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ECJ Elgafaji judgment and the 'exceptional objectivity' test for refugee protection

Having only recently considered the normative importance and weight of the provision in Article 15(c) of the European Refugee Qualification Directive (mentioned here and here), the following is a timely and, to a certain extent, also welcomed judicial instance.

On 17 January the Grand Chamber of the European Court of Justice rendered its preliminary ruling in the case of  C-465/07 Elgafaji v Saatssecreteris van Justitie, concerning an Iraqi national who came to the Netherlands with his wife due to the risk to his life that he was facing back in Iraq. Before he fled from Iraq he was working for a British security firm in Iraq. His uncle who was working for the same firm had been killed by militia, and a letter threatening “death to collaborators” was fixed to Mr. Elgafaji’s door warning him of a similar fate (para. 17-18 of the Preliminary Ruling).

The main question referred to the European court by the Dutch court concerns namely the difference in protection between Article 15(c) and Article 3 of the ECHR, and seeks guidance on the application of the former (para. 27). The Court’s first statement in this regard was that the protection is correlated and interdependent, as European law is grounded on the fundamental principles emanating both from Article 3 of the ECHR and the case law of the European Court of Human Rights. It proceeded by noting the following,

“Article 15(c) of the Directive is a provision, the content of which is different from that of Article 3 of the ECHR, and the interpretation of which must, therefore, be carried out independently, although with due regard for fundamental rights, as they are guaranteed under the ECHR.” (para. 28)

The secondary question in this regard concerned the evidential threshold that is required to substantiate an Article 15(c) claim; namely, whether the evidence need adduce that the claimant is “specifically targeted by reason of factors particular to his circumstances” (para. 30). The Court commences its answer to this question by outlining the normative spectrum of thresholds found in Article 15(c) – i.e. the “three types of ‘serious harm'” (para. 31). Notably, Article 15(c) subsidiary protection includes a considerably wider scope of material protection than Article 3 ECHR, which is limited to death penalty, torture, etc. Nevertheless, the personal nexus required by Article 15(c) is much stricter, and need be substantiated by proving a “threat to a civilian life or person” (para. 34), or the existence of a situation “in which the applicant is specifically exposed to the risk of a particular type of harm” (para. 32).

The most innovative of the judgment’s submissions is where it confirms the width of the scope of protection by noting that a personal risk could be exemplified, or made up for, by proof of a “degree of indiscriminate violence…reach[ing] such a high level that substantial grounds are shown for believing that a civilian…would, solely on account of his presence on the territory of that country or region, face a real risk of being subject to the serious threat…” (para. 35). This would however be used only in “exceptional situation[s] which would be characterised by such a high degree of risk” that the “objective finding…linked to a general situation in a country” would alone to sufficient to afford Article 15(c) protection (para. 37-38).

Another pivotal submission made by the Court holds that the examination of a particular case should be done by using a two-fold normative tool; namely, on the one hand, the objective situation in the country of destination, and on the other side of the scale, the factors particular to the claimant’s personal circumstances. When an examination is conducted a judicial instance, the more the applicant is able to show that he is personally affected, the lower the level of indiscriminate violence in the country required for him to be eligible for Article 15(c) protection, and vice versa (para. 39). In other words, it can arguably be concluded that any person who can prove a minimal degree of risk of personal harm, and who is fleeing a highly and indiscriminately violent military attack zone should be afforded such protection. What remains uncertain is at what stage and  what degree of hostilities is required to exist in the country of destination for the protection to apply?

Despite the fact that the ruling does not consider specific case studies and examples of situations where the extended scope of the protection afforded by Article 15(c) would apply, the judgment confirms the wider (more than Article 3 of the ECHR) protection, i.e. “subsidiary protection”, that this Community instrument intended to facilitate to asylum-seekers arriving in European Member States. It is yet to be seen to what extent and in what manner these normative guidelines would be applied in particular cases. Equally interesting is whether, and to what extent, the common European asylum system would ever dare to interfere with national decision-making in this field when and if the application of the relevant provisions by national courts would not comply with what was intended by the Community institutions.

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