POST 22 OF THE SERIES OF THE ODYSSEUS BLOG ON THE PACT ON MIGRATION & ASYLUM
By Boldizsár Nagy, Professor Emeritus at the Department of International Relations, Central European University
Long gestation, piecemeal changes
It took almost eight years (2016-2024) to adopt the text of the Qualification regulation (Regulation (EU) 2024/1347 of 14 May 2024). Its first version, in the form of a directive – emerging from scratch – needed five years (1999-2004), the second variant – still a directive – only two (2009-11).
Was the long gestation justified by a thoroughgoing renewal? Certainly not: the 2024 regulation does not introduce conceptual novelties. Transfer of protection to another Member State or intra-EU asylum seeking are not touched upon. Incremental changes were introduced. This blogpost reviews and evaluates the most important ones.
The regulation aims at harmonisation, which is ensuring that Member States apply common criteria for the identification of persons in need of protection, and grant and enforce a common set of rights for these beneficiaries. The higher degree of legal certainty and transparency ought to lead to equal treatment across the EU and a decrease of secondary movements between Member States. The form of regulation serves these goals better than a directive, leaving room for more variance among Member States.
The most important incremental changes are clustered into three blocks: rules favourable for those seeking protection, changes increasing state control (reducing chances to enjoy protection) and mixed impact novelties. The overall assessment shows that – unlike in case of many building blocks of the New Pact – the balance of the QR may be positive.
The context of the regulation
There are two different roots of the regulation. First: the lessons learnt from the application of the 2011 directive. Second : the collapse of the whole EU asylum system in 2015 and the ensuing fears related to irregular migration motivating the adoption of the New Pact in 2020.
The problems with the 2011 directive and its application were reviewed by the Commission in its 2019 report:
- Divergent recognition rates for same country of origin applications,
- Different interpretation of terms and varied state practices due to the permissive clauses (e.g. in respect of residence permits, social assistance and others),
- Divergent practices in establishing country of origin information,
- Country of origin info versus credibility and individual challenge to the COI info,
- Practical obstacles in accessing rights (employment, education and others).
The assumption is that if these differences disappear then the secondary movements of asylum seekers (and of recognised persons) would diminish, alleviating the fears concerning irregular migration. (Recitals 3, 5 and 8, QR)
The regulation entered into force on 11 June 2024 but is only applicable from 1 July 2026, States must adjust their domestic law and practice in the meantime. Denmark is not bound, Ireland opted in after the adoption.
New rules favouring the beneficiaries of protection.
The 2024 Qualification Regulation contains quite a large number of rules that benefit the asylum seeker and the recognised person.
Criteria for the identification of beneficiaries and persons with special needs
The rules on members of the family are now more permissive: the family need not have existed in the country of origin. It is enough if it already existed before the applicant arrived on the territory. Adult dependent children were added to the category of ‘family members’ as well as the adult sibling of a minor. This extension of the principle of family unity enhances the psychological wellbeing of the beneficiary, as family members are entitled to residence permit even if they personally do not quality for protection. (Art. 23)
Attention to gender and sexual orientation as well as to minors, including unaccompanied minors has greatly increased as reported in another blogpost of this series. Three points to be mentioned here:. First, not only gender identity but gender expression is also to be protected. Second: States must ‘take into account’ gender, gender identity and sexual orientation when assessing the existence of internal protection alternative. Third: Learning from the F v Bevándorlási és Állampolgársági Hivatal and the A (C‑148/13), B (C‑149/13), C (C‑150/13) v Staatssecretaris van Veiligheid en Justitie cases recital 42 stresses that applicants ‘should not be submitted to detailed questioning or tests as to their sexual practices’.
The attention paid to minors has risen significantly. Major changes include the wish to ensure that the same person remains responsible for an unaccompanied minor, including during the asylum procedure and following the granting of international protection. (Recital 16 and Article 33). States are now free to recognise the minor children of a further spouse in the polygamous marriage. (Recital 18). The new para 5 of Article 8 on internal protection lists ‘age’ as a circumstance that has to be ‘taken into account’ when assessing the existence of the alternative. The new guarantees require not only that the guardians have the necessary expertise, but also that they keep the confidentiality rules and do not have a criminal record, especially of child related crimes that could raise doubts as to their eligibility. The regulation also requires supervision and monitoring of guardians and a complaint right of the minors.
Whereas the concepts of persecution and serious harm have not changed, it is now clearly stated that discretion and self-denial may not be expected in order to avoid persecution. Reflecting the message of the 2013 ECJ judgment in the X,Y and Z case Article 10, para 3 states, that ‘the determining authority cannot reasonably expect [the] applicant to adapt or change his or her behaviour, convictions or identity, or to abstain from certain practices, where such behaviour, convictions or practices are inherent to his or her identity, to avoid the risk of persecution in his or her country of origin.’
Regarding the notion of a particular social group, the new text reinforces that the protected characteristics need not be possessed: if the persons are perceived as having them, that (with the perception of the group as distinct) is enough (Article 10, para 1 (d) i). That corroborates the retained rule in Article 10 para 2, according to which it is ‘irrelevant’ whether the applicant actually possesses the feature attracting persecution.
