JOURNAL OF COMPARATIVE POLITICS     65 
 
 
 
 
 
 
EUROPE: HELL OR PARADISE? AN OVERVIEW 
OF EUROPEAN LAW AND CASE LAW 
 
 
Noemia BESSA VILELA and Boštjan BREZOVNIK
1
 
…………………………………………………………………….……………………………………… 
 
The request for asylum and the concession of the status of refugee 
bring into question political, and humanitarian issues on migration, 
which in turn, brings about a dysfunctionality of the amount of 
solidarity between the member states. Creating a European regime 
wasn’t sufficient, by itself, to correct such dysfunctionalities since it 
allows for a differentiated approach. In the present article, we’ll 
look at the legal and historical framing of this question, resorting to 
the analyses of case-law from both the European Court of Justice 
and the European Court of Human Rights as well as existing EU 
laws on the topic. Previous studies have come to show the failure of 
the adopted measures in the EU, and several amendments have 
been made to the in force legislation. New diplomas have been 
developed in order to find new solutions to a prevailing problem. 
The dream to reach a safe haven where they would be safe – and 
not sorry – has collapsed, for some of them, having reached the 
borders of Europe and being prevented from crossing. 
 
Key words: EU; Migration Crisis; EU Law; Refugees; International 
Law. 
 
 
 
1 INTRODUCTION  
 
In the early 20
th
 century, Dante Alighieri, in his “Divine Comedy” placed upon 
the gates of Hell, a sign. In that sign it could be read: “All hope abandon, ye who 
enter here”. Over a century later, those might as well be the words the refugees 
face in the borders of the European Union – and all Europe.  
 
Departing from various countries, an incredibly high number of refugees brave 
hundreds, if not thousands of kilometres to get to the European borders. 
According to the United Nations High Commissioner for Refugees the crisis has 
reached its peak in the second half of 2015, and first of 2016 (UNHCR, 2018). 
                                                 
1 
Noemia BESSA VILELA, M.Sc., University Portucalense Infante D. Henrique, IJP Portucalense 
Institute for Legal Research, Portugal. Boštjan BREZOVNIK, PhD. Associate Professor, 
University of Maribor, Faculty of Law, Slovenia. 

JOURNAL OF COMPARATIVE POLITICS     66 
 
 
 
Out of all refugees entering Europe through the Mediterranean route in the first 
trimester of 2016, more than half were women and children (UNHCR 2016).  
 
Shaken by war, famine and misery, these refugees look at Europe as a pass for 
freedom, security and liberty. The threat that looms over them, forces the 
abandonment of their countries of origin and the facing, either by sea or land, of 
the dangers from the well-known “Refugees’ Routes”: the Mediterranean route, 
the Puglia and Calabria routes, the circular Albanian route – Greece, the 
Western Balkan route, and finally the Oriental Mediterranean Route (IOM 
2018).
2
 
 
Such an affluence of refugees, coinciding with an increase in number and 
fatalities of terrorist attacks in European soil, came to cause an extended, 
although not very successful, debate between member states regarding their 
immigration policies and encouraging the necessary humanitarian answers in 
the political field on immigration. The terror and panic that was spread amongst 
the population (Crone 2017, 6) and the political discourse overshadowed the 
European answer, forcing some member states to better guard their borders, or 
even, in the case of the United Kingdom, having served as grounds for a public 
referendum that came to result in the on-going negotiations for the UK to leave 
the EU, now known as Brexit. 
 
It is in the context of economical unbalance, that the question of the refugees 
raises the largest cautions (Duarte 2017, 48). The European Council recognized, 
in the European Pact on immigration and asylum, signed on the 24 of 
September 2008, the existence of disparities regarding the concession of 
individual protection given to individuals and the several differences that this 
protection might assume. Therefore, the European Council requested new 
initiatives were promoted in order to adopt a Common European System of 
Asylum, following what had already been developed under the Tampere, The 
Hague and most of all, Stockholm programmes. 
 
 
2 THE PROTECTION OF THE RIGHTS OF REFUGEES 
 
The first time the civilized world saw the need to, by means of International 
Law and its legal entities, create an effective protection for the rights of refugees 
took place in the early XX century. In the period preceding World War I, right at 
the closing moments of the Russian civil war (1917–1921), the request for 
assistance by the International Red Cross Committee to the League of Nations, 
led to the first big step towards the development of legal grounds that would 
promote and enable the protection of refugees. Facing the migratory crisis of 
over a million refugees, hailing particularly from the Soviet Union, the League of 
Nations needed to find a concrete solution for this reality (Cutts 2000, 15). To 
that end, Fridtjof Nansen was appointed as the first High Commissioner for 
Refugees. Nansen was tasked with defining the legal statute of Russian refugees, 
determining the conditions of employment access for refugees in the countries 
that offered asylum and also delimiting the conditions for repatriation (ibid., 
16). The Greco-Turkish war that took place from 1919 to 1922 only worsened 
the migratory crisis that was being felt in Europe. Once again, the work of 
                                                 
2
 The IOM estimates that more than 186,000 migrants arrived to Europe in 2017 via 
Mediterranean routes. Approximately 92% of migrants reached European countries by sea 
(172,362), and the remaining 8% arrived using various land routes. 

JOURNAL OF COMPARATIVE POLITICS     67 
 
 
 
Nansen – largely developed on the field of war – would mark International Law. 
In the words of Cutts (ibid., 15–22), Nansen set the structural foundations of 
what came to be the Council of the United Nations for Human Rights. His 
historical importance is owed, not only to the legacy on the plan of protection 
for rights of refugees, but also to the fact that we performed under the authority 
of an international organization with a universal breadth, notwithstanding the 
predominately societal scope – unlike a community scope – of that organization. 
In retrospective, that is the main contribution that we can take from this brief 
historical reference: the protection for the rights of refugees was present from 
the very beginning, in the League of Nations, the very first international 
organization with a universal scope.  
 
