Biekša, Laurynas
September 2011
Jurisprudencija;2011, Vol. 18 Issue 3, p871
Academic Journal
Internal protection alternative (further--IPA) as the element of refugee definition is interpreted very differently in the practice of the State Parties to the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (further--Geneva Convention). Thus it is important to regulate this concept clearly in the EC directive 2004/83/ EB (further--Qualification directive) and its coming amendments. The definition of the IPA concept does not contain adequate criteria for assessing the level and effectiveness of protection required, in line with the Geneva Convention and the ECHR, thus allowing Member States to reject claims and return applicants to their country of origin despite the lack of effective protection. Moreover, this concept is defined in a broad and vague manner which creates a risk of diverse recognition practices. The Commission Recast Proposal for Qualification Directive should solve most of the identified problems regarding Art. 8(1). Firstly, it specifies the IPA test-making reference to the Art. 7 criteria (i.e., operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm). Secondly, it also specifies the IPA test making reference to the Salah Sheekh v. Netherlands judgment criteria (i.e., he or she can safely and legally travel, gain admittance and settle). Thirdly, it deletes the word "stay," which could suggest a backward view contrary to the Geneva Convention. One more important element of the IPA test should be added in order to facilitate less divergent Member States' practice based on full and inclusive interpretation and application of the Geneva Convention, i.e. the requirement to assess whether the applicant can reasonably be expected to live in the IPA place in line with the UNHCR guidelines so as to ensure that the person concerned can lead a relatively normal life there, without undue hardship. However, the Commission does not include this element in its Recast Proposal for Qualification Directive for political reasons (as introducing "new," additional restrictions to the use of the concept might meet resistance from the Member States).


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