The Charter of Fundamental Rights of the EU and the exclusionary principles of the qualifications directive recast

Abstract

This work seeks to answer the following research question: Is the juridical interpretation of the exclusionary principles of Directive 2011/95/EU consistent with the Charter of Fundamental Rights of the European Union? The Charter of Fundamental Rights of the European Union includes the right to asylum in Article 18. Whilst the Dublin III Regulation determines which Member State processes the asylum application, the Qualification Directive Recast regulates the substantive legal criteria determining who qualifies for asylum within the EU. Specifically, articles 12 and 17 of Directive 2011/95/EU provide the legal criteria for which applications can be excluded from asylum. The exclusionary criteria of Article 12 are more stringent than those set out in Article 17. This is because Article 12 is regulating the exclusions against a refugee application whilst Article 17 is providing for the exclusion against subsidiary protection. Therefore Article 17 is more likely to breach the Charter more than Article 12. Consequently, whilst a rejection under Article 12 does not exclude subsidiary protection, a rejection under Article 17 means that the third-country-national has no other means of reaching the EU’s territory under the acquis communautaire of the Area of Freedom, Security and Justice (AFSJ). The ultimate purpose of the exclusionary principles of the Qualifications Directive Recast is to ensure that no person uses the European asylum system as a tool to gain unqualified immigration rights within the Union. Nonetheless, a juridically rigid interpretation of these Exclusionary Principles might result in court decisions which are not comprehensively harmonious with Article 18 of the Charter of Fundamental Rights of the European Union. Thus, this dissertation’s research question will be answered through three sub-questions. The first sub-research question will be: How has the Court of Justice of the European Union (CJEU) interpreted Article 18 of the Charter? The second subquestion will deal with the contents of Article 12 of the Directive and how it has been construed by the Courts. The third sub-research question will relate to the interpretation of Article 17 of the Qualifications Directive Recast with a particular focus on general European Immigration Policy.