In early 1933 the British had already pre-war policy to protect the Jews. 
Regarding all negotiations little was done to prevent the slaughter of thousands 
of Jewish people that did not find any relief in the measures therein foreseen 
(London 1989, 27). In 1938, after the commencement of the II World War, the 
Parliament debated the question of Jewish refugees fleeing Nazi Germany. 
Regardless of it having taken place, no measures were taken in order to assure 
their protection, having some of the rights that had been granted in the 33-38 
period under the pre-war policy, been withdrawn (ibid., 29). Also in 1938, and 
under the initiative of President Roosevelt, an international conference on the 
refugee problem was held in Evian, France (ibid., 31). All the meetings, ideas, 
and negotiations came to fail the Jewish people, as, in the outbreak of war, in 
1939, no specific measures had been taken. In the aftermath of World War II, 
facing the horrors and crimes against humanity committed throughout the 
conflict, the question of refuges became relevant again at the core of 
International Law, and particularly at the international organizations that were 
constituted during that period. Having such atrocities been committed under 
the global inertia of other EU countries, it comes with no surprise that, in order 
to prevent a repetition of such shameful event, in 1948 the protection for the 
rights of refugees is enshrined in the Universal Declaration of Human Rights 
(UDHR) of 1948, in the scope of the United Nations (UN).  
 
While the aforementioned declaration (UDHR) doesn’t have, in itself, any legally 
binding force (Porter 1995, 150), it incorporates provisions understood as 
mandatory, either by international custom – a source of law – or by considering 
that some of those provisions are of a ius cogens nature (ibid., 151–153). 
 
Of utter relevance, to the present paper is the fact that, in the convention itself, 
in Article 14 paragraph 1, it is stated, “Everyone has the right to seek and to enjoy 
in other countries asylum from persecution”. Relatedly, Article 13 paragraph 2 
states that “Everyone has the right to leave any country, including his own, and to 
return to his country”. The International Covenant on Civil and Political Rights 
(ICCPR) proves itself to be quite similar with the UDHR on this aspect. Since the 
ICCPR is also an international treaty with binding force to the member states – 
the Covenant determines in its Article 12 that every individual “shall be free to 
leave any country, including his own” (2
nd
 paragraph) and that “Everyone lawfully 
within the territory of a State shall, within that territory, have the right to liberty 
of movement and freedom to choose his residence” (1
st
 paragraph), while equally, 
“No one shall be arbitrarily deprived of the right to enter his own country” (4
th
 
paragraph). This last provision is especially important, having earned particular 
relevance at United Nations Human Rights Committee, which concluded that, in 
that which concerns refugees, this provision encompasses the right to a 
voluntary repatriation, closing off, although implicitly, the prohibition of forced 

JOURNAL OF COMPARATIVE POLITICS     68 
 
 
 
migration and the mass expulsion of population to other countries. The UDHR 
can also be seen as an extension to the UN Charter as Article I of the Charter 
states clearly that one of the main purposes of the U.N. involves "promoting and 
encouraging respect for human rights and for fundamental freedoms for all 
without distinction as to race, sex, language, or religion." (ibid., 150). 
 
Still at the universal scope, it’s possible to find provisions of Conventional 
International Law concerning the protection of the rights of refugees, which are 
concurrent to the UDHR. In truth, the Geneva Convention Relative to the 
Protection of Civilian Persons in Time of War of 1949 prohibits in its Article 44 
about the question of refugees, their treatment as foreign enemies by any 
detaining forces (Pictet 1952, 263). This means that the refugees (denominated 
as “friendly enemies”) enjoy, in the scope of this convention, from a different 
status than those of foreign enemies (which, in opposition, are called “real 
enemies”). The 1951 Convention Relating to the Status of Refugees came to be 
even more determining. Adopted on 28
th
 of July, and entering into force on 22 
April 1954, is grounded in Article 14 of the UDHR, this convention expresses a 
large and important international consensus in what concerns the most 
fundamental aspects of the status of refugees, and came to consolidate previous 
international instruments relating to refugees. Under this convention, refugees 
benefit from a treatment as favourable as the one offered to foreign citizens in 
general, and sometimes even the same as the treatment offered by the signatory 
States to their own nationals. Its’ main object isn’t limited to the recognition of 
the social and humanitarian issues so characteristic of the refugee crisis, but 
also states that refugees’ crisis usually represents the potential for tensions 
between States, thus being necessary to appeal to international solidarity, 
specifically the principle of cooperation, aiming to alleviate the burden between 
States. The non-refoulement principle, prohibiting expulsion and repulse – is a 
central aspect in the protection of the rights of refugees, being part of their 
status. According to this principle, no signatory State of the Convention can 
expel or repeal a refugee to any territory where his life or liberty may be 
threatened (Allain 2001, 536–539; see also Kakosimou 2017, 168 and Duarte 
2017, 52). Regardless of it broader protection, the Convention fails on the 
definition of the concept of refugee therein contained (McFadyen 2012, 17–20) 
as it grants a very precise historical delimitation and the added possibility for 
States to interpret the legal provision. The main issue raised by this 
determination of the concept, or lack thereof, is quite clear: being up to the 
States the application and enforcement of the provisions in the Convention, the 
possibility to restrict the concept of refugee becomes real, therefore limiting the 
very reach of the status in its subjective scope (Kneebone et al 2014). 
 
This lack of precision remains present as not even the Protocol of New York, 
dated 31
st 
of January 1967, an addition to the Convention Relative to the Status 
of Refugees, concluded in Geneva on 28
th
 of July 1951 has come to clarify or 
overcome the imprecision contained in the previous definition, merely 
suppressing the geographical and temporal references in the definition from the 
Convention (Cameron et al 2015, 1217). 
 
The Statute of the Office of the United Nations High Commissioner for Refugees 
is another instrument that aligns with the ratio of intensification and precision 
of the legal content in the status of refugees. The United Nations High 
Commissioner for Refugees (UNHCF) is a subsidiary organ of the General 
Assembly of the UN, created through Resolution 319 (IV) of the General 
Assembly of the UN on December 1949. Some member states didn’t agree, 

JOURNAL OF COMPARATIVE POLITICS     69 
 
 
 
however, on the political implications that would arise from such an 
independent organism, therefore impeding its performance, which saw its 
duties start only in 1951 (UNHCR 2005). At its origin, the UNHCF was created in 
order to assist refugees by ensuring primarily that everyone can exercise their 
right to seek asylum, to seek for security and protection in another State, and 
finally to exercise the right for voluntary repatriation, as stated in Chapter I, 
paragraph 1 of the Statute of UNHCR. Other conventions will not be mentioned, 
as they don’t directly relate to the Rights of refugees but rather to Human Rights 
in general. 
 
