CYIL vol. 11 (2020)

CYIL 11 (2020) THE PRINCIPLE OF NON-REFOULEMENT AND THE EU CHARTER… rights under the Geneva Convention and the Qualification Directive, but not all rights. In the concluding part of its judgment, the CJEU dealt with the question of which rights cannot be invoked by those whose refugee status has been revoked or refused. In this respect, the CJEU, following the Advocate General’s Opinion, first focused on Article 24 of the Qualification Directive according to which a residence permit shall not be issued to all refugees but only to persons who have been granted formal refugee status. So, the stay of a person who has lost his refugee status as a result of the grounds set out in Article 14(4) and (5) of the Qualification Directive becomes unlawful in the territory of a Member State. Article 14(6) of the Qualification Directive stipulates that such a person whose stay is unlawful is entitled only to the rights set out in Articles 3, 4, 16, 22, 31, 32, and 33 of the Geneva Convention. 22 According to the CJEU, a refugee covered by one of the scenarios referred to in Article 14(4) and (5) of the Qualification Directive may however by authorized, on another legal basis, to stay lawfully in the territory of the Member State. In such a situation the Member State may guarantee them all those rights under the Geneva Convention which belong to persons formally “being a refugee”. Moreover, people staying in the territory of a Member State unlawfully may invoke all those rights under the EUCFR which go beyond the scope of the Geneva Convention, namely the right to respect for private and family life (Article 7), the freedom to choose an occupation and right to engage in work (Article 15), the right to social security and social assistance (Article 34), and the right to health protection (Article 35). In its judgment of May 2019, the CJEU pointed at different standards of protection under international refugee law and EU protection of human rights. Although the relevant EU norms refer equally to both of these standards, in the case of conflicts of law, the relevant point of reference shall be the protection of human rights since it contains more favorable rules for individuals. This conclusion does apply in particular to the application of the non- refoulement principle, which, according to the Geneva Convention, is relative but, according to human rights law, is absolute in nature. 5. The principle of non-refoulement and the issue of security In our opinion, the Court’s findings are based on good arguments. It is difficult to imagine how the CJEU, by using an older document of international refugee law, would reverse the absolute nature of the principle of non-refoulement as recognized by current human rights law. It would be equally difficult to imagine a solution according to which refugees within the meaning of the Geneva Convention would enjoy a lower standard of protection against refoulement than other individuals. The emphasis on the absolute nature of the principle of non-refoulement under Article 19 of the EUCFR is also correct in the light of Article 52(3) of the EUCFR which provides that the rights contained in both the ECHR and the EUCFR shall have to have the same meaning and scope. A different interpretation would certainly raise serious problems affecting the relationship between the case law of the CJEU and the ECtHR. 22 These rights include non-discrimination on the grounds of race, religion or country of origin, religious freedom, the right of access to national courts and the right to public education. Under Article 31 of the Geneva Convention, unlawfully residing refugees are not to be prosecuted for their illegal entry or presence, provided that they have come directly from a territory where their life or freedom was threatened and they presented themselves without delay to the authorities and show good cause for their illegal entry or presence.

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