Extradition of the refugee: the fence-sitting opinion of the Advocate General

On Oct. 19, 2023, Advocate General Jean Richard de La Tour filed his opinion[1] in Case C-352/22 pending before the Court of Justice of the European Union and concerning the request for a preliminary ruling on the binding effect of refugee status on an extradition request.

As reconstructed in our previous contribution, by order filed on 1.06.2022 the Superior Court of the Land of Hamm made a reference to the CJEU for a preliminary ruling, asking whether the final recognition of a person’s refugee status under the Geneva Refugee Convention by a member state of the European Union is binding, with regard to the extradition procedure to another member state requested for surrender, due to the obligation of conforming interpretation of national legislation established by Union law, with the consequence that the extradition of such a person to the third country or country of origin is necessarily excluded until the revocation or expiration of the refugee status.

Well, in his conclusions filed last Oct. 19, the Advocate General expressed his position, suggesting the Court make a fence-sitting and half-hearted decision that attempts, at least on the surface, to reconcile the prerogatives of states accessing extradition procedures with the protection of the fundamental rights of the individual. Although, in fact, the premises seem to lay for a prevalence of the latter, the subsequent arguments result in a solution of deemed autonomy and non-interference between the two procedures that, in the reality of the facts, affects the real effectiveness of the protection granted to the refugee.

The analysis of the story

In the beginning of his brief, the Advocate General states that “even though a decision granting refugee status adopted in a Member State is not, as EU law currently stands, binding on the authority responsible for examining a request for extradition in another Member State, the fact remains that the extradition procedure must be conducted in accordance with the right to asylum enshrined in Article 18 of the Charter of Fundamental Rights of the European Union and, more broadly, the principle of non-refoulement which is guaranteed, as a fundamental right, in the same article of the Charter, read in conjunction with Article 33 of the Convention relating to the Status of Refugees […]“.

After a detailed reconstruction of the legal context and an examination of the specific case under consideration by the German court, ample space is devoted to the question submitted to the European Court and the various positions taken by all those involved.

It is first pointed out that in the absence of an international convention on the matter between the Union and the third state concerned (Turkey), extradition rules fall within the competence of the member states, but these member states themselves are obliged to exercise this competence in compliance with Union law. Moreover, to the extent that the Turkish national has been granted refugee status in Italy (in accordance with the norms of the Union’s secondary legislation on international protection) and has subsequently exercised his right to move and reside in a member state other than the one that granted him refugee status, the issue pertaining to his extradition falls within the scope of Union law.

As reflected in Article 6 of the Asylum Act, a decision by a member state granting refugee status does not have binding effect in extradition proceedings in another member state and therefore should not automatically result in a refusal to extradite. The same would be true if the decision to grant refugee status had been made by an authority in the same state requested for surrender. However, it is admitted that “The parties to the proceedings and other interested parties agree that the existence of a decision granting refugee status in one Member State must play an important role in an extradition procedure conducted in another Member State. There is disagreement only as to the precise extent of the effects to be attributed to such a decision.“.

According to the Advocate General, the member state is obliged to guarantee the rights of asylum and international protection and to verify that the extradition procedure does not undermine the person’s fundamental rights by refusing surrender to a country where there are serious and proven grounds to believe that the person would be exposed to a real risk of treatment contrary to Union and international standards.

However, the principle that the requested member state is bound by a decision to recognize refugee status taken by another member state and is, therefore, obliged to refuse to hand over the person until that status is revoked could not follow from this. And this is on the basis of two reasons. On the one hand, the law of the Union, in its current state of development, does not provide for mutual recognition among member states of decisions granting refugee status, and therefore such a decision cannot have direct binding effect in extradition proceedings in another member state.

On the other hand, the extradition procedure and the procedure for revocation of refugee status are two separate procedures, so that an extradition cannot be made conditional on the prior revocation of the refugee status of the requested person, but is subject to an autonomous and up-to-date examination by the extradition authority regarding compliance with the principle of non-refoulement.

Mutual recognition of refugee status decisions

The existence or non-existence of a principle of mutual recognition among member states of decisions granting refugee status is a question on which the Court is called upon to rule in three other judgments,[2] in addition to the one under comment here.

At the hearing, the parties and other interested parties in the proceedings were invited by the court to take a position on this sensitive issue.

The Advocate General agrees with the German government and the Commission that Union law does not, at its current state of development, provide for a principle of mutual recognition among member states of decisions granting refugee status. The Italian government, on the other hand, argues that the spirit of the Common European Asylum System argues in favor of such recognition, which would imply that a decision granting refugee status taken by one member state should be binding on authorities in other member states. In support of the latter position, moreover, all of the common standards and criteria that the European system is inspired by would depict.

However, it is noted that the Union legislature has not yet fully realized, through the provision of a principle of mutual recognition among member states of decisions granting refugee status and the clarification of how this principle is to be implemented, the objective to which Article 78(2)(a) TFEU aims, namely a uniform asylum status for third-country nationals valid throughout the Union. In fact, the primary law of the Union provides for the gradual establishment of the Common European Asylum System, to be implemented in stages, eventually leading to a uniform asylum status valid throughout the Union. As the German government and the Commission have argued, the Common European Asylum System is being built gradually and it is solely up to the Union legislature to decide, where necessary, to give binding cross-border effect to decisions granting refugee status: “[…] although mutual trust is the necessary basis for the mutual recognition of decisions adopted by the competent authorities of the Member States […], that trust is not sufficient, however, if it is not accompanied by an express provision in primary law or by an express intention on the part of the EU legislature“.