 
3 THE RIGHTS OF REFUGEES IN THE EUROPEAN CONTEXT 
 
The Council of Europe came to create the Convention for the Protection of 
Human Rights and Fundamental Freedoms, better known as the European 
Convention on Human Rights. It was opened for signature in Rome on 4 
November 1950 and came into force in 1953. It was the first instrument to give 
effect to certain of the rights stated in the Universal Declaration of Human 
Rights and make them binding. As an International Organization with a regional 
scope, the Council of Europe was constituted (…) in the interests of economic and 
social progress, there is a need for a closer unity between all like-minded countries 
of Europe”.  
 
It intervenes mostly at the level of the protections offered by the Rule of Law 
and the promotion for the legal cooperation on the most diverse topics, such as 
the creation of certain organisms. This is the case of the European Convention. 
In fact, not mentioning the expression “refugee”, Article 3 establishes that “No 
one shall be subjected to torture or to inhuman or degrading treatment or 
punishment.” 
 
The case-law of the European Court of Human Rights (ECHR) regarding the 
application of Article 3 of the European Convention was first established in 
1989 in Soering v. United Kingdom
3
 that concerns Articles 3, 6 and 13 of the 
European Convention on Human Rights. After committing a series of homicides, 
Jens Soering, a German citizen living in the United States, came back to Europe 
where he would be arrested by the British authorities for Cheque fraud. At the 
same time the Bedford Circuit Court in the state of Virginia, accused Soering of a 
crime which could be punishable with the death penalty, and requested the 
British authorities his extradition. Soering appealed against this by invoking 
Article 3 of the European Convention. He argued that if he were found guilty of 
murder and sentenced to death, that he would experience 'death row-
phenomenon' which would lead to the violation of his Convention rights. The 
European Commission of Human Rights admitted Soering’s reasoning, since if 
extradited he could face torture, inhuman or degrading treatment. The ECHR 
concluded that “(...) the applicant’s extradition to the United States would expose 
him to a real risk of treatment going beyond the threshold set by Article 3 (art. 
3)”. The Soering case raises the issue of non-refoulement, which engages State 
responsibility by the act of removal of an individual to a State where he or she 
will be exposed to a certain degree of risk of having her or his Human Rights 
violated (Greenman 2015, 272). 
 
                                                 
3
 ECHR, Soering v United Kingdom, Judgment, Merits, and Just Satisfaction, 07/07/1989 App No 
14038/88, A/161. 

JOURNAL OF COMPARATIVE POLITICS     70 
 
 
 
The existence of a real risk of inhumane or degrading treatment is justification 
for the application of Article 3, decided the ECHR. Even more, in what concerns 
applicants of asylum their expulsion may result in the liability of the signatory 
State. This solution is to be applied when it can be proved that the State 
possessed information, which could lead to a conclusion that, if expelled, the 
applicant would be exposed to a risk of treatment in breach of Article 3 of the 
European Convention, and the State still kept that decision. The ECHR case-law 
confirms this decision in Chahal v. The United Kingdom,
4
 when it states that: “It 
is well-established in the case-law of the Court that expulsion by a Contracting 
State may give rise to an issue under Article 3, and hence engage the responsibility 
of that State under the Convention, where substantial grounds have been shown 
for believing that the person in question, if expelled, would face a real risk of being 
subjected to treatment contrary to Article 3 in the receiving country. In these 
circumstances, Article 3 implies the obligation not to expel the person in question 
to that country”, also in Cruz Varas And Others v Sweden
5
 the Court states that “ 
As has been noted on previous occasions the Convention must be interpreted in the 
light of its special character as a treaty for the protection of individual human 
beings and its safeguards must be construed in a manner which makes them 
practical and effective”, and it does so, by, again citing its earlier jurisprudence, 
set forth in Soering.  
 
Soering case has been consistently cited (i.e. Hari Dhima v Immigration Appeal 
Tribunal; Ahsan Ullah, Thi Lien Do v Special Adjudicator, Secretary of State for the 
Home Department; Mohammadi v Advocate General Scotland; Regina v Special 
Adjudicator ex parte Ullah; Regina v Secretary of State for the Home Department; 
Lough and others v First Secretary of State Bankside Developments Ltd; 
Government of the United States of America v Barnette and Montgomery (No 2); 
McElhinney v Ireland; Al-Adsani v United Kingdom; Fogarty v United Kingdom; 
MAK and RK v The United Kingdom, inter alia). 
 
Article 3 of the European Convention has, also, been called to defend the 
principle of non-refoulement, with the ECHR stating that this Article is 
compatible with Article 33 of the Convention Relating to the Status of Refugees 
of 1951, which prohibits the expulsion or the refoulement of refugees to other 
territories when their life or liberty are threatened by reason of race, religion, 
nationality, social group or political opinions. Vast is the ECHR case-law that 
confirms this comprehension, in which the following stand out: Ireland v. The 
United Kingdom
6
 – where the application of Article 3 of the European 
Convention depends on the verification of a minimum level of seriousness, 
relating to the case specifics’; the Greek case
7
 – in which the European 
Commission on Human Rights described the concepts of torture, punishment 
and inhuman or degrading treatments; and Selmouni v. France
8
 – where the 
ECHR established what it considers to be the minimum level to be able to 
qualify a certain treatment as torture. 
 
More recently in case X v. Sweden,
9
 X, a Moroccan national applied for asylum in 
Sweden after an expulsion request from the Swedish Security Service on the 
grounds of national security was accepted by the Swedish Migration Agency. 
                                                 
4
 ECHR, Chahal v. The United Kingdom, 15/11/1996, Appl. No. 22414/93. 
5
 ECHR, Cruz Varas and others v. Sweden, 20/03/1981, Appl. No(s) 46/1990/237/307. 
6
 ECHR, Ireland v. The United Kingdom, 18/01/1978 Appl. No. 5310/71. 
7
 ECHR, Greek Case, 05/11/1969, Appl. No(s). 3321/67, 3322/67, 3323/67, 3344/67. 
8
 ECHR, Case of Selmouni v. France, 28/07/1999, Appl. No. 25803/9. 
9
 ECHR, X v. Sweden, 09/01/2018, Appl. No. 36417/16. 

