The case concerned the interpretation of Council Directive 2004/83/EC on minimum standards for the qualifications and status of third-country nationals or Stateless persons as refugees or as persons otherwise needing international protection and the content of the protection granted.
The applicants in this case were from Sierra Leone, Uganda and Senegal. They had all applied for asylum in the Netherlands between 2009 and 2011 and in support of their applications had claimed that they should be granted refugee status on the grounds that they had reason to fear persecution in their respective countries of origin on account of their homosexuality. In Sierra Leone homosexual acts are punishable by a sentence of imprisonment of 10 years to life. In Uganda anyone found guilty of ‘carnal knowledge of any person against the order of nature’ is liable to a term of imprisonment for which the maximum sentence is life. In Senegal there is a sentence of one to five years imprisonment or 100,000 – 500,000 CFA francs. The applications for asylum were refused. Following a series of appeals, the Raad van State made an application to the CJEU asking for clarification on the content of Article 9 (acts of persecution) and Article 10 (members of a particular social group) of the directive.
The questions referred were:
- Whether foreign nationals with a homosexual orientation form a particular ‘social group’ for the purposes of the Directive;
- Which homosexual activities might fall within the scope of the Directive:
(a) whether gay men could be expected to conceal their orientation from everyone in their country of origin in order to avoid persecution;
(b) whether gay men could be expected to exercise restraint, and if so, to what extent, when giving expression to that sexual orientation in their country of origin, in order to avoid persecution;
(c) whether distinctions can be made between forms of expression which relate to the core area of sexual orientation and forms of expression which do not).
3. Whether the criminalisation of homosexuality amounts to persecutory treatment per se. Continue reading
The Ministry of Justice issued a Call for Evidence for a review on the balance of competences between the UK and EU in relation to fundamental rights on 21 October 2013, with the deadline for submitting evidence being 13 January 2014.
The Fundamental Rights Review is part of a broader series of reports on EU competence taking place between 2012-14, aiming to deepen public and Parliamentary understanding of the nature of our EU membership, among other things. The Call for Evidence seeks answers to 14 questions ranging from the quite specific “What evidence is there that the Fundamental Rights and Citizenship programme provides value for money?” to more far reaching questions covering whether there is any benefit to individuals/business/public sector/other groups within the UK from the Charter of Fundamental Rights, issues of competence creep, and potential consequences for the UK following EU accession to the ECHR.
The Call for Evidence
The approach of the Review is to give an outline of what fundamental rights are, put them in an international context and essentially summarise a brief history of fundamental rights protection in Europe – from the ECHR and from various EU mechanisms. The Fundamental Rights Review is potentially very important – the stated aim of the Balance of Competences reviews is to audit what the EU does and how it affects the UK government and those residing within the UK more generally. The main website can be found here. Continue reading
The UK Supreme Court on Wednesday delivered judgment in two conjoined cases that considered the legality of prisoner disenfranchisement. The Court considered both the compatibility of disenfranchisement with Convention rights, and also whether that disenfranchisement breached a right to vote granted to the appellants under European Union law. In a unanimous judgment the Supreme Court dismissed the appeals, declining either to issue a declaration of incompatibility or to recognise a right to vote conferred upon the appellants by EU law.
Prisoners in the United Kingdom are ineligible to vote by virtue of section 3(1) of the Representation of the People Act 1983 (‘RPA 1983’), which states that ‘a convicted person during the time that he is detained in a penal institution in pursuance of his sentence or unlawfully at large when he would otherwise be so detained is legally incapable of voting at any parliamentary or local government election’. This disenfranchisement is extended to apply to European Parliamentary elections by virtue of section 8(2) of the European Parliamentary Elections Act 2002. Continue reading
Karon Monaghan QC
On 11th July 2013, Advocate General Sharpston delivered her Opinion in X, Y and Z v Minister voor Immigratie, Integratie en Asiel (joined Cases C‑199/12, C‑200/12 and C‑201/12). The case concerned three nationals, X, Y and Z, of respectively Sierra Leone, Uganda and Senegal, all of whom are gay. They sought refugee status in the Netherlands, claiming a well- founded fear of persecution in their home countries based on their sexual orientation, relying, inter alia, on the fact that homosexuality is criminalized in Sierra Leone, Uganda and Senegal.
Their claims to refugee status fell to be considered under the EU Qualifications Directive 2004/83/EU (‘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 granted’). Replicating provision made under the Geneva Convention, the Directive defines a ‘refugee’ as a ‘third country national who, 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 outside the country of nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country’. Further, as to persecutory acts, the Directive provides that ‘9(1) Acts of persecution within the meaning of Article 1 A of the Geneva Convention must: (a) be sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms [including Articles 2 and 3]; or (b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a)’; ‘9(2). Acts of persecution as qualified in paragraph 1, can, inter alia, take the form of: (a) acts of physical or mental violence, including acts of sexual violence; (b) legal, administrative, police, and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner; (c) prosecution or punishment, which is disproportionate or discriminatory; (d) denial of judicial redress resulting in a disproportionate or discriminatory punishment’. Continue reading
Anastasios A. Antoniou
The facts are well-settled by now and the majority of us know that on the evening of 15/3/13, Eurozone finance ministers agreed on an extraordinary course of action in response to Cyprus’ request for a bail-out of the State and its banking sector, both on the brink of apparent collapse. The political agreement reached at the ministers’ Eurogroup configuration, seeks to impose a levy on deposits with Cypriot banks, catching both Cypriot and foreign depositors (hereinafter referred to as ‘the Decision’).
