The influence of CJEU and ECTHR case law on the right to asylum

Abstract

The aim of this research paper is to perform a comparative analysis of the Court of Justice of the European Union and the European Court of Human Rights, with respect to the matter of asylum, namely the right to asylum and the status and protection afforded to potential asylum-seekers. Only the first step of the asylum process will be examined, meaning the recognition of asylum seekers as ‘refugees’ and protection afforded to them. Issues relating to detention, family unity as well as reception standards will not be delved into for the purposes of this Research Project. The comparative analysis has the aim of coming to a conclusion on the similarities and differences of each legal regime, touching matters such as the right to asylum, acts of persecution, subsidiary protection, risk assessment, actors of protection, the internal protection alternative, as well as exclusion and cessation grounds of international protection. The Research Project will show how albeit having different jurisdictions, contrasting relationships between national Courts and legal orders, contrasting decisional autonomy as well as different interpretative methodologies, these institutions both afford a level of protection, which is in some ways complements each other. Notable differences in the two systems are to be noted, such as the fact that the right to asylum is not enshrined in the ECHR, the lack of locus standi the CJEU affords to individuals, the absolute nature of Article 3 ECHR in contrast to the CJEU’s exclusion clauses as well as the declaratory nature of ECHR judgements, which do not impose upon the Contracting State what kind of protection is to be afforded to the asylum seeker. Finally, recommendations as to how each system can be ameliorated will be made in order for a ‘constructive human rights pluralism’ to be established.