JOURNAL OF COMPARATIVE POLITICS     71 
 
 
 
The asylum request was rejected and the expulsion order was confirmed by the 
Migration Court of Appeal. In his application, X, claimed that, having been 
considered a terrorist he would risk torture and at least ten years’ 
imprisonment in Morocco, which would be a clear violation of Article 3 of the 
ECHR. Recalling its own jurisprudence, the ECHR, ruled that even facing the risk 
of terrorist activities the applicant’s expulsion to Morocco would involve a 
violation of Article 3 ECHR “It is well established that expulsion by a Contracting 
State may give rise to an issue under Article 3 and hence engage the responsibility 
of that State under the Convention where substantial grounds have been shown 
for believing that the person concerned, if deported, faces a real risk of being 
subjected to treatment contrary to Article 3. In such circumstances, Article 3 
implies an obligation not to deport the person in question to that country. Article 
3 is absolute and it is not possible to weigh the risk of ill-treatment against the 
reasons put forward for the expulsion”.  
 
 
4 THE REFUGEES IN EUROPEAN UNION LAW 
 
In order to manage the present crisis, which is both humanitarian and political 
in its nature, the EU’s Asylum Policy has been called to action, although there 
are some issues in the Communities’ performance. Since 1999, the EU has been 
working to create a Common European Asylum System (CEAS) and improve the 
current legislative framework. From the beginning and up 2005, harmonization 
of the common minimum standards for asylum was developed by the means of 
several different legislative acts. In 2001, the Temporary Protection Directive 
allowed for a common EU response to a mass influx of displaced persons unable 
to return to their country of origin. The Family Reunification Directive also 
applies to refugees (Duarte 2017, 61). 
 
The EU’s asylum policy as we now know finds its legal grounds on the 
provisions of Articles 67 paragraph 2 and 78 of the Treaty on the Functioning of 
the European Union (TFEU), in its final version, written in the Lisbon Treaty 
(Mitsilegas 2014, 183), and Article 18 of the Charter of Fundamental Rights of 
the European Union. Under the terms of the previous Articles in the TFEU, the 
EU aims to develop a common policy in the matters of asylum (Goudappel and 
Raulus 2011), establishing subsidiary and temporary protection destined to 
grant an adequate status to the asylum applicant, thus observing the principle 
of non-refoulment (Fry 2005, 100).  
 
The harmonization of asylum proceedings to be applied by member states is 
also one of the proposed objectives by the EU, as can be seen in the Green Paper 
on the Common European Asylum System, which has fallen under the criticism 
of merely imposing a common minimum (UNHCR 2007), instead of proceeding 
to a full uniformization of the community policy regarding asylum proceedings, 
creating a single and equal regulation to be to be applied by all member states. 
 
Notwithstanding, the terminology of the various subsections of paragraph 2 of 
Article 78 TFEU, contains the expressions “uniform” and “common”, which 
suggest a differentiated treatment with grounds on the specific subject matter 
of those subsections (Duarte 2017, 61). In fact – not wanting to diminish the 
importance of subsections a) and b) of paragraph 2 of Article 78 TFEU, relating 
to the status of asylum and subsidiary protection – the wording in this Article 
leaves quite clear the idea that the EU wishes to develop a “(…) common policy 
on asylum, subsidiary protection and temporary protection” (1
st
 paragraph), and 

JOURNAL OF COMPARATIVE POLITICS     72 
 
 
 
for that end “(…) the European Parliament and the Council, acting in accordance 
with the ordinary legislative procedure, shall adopt measures for a common 
European asylum system (…)” (2
nd
 paragraph).  
 
The right of asylum contained in the Charter on Fundamental Rights of the 
European Union is equal in content to the Convention Relative to the Status of 
Refugees of 1951 and its’ 1967 Protocol, as well as the Treaty on the European 
Union and the Treaty on the Functioning of the European Union, therefore 
relaying once more the problem to the same conditions we’ve been analysing so 
far, with the identified issues unchanged (ibid.).  
 
 
5 BRIEF CONSIDERATIONS ABOUT EUROPEAN UNION LAW ON 
ASYLUM AND PROTECTION 
 
As we have seen above, several steps have been taken towards ensuring a 
bigger degree of protection to asylum seekers, starting with the Treaty of 
Amsterdam and with several new adjustments, and amendments being made. 
The matters relating to asylum have been, throughout the ages, subjected to a 
positive evolution. The biggest contributions to that end are owed to the 
Treaties of Amsterdam and Nice, changes continue with the Treaty of Lisbon.  
 
The Treaty of Amsterdam came to grant competences to the Council on the 
subject of asylum and refugees (Piris and Maganza 1998, S37), which would 
later propel the development of a specific European regime on it. As for the 
Treaty of Nice, it was foreseen that, within 5 years of it coming into force, the 
Council would have adopted specific measures for certain sectors, one of which 
was the appreciation of asylum requests on the basis of Articles 67(2) and 78 of 
the Treaty on the Functioning of the European Union and Article 18 of the EU 
Charter of Fundamental Rights. The point was to adopt criteria that would 
determine which member state was responsible for reviewing a request for 
asylum by nationals from third States and to adopt a set of basic rules relative 
to the acceptance of asylum applicants and the necessary proceedings to the 
concession of the status of refugee, having minimum criteria been set forth in 
the Treaty of Amsterdam (Kaunert and Leonard 2012, 3). The treaty of Nice was 
the target of severe criticism, having been said by Romano Prodi that it “… was 
characterised by the efforts of many to defend their immediate interests, to the 
detriment of a long-term vision” and “… unnecessary...”. The treaty of Lisbon as it 
came to grant the EU the competence to adopt, legislative instruments for a 
uniform status of asylum, a uniform status of subsidiary protection, a common 
system of temporary protection, common procedures for the granting and 
withdrawing of uniform asylum or subsidiary protection status, criteria and 
mechanisms for the determination of the member state responsible for 
considering an application for protection, standards for reception conditions, 
and partnership and co-operation with third countries for the purpose of 
managing inflows of people applying for protection in accordance with Article 
78 of the TFUE (ibid., 1400). It came to set common measures, rather than 
minimum measures set forth in both Amsterdam and Nice Treaties. Still, The 
Treaty did not make any changes to the decision-making procedure within the 
EU. 
 