Developments are of course constantly unfolding. Following fierce reactions to the Decision, the Eurogroup held an urgent teleconference on 18/3/13, resulting in a statement by its president, Jeroen Dijsselbloem. The statement sought to assure that deposits under EUR100.000 would be fully guaranteed in what is presented as an upholding of the Eurogroup’s ‘view’ that ‘small depositors should be treated differently from large depositors’. The issue is that the Eurogroup never expressed such a view in the first place. Nor did it bother itself with revisiting the various legal anomalies emanating from what it wants to present as a political decision enjoying the consensus of all Eurozone member states, but has in fact been a catastrophic step, irrespective of whether it is eventually passed into law by the Cypriot Parliament. Continue reading
The failure of the UN Security Council (“UNSC”) to agree resolutions on Syria, thanks largely to Russian and Chinese intransigence, is still big news. But both the European Court of Human Rights (“ECtHR”) and the Court of Justice of the European Union (“CJEU”) have recently had occasion to consider instances in which UNSC resolutions have successfully been passed, in respect of individuals suspected of involvement in terrorism, with sometimes alarming consequences for human rights.
In Nada v Switzerland, the Grand Chamber of the ECtHR made a contribution to the growing jurisprudence, at European level, on States’ obligations when implementing UNSC Resolutions. The case is interesting in that it demonstrates a somewhat surprising reluctance on the part of the Strasbourg court to directly challenge the primacy of the UN legal order. This contrasts with the more robust approach of the CJEU in the Kadi case (judgment is currently pending in the follow-up case, Kadi II, which has been considered by this blog here).
Aidan O’Neill QC
As I have noted in previous posts, since the coming into force of the Lisbon Treaty provisions according the Charter of Fundamental Rights of the European Union (“CFR”) with “the same legal value as the Treaties” (Article 6 TEU), the CJEU now, as a matter of course, refers to provisions of the Charter in its judgments. There have already been over 300 references to the Charter in the decisions of the CJEU (including those of General Court and the Civil Service Tribunal).
One developing issue in the court’s more recent Charter jurisprudence is the manner in which the Charter is being used as an interpretative aid to other provisions of EU law.
This paper was presented by Jodie Blackstock, Director of Criminal and EU Justice Policy at JUSTICE, at the conference The EU Charter of Fundamental Rights: An essential tool for UK practitioners, held on the 29th March. We will be posting it in two parts over the next couple of days.
Recognition of human rights is not new for the EU. It has increasingly prioritised human rights in its Treaty provisions. This is now enshrined in the first substantive article of EU primary law, article 2 of the Treaty on the European Union:
The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.
The EU Charter of Fundamental Rights was concluded in 2000 following a decision that the EU law concerning fundamental rights was set out in a fragmented fashion across numerous primary and secondary law provisions. The intention was to consolidate. The Charter would however not only cover the social and economic rights recognised as general principles of EU law, but the fundamental rights adopted by the EU from the European Convention on Human Rights (ECHR) and the constitutional traditions common to the member states. Contrary to the debate as to the legitimacy of the European Convention on Human Rights (despite this in fact being the brain child of Winston Churchill and drafted largely by David Maxwell Fyfe), and the expansion of EU law generally, the Charter was specifically devised by the members states acting in the European Council at Tampere in 1999. Therefore the heads of state gave express approval to the idea and instigated its creation. The content was discerned by a Convention appointed to the task from the member states, Commission and European Parliament and national parliaments. This was approved by the European Council at Nice in 2000. Its legal status remained unclear until the Lisbon Treaty was finally adopted in December 2009.
Aidan O’Neill QC
In the first of two blog posts, Aidan O’Neill QC considers the growing body of case law regarding the CJEU’s use of the Charter of Fundamental Rights.
Since the coming into force of the Lisbon Treaty provisions according the Charter of Fundamental Rights of the European Union (“CFR”) with “the same legal value as the Treaties” (Article 6 TEU), the CJEU now, as a matter of course, refers to provisions of the Charter in its judgments. A recent search of the CURIA database reveals that the Charter of Fundamental Rights has been referred to in Judgments of the Court of Justice and of the General Court in over 250 cases. This does not take into account the times when the Charter has been referred to and relied upon in Opinions of the Advocates General or in decisions of the EU’s Civil Service Employment Tribunal.
It is clear therefore that any understanding of the intent and effect of EU law has now to be done against a background of an understanding of the terms of the EU Charter of Fundamental Rights, as interpreted by the CJEU.