Blog post by Dr Younous Arbaoui, Assistant Professor, Amsterdam Centre for Migration & Refugee Law (ACMRL), VU University Amsterdam. He is also volunteer President of the Hijra Law Clinic in Morocco.
On 30 April 2020, the Advocate General Hogan issued an Opinion in the case Secretary of State for the Home Department vs. OA (C-255/19) pending in the CJEU. The concept of ‘actors of protection’ as included in the EU Qualification Directive lies at the heart of the preliminary reference. The request originates from a procedure before the Upper Tribunal (UK) and concerns a Somali national (OA) who had been granted refugee status in 2003 on the basis of his membership to a minority clan persecuted by majority clans. His refugee status was revoked in 2016 because of a change of circumstances in Somalia. According to the Secretary of State for the Home Department (SSHD), persecution of minority clans by majority clans is no longer a real risk, and there is effective state protection (request, par. 41).
The SSHD decision to revoke OA’s refugee status was partly based on the availability of support from OA’s relatives and fellow clan members. In this connection, the SSHD referred to a previous judgment of the Upper Tribunal according to which: ‘although the relevant protection must be state protection, the assessment of the effectiveness of that protection requires consideration of protective functions in a wide sense to include those carried out by families and clans’ (request, par. 49). The SSHD noted in this context that OA could be (financially) supported by close relatives in Mogadishu: by his sister living in Dubai and by fellow clan members residing in the UK; the availability of that support forms an alternative form of protection (request, par. 26) In subsequent appeal procedures, OA’s lawyer submitted that when assessing the availability of protection, it is ‘legally impermissible to take account of protective functions performed by non-State actors’ such as support from relatives and fellow clan members (request, par. 43). To decide on the matter, the Upper Tribunal referred the question (among others: see request, par. 53) whether the effectiveness or availability of protection ‘is to be assessed solely by reference to the protective acts/functions of State actors or can regard be had to the protective acts/functions performed by private (civil society) actors such as families and/or clans’. Since the Court of Justice of the European Union (CJEU) has not previously had the chance to specifically address this question, the case is a unique opportunity for the Court to clarify the matter once and for all.
In this article, I analytically juxtapose how this question is addressed on three levels: national practices, in particular that of the Netherlands; the case law of the European Court of Human Rights (ECtHR); and EU law. In closing, I briefly reflect on how these regimes relate to each other.
Private actors in Dutch asylum law
The SSHD’s privatization of ‘actors of protection’ is not unique to the UK. The Dutch Council of State (200708107/1) also includes private actors as within the scope of ‘actors of protection’ (Battjes 2016). Dutch courts have routinely argued in claims involving women fleeing forced marriage that support provided by (male) family members, non-governmental organizations (NGOs) and clans are relevant when deciding whether protection is available (Arbaoui 2019). Dutch courts generally assume that in addition to an effective legal system, other elements may also play a role in whether protection is available. In this context, the Dutch courts refer to government efforts aiming to improve the position of women: awareness raising; emerging women’s emancipation; and (draft) legislation criminalizing forced marriages in countries of origin. These three areas, in addition to the presence of NGOs operating (temporary) women shelters, was regularly sufficient for the Dutch courts to conclude that effective protection was available (Arbaoui 2019).
The approach of the Dutch State stands in stark contrast with its approach in the context of family reunion in which it has employed various legislative measures to prevent forced marriages (Arbaoui 2019). On this subject the state mentions neither family members nor NGOs in countries of origin who might be able to support individuals when faced with forced marriage. While the state ascribes to itself a positive obligation to protect (potential) victims when it comes to family reunion, protection in asylum law is “privatized”, “gendered” (it includes male family members) and “culturalized” (it refers to clan families). While the state is the principal actor of protection in the context of family reunion, the family and local communities are called upon to offer protection in asylum law. The state’s approach to the role of the family seems to be strategic: (i) to limit family reunion based on marriage, the state adopts an individualistic approach within which family members are viewed as separate individuals; (ii) to limit asylum on the basis of forced marriage, the state employs the family-unit approach within which family members are viewed as interlinked individuals. This practice articulates a double standard policy (Arbaoui 2019).
Private actors in ECtHR’s case law
The widening of the scope of ‘actors of protection’ to include private actors is not unique to national practices and resonates with some of the ECtHR’s (European Court of Human Rights) case law on Article 3 ECHR (European Convention on Human Rights).
For instance, in AA vs. Sweden (para. 72, 83, 90-95) concerning a mother and daughters fleeing forced marriages, although the Court first noted that protection should be ‘state-based’, it then based its decision on the existence of family and NGOs support in Yemen. With regard to the mother, the Court noted that she could count on the protection of her brother in Yemen; her other brother in London who may provide additional support; her two adult sons who could also support her; and her mother and two sisters living in Yemen. The Court also referred to her social network and to NGOs operating women shelters in Yemen. The Court further observed that the daughters shared the same (male) family network and that as a ‘family unit’ they would ‘have support from each other’.