Resulting from the guidance therein foreseen in Treaty of Nice, the Council of 
the European Union (2001), issued a Directive on minimum standards for giving 
temporary protection in the event of a mass influx of displaced persons and on 

JOURNAL OF COMPARATIVE POLITICS     73 
 
 
 
measures promoting a balance of efforts between member states in receiving such 
persons and bearing the consequences thereof – Directive 2001/55/EC of the 
Council. This Directive’s scope was limited to the enumeration of a series of 
minimum standards for requirements to be fulfilled by asylum applicants from 
third States, stateless persons or any person in need of international protection 
during a massive influx of displaced persons in order to ensure a balance of 
efforts between the member states. 
 
Not less decisive was Directive 2004/83/EC of the Council of 29 of April 2004, 
which established a set of 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, known as the “ Qualification Directive”. The 2004 Qualification 
Directive was introduced as part of the framework for a Common European 
Asylum System and aims to harmonize the criteria by which member states 
define who qualifies as a refugee or is, otherwise in need of international 
protection. Under this Directive, the concept of refugee is defined by subsection 
c) or Article 2, which generally follows the definition from the Convention on 
the Status of Refugees of 1951. Regarding the internal protection of asylum 
seekers, Article 8 of the Directive, determines that it is up to the member states 
to appreciate the request for international protection, with the possibility that 
they might find it not to be necessary. “(…) if in a part of the country of origin 
there is no well-founded fear of being persecuted or no real risk of suffering 
serious harm and the applicant can reasonably be expected to stay in that part of 
the country.” In fact, according to this Directive, member states should consider 
the general conditions of that region and country as well as the personal 
situation of the applicant. Notwithstanding the Council’s efforts, it is quite 
noticeable the still standing resistance to the adoption of uniform policies. 
 
As for Directive 2011/95/EU of the European Parliament and the Council of 13 
December 2011, also known as Recast or “New Asylum Qualification Directive" a 
set of rules were established relating to the conditions which nationals from 
third States or stateless persons should fulfil in order to benefit from 
international protection, creating thus a uniform legal status for refugees as 
well as the beneficiaries from subsidiary protection it brought certain 
improvements in defining people in need of protection and the content of such 
protection (Bačić 2012). Under this Directive, several amendments took place, 
for instance, in Article 2 subsection (j), we find an extended definition of the 
family with the deletion of the requirement that minor children of the 
beneficiary of international protection are dependent; in Article 7 is present the 
definition of actors of protection is clarified and there is a requirement for such 
protection to be effective and of a non-temporary nature; The internal 
protection concept is further aligned with the case law of the European Court of 
Human Rights and the possibility to apply this concept notwithstanding 
technical obstacles to return has been removed is set forth in Article 8; in 
Article 9 number 3 are the causal link’ requirement between acts of persecution 
and the 1951 Refugee Convention grounds is amended to clarify that this link is 
fulfilled also where there is a connection between the acts of persecution and 
the absence of protection against such acts; also in in Article 10, number 1, 
subsection d) there is a new explicit obligation for States to take into 
consideration gender related aspects, including gender identity for the 
purposes of defining membership of a particular social group; The cessation 
provisions for refugee status and subsidiary protection incorporate an 
exception to cessation in relation to compelling reasons arising out of previous 

JOURNAL OF COMPARATIVE POLITICS     74 
 
 
 
persecution can be found in in Article 11 number 3 and Article 16 number 3. 
Subsection. In its turn, Article 14, numbers 4 and 6 is quite controversial as it 
has been said to be incompatible with Article 1C of the Refugee Convention that 
contains an exhaustive list of reasons for cessation of refugee status and, the 
provisions permitting revocation of, ending of or refusal to renew refugee 
status under Article 14 (4) of the Qualification Directive do not in reality 
implement Article 33 (2) of the Refugee Convention but instead enlarge the list 
of reasons for cessation of refugee status under the Article 1C of the Refugee 
Convention. By doing so, the Directive is found in breach of the member states’ 
commitments to the Refugee Convention. It has also been said to be contrary to 
Article 1F of the Refugee Convention as it sets out an exhaustive list of reasons 
for excluding a person from a definition of a refugee because of the abhorrent 
acts he or she has committed, as can be read that “the provisions of this 
Convention shall not apply to any person with respect to whom there are serious 
reasons for considering that: (a) he has committed a crime against peace, a war 
crime, or a crime against humanity, as defined in the international instruments 
drawn up to make provision in respect of such crimes; (b) he has committed a 
serious non-political crime outside the country of refuge prior to his admission to 
that country as a refugee; (c) he has been guilty of acts contrary to the purposes 
and principles of the United Nation. It, accordingly to Lambert (2006, 178) “is 
contrary to the Refugee Convention because it is based on a misreading of the 
purpose of Article 33 (2) in the Refugee Convention. Article 33(2) provides that a 
refugee whom there are reasonable grounds for regarding as a danger to the 
security or the community of the country in which he or she took refuge may not 
claim the benefit of the principle of non-refoulement; it does not provide that such 
a person may not benefit from the provisions of the Refugee Convention at large. 
Article 33(2) is not an exclusion clause.“ In Chapter VII, are detailed the rights for 
beneficiaries of refugee status and subsidiary protection are approximated with 
the exception of the duration of residence permits and access to social welfare; 
member states are no longer permitted to reduce the content of rights granted 
to international protection beneficiaries on the grounds that such status was 
obtained due to activities engaged in for the sole or main purpose of creating 
the necessary conditions for being recognized as a person eligible for refugee 
status or subsidiary protection, as it was possible in the previous Directive, 
according to its Articles 20 number 6 and 7; Article 23 number two increased 
the right of family members of subsidiary protection beneficiaries are entitled 
to the same content of rights granted under Chapter VII in accordance with 
national procedures and in so far as compatible with the personal legal status of 
the family member; and also in Article 26 number 2, we can find a an improved 
provision on access to employment requiring member states to ensure that 
beneficiaries of international protection have access to training courses for 
upgrading skills and counselling services afforded by employment offices under 
equivalent conditions as nationals (ECRE 2013, 3–5).  
 
