It seems to make sense: if you are not a refugee, a state will not provide you with refuge. In the Mukarubega judgment, the Court of Justice followed that logic by arguing that one procedure suffices for examining whether someone is a refugee and adopting an order for expulsion if someone is not. This approach, however, raises interesting questions on the interaction between refugee law and human rights.
Many of those who wish to flee to a different country because it is too unsafe in their region of origin decide to seek refuge in the countries of the European Union. In order to differentiate them from those who migrate because of other reasons, these refugees need to apply for asylum. During this investigation the national authorities seek to establish whether someone fits the definition of a ‘refugee’ as asylum is only granted to ‘real’ refugees.
In this process it seems to be implied that when someone is not recognized as a legitimate refugee, he or she will be expelled. The actual legal situation, however, is not that simple.
The basic definition of a refugee is, as stated in the 1951 Refugee Convention, a person who “… owing to wellfounded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality …”. While EU law has defined this concept further, the requirement that the persecution is based on reasons of membership of a certain group still holds true today.
However, under the European Convention on Human Rights (ECHR), we are protected against torture and inhuman or degrading treatment. Since 1989 we have known that this also includes protection against being expelled when there is a real risk of being subjected to such treatment. Mr. Söring, the first person to whom this test has been applied, was indicted by a court in the United States on the charge of murder.
In order to attend his trial and to be punished accordingly, the United States requested his extradition. If Mr. Söring would have been found guilty, he would have faced a real risk of being subjected to the death penalty. As the experience of waiting for his execution for a multitude of years on death row would amount to inhuman treatment, the European Court of Human Rights held that his extradition would be a violation of his human rights.
Under the definition of the Refugee Convention, it is clear that Mr. Söring cannot be considered a refugee. While you can group murderers together, they are not prosecuted for their membership a certain group, as each murderer gets prosecuted for his own crimes.
In the recent case of Mukarubega, the European Court of Justice held that Member States are allowed to issue a decision for expulsion in the same proceedings that are used to determine whether someone should be granted asylum. This approach seems to follow common sense: if you are not a refugee, there is no obligation to provide you with refuge.
However, it does not seem to do justice to the protection granted by the ECHR. Given that formally the procedure will be an application for asylum, I fear that the examination of a risk of inhuman treatment may not get the attention it deserves. I sincerely hope that my fear is unfounded.