In other cases, the Court followed the same approach. In Collins and Akaziebie vs. Sweden (para. 12), the Court noted that the Nigerian government was taking measures to combat female genital mutilation (FGM), including the criminalization of that practice, and then observed that various NGOs had been active in the fight against FGM. In Izevbekhai and Others v Ireland (para. 74-75 and 80), the Court first stated that although the legislation criminalizing FGM was not enforced in the country of origin, the government publicly opposes FGM. It then referred to the existence of NGOs active in supporting and physically protecting women escaping FGM. In Ameh and Others v the United Kingdom (para. 14), the Court took into consideration the chance to seek protection and support from NGOs assisting women fleeing FGM as well as from the applicant’s family. In R.W. and Others v Sweden, the Court first noted that the authorities ‘take active measures to prevent FGM’ and then referred to ‘churches, NGOs and other organisations actively working to protect women and girls from FGM’. In N vs. Sweden (para. 60-61) concerning an Afghan woman, the Court took into consideration that she no longer had a social network in Afghanistan. It then referred to country information stating that ‘unaccompanied women or women lacking a male “tutor” continued to face limitations on conducting a normal social life’ and that ‘women without male support and protection generally lack the means of survival’. In R.H. v. Sweden (para. 73) the Court took into consideration that a Somali woman would not return to Somalia as a ‘lone woman’ as she has maintained contacts in Mogadishu and had relatives living there, including a brother and uncles. In the Court’s view, she must therefore be considered to have access to both family support and a male protection network.
This case law shows that the ECtHR currently answers the question whether private actors fall within the scope of ‘actors of protection’ in the affirmative. Protection under Article 3 ECHR as applied by the Court is not exclusively (pseudo) state-based. Every actor capable of providing support to mitigate risk plays a role when deciding on the availability of protection. (See also Battjes 2012 and Battjes 2016) This approach is clearly incoherent with how ‘protection’ is approached in cases involving victims of domestic violence within Europe. It is indeed unthinkable that a Member State would refer a woman residing in the EU and running the risk of domestic violence to her brother living in Europe, or to NGO shelters, to be protected against her husband. The ECtHR case law on such instances indeed shows that failure by the police to respond effectively to a call for help from a victim of domestic violence, or to ensure effective protection to limit its effects, or to fail to prosecute the perpetrator, could violate Article 3 ECHR (Opuz vs. Turkey). Similar to the Netherlands, the ECtHR’s approach articulates a double standard.
Private actors in EU law
In EU asylum law, actors of protection are defined in Article 7 of the EU Qualification Directive as follows:
- Protection against persecution or serious harm can only be provided by:
a. The State; or
b. Parties or organisations, including international organisations, controlling the State or a substantial part of the territory of the State; provided they are willing and able to offer protection in accordance with paragraph 2 - Protection against persecution or serious harm must be effective and of a non-temporary nature. Such protection is generally provided when the actors mentioned under points (a) and (b) of paragraph 1 take reasonable steps to prevent the persecution or suffering of serious harm, inter alia, by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm, and when the applicant has access to such protection.
The CJEU has not yet had the chance to interpret this provision in a legal dispute. In Salahadin Abdulla and others (C-175/08, para. 75) it only observed in passing that Article 7(1) does not preclude ‘the protection from being guaranteed by international organisations, including protection ensured through the presence of a multinational force in the territory of the third country.’ The Advocate General Mazák argued in that case that Article 7(2) entails ‘the presence of an actor of protection which has the authority, organisational structure and means, inter alia, to maintain a minimum level of law and order in the refugee’s country of nationality.’ Since family members and local NGOs do not meet these conditions, they would not be considered as actors of protection.
In the same vein, in Secretary of State for the Home Department vs. OA, the Advocate General Hogan answered the question posed by the Upper Tribunal in the negative (Opinion, para. 67-70). By referring to the wording and context of Article 7, Hogan argued that private actors, such as relatives and clans, are not parties or organizations ‘controlling the State or a substantiated part of that State’ and that they do not satisfy the requirement of Article 7(2) because there is nothing to suggest that those actors are able to operate ‘an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm.’ Hogan referred to a leading 2016 judgment of the French National Asylum Law Court stating that when state-based protection is lacking, other authorities may offer protection: ‘among those authorities, organisations controlling a substantial part of the territory of a State are those which have stable institutional structures allowing them to exercise exclusive and continuous civil and armed control on a delimitated territory (…); once those constitutive elements have been satisfied, (…) it must be determined whether the substitute protection offered by that organisation is, for the person concerned, accessible, effective and not temporary.’ (Opinion, para. 71) In this connection, I refer to Recital 19 of the Directive which states that protection can be provided by parties or organisations ‘meeting the conditions of this directive’ and ‘which control a region or a larger area within the territory of the State.’ This (pseudo) state-based reading clearly excludes private actors from the scope of actors of protection. Private actors simply do not meet these conditions and, therefore, they cannot be considered to be actors of protection.