It is important to mention that this Directive was created, unlike the first, after 
the entry into force of the Treaty of Functioning of the European Union (TFUE) 
(UNHCR 2012, 2–3). However, its provisions may not yet be sufficient to 
establish “common procedures” for the granting or withdrawing of a “uniform 
status [...] valid throughout the Union”. 
 
As for the concept of refugee, it follows the already existent concept arising 
from the Convention Relative to the Status of Refugees (1951) and Directive 
2004/83/EC, endeavouring for a more confined concept. It excels in the 
verification of a series of requisites for the individual appreciation of each 

JOURNAL OF COMPARATIVE POLITICS     75 
 
 
 
applicant’s case, with the goal of granting the status of refugee, or in alternative 
the status of subsidiary protection, establishing a set of standards relating to the 
way in which a request for international protection is to be reviewed and the 
conditions which the nationals of third States and stateless persons need to 
meet to benefit from such protection, while equally focusing on the uniformized 
legal status of refugees and the beneficiaries of subsidiary protection. It does so 
by invoking subsections a) and b) of Article 78 of the TFEU with the goal of 
creating and developing a common asylum policy including European asylum 
system. 
 
Right in the first Articles of the Directive, it comes to define, in Article 2, the 
concept of international protection, encompassing in it the status of refugee and 
the status of subsidiary protection (subparagraph a.).  
 
The procedure for granting the status of refugee is commenced by presenting 
request for international protection that is to be examined by the member state 
where such request was submitted, under Article 4. It is up to the member state 
to request all documents deemed necessary for such application and the 
presentation of the reasons for seeking international protection. Under Article 4 
paragraph 3, member states should be mindful of any relevant facts from the 
country of origin at that time, including the legislation, regulation and the way 
they’re applied; the relevant declarations and the documentation presented by 
the applicant, involving information if the applicant has suffered or is at risk of 
suffering serious persecution; the situation and personal circumstances of the 
applicant, such as factors relating to his personal history, gender and age are to 
be taken into consideration, in order to examine, based on the personal 
situation of the applicant if the acts he was or may be exposed to could be 
considered persecution or serious harm; if the activities carried out by the 
applicant since leaving his or her country of origin had the sole end of creating 
the necessary conditions to apply for international protection, analysis in 
deemed in order to examine if those activities would expose the applicant to 
persecution or serious harm if he returned to that country; and still, if it was 
reasonable to predict that the applicant could rely on the protection of another 
country where he could claim citizenship. Paragraph 5 of Article 4 adds the 
following: if the member states demand that the applicant justifies his request 
for international protection and if the individual provides information found 
not be truthful, the elements could fail to be confirmed in the following cases: 
when it is evident the effort of the applicant to justify his request; when the 
applicant has provided relevant elements for the granting of essential 
protection and his explanation is satisfactory in the case of lack of 
documentation; when the declarations of the applicant have been considered as 
coherent and plausible; when the applicant has presented his request for 
protection as soon as possible; and when the general credibility of the applicant 
has been proven. For the examination of the requests for international 
protection, Article 5 of the Directive encompasses the events that occurred after 
the request and that may influence on the justified fear of persecution of the 
real risk that the applicant may suffer serious harm. The objective of the article 
isn’t to exclude neither the member states consideration nor the concrete 
circumstances occurring at the applicant’s country of origin. The usefulness of 
this provision is found in the fact that it effectively accounts for relevant 
external elements, which may influence the asylum request (Duarte 2017, 68). 
In turn, Article 6 defines the actors of persecution or of serious harm 
determining that these could be States, parties or organizations controlling the 
State or a substantial part of the territory of the State, and non-State actors, if it 

JOURNAL OF COMPARATIVE POLITICS     76 
 
 
 
can be demonstrated that the actors mentioned in points a) and b) including 
international organizations, are unable or unwilling to provide protection 
against persecution or serious harm. In the present Directive, the member 
states may after examining the request of the applicant, decide that the 
individual doesn’t need international protection, when it can’t be proved that in 
a specific part of his country or origin, a justified fear of persecution or serious 
harm exists, and also when it’s possible for the applicant to obtain protection in 
another part of his country of origin. One big problem with the procedure is 
connected with the language of the application as no support is granted for the 
filling of the papers that are not written, in the majority of times, in a language 
that the refugee applicant understands (Perkowska and Jurgielewicz 2013, 
120). 
 
Therefore, we refer to the internal protection under Article 8 paragraph 1 
which establishes the consideration that member states may refuse to grant 
international protection of an applicant if the requisites above are verified. 
However, if on one hand this provision gives the States almost an analytical and 
interpretative arbitrary power, on the other hand, we find remarkable the duty 
enshrined under paragraph 2 which establishes that upon the examination of 
the request, the States should consider the general conditions of the country of 
origin of the applicant and regarding the applicant himself, this way obtaining 
precise and up to date information, which could come from the Office of the 
United Nations High Commissioner for Refugees and from the European Agency 
for Asylum (UNHCR 2012). This orientation is quite clear when it states under 
paragraph 1 that “(...) Member States may determine (...)” and under paragraph 2 
that “(...) Member States shall (...)”, which is relevant regarding the 
interpretation and relying on the consideration that if Member States consider 
that there is a margin of internal protection in the country of origin in order to 
deny granting international protection, then it is mandatory that they verify the 
existence of certain conditions regarding the country or the relevant part of that 
country and the applicant, nearly imposing a duty to give a fair statement of 
reasons for the decision, which in any event reduces the member states wide 
margin of discretion and interpretation. Chapter III relates to the conditions to 
be met by the applicant for international protection, regarding the granting of 
the refugee status. Thus, we must account for the definition of refugee in the 
amended by the Directive, which under Article 2 subparagraph d) defines 
refugee as: “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, or stateless person, who, being outside of the country of 
habitual residence for the same reasons as mentioned above, is unable or, owing 
to such fear, unwilling to return to it”, and is complemented by Article 9 of the 
same diploma, where acts of persecution are addressed, it can be read that 
these acts must be sufficiently serious by its nature or repetition as to constitute 
a severe violation of basic rights, in particular the rights from which derogation 
cannot be made under Article 15 number 2 of the European Convention on 
Human Rights and Fundamental Freedoms; and the acts that constitute 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 the previous point.  
 
