to persecution or serious harm;
(d) whether the applicant’s activities since leaving the country of origin were engaged in
for the sole or main purpose of creating the necessary conditions for applying for
international protection, so as to assess whether those activities would expose the
applicant to persecution or serious harm if returned to that country;
(e) whether the applicant could reasonably be expected to avail himself or herself of the
protection of another country where he or she could assert citizenship.
82
 Article 7(2) and (3) QD(recast)
2. Protection against persecution or serious harm must be
effective and of a non-temporary nature. Such protection is
generally provided when the actors mentioned under points (a)
and (b) of paragraph 1 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 when the applicant has access to such protection.
3. When assessing whether an international organisation
controls a State or a substantial part of its territory and provides
protection as described in paragraph 2, Member States shall
take into account any guidance which may be provided in
relevant Union acts.
83
 Meaning of ‘state’: The Draft articles on Responsibility of States for
Internationally Wrongful Acts, with commentaries, 2001 (hereafter ILC Draft articles)
(i) the State as a subject of international law is held responsible for the
conduct of all organs, instrumentalities and officials which form part of its
organisation and act in that capacity, whether or not they have separate legal
personality under its internal law (ch II (7));
(ii) the conduct of organs or entities empowered to exercise governmental
authority is attributable to the State even if was carried out outside the
authority of the organ or person concerned contrary to instructions (Articles
5 and 7);
(iii) conduct, not that of the State organ or entity, is nonetheless attributed to
the State where it is carried out on the instructions of a State organ or under
its direction or control (Article 8) (this includes recruitment or instigation of
private persons or groups to act as “auxiliaries” outside the official structure
of the State: Commentary to Article 8)).
84
 CJEU judgment NB, AB, Case C-
349/20, 3 March 2022
‘84 In the light of all the foregoing considerations, the answer
to the fourth question is that the second sentence of Article
12(1)(a) of Directive 2004/83, read in conjunction with Article 1(D)
of the Geneva Convention, must be interpreted as meaning that,
in the context of the assessment of the conditions required to
determine whether UNRWA’s protection or assistance has ceased,
so that a person may claim ipso facto ‘refugee status’ for the
purposes of that provision of Directive 2004/83, account must be
taken of the assistance provided to that person by civil society
actors, such as NGOs, provided that UNRWA has a formal
relationship of cooperation with them, of a stable nature, in which
they assist UNRWA in carrying out its mandate.’
85
 CLICK TO EDIT
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Support is our mission
www.euaa.europa.eu
 Joint EUAA and NSJ Conference
Thessaloniki, 12-13 May 2022
The notion of protection and the approach of the
ECtHR in asylum-related cases
Jolien Schukking
Judge at the ECtHR
The notion of protection and the safe third country/
first country of asylum concepts
Ilias Mazos,
Councilor, Council of State, Greece
 Session 3:
Qualification for international protection: current topical issues
Chair: Maria Gavouneli,
Professor of International Law & Director, Refugee and Migration Studies Hub,
National & Kapodistrian University of Athens
The notion and the grounds of persecution
Christian Boulanger,
President of Section, National Court of Asylum, France
Sur place refugee claims
Olga Papadopoulou,
Councilor, Council of State, Greece
Subsidiary Protection
Johan Berg
Board leader at the Immigration Appeals Board, Norway
 Why have subsidiary protection?
Rationale
Recital (34) QD (recast): “It is necessary to introduce common
criteria on the basis of which
z applicants for international protection
are to be recognised as eligible for subsidiary protection. Those
criteria should be drawn from international obligations under human
rights instruments and practices existing in Member States.”
Art.18 (QD recast): obligation on MS to grant SP
z
 Interaction with the Refugee Convention
❖ Recital 33 QD (recast): SP should be complementary and additional to the protection
enshrined in the GC.
“[S]ubsidiary protection is intended to be complementary and additional to the
protection of refugees enshrined in the Geneva Convention.” (C-369/17 Ahmed [2018]
CJEU para.39. See Alo and Osso, C-443/14 and C-444/14. para. 31; C-604/12 HN v Ireland CJEU 8 May
2014, para.32)
❖ UNHCR: “subsidiary protection should apply only if there is no link between the risk
or threat of harm and any of the five Convention grounds”.
❖ “Given that a person seeking international protection is not necessarily in a position
to ascertain the kind of protection applicable…. it is, in principle, for the competent
authorities to determine the status that is most appropriate…” (HN para.34).
