Common European Asylum System in a Changing World

5.2.2 Qualification of third-country nationals as beneficiaries of international protection

Qualification directive Council Directive 2004/83/EC on minimum standards for the qualification and status as refugees or as persons who otherwise need international protection – “Qualification Directive” QD directive interpretation The QD (recast) details the ‘standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted’ (Article 1 QD) (see above in Chapter 3) Selected relevant CJEU case law B & D – Joined Cases C-57/09, C-101/09 In this case the CJEU provided guidance on how to apply the exclusion clauses . The fact that the person concerned in this case was a member of an organisation and actively supported the armed struggle waged by the organisation did not automatically constitute a serious basis for considering his acts as ‘a serious non-political crime’ or ‘acts contrary to the purposes and principles of the UN’. Both provisions would exclude him from refugee protection. A case-by-case assessment of the specific facts must be the basis for finding whether there are serious reasons for considering the person guilty of such acts or crimes. This should be done with a view to determining whether the acts committed by the organisation meet the conditions of those provisions, and whether the individual responsibility for carrying out those acts can be attributed to the person, accounting for the standard of proof required under Article 12 (2) of the directive. The Court also added that the basis for exclusion from refugee status is not conditional on the person posing an ongoing threat to the host Member State nor on an assessment of proportionality in relation to the particular case. Minister voor Immigratie en Asiel v. X, Y and Z v. Minister voor Immigratie en Asiel – Joined Cases C-199/12, C-200/12, C-201/12 The CJEU stated that when assessing an application for refugee status, the competent authorities cannot reasonably expect, in order to avoid the risk of persecution, the applicant for asylum to conceal their homosexuality in their country of origin or to exercise reserve in the expression of their sexual orientation. Bundesrepublik Deutschland v. Y and Z – Joined Cases C-71/11, C-99/11 The CJEU defined which acts may constitute an “act of persecution” in the context Article 9 (1) (a) of the QD and Article 10 of the EU Charter. Specifically, the Court was asked whether the definition of acts of persecution for religious reasons covered interferences with the “freedom to manifest one’s faith”. The CJEU clarified that an act of persecution may actually result from an interference with the external manifestation of freedom of religion. The intrinsic severity of such acts and the severity of their consequences on the persons concerned determine whether a violation of the right guaranteed by Article 10 (1)

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