The emphasis on gender and the extended interpretation of the ground ‘particular social group’ was recently reinforced by the ECJ in several important judgments. As discussed in more detail here the Intervyuirasht organ na DAB pri MS (Women victims of domestic violence), judgment confirmed that women in a country as a whole may be regarded as belonging to ‘a particular social group’ and even if the persecution does not occur for one of the five grounds, if protection is denied for one of them, recognition is due.
In K,L v Staatssecretaris van Justitie en Veiligheid, the court accepted that if minors grew up in an EU Member State and they genuinely come to identify with the fundamental value of equality between women and men during their stay then they may be regarded as belonging to ‘a particular social group’ in their country of origin necessitating protection in the state that otherwise intends to repatriate them.
As for subsidiary protection, Recitals 50-52 must be highlighted as they summarise lessons learnt from the jurisprudence of the ECJ, starting with the Elgafaji case. According to the dictum in case of a lower level of indiscriminate violence applicants should be able to show that they are specifically affected due to factors related to their personal circumstances. At the other end of the spectrum where the degree of indiscriminate violence characterising the armed conflict rises to such an elevated level that persons would, solely on account of their presence there, face a real risk of being subjected to serious harm, no individualisation is needed.
The other major interpretative move relies on Diakite which determined that the term ‘armed conflict’ does not refer to its meaning in international humanitarian law, but to a much broader definition entailing situations in which ‘a third country’s armed forces confront one or more armed groups, or in which two or more armed groups confront each other.’ (Judgment, Para 51.)
The rules interpreting Article 1 (D) of the Geneva Convention – at present mainly applicable to refugees from Palestine – remain unchanged, but a new recital 62 incorporates the ever-growing jurisprudence of the ECJ. In order to establish whether ‘protection or assistance has ceased to exist for reasons beyond the control, and independent of the volition, of the applicant’ the determining authority should ‘ascertain whether the applicant was forced to leave the area of operations of the relevant organ or agency, whether the applicant’s personal safety was at serious risk and whether the relevant organ or agency was unable to ensure the applicant’s living conditions in accordance with its mandate’. A recent judgment in the chain formulating the EU interpretation of Article 1 (D) through Article 12 para 1(a) of the regulation is clear: ‘UNRWA’s assistance or protection must, in particular, be considered to have ceased vis-à-vis the applicant when, for whatever reason, that body is no longer able to provide to any stateless person of Palestinian origin staying in the [relevant] sector of that body’s area of operations … dignified living conditions or minimum security conditions.’
Rights of the protected persons
A clearly positive development is enshrined in Annex I attached to Article 22 on information to be provided after recognition. It clarifies that states must inform the beneficiary of protection about the content of their substantive rights and how to access them. Information must include reference to possible sanctions following irregular movements with regard to the calculation of years in accordance with the amended long term residence directive.
The new rules on residence permits are largely positive for beneficiaries. Family members are entitled to permits with the same expiry as the protected person, residence permits must be issued as soon as possible but not later than 90 days after recognition, the fee to be paid for it is limited to what nationals pay and renewal should be smooth with no interruption. The difference in the validity remains: minimum 3 years for refugees and 1 year in case of beneficiaries of subsidiary protection which undermines motivation for integration in case of the latter group.
Limiting the rights, increasing the burdens
Three notable types of restrictions appear among the new provisions: those limiting family unity, those requiring compulsory withdrawal of residence permits and those tying social assistance to limitations on the freedom of movement.
Article 23 on family unity obliges States not to issue residence permits to spouses or partners when there are ‘strong indications that the marriage or partnership was contracted for the sole purpose of enabling the person concerned to enter or reside in the Member State’. The regulation goes beyond the Directive on family unification adopted in 2003, which under the heading ‘penalties’ allows states to deny or withdraw residence permits in such cases, but does not oblige states to apply this penalty.
Married minors’ spouses may not derive residence rights if according to the asylum state denial of a residence permit serves the best interest of the minor. Article 3 para 9 allows the asylum state to consider the married minor as unmarried if the minor’s marriage would not be in accordance with the national law of the deciding state, especially in respect of the marrying age. This rule raises interesting questions concerning the concept of ordre public, in light of Recital 18 according to which Member State are free to decide whether they wish to apply the provisions on family unity to polygamous households.
Under the Qualification Directive States were free to recognise family members as protected persons, thereby going beyond the minimum standards. No longer. According to the QR family members are only entitled to a residence permit if they themselves do not qualify in their own right as persons to be protected. The regulation no longer contains expressly the earlier obligation of states to ensure family unity (Directive, Article 23/1).
