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The 18th of all EU-r rights: asylum and how the Charter contributes

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30 April 2021
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© Courtesy of Miloladesign -

Imagine you live in Poland and the idea of having “LGBTQ +-free zones”1 gives you the shivers, threatens your freedom and because of this you want to apply for asylum in the Netherlands. Or imagine you suffer from the fact that the EU Member State where you live has derogated from its international human rights obligations so as to have more “flexibility” in addressing the COVID health crisis. Would you have the option to apply for asylum in another EU Member State?

Yes and no. No because in general all EU Member States are considered safe countries. Yes, because there are exceptions to this rule.2 But, of course, asylum is primarily for people from third countries who are in eminent danger.

The Charter right in action

The key documents pertaining to international refugee and asylum law are the UN Geneva Convention of 1951 and its Protocol which dates from 1967. The convention stops short of granting the right to asylum as such. Rather, it provides substantial and procedural rights to those who qualify for asylum. Article 18 of the EU Charter explicitly anchors the right to asylum in the international law regime without providing any contours of what the right to asylum implies and covers.

This might explain why most CJEU Charter references in asylum related cases are not about Article 18. Instead, the EU Court as well as national courts, tend to use the Charter rights that can provide more operational guidance in asylum procedures, namely the right to dignity (Article 1), the right to integrity (Article 4), the respect for private and family life (Article 7), the best interest of the child (Article 24) and, of course, the right to an effective remedy and a fair trial (Article 47).

Non-refoulement - the protection against rejection at EU borders – is the cornerstone of international refugee protection. However, the Charter deals with that aspect separately in Article 19 itself. Thus Article 18 must offer more than that.3 It includes for instance, admission to fair and effective processes for determining status and international protection needs. Detailed EU legislation provides the necessary flesh to the bones of Article 18. And the European Asylum Support Office (EASO, situated in Malta) assists Member States in applying these norms on the ground.

EU legislation in the area of asylum

• Article 78 of the Treaty on the Functioning of the EU (TFEU) tasks the Union with developing a common asylum system. Consequently, there is rich EU legislation in the field. To name only very few of these “EU laws”: The Dublin-Regulation establishes the criteria and mechanisms for determining the Member State responsible for examining asylum applications (Regulation (EU) No 604/2013); the Reception conditions Directive lays down standards for the reception of applicants (Directive 2013/33/EU); the Asylum Procedure Directive lays down the respective procedure to grant asylum (Directive 2013/32/EU); and the Qualification Directive lays down the substantial standards for qualifying for such protection and for the content of the protection granted (Directive 2011/95/EU).4

What do Member State constitutions say?

Over half of the EU Member States have constitions that deal with asylum. Some of these establish a right to asylum. For instance, the Bulgarian constitution states that “the Republic of Bulgaria shall grant asylum to foreigners persecuted for their opinions or activity in the defence of internationally recognized rights and freedoms”.5 Somewhat similar wording is to be found for instance in the constitutions of Czechia, Germany or Hungary.6

In some other constitutions the language used is less that of an entitlement but rather of an option. In this regard the Croatian constitution establishes that “foreign citizens and stateless persons may be granted asylum in Croatia, unless they are being prosecuted for non-political crimes and activities contrary to the fundamental principles of international law”7 and the Preamble of the French constitution states that “any man persecuted in virtue of his actions in favour of liberty may claim the right of asylum upon the territories of the Republic”8.

National constitutions generally refer to “aliens” or “foreigners” who are potentially entitled to asylum. The German constitution explicitly excludes persons who enter Germany from an EU Member State or a third state in which the application of the Refugee convention and the ECHR is assured.9 Some constitutions such as those of the Netherlands, Poland, Slovenia or Spain explicitly refer to simple legislation that is supposed to lay down the right to asylum and its conditions.10

So what?

Many constitutional texts are silent when it comes to asylum. Not even the text of the ECHR establishes a right to asylum as such.11 The EU Charter does establish a right to asylum. However, given that the views in the European Convention drafting the Charter diverged, it does so without providing any details on what the right implies and who would be entitled to it.12 This provides room for the EU legislator to hammer out the details. At the same time the wording of Article 18 makes sure that the EU legislator does not go below the international standard provided by the Geneva Refugee Convention.13 Interested in knowing more? Well, here you are: ‘All EU-r rights‘, stay tuned!

1: In 2020, many Polish local councils adopted resolutions that described the municipalities concerned as “free of LGBT ideology”. Others had adopted “family charters” meant to oppose the “propaganda” of homosexuality. See a CNN report regarding this here. On 11 March 2021, two years after the first Polish local authority declared itself an ‘‘LGBTIQ-free zone’’, the European Parliament declared the EU to be an ‘‘LGBTIQ Freedom Zone’’ in a resolution adopted by 492 votes in favour, 141 against and 46 abstentions.
2: A Member State may declare an application for asylum made by a national of another Member State admissible if that other State is derogating from the protection offered by the European Convention for the Protection of Human Rights and Fundamental Freedoms (under Art. 15 ECHR) or if a Member State is facing a procedure under Article 7 TEU. See Protocol No 24 on asylum for nationals of Member States of the European Union as attached to the EU Treaties.
3: The United Nations High Commissioner for Refugees (UNHCR) submits that the right to asylum in Article 18 of the EU Charter contains seven elements. See the UNHCR (2012), Statement on the right to asylum, UNHCR’s supervisory responsibility and the duty of States to cooperate with UNHCR in the exercise of its supervisory responsibility, issued in the context of a reference for a preliminary ruling addressed to Court of Justice of the European Union by the Administrative Court of Sofia lodged on 18 October 2011 – Zuheyr Freyeh Halaf v. the Bulgarian State Agency for Refugees (C-528/11).
4: For a more detailed insight into EU asylum law see FRA (2020), Handbook on European law relating to asylum, borders and immigration.
5: Art. 27 (2) of the Bulgarian constitution.
6: Art. 43 of the Czech constitution; Art. 16 a (1) of the German constitution; Art. XIV of the Hungarian constitution.
7: Art. 33 of the Croatian constitution.
8: Para. 4 of the Preamble to the French constitution.
9: It is established that the German Bundesrat (the legislative body representing the 16 Länder) may establish a list of states “on the basis of their laws, enforcement practices and general political considerations, it can be safely concluded” that persecution does not exist. See Art. 16 a (2) and (3) of the German constitution.
10: Art. 2 (2) of the Dutch constitution; Art. 56 (1) of the Polish constitution; Art. 48 of the Slovenian constitution; Section 13 (4) of the Spanish constitution.
11: See however Art. 2 (right to life) and Art. 3 (prohibition of torture) ECHR – two provisions which are key in an asylum context.
12: For the discussions see Doc. CHARTE 4332/00 CONVENT 35, at p.496-528.
13: Whereas the CJEU accepted that it had jurisdiction to interpret the provisions of the Geneva Convention to which EU law made a renvoi, it does not want to give any interpretation without such a link. See CJEU, Case C 481/13, 17.7.2014.

Gabriel N. Toggenburg

Gabriel N. Toggenburg is an Honorary Professor for European Union and Human Rights Law at the University of Graz, Austria. He worked as a Senior Researcher for Eurac Research in Bolzano/Bozen (Italy) from 1998 to 2008. Since 2009, he has been working for the European Union. All views expressed are his own and cannot be attributed to his current or former employers. His blog series “All EU-r rights” published on EUreka! aims at making the EU Charter of Fundamental Rights better known. He is grateful for the honour to have every blog entry introduced by a piece of art by Miloladesign. An annotated list of all Charter rights is available here.

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