European Commission: Home Affairs

Before receiving asylum, an applicant must be considered as a refugee. An essential element of the Common European Asylum System is common agreement on the definition of the term “refugee” across the EU. The same applies for the subsidiary protection status which can be granted when the applicant does not fulfill the requirements for refugee status. Harmonising these statuses is the objective of the Directive laying down minimum standards for the qualification and status of non-EU nationals and stateless persons as refugees or as persons who otherwise need international protection.

What is refugee protection and what is subsidiary 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 well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group is a refugee. Applicants who do not qualify for refugee status, but who can not return to their country of origin due to a real risk of suffering serious harm (torture or inhuman or degrading treatment, death penalty or execution, serious individual threat to the life or person as result of indiscriminate violence) have the right to subsidiary protection.

International protection may be withdrawn if the circumstances in the country of origin change to such a degree that protection is no longer required. This is also the case if a person has committed serious non-political crimes. Refugee status and subsidiary protection status are two separate but complementary statuses.

Rights

EU States must guarantee a series of rights for persons qualifying for refugee or subsidiary protection status (right of non-refoulement; right to a residence permit; right to travel within and outside the country; access to the education system; access to medical care; access to appropriate accommodation; access to programmes facilitating integration). Depending on whether a person is a beneficiary of refugee protection or of subsidiary protection, the level of such rights and benefits may differ.

Which factors are taken into account in the assessment of applications?

To make an accurate assessment of applications, EU States must take into account the facts relating to the country of origin; the documentation or statements from the applicant; whether there is strong evidence of a well-founded fear of persecution or real risk of enduring serious harm; the applicant's individual circumstances; etc. They must also take account of the source of the threat, which might come from the State, or parties or organisations controlling the State, or non-State actors where the State is unwilling or unable to provide effective protection.

Once they have established that the fear of being persecuted or of suffering harm is well founded, EU States 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 expected to stay in another part of the country, where there would be no reason to fear persecution or serious harm.

Improving current legislation

A 2010 evaluation report concluded that vagueness and ambiguity surrounding several concepts in the Directive left room for widely divergent interpretations by EU States. It also appeared that a significant share of decisions taken at first instance on individual cases were overturned on appeal, as they were based on criteria which were insufficiently clear or precise. To address those deficiencies, as well as those identified during the consultation process accompanying the Green Paper on the future of the Common European Asylum System, the Commission proposed amending the Qualification Directive. The proposal aims primarily at clarifying certain legal concepts used to define the grounds for protection, eliminating differences in the level of rights granted to refugees and beneficiaries of subsidiary protection, and enhancing effective access to rights already granted by the Directive by taking into account the specific integration challenges faced by beneficiaries of international protection. The Commission proposal is currently under discussion in the European Parliament and in the Council.