In addition, according to the provisions of Directives 2011/95 and 2013/32, a member state invested with an application for international protection is not bound by the previous recognition decision granted by another state, having to examine the application individually, objectively and impartially in all cases, based on accurate and up-to-date information.

The autonomy between the two procedures

Among the arguments used by the Italian government is that extradition by a member state of a person who has been granted refugee status in another member state would constitute a de facto revocation of that status and a circumvention of the rules established in this regard by Directive 2011/95. Any extradition should, therefore, be subject to the prior revocation of that status.

In contrast, both the German government and the Commission emphasized the distinction between refugee status and quality, pointing out that the loss of refugee status does not necessarily mean the loss of refugee status.

In this regard, it is emphasized that the recognition of refugee status under Directive 2011/95 is reconnaissance in nature and not constitutive of refugee status. Therefore, in the system established by Directive 2011/95, a third-country national or stateless person who meets the material conditions contained in Chapter III of that Directive has, by that fact alone, the status of a refugee, within the meaning of Article 2(d) of that Directive and Article 1, Section A, of the Geneva Convention. Thus, “refugee” status under these provisions does not depend on formal recognition through the granting of “refugee status.”[3]

A clear distinction should also be made between the process that can lead a member state to withdraw refugee status and the process of assessing compliance with the principle of non-refoulement in removal proceedings. In this sense, in accordance with Union law, the competent authority may be entitled to revoke the refugee status granted to a third-country national, without, however, necessarily being authorized to remove him or her to his or her country of origin.

It follows that it is not refugee status as such that protects the beneficiary from extradition, but the principle of non-refoulement, which must be evaluated independently and objectively by the requested state of surrender. And the very existence of the latter obligation would, according to the Advocate General, exclude the binding effect of a previous recognition decision since the discretion of the authority in charge of deciding on surrender would be lost: “an up-to-date assessment of compliance with the principle of non-refoulement would be impossible if that authority was bound by the assessment made previously, sometimes several years earlier, by a competent authority for asylum in another Member State It should also be borne in mind that a request for extradition may bring to light new elements capable of justifying a different assessment of the risk of persecution faced by the requested person“.

Therefore, there would be complete autonomy and separation between the two procedures. However, a previous recognition of refugee status should still “be duly taken into consideration” by the authority considering the extradition request.

The concrete value of refugee status

On the basis of the latter consideration, the Advocate General concludes his reasoning by recalling the importance that, in any case, the existence of a previous decision granting refugee status must assume.

This issue has already been addressed by the Court in the Ruska Federacija case[4] concerning the extradition requested by the Russian Federation of a Russian-Icelandic national who had been granted asylum in Iceland before acquiring that state’s citizenship.

In that judgment, the Court had ruled that the requested member state had to consider whether extradition was compatible with Article 19(2) of the Charter because the Icelandic national claimed that there was a serious risk of inhuman or degrading treatment if extradited. To this end, the member state cannot merely take into consideration the declarations of the requesting third state or its acceptance of international treaties that guarantee, in principle, respect for fundamental rights. Instead, the assessment must be based on objective, reliable, accurate and appropriately updated elements, which may result from international judicial decisions (such as judgments of the European Court of Human Rights or judicial decisions of the requesting third state) as well as decisions, reports and other documents prepared by the bodies of the Council of Europe or belonging to the United Nations system. In addition, the fact that the requested person had been granted asylum on the grounds that he or she ran a risk of being subjected to inhuman or degrading treatment in his or her country of origin constituted a particularly serious element that the competent authority of the requested member state had to take into account for extradition verification purposes. According to the Court, therefore, in the absence of specific circumstances-including a significant change in the situation in the requesting third state-the existence of a previous decision granting asylum must lead the competent authority of the requested member state, to refuse extradition.

That precedent, however, would be somewhat different from the one under consideration because the Republic of Iceland (i.e., the state that had granted asylum to the Russian citizen), while participating in the Dublin system on asylum, is not part of the European Union and therefore does not apply Directives 2011/95 and 2013/32. However, according to the Advocate General, if the Court has recognized the importance of taking into account in extradition proceedings a decision to grant asylum adopted by the Republic of Iceland, the same must apply, a fortiori, if the decision to grant refugee status adopted by a member state.

Therefore, although the decision granting refugee status cannot be considered binding on a member state requesting extradition, it is nevertheless true that it cannot be ignored or deemed irrelevant, as this would run counter to the spirit of cooperation and mutual trust between member state authorities and would certainly be contrary to the process of building a Common European Asylum System, as envisaged in Article 78(2) TFEU.

Conclusions

On the basis of this lengthy excursus, the Advocate General concludes his remarks by suggesting that the Court adopt its decision on the basis of the principles expressed in the Ruska Federacija ruling, without prejudice to the autonomy of the two procedures and the non-binding nature of a decision granting refugee status vis-à-vis a subsequent request for extradition. Therefore, the member state requested to surrender should not automatically refuse to surrender but ensure compliance with the principle of non-refoulement on the basis of an autonomous and objective assessment and up-to-date and serious elements, which undoubtedly includes a previous decision to grant asylum.

A conclusion, this one, that seems partly jarring with many of the arguments presented (including precisely those pertaining to the Ruska Federacija decision) and that opts for a half-hearted solution that could affect the real effectiveness of the mechanism for the recognition of international protection and the protection of the refugee’s fundamental rights.

Prof. Avv. Roberto De Vita
Avv. Valentina Guerrisi