CYIL vol. 11 (2020)

HARALD CHRISTIAN SCHEU CYIL 11 (2020) the declaratory nature of the recognition of refugee status, 19 the act of recognition 20 has no constitutive consequences. In the light of the conceptual distinction between the terms “refugee” and “refugee status”, the wording of Article 12 of the Qualification Directive is somehow misleading. The Czech and the French version of the provision foresee that a third-country national or a stateless person is excluded „from refugee status“. However, as has been pointed out by the CJEU, some other language versions (Spanish, German, English, Portuguese, and Swedish) do not provide for exclusion „from refugee status“ but for exclusion „from being refugee“. Based upon a systematic interpretation of the norm and a thorough consideration of its purpose, the CJEU concluded that the formal recognition of a person as a refugee is no prerequisite for the enjoyment of all the rights and benefits provided for in Chapter VII of the Qualification Directive. Some rights under the Directive fully correspond to the rights of a refugee under the Geneva Convention, in some respects the Qualification Directive goes beyond the scope of the Geneva Convention and is more favorable from the perspective of the refugee. 21 Therefore, the rights under the Qualification Directive and the Geneva Convention belong to all persons who are refugees, and not only to those who have been formally recognized as refugees. Following this fundamental distinction, the CJEU needed to address the question of how the revocation of refugee status within the meaning of Article 14(4) and (5) of the Qualification Directive relates to the protection of a refugee from return to a country where his life or liberty would be endangered. In line with the opinion of the Advocate General, the CJEU found that the circumstances in which Member States may revoke or refuse to grant refugee status in accordance with Article 14(4) and (5) of the Qualification Directive correspond, in essence, to those in which Member States may refoule a refugee under Article 21(2) of the Qualification Directive and Article 33(2) of the Geneva Convention. Under Article 33(2) of the Geneva Convention, it is clear that protection against refoulement cannot be invoked by a refugee who, for reasonable grounds, may be considered dangerous or has been convicted of a particularly serious crime. However, connecting the interpretation of Article 21(2) of the Qualification Directive to the human rights obligations under Articles 4 and 19(2) of the EUCFR, the CJEU concluded that the prohibition of refoulement under the Qualification Directive must be understood as absolute. Member States cannot rely on the exceptions contained in Article 33(2) of the Geneva Convention. In other words, the level of protection provided for in Articles 4 and 19(2) of the EUCFR is higher than the level provided by the Geneva Convention. Therefore, Member States cannot return a refugee who poses a serious risk to the security of the receiving state. It shall be added that refugees who meet the substantive conditions of both the Geneva Convention and the Qualification Directive and persons whose refugee status has been revoked or refused under Article 14(4) and (5) of the Qualification Directive share some 19 Indent 21. 20 In Article 2(e) of the Qualification Directive and indent 21 of its preamble, the English and French versions use only one term: “recognition”, resp. “reconnaissance”. The German and Czech versions use different terms: “Anerkennung” and “Zuerkennung”, resp. “uznání” and “přiznání”. 21 In the proceedings before the CJEU, the European Parliament referred to Articles 24(1), 28 and 34 of the Qualification Directive, i.e. the right to be granted a residence permit, the recognition of foreign diplomas, certificates and other evidence of formal qualifications, and access to integration facilities.

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