Conditions governing eligibility for refugee status or international protection

This directive sets out the conditions for the qualification and status of nationals of non-European Union (EU) countries or stateless persons as refugees or as persons who otherwise need international protection. It also establishes the content of the protection to be granted to these persons.

ACT

Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third-country nationals and stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted.

SUMMARY

At the Tampere European Council in October 1999, European Union (EU) countries undertook to set up a Common European Asylum System (CEAS) based on the full and inclusive application of the 1951 Geneva Convention relating to the Status of Refugees, as supplemented by the 1967 New York Protocol, to affirm the principle of non-refoulement and to ensure that nobody is sent back to persecution. Establishing such a system entails, in the short term, closer alignment of the rules on the recognition and content of refugee status.

General provisions

This directive sets out minimum standards for granting refugee or subsidiary protection status to non-EU country nationals or stateless persons and the content of the protection to be granted to them.

The directive applies to all applications made at the border or on the territory of an EU country. In addition, EU countries are free to introduce or retain more favourable standards.

Qualification for international protection

Any non-EU country national or stateless person who is located outside of his/her country of origin and who is unwilling or unable to return to it owing to a fear of being persecuted can apply for refugee status. Applicants who do not qualify for refugee status can apply for subsidiary protection.

To make an accurate assessment of applications, EU countries must take the following matters into account:

• all relevant facts as they relate to the country of origin at the time a decision is taken on the application, including the laws and regulations of the country of origin and the way in which they are applied;
• the relevant documentation or statements of the applicant on whether s/he has been or may be subject to persecution or serious harm;
• whether there is serious indication of a well-founded fear of persecution or real risk of suffering serious harm in cases where the applicant has already been subjected to persecution or other serious and unjustified harm;
• the applicant's individual circumstances (background, age, gender, acts to which the applicant has been or could be exposed that would amount to persecution or serious harm, etc.);
• any activity carried out by the applicant since leaving the country of origin.

EU countries must take the source of the threat into account. This threat must come from:

• the state;
• parties or organisations controlling the state;
• non-state actors, where the state is unwilling or unable to provide effective protection.

For the purpose of this directive, "state" protection may also be provided by parties or organisations, including international organisations that control a region or large area of the territory of the state.

Once they have established that the fear of being persecuted or of otherwise suffering serious and unjustified harm is well founded, EU countries may examine whether it is clearly confined to a specific part of the territory of the country of origin and, if so, whether the applicant could reasonably be returned to another part of the country where there would be no reason to fear being persecuted or otherwise suffering serious and unjustified harm.

Specific rules concerning refugee status

For the purpose of this directive, the following situations that amount to severe violations of basic human rights, by virtue of their nature or repetition, are deemed to constitute "persecution" when they are based on considerations of race, religion, nationality, membership of a particular social group or political opinion:

• physical or mental violence, including acts of sexual violence;
• legal, administrative, police or judicial measures that are discriminatory or that are implemented in a discriminatory manner;
• prosecution or punishment applied in a disproportionate or discriminatory manner or for refusal to perform military service that would include extremely serious crimes, such as war crimes and crimes against humanity;
• denial of judicial redress resulting in disproportionate or discriminatory punishment;
• acts of gender-specific or child specific nature.

It is immaterial whether the applicant actually possesses the characteristics on which the discrimination is based; it is sufficient that such characteristics are attributed to him/her by the persecuting parties. Equally, it is immaterial whether the applicant comes from a country in which many or all face the risk of generalised oppression.

Refugees may lose their refugee status in certain cases (acquisition of a new nationality, voluntary return to their country of origin, if the circumstances in the country of origin have ceased to exist or have changed to such a degree that protection is no longer required, etc.). In any event, the burden of proof that a refugee has ceased to qualify for international protection lies with the EU country.

Persons who have committed the following may be refused refugee or subsidiary protection status:

• a war crime, a crime against humanity or a crime against peace;
• a serious non-political crime;
• acts contrary to the principles of the United Nations (UN).

However, EU countries must assess these cases on an individual basis and provide applicants with the possibility to appeal against decisions excluding them from international protection.

Specific rules concerning subsidiary protection status

The directive provides for EU countries to grant subsidiary protection status to applicants for international protection who are located outside of their country of origin and cannot return there due to a real risk of suffering serious harm, such as:

• torture or inhuman or degrading treatment or punishment;
• death penalty or execution;
• serious and individual threat to the life or person of a civilian, as a result of indiscriminate violence arising in situations of international or internal armed conflict.

Subsidiary protection may be withdrawn if the circumstances in the country of origin have ceased to exist or have changed to such a degree that protection is no longer required.

Rights bestowed by virtue of refugee or subsidiary protection status

EU countries undertake to take special account of the needs of certain categories of people (minors in general, unaccompanied minors, disabled people, elderly people, pregnant women, single parents accompanied by minors and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence).

Subject to conditions that can be defined by EU countries, the family members of a beneficiary of refugee or subsidiary protection status are entitled to the same benefits as the beneficiary.

This directive requires EU countries to guarantee a series of rights for persons qualifying for refugee or subsidiary protection status, inter alia:

• the right of non-refoulement;
• the right to information in a language they understand;
• the right to a residence permit valid for at least three years and renewable for refugees and a residence permit valid for at least one year and renewable for persons with subsidiary protection status;
• the right to travel within and outside the country that granted refugee or subsidiary protection status;
• the right to take up paid employment or to work on a self-employed basis and the right to follow vocational training;
• access to the education system for minors and to retraining for adults;
• access to medical care and any other necessary forms of care, particularly for persons with special needs (minors, victims of torture, rape or other forms of psychological, physical or sexual violence, etc.);
• access to appropriate accommodation;
• access to programmes facilitating integration into the host society and to programmes facilitating voluntary return to the country of origin.

RELATED ACTS

Report from the Commission to the European Parliament and the Council of 16 June 2010 on the Application of Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection [COM(2010) 314 final – Not published in the Official Journal]. This report presents the transposition and implementation of Directive 2004/83/EC by EU countries and any problematic issues identified as a result thereof.

Though certain EU countries missed the deadline for the transposition of the directive into national law, it has now been transposed by all EU countries. However, several provisions have been transposed incorrectly or only partially, including lower standards than set out in the directive. Consequently, the manner in which EU countries grant protection and the content of that protection vary greatly.

For example, transposition was problematic for the following provisions concerning the granting of international protection:

• list of issues to take into consideration when assessing applications;
• actors of persecution;
• qualification for subsidiary protection;
• cessation of or exclusion from protection, and EU countries’ burden of proof to demonstrate the reasons thereto.

On the other hand, almost all EU countries transposed the provisions regarding actors of protection and acts of and reasons for persecution.

As to the content of protection granted, some EU countries failed to transpose the provisions concerning vulnerable persons and minors and access to information, healthcare and integration facilities. The provision on non-refoulement was transposed by all EU countries. In addition, a number of EU countries grant longer residence permits than provided by the directive and authorise access to employment.

The differences in EU countries’ implementation is, to some extent, the result of the vagueness and ambiguity of certain concepts in the directive, such as actors of protection and international protection, which can only be remedied by amending the relevant provisions.

In short, the aim of harmonising the qualification and status of beneficiaries of international protection and the content of that protection has not yet been fully achieved.

Last updated: 19.10.2010