Exclusion - Articles 12 and 17 Qualification Directive (2011/95/EU) : a judicial analysis

The purpose of this judicial analysis is to put a helpful tool at the disposal of courts and tribunals dealing with international protection cases, for understanding and handling protection issues related to the exclusion grounds contained in the recast Qualification Directive (QD (recast)). This directive contains two key provisions: Article 12 QD (recast) deals with exclusion from refugee status, whereas Article 17 QD (recast) provides for exclusion from eligibility for subsidiary protection status. The application of these provisions by their nature may have potentially serious consequences for the individual concerned. Their interpretation and application pose certain challenges to members of courts and tribunals. The fundamental concept itself is not new, rather it is based on Article 1(D), (E) and (F) of the Refugee Convention. The (recast) Qualification Directive has codified these exclusion grounds, re-stating those parts of relevant international treaties, including the Refugee Convention, that the European legislators considered could be reflected within the corpus of EU law. The Member States are, in turn, required to transpose the directive into national law. This judicial analysis is intended to assist the reader towards an understanding of the QD (recast) as this has been stated in the case-law of the Court of Justice of the European Union (CJEU) and decisions of the European Court of Human Rights (ECtHR) as well as relevant decisions of the courts and tribunals of the Member States. The references contained in this judicial analysis to national case-law are not intended to be exhaustive but rather illustrative of the way in which the provisions of the QD (recast) in question have been transposed and, perhaps more importantly, interpreted by national courts.