95
 Article 2(f): Person eligible for SP is…
A third-country national or a stateless person who does not qualify as a refugee
but in respect of whom substantial grounds have been shown for believing that the
person concerned, if returned to his or her country of origin, or in the case of a
stateless person, to his or her country of former habitual residence, would face a
real risk of suffering serious harm as defined in Article 15, and to whom Article
17(1) and (2) does not apply, and is unable, or, owing to such risk, unwilling to avail
himself or herself of the protection of that country
Individual to determine whether, having regard to the personal
Assessment circumstances of the applicant, the conditions for
granting such status are satisfied.
 Art.2(f):“Does not qualify as a Refugee”
C-604/12 HN v Ireland CJEU 8 May 2014: “an application for SP should not, in
principle, be considered before the competent authority has reached the conclusion that
the person seeking international protection does not qualify for refugee status”
UNHCR: Subsidiary “only comes into play after a negative decision on the
application for refugee status or when an applicant explicitly confines his/her
application to subsidiary protection”.
Is applicant a Is applicant
1.refugee? 2. entitled to
If no… subsidiary
protection?
 Is an applicant at a real risk of serious harm?
“The concept of a ‘real risk’ relates to the standard of proof applicable to the
assessment of the risks, which is a factual assessment, and represents a probability
criterion that cannot be reduced to a mere possibility.” (C-901/19 CF, DN v
Bundesrepublik Deutschland [2021] CJEU C-901/19_O, Opinion of Pikamäe, para.32)
Substantial grounds for believing appellant faces a real risk of serious harm (M’Bodj,
para.30, Elgafaji, para. 31, and Diakité para. 18).
C-353/16 MP v United Kingdom CJEU 24 April 2018: “the subsidiary protection regime
aims to protect the individual against a real risk of serious harm if returned to his
country of origin, which implies that substantial grounds must be shown for believing
that the person concerned, if returned to that country, would face such a risk” (at
para.31)
 Is an applicant at a real risk of serious harm?
Article 15 (QD recast)
Serious harm consists of:
o Art. 15(a)-(c) are
(a) the death penalty or execution, or not mutually
(b) torture or inhuman or degrading treatment or exclusive.
punishment; or o No hierarchy.
(c) serious and individual threat to a civilian’s life or person by
o Art.15 is
reason of indiscriminate violence in situations of exhaustive of
international or internal armed conflict. types of serious
harm.
o May arise sur
place (Art.5).
 Art.15(a): Death Penalty or Execution
• Covers “situations in which the applicant for subsidiary protection is specifically
exposed to the risk of a particular type of harm” (Elgafaji, para.32)
• No requirement that death penalty has already been imposed.
• Execution – the intentional killing of a person by the State.
• Extrajudicial killing? Art.6: actors of serious harm includes non-State actors
“controlling the State or a substantial part of the territory of the State”.
• COI: Is the death penalty still being applied in the country of origin? Total
abolitionist in law or practice: 144 countries. Retentionist: 55 countries (Source:
Amnesty International as of 31 December 2020)
 Article 3 of the ECHR, Art.15(b) and Non-Refoulement
• Elgafaji: “[I]t is… Article 15(b) of the Directive which corresponds, in essence, to
Article 3 of the ECHR. By contrast, Article 15(c) of the Directive is a provision, the
content of which is different from that of Article 3 of the ECHR, and the interpretation
of which must, therefore, be carried out independently, although with due regard for
fundamental rights, as they are guaranteed under the ECHR.” (para.28).
• ECtHR: “not persuaded” that Article 3 did not offer comparable protection to that
afforded under Article 15(c) (Sufi and Elmi, para.226)
ECtHR: Sufi and Elmi
226. The jurisdiction of this Court is limited to the interpretation of the Convention and it would not,
therefore, be appropriate for it to express any views on the ambit or scope of article 15(c) of the
Qualification Direction. However, based on the ECJ’s interpretation in Elgafaji, the Court is not persuaded
that Article 3 of the Convention, as interpreted in NA, does not offer comparable protection to that afforded
under the Directive. In particular, it notes that the threshold set by both provisions may, in exceptional
circumstances, be attained in consequence of a situation of general violence of such intensity that any
person being returned to the region in question would be at risk simply on account of their presence there.