The “Reasons for persecution” are established in Article 10, as its provision 
states that member states should consider that the concept of race includes 

JOURNAL OF COMPARATIVE POLITICS     77 
 
 
 
considerations of colour, descent or membership of a particular ethnic group; 
that the concept of religion shall in particular include the holding of theistic, 
non-theistic and atheistic beliefs, the participation in, or abstention from formal 
worship in private or in public, either alone or in community with others and 
other religious acts or expressions of view or forms of personal or communal 
conduct based on or mandated; that nationality isn’t only confined to 
citizenship or lack thereof but shall in particular, include membership of a 
group determined by its cultural, ethnic, or linguistic identity; and that a 
particular social share an innate characteristic, or a common background that 
cannot be changed, or share a characteristic or belief that is fundamental to 
identity or conscience that a person should not be forced to renounce it and still 
the consideration that a group has a distinct identity in the relevant country, 
because it is perceived as being different by the surrounding society; finally the 
reasons for persecution encompass also the concept of political opinion, which 
is the holding of an opinion, thought or belief on a matter related to the 
potential actors of persecution.  
 
On the subject of the procedure for granting and withdrawal of international 
protection, Directive 2013/32/EU of 26 of July 2013, which revoked previous 
Directive 2005/85/EC, fits the purpose of establishing common procedures for 
granting and withdrawing international protection pursuant to the recast 
Qualification Directive (ECRE 2014, 3). Specifically concerning international 
protection, this Directive aims to create faster, more efficient and fairer 
procedures in compliance with EU law. It was established, on the other hand, 
that member states should create specific mechanisms to aid applicant in 
requesting for international protection, with the obligation that the initial 
analysis for each request should never last over 6 months after the request for 
the status of international protection. The review proceedings can include 
several special forms of procedure, such as accelerated proceedings or request 
proceedings at the border (ibid., 4).  
 
This Directive establishes a set of rules for the reception of applicants for 
international protection these rules are to be applied to every national of a third 
state, stateless persons who apply for international protection in the territory of 
a member state. The main objective of this Directive is the creation of a de facto 
protection for asylum seekers, to be implemented by member states during the 
review proceedings pending the decision to grant asylum and to establish the 
common procedures for granting and withdrawing international protection 
(ibid.).  
 
The Recast Directive, on its Chapter II, regarding “Basic Principles and 
Guarantees” confers, Article 6 paragraphs 1 and 5, a series of prerogatives to the 
applicants of international protection, with the most relevant being the sped up 
registration of the requests; the possibility for the request to be made for other 
individuals who the applicant may be responsible for and minors, accordingly 
to Article 7 paragraphs 2, 3 and 4; information and counselling at border 
crossing points or detention centres for third country nationals or stateless 
persons who wish to apply for international protection, Article 8 paragraph 1; 
the right to remain in the member state pending the examination of the 
application accordingly to Article 9 paragraph 1, the guarantee that applications 
shall be assessed even if they have not been made as soon as possible, as in 
mentioned in Article 10 paragraph 1; the guarantee that the status of refugee is 
examined first and if not granted, the assessment for the status of subsidiary 
protection shall be examined is set forth in the same article, in paragraph 2; the 

JOURNAL OF COMPARATIVE POLITICS     78 
 
 
 
guaranties relative to the procedure of assessment for requests follow, in 
paragraph 3; the guarantee that decisions regarding the requests for 
international protection are to be given in writing as is stated in Article 11 
paragraph 1; there is, accordingly to Article 11 paragraph the possibility to 
challenge negative decisions; the right to benefit from an interpreter in order 
present their requests comes in Article 12 paragraph 1, being entitled to be 
informed of every step of the procedure; the right for a personal interview 
before the decision is now foreseen in Article 14 and the right to have legal 
assistance and representation in all steps of the procedure for assessment of the 
request, including the procedure relative to challenging the decision is set forth 
by Articles 19 to 23. Through the deletion of old Article 24 of the 2005 Asylum 
Procedures Directive, the recast Asylum Procedures Directive now no longer 
allows for derogations from the basic principles and guarantees as laid down in 
Chapter II in the context of border procedures or procedures dealing with 
subsequent asylum applications. As a result, regardless of the type of procedure 
used to process asylum applications, the same set of basic guarantees with 
regard to the personal interview, access to legal assistance and interpretation 
and guarantees for asylum seekers in need of special procedural guarantees and 
unaccompanied children (ibid., 34). 
 
In what concerns the proceedings for granting the status of international 
protection, Chapter III of the Directive determines that the decision must be 
taken within 6 months from the request however; Article 31 paragraphs 3 and 4 
allow member states to extend that deadline. While Article 31 sets as a principle 
that the examination of an asylum application must be concluded within 6 
months of the lodging of the application, it also provides for a possibility for 
member states to extend such time limits for another 9 months or even 12 
months. An extension of 9 months is possible in case (a) complex issues of fact 
and/or law are involved; (b) it is difficult to conclude the procedure within 6 
months because a large number of third-country nationals or stateless persons 
apply simultaneously or (c) where the delay can clearly be attributed to the 
failure of the applicant to comply with its “cooperation” duties under Article 13. 
This can be further extended with another 3 months, by way of exception and in 
duly justified circumstances, “where necessary to ensure an adequate and 
complete examination”. However, under no circumstances may the examination 
take any longer than 21 months from the lodging of the application (ibid., 34–
35). The case for inadmissible applications follows Article 33, as it establishes 
an exhaustive list of criteria on the basis of which an application for 
international protection may be considered as inadmissible, excluding the use 
of any other admissibility grounds in national law.  
 