States lost their discretion in deciding whether to revoke, end or not to renew (in the new terminology: withdraw) the status of those who upon reasonable grounds may be considered to represent a danger to the security of the Member State of their stay, or who constitute a danger to the community in light of having been convicted by a final judgment for a particularly serious crime. Article 14 of the regulation makes withdrawal of status compulsory. That, however, does not affect the refugee quality of the dangerous person, nor does it entitle the state to dodge the non-refoulement principle but takes away the title to reside and so – in practice – may lead to (illegal) indefinite detention. The compulsory withdrawal supersedes the ECJ’s finding in Bundesamt für Fremdenwesen und Asyl v AA, that foresaw that the consequences of the revocation of status be proportionate to the danger posed by the third-country national to a fundamental interest of the society of the relevant Member State (Judgment, Para 53)
The regulation increased the power of the territorial state over the protected person by allowing that access to social assistance be tied to the effective participation in integration measures. (Article 31, paragraph 2) That is a fallout of the Alo and Osso case which prohibited a general restriction on the freedom of movement within the country, but allowed the imposition of residence requirements if the affected beneficiaries were not in a situation comparable to other third country nationals legally residing in the country. The present Article 26 of the regulation makes it clear that freedom of movement within the member State includes the free choice of residence, but that is subject to the ‘same conditions and restrictions’ as in the case of other legally resident third country nationals ‘who are generally in the same circumstances’. This in essence means that without formally imposing a residence requirement, Member States may connect social assistance to participation in integration measures and fix the place of those measures, thereby tying people to their domicile.
Mixed impact rules
According to the Qualification Directive only refugees could be excluded from being ‘granted refugee status’ if they themselves created the circumstances sur place which led to the threat of persecution. The regulation extends this to the ‘manufactured’ risk of serious harm. The authority may apply the rule already with regard to the first application, not only in subsequent application procedures, as earlier. This increased burden on the applicant is alleviated by the requirement that states respect both the ECHR and the Charter in addition to the Geneva Convention which means that even in case of lack of protected status the person threatened with persecution or serious harm enjoys protection from refoulement and a minimum of rights. In the Bundesamt für Fremdenwesen und Asyl v JF case the court stressed that even if recognition is denied due to ‘abusive intent and abuse of the applicable procedure’ the person remains a refugee. (Para 44).
The formulation of the internal protection alternative is tougher in the regulation than in the directive as it now makes it compulsory (no longer optional) to apply the category. In exchange more safeguards apply. ‘Where the State or agents of the State are the actors of persecution or serious harm, the determining authority shall presume that effective protection is not available to the applicant’. In such a case no examination of the alternative may be conducted, except if the threat is ‘clearly limited to a specific geographic area’. (Article 8/2). Para 5 of the article reinforces the position of the applicant, by listing a number of personal circumstances, including health, gender identity, ethnic origin and membership in a national minority which ‘have to be taken into account’, and requiring that the applicant be ‘able to cater for his or her own basic needs’.
Rules on exclusion from subsidiary protection have a mixed impact. Constituting a danger to the community or the national security is no longer linked to the state in which the applicant is present, which is more onerous to the applicant. At the same time adding ‘national’ before ‘security’ leaves less room for exclusion. Applicants also benefit from the new formula, according to which a serious crime in itself is no longer an exclusion ground after arrival: there must be at least a first instance conviction for it. The site of that crime remains unspecified.
The path of beneficiaries of international protection to long term resident status under Directive 2003/109/EC has been made easier in the new regulation while new obstacles were also erected. Article 40 of the regulation amends the long-term residence directive and provides that the period between lodging an application and the granting of residence permit after recognition counts fully to the period of five years. This accelerates the access to free movement rights within the Union compared to the previous rule that only counted half of the first 18 months to the five years needed. The trade-off is that a new paragraph is inserted, aimed at limiting secondary movements. The new Article 4/3a of the long term resident status directive, to be transposed by 12 June 2026 prescribes that if a beneficiary of international protection moved from the recognising Member State to another Member State where he or she has no a right to stay or to reside, the period of legal stay in the recognising Member State shall not be taken into account when calculating the five years. Deterrence from secondary movement is the name of the game.
Conclusion
Whereas the specific instruments of the New Pact unashamedly try to prevent access to territory and access to procedure and have no scruples when responsibility is to be shifted to states outside the Union, the Qualification Regulation still bears the mark of the Geneva Convention which it claims to apply fully and inclusively (Preamble, para 2). As Steve Peers rightly notes in his rich essay, the Qualification regulation intends to ‘strike the balance between migration control and human rights protection’ (p. 70)
The regulation intends to cure the fragmentation of the Schengen area into national asylum spaces and the competition among the Member States to escape responsibility by adopting a ‘uniform status’ across the Union (TFEU, Article 78). Its aim is to terminate the great variability in recognition rates and treatment of beneficiaries of protection. The fiction on which all the intra-EU allocation mechanisms rely (including the ‘Dublin system’, however it is called) presumes that asylum seekers have equal chances in all Member States to be recognised and that once recognised they enjoy the same rights. Therefore, irregular movement during the status determination or after recognition are unwarranted and justifiably entail retorsion if the person nevertheless irregularly resides in another Member State before having become a long-term resident.
Seen against this background, the Qualification Regulation has two apparent effects: on the one hand it offers a more sensitive protection to certain groups, including those threatened with gender-related harm and minors, on the other, by making the evaluation of the internal protection alternative and withdrawal of residence permits compulsory and annulling the years counting towards long term residency of those who irregularly move to another than the recognising state, it drastically limits the freedom of choice of the persons entitled to protection.