In any event, although support provided by private actors might be relevant, Article 7(1) does not indicate the extent to which private support would play a role. I predict that the CJEU would rule that local NGOs and clans are not ‘actors of protection’ in the sense of Article 7, but that they can be relevant only when they function as complementary to existing (pseudo) state-based actors of effective protection, e.g. when they can facilitate an individual’s access to existing effective legal systems. This means that protection cannot be deemed to exist solely on the basis of NGOs and clan support. With regard to family protection, I expect that the CJEU will explicitly exclude family members from the scope of actors of protection, not only because of the same reasons mentioned above, but also because it cannot be taken for granted that family members would always be able and also willing to permanently ‘protect’ their relatives. Even if they could have the means to support their female relatives, not all men in countries of origin would be willing to play that gendered role on a permanent basis. Assuming that male family members in countries of origin would always be willing to operate as permanent actors ‘protecting’ women is controversial and reproduces patriarchal family relationships and, therefore, female subjugation. I further hope that the CJEU would avoid using the term of ‘protection’ when addressing the role of private actors, but rather use the terms of ‘support’, ‘assistance’ or ‘solidarity’.
I further anticipate that the CJEU will explicitly address the question whether the lack of an ‘effective legal system’ always meansthat protection is unavailable. The Dutch Council of State has answered this question in the negative (200708107/1): the Council held the requirement of an ‘effective legal system’ was not an autonomous criterion, and other elements could play a role. As previously observed by Battjes (2016), this approach suggests that the Council reads Article 7(2) as meaning that since it states that reasonable measures may among others take the form of a legal system, such measures ‘are not always’ absent when an effective legal system is absent, and therefore it is not an autonomous criterion. It is indeed arguable that Article 7(2) contains a certain margin of discretion as it states that protection is provided when ‘reasonable steps are taken, inter alia, by operating an effective legal system’. This obviously means that reasonable steps can also be taken by other means than by operating an effective legal system. However, Article 7(2) does not explicitly indicate what those other means could be. Battjes (2016) is of opinion that despite that margin of discretion, Article 7(2) is normative and establishes a minimum standard, namely that of ‘an effective legal system’. In this context, reference can be made to Recital 1 of the Directive according to which the purpose of the Directive is ‘to lay down minimum standards’ for protection.
In addition to the above, I would expect the CJEU to elaborate upon the potential situation where there was the absence of such a legal system and what any alternative could possibly entail. (See also Battjes 2016) Are governmental efforts to improve the position of women, by means of awareness-raising activities and legislation criminalizing forced marriages, “reasonable steps” to prevent the persecution or suffering of serious harm? I would answer this question in the negative. Many governments in countries of origin do not openly tolerate gender-based violence and are making efforts to address that problem e.g. via campaigns, passing relevant legislation, and supporting NGOs. Such governmental efforts often attest to the inadequacy of existing state-based protection and thus to the absence of an effective legal system. Since NGOs are usually there to fill gaps, their mere existence tends to accentuate existing shortcomings in state-based protection rather than highlight their progress. Such efforts show that the government is trying to provide protection, but not that effective protection, in the sense of effective legal systems, is actually available. (Battjes 2016; Arbaoui 2020)
Finally, I would like to recollect that the CJEU adheres to a state-based approach to ‘protection’ when addressing forced marriages in family reunion cases. In Noorzia, it legitimized the Austrian age limit in the context of family reunion, because it helps to prevent forced marriages and protect potential victims. The CJEU refers neither to family members nor to clan members as alternative forms of protection. If the CJEU would do the opposite in the asylum context, this would unfortunately confirm the double standard approach.
In closing
The concept of ‘actors of protection’ is differently interpreted in European asylum law. On the on hand, the UK, the Netherlands and the ECtHR consider private actors as ‘actors of protection’ and adopt a double standard approach. On the other hand, France and the Advocate General Hogan and Mazak adopt the (pseudo) state-based approach. The upcoming OA ruling would show how national practices and ECtHR case law relate to EU law. If the CJEU would concur with Mazák and Hogan, and with the analysis presented above, this leads to the question whether Members States adopting an approach similar to that of the Netherlands violate EU law when complying with the case law of the ECtHR; bearing in mind that Member States are obliged to comply with both the ECHR and EU law. All these key issues show that the CJEU has a unique chance to issue a landmark ruling. This would probably be something of a “game changer” for Dutch asylum policy regarding forced marriages and other family-related asylum claims.
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