Regarding procedural rules, under Article 40 and 42, the procedure for granting 
the status of refugee starts with a preliminary examination in order to verify the 
elements contained in the request for international protection of the applicant, 
it is up for the member state and their national law to define the specific terms 
of this examination. Lastly, Article 46 determines that applicants enjoy the 
guarantee to a judicial review if faced with a negative decision under the 
following grounds: the application is considered to be unfounded in relation to 
refugee status or subsidiary protection status; when the decision was taken at a 
border crossing or transit zone, through the application criteria defined in 
national law; in case of a refusal to reopen the examination of an application 
after its discontinuation; Likewise, applicants have the right for a judicial 
review from the refusals to reopen request assessments for international 
protection under the terms of Article 27 and 28 of the Directive and in the cases 

JOURNAL OF COMPARATIVE POLITICS     79 
 
 
 
where a decision of withdrawal of such protection has been made. As for the 
granting of the status of refugee and its accessory points are still subject to the 
provisions contained in Directive 2011/95/EU. With regard to Directive 
2013/33/EU of the European Parliament and of the Council of 26 June 2013 
laying down standards for the reception of applicants for international 
protection, together with the Recast Dublin Regulation (below), the recast 
EURODAC Regulation and the recast Asylum Procedures Directive (above), 
constituted the final step in the second phase of harmonisation of asylum law in 
the EU member states, and replaces Council Directive 2003/9/EC (Roure 2009, 
3–5). It increases the level of and access to reception conditions for applicants 
for international protection during the examination of their application in many 
respects (ECRE 2015). Unfortunately, its lack of transposition came to limit its 
applicability; hence, the authors only refer to it, not studying the directive in 
detail. 
 
Dublin III Regulation,
10
 substitutes the previous Council Regulation (known as 
Dublin II Regulation (EC) 343/2003) which establishes “the criteria and 
mechanisms for determining the member state responsible for examining an 
application for international protection lodged in one of the member states by a 
third-country national or a stateless person”. It grants applicants a better 
protection until the status of refugee is granted to them and is considered to be 
the cornerstone of the EU’s Common European Asylum System, or CEAS 
(Dragan 2017, 84). The criteria for determining the member state responsible 
for examining requests are divided in criteria of family, recent possession of a 
visa or residency permit in EU member state, but also the means with which the 
applicant entered the European territory. The Regulation creates a system of 
better border control, allowing simultaneously for more security and ensure 
compliance with the Dublin III Regulation, taking steps to avoid “asylum-
shopping”, and at the same time, it determined the creation of the European 
Union’s biometric database containing the fingerprints of every asylum 
applicant and citizens of third States to be compared with the member states 
own systems, and the EURODAC, allowing for member states to detect an 
asylum seeker or a third State citizen remaining illegally on European territory, 
and if previous asylum requests, in the same, or any other member state had 
taken place. The main issue with this diploma is the fact that, in practice, it does 
not offer an efficient framework for burden sharing between member states 
(ibid., 85). 
 
Concerned with the refugee crisis in Europe, the Decision (EU) 2015/1523 of 14 
of September 2015 proceeded to relocate applicants for international 
protection who were in refugee camps in Greece and Italy. The decision only 
applied to applicants that had requested international protection in Italy or 
Greece and if in relation to those applicants these States would’ve been 
responsible for examining the request, under the criteria of determination 
established in Chapter III of the Regulation (EU) 604/2013. The relocation 
aimed at distributing 40000 individuals between the other member states who 
would, in cooperation with the European Agency for Asylum, adopt the 
necessary measures for direct cooperation and exchange of information with 
other entities, this Temporary EU Relocation System for the redistribution of 
asylum-seekers between EU member states was very controversial (Carrera, 
Gros and Guild 2015). The Decision imposes a strict procedure of collaboration, 
cooperation and exchange of information with aims for the approval and 
                                                 
10
 Regulation 604/2013 of 26 June 2013. 

JOURNAL OF COMPARATIVE POLITICS     80 
 
 
 
relocation of refugees. The Decision is no longer in force, as its date of validity 
was the 17
th
 of December 2017. 
 
 
6 CONCLUSIONS  
 
Throughout the years the concept of refugee has experienced severe changes. 
This mutation is deeply related to the changes in society itself, as well as the 
deeper care for the human person, and human dignity. There will never be a 
final concept for defining what a refugee is. Concluding that the lack of 
definition is one of the problems does not come as a surprise to the authors, 
that found, throughout this work, a multiplicity of definitions, concepts, and 
statutes that go around the concept of refugees but fail to provide one definition 
that will take into consideration all the peculiarities of this “state of being”.  
 
After going through all the EU legislation on the matter, we came to conclude 
that, notwithstanding the growing intensity and worry regarding international 
protection, encompassing the granting of the status of refugee and subsidiary 
protection, the member states have a relatively wide margin of action to apply 
the provisions contained in the analysed directives. The directives themselves 
have been amended and improved in order to provide wider protection, but 
failing to do so. The diversity of legislation, as well as the margin it provides to 
the member states, whilst applying it, leads to a serious of restrictive 
interpretations of what is therein foreseen. The member states “ find excuses” 
in the need for safeguarding their population, as well as economic and political 
reasons in order to limit the access of migrants – to be refugees – to enter and 
stay in their territory. The EU solidarity is broken when faced with economic, 
financial, and safety concerns arising from the population in general, and 
member states representatives in particular. The incorrect transposition, as 
well as lack of transposition of the directives only makes it more difficult for the 
refugees to have the necessary protection. 
 
The mechanisms that would ensure the accomplishment of these solidarity 
principles are the decisive power of the EU, and its decision making process, as 
well as the creation of legislation to be enforced in all member states, regardless 
of their opposition. Even though the EU has always searched for harmonisation, 
and that it is to be achieved by the means of the legislation therein created, the 
truth is that the non-binding effect of some of its diplomas, as well as the lack of 
transpositions of some others, as is the case of Directive 2001/95/EU, fails to 
reflect a unified and systematic coherence in terms of performance, as we’ve 
seen, since besides the interpretative and appraising wide discretion, it allows 
for asylum shopping. The fragility of the Union’s policies in the matter of 
international protection lies in this particular aspect. 
 
All other, and more recent legislative acts have failed to provide further 
protection, failing to ensure the accomplishment of those principles enshrined 
in the Declaration of Human Rights, The European Convention and the Charter. 
All those who are stopped at the borders of Europe see themselves, once again, 
deprived of their rights, as human beings, because, unwillingly, they became 
refugees. They are, again, left to their own chance. The dream of reaching 
Europe in search of a safe haven makes the borders of Europe their new hell.  
 
 
 

JOURNAL OF COMPARATIVE POLITICS     81 
 
 
 
 
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