102
 Art 3 of the ECHR, Art.15(b) and Non-Refoulement
• Art.15(b) requires element of intentional ill-treatment e.g Article
15(b) serious harm does not cover a situation in which inhuman or
degrading treatment of a person (to which they may be subject if
returned) results from non-availability of appropriate treatment for
serious illness, unless applicant is intentionally deprived of
healthcare (M’Bodj).
• However, it may violate Art.3 in the context of non-refoulement in
highly exceptional cases, where the humanitarian grounds against
removal are compelling (e.g. seriousness and irreparable nature of
harm which may be caused by removal).
 Art.15(b): Torture
Article 1(1) UN Convention
against Torture
“Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a
person for such purposes as:
• obtaining from him or a third person information or a confession,
• punishing him for an act he or a 3rd person has committed or is suspected of having committed,
• or intimidating or coercing him or a 3rd person,
• or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by
or at the instigation of or with the consent or acquiescence of a public official or other person
acting in an official capacity.
It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”
 Inhuman Degrading Treatment or Punishment
• Must attain minimum level of severity. Kudła v Poland, Application no. 30210/96
(2000) 35 EHRR 198; (26 October 2000):
“The assessment of this minimum is, in the nature of things, relative; it depends on all the
circumstances of the case, such as the nature and context of the treatment, the manner
and method of its execution, its duration, its physical or mental effects and, in some
instances, the sex, age and state of health of the victim.” (para.91)
• “Inhuman” - “premeditated… applied for hours at a stretch and caused either actual
bodily injury or intense physical or mental suffering.”
• “Degrading” - “such as to arouse in the victims feelings of fear, anguish and inferiority
capable of humiliating and debasing them.”
• But “suffering and humiliation involved must in any event go beyond that inevitable
element of suffering or humiliation connected with a given form of legitimate
treatment or punishment…” (para.92.)
 Punishment
• If death penalty or execution by State, consider Art.15(a)
• A grossly disproportionate punishment offends Art.3: ECtHR
Vinters v UK, para.101
• Life imprisonment? Art.77 of Rome Statute but with review in
Art.101.
“[T]he Convention does not prohibit the imposition of a life sentence on those convicted of
Lopata especially serious crimes, such as murder. Yet to be compatible with Article 3 such a sentence
and must be reducible de jure and de facto, meaning that there must be both a prospect of
Others v release for the prisoner and a possibility of review. The basis of such review must extend to
Ukraine, assessing whether there are legitimate penological grounds for the continuing incarceration of
[2020] the prisoner. These grounds include punishment, deterrence, public protection and
ECHR 898 rehabilitation. The balance between them is not necessarily static and may shift in the course
of a sentence.” (para.7)
 Article 15(c)
➢ Separate EUAA course just on Art.15(c).
➢ More generalised risk of harm in Art.15(c) than 15(a) or (b)
➢ UNHCR: “the added value of Article 15 (c) is its ability to provide protection from
serious risks which are situational, rather than individually targeted”
➢ “Armed conflict” given its “usual meaning” (Diakité, para 28)
➢ International armed conflict: see e.g. Art.2 GCs 1949: “all cases of declared war or
of any other armed conflict which may arise between two or more of the High
Contracting Parties, even if the state of war is not recognized by one of them” (i.e.
not subjective to the state parties concerned)
➢ “An internal armed conflict exists, for the purposes of applying that provision, if a
State’s armed forces confront one or more armed groups or if two or more armed
groups confront each other.” (Diakité, para. 35)
 Article 15(c)
“Indiscriminate” violence - implies that it may extend to people irrespective of their
personal circumstances (Elgafaji, paras 33-37)
The UNHCR has suggested that the term “indiscriminate violence” encompasses
“acts of violence not targeted at a specific object or individual, as well as acts of
violence which are targeted at a specific object or individual but the effects of
which may harm others”. (Safe at Last? Law and Practice in Selected EU Member
States with Respect to Asylum-Seekers Fleeing Indiscriminate Violence, 27 July
2011, p.103)
Threat: “the existence of such a threat can exceptionally be considered to be
established where the degree of indiscriminate violence characterising the armed
conflict taking place... reaches such a high level that substantial grounds are shown
for believing that a civilian, returned to the relevant country or, as the case may be,
to the relevant region, would, solely on account of his presence on the territory of
that country or region, face a real risk of being subject to that threat…” (Elgafaji)
 Article 15(c)
Defined by the International Committee of the Red Cross as “all persons
who are neither members of the armed forces of a party to the conflict nor
“Civilian” participants in a levée en masse”. UNHCR Article 15(c) includes persons
who are “former combatants, at risk from indiscriminate violence in
broadly defined situations of armed conflict.”
