Applying qualification directive - 2011/95/UE. Cjeu's decision C-473/16

• Author: Adrian Aldea
• Position: Transilvania University of Brasov
• Pages: 141-148

Bulletin of the Transilvania University of Braşo v

Series VII: Social Sciences • Law • Vol. 11 (60) No. 1 - 2018

APPLYING QUALIFICATION DIRECTIVE -

2011/95/UE. CJEU’S DECISION C-473/16

Adrian ALDEA1

Abstract: Credibility of the asylum applicant’s assertions within any

member state of the European Union with regard to his or her possible

persecution on grounds of sexual orientation, following return, is extremely

important for the assessment of asylum admission. Nevertheless, in the case

C-473/16, the Court of Justice of the European Union (CJEU) states that

performing a psychological expertise for assessment of an applicant’ sexual

orientation does not comply with the Directive, as concerns the Eu Charter of

Fundamental Rights.

Key words: asylum, ECHR, CJEU, deportation, private life.

1.Introduction

Migration to Europe is an old and extensive phenomenon which has recently increased

in speed and scale. Although migrants are not particularly mentioned in the European

Convention on Human Rights, they are entitled to human rights protection as every

human being is.

2. Legal Context

The starting point for considering asylum in Europe is the Ge neva Convention of 1951

and the Additional Protocol from 1967, which are now comprehensively incorporated

into EU law through the Qualification Directive (2011/95/UE).

The non-deportation principle represents the key element of refugee protection,

meaning that, essentially, refugees must not be returned to a country where they have a

reason to fear oppression.

Under the EU Charter of Fundamental Rights, Article 18 guarantees the right to asylum

and this certifies compliance with the non-deportation principle. Article 19 of the

Charter stipulates that no one may be removed, evacuated or sent by force to a stat e

where they would face death penalty, persecution or other inhuman or humiliating

treatment or abuse. The Explanation to the Charter states that Article 19 (2) assimilates

the appropriate case law of the ECHR with regards to Article 3 of the European

Convention on Human Rig hts.

1 Transilvania University of Braşov, adrian.aldea@unitbv.ro