English summary of the prescribed literature and case law of the first problem of the subject European law: Justice and Home affairs school year 2016/2017. This summary contains the following literature: Boeles (2014) - European Migration Law Chapter 7 t/m 9, Rodriques (2014) - The Qualification fo...
What are the grounds for asylum in the European Union?
What are the grounds for subsidiary protection?
What happens when the asylum is rejected?
Boeles (2014) – European Migration Law (part three)
Chapter 6 – The common EU asylum system
The word ‘asylum’ refers to protection granted by a state to an individual against persecution or harm
done by another state. Mostly the individual’s home state. There are two forms of asylum:
- Territorial asylum: the asylum accorded by a state to persons within its territory;
- Diplomatic asylum: asylum granted by a state in a foreign country, normally on the premises of
an embassy or consulate. However, this form of asylum is gradually fallen in disuse. Therefore,
this chapter will only discus territorial asylum, which had become the dominant form of asylum.
Traditionally the right of asylum was a right of the state to grant asylum to a national of another state.
Nowadays the right is understood as a human right belonging to the individual that may be invoked
against the state where asylum is sought, or against the pursuing state.
The institution of asylum has found its basis in human rights law, namely the Geneva Convention (also
called the Refugee Convention). A key right laid down in this convention is the right to be protected
from refoulement (not to be returned to the country of origin). The convention also lays down a refugee
right regime that ought to secure a minimum standard of treatment of refugees. Apart from protection
individuals from refoulement international human rights form a universal standard of treatment that is
also to be accorded to any person who a state admits its territory. International law on asylum therefor
rests on two pillars: specific refugee rights regime of the Refugee Convention and the general human
rights standard. These two pillars are also the basis of the protection regime for persons who seek asylum
under European Union law.
The next chapters will discuss the two core international protection statuses guaranteed within the
common EU asylum system: protection in accordance with the Refugee Convention (refugee status) and
other forms of international protection derive from generally applicable human right standards
(subsidiary protection).
Chapter 7 – Refugee protection
In the European Union, refugee protection is part of the Common European Asylum System, which is
based on the application of the Refugee Convention. According to the Treaty on the Functioning of the
EU (TFEU) and case law, all legal and policy measures on asylum must be in accordance with the
Refugee Convention.
The Qualification Directive (QD) aims to ensure that Member States apply common criteria for
recognizing applicants for asylum as refugee within the meaning of Article 1 of the Refugee Convention.
The standards of refugee protection laid down in the QD are to guide the Member States in the
application of the Refugee Convention.
Background to the refugee convention
Because refugee protection is primarily based on the Refugee Convention, it is relevant to provide a
brief background to the Convention.
It was adopted in 1951 and entered into force on 22 April 1954. In 1967 a Protocol relating to
the status of Refugees was adopted as an instrument related to the Refugee Convention. A total of 148
states are party to the Refugee Convention and the Protocol. The Convention establishes several rights
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