“life or person” - numbers killed “is not the only relevant consideration, as
that expression extends to other bodily harm, and even psychological
harm” e.g. Spanish version refers to: “las amenazas graves e individuales
contra la vida o la integridad física de un civil …”. (CF [2021] CJEU C-
901/19_O, Opinion of Pikamäe, para.32)
 Serious and Individual Threat in Art.15(c)
-The Sliding Scale -
C
Elgafaji: “the more the applicant is able to show that he is
i specifically affected by reason of factors particular to his
r personal circumstances, the lower the level of
P
c indiscriminate violence required for him to be eligible for
e subsidiary protection.” (para.39).
u
r
m
s
s
o
t
n
a
a
n
l
c
e
s Level of Indiscriminate Violence
 Article 15(c): C-901/19 CF Opinion of AG Pikamäe
52. [I] order to determine whether there is serious harm for the purposes of
Article 15(c) of Directive 2011/95, it is necessary to conduct a comprehensive
cross-analysis of all relevant facts capable of establishing that there is or is not
indiscriminate violence of such a high level that civilians are at real risk of
suffering serious harm, solely on account of their presence on the territory in
question. The grant of subsidiary protection is not subject to a precondition
requiring a minimum number of casualties in relation to a given population.
53. That interpretation is supported by EASO reports recommending, in relation
to the assessment of the level of violence, that courts adopt a comprehensive and
inclusive approach, both quantitative and qualitative, and take account of a
wide range of relevant variables, not restricting themselves to a purely
quantitative examination of the number of civilians killed and injured….”
58 … if the Court wished to clarify its case-law, it might find assistance in the
decisions of the European Court of Human Rights…
 Assistance from the ECtHR? Sufi and Elmi Criteria
The ECHR identifies the following indicators for assessing indiscriminate
violence:
the parties to the conflict and their relative military strengths;
methods and tactics of warfare applied (risk of civilian casualties);
type of weapons used;
the geographical scope of the fighting (localised or widespread);
the number of civilians killed, injured and displaced as a result of the fighting.
the ability or lack of it by the State to protect its citizens against violence (where practicable, it
will assist to set out the various potential actors of protection and to address their actual role) /
the degree of State failure).
socio-economic conditions (which should include assessment of economic and other forms of
assistance by international organisations and NGOs).
cumulative effects of long-lasting armed conflicts. (para.241).
Article 15(c): C-901/19
Art 15 (C) must be interpreted as precluding the
interpretation of national legislation according to
which….a finding of serious and individual threat to that
civilian’s life or person by reason of ‘indiscriminate violence
in situations of armed conflict’ ……. is subject to the
condition that the ratio between the number of casualties
in the relevant area and the total number of individuals
composing the population of that area reach a fixed
threshold.
 Article 15(c): C-901/19
• Article 15(c) of Directive 2011/95 must be interpreted as meaning that, in order to
determine whether there is a ‘serious and individual threat’, within the meaning of
that provision, a comprehensive appraisal of all the circumstances of the
individual case, in particular those which characterise the situation of the
applicant’s country of origin, is required.
 Art.15 Decision Tree Summary
1. Is the person a third
country or stateless
national? If yes…
2. Has the person failed to
qualify for refugee status? If
yes..
3. Are there substantial
grounds for believing there
is a risk of the death
penalty/execution to the
person concerned if
returned?
6. Is there state 7. Is there an internal
protection? If no… relocation alternative?
If no…
5. Are there
substantial grounds
for believing a real 8. Does exclusion apply
under Art.17? If no..
risk arises under
Art.15(c)?
4. Are there substantial
grounds for believing
there is a risk of 1. Torture
2. inhuman or degrading 9. Grant SP
treatment 3. inhuman
degrading punishment?
 Art.15(c) Specific Decision Tree
Is there an armed Is there an
conflict in home Is there State internal relocation
area? protection? alternative?
Is the person
Is there excluded under
indiscriminate Art.17?
violence?
Is the person a
civilian?
Is the indiscriminate
violence at a high Grant SP
level (Elgafaji level)?
If no, does the combination of the
indiscriminate violence and personal
circumstances of the person make
If yes, move to them sufficiently at risk to qualify for
question civilian protection under Article 15 (c)?
status…
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Case studies in working groups
on Qualification for international protection