This week, ECRE published a Working Paper entitled ‘Assessing legal grounds for protecting Afghan asylum seekers in Europe’ written by Ciaran King, Independent Legal Consultant.

The working paper analyses the practice of Belgium, Germany, and Sweden in response to the situation in Afghanistan and the available routes of protection, primarily focusing on analysing policies relating to subsidiary protection status in those EU Member States (EUMS) for newly arrived Afghans as well as those who have been in Europe for some time. The selection of the three EUMS case studies is due to the considerable Afghan diaspora communities residing in these countries as potential beneficiaries of protection status. The Paper considers the domestic legal policies and arguments relating to the granting or refusal of subsidiary protection to Afghan nationals pursuant to Art. 15(b) and 15(c) of the recast Qualification Directive (rQD)5 as well as alternative humanitarian grounds for protection. It ends with a set of recommendations to the European Commission, EUAA and MS.

The author primarily focuses its analysis on routes to subsidiary protection status, but refugee grounds are still highly relevant post-Taliban takeover of Afghanistan. Despite this focus, the author notes that the grounds for obtaining refugee convention status are still present and will lead to granting protection status in various cases.

The paper notes that the current humanitarian crisis in Afghanistan as well as the level of indiscriminate violence and conflict should be considered grounds for granting subsidiary protection status to Afghan nationals under Art. 15 (b) and 15 (c) rQD. At a minimum, Afghan asylum applicants must be allowed to explain their reasons for seeking protection and have their grounds for refugee status adequately examined in line with international and regional refugee law.

The author concludes that Afghan nationals should be able to rely on existing guarantees of an individualised assessment under the rAPD and relevant CJEU jurisprudence. Ensuring the proper application of the rQD and rAPD should lead EUMS to granting refugee status if the conditions are fulfilled or recognising the dire humanitarian situation and degree of indiscriminate violence resulting in the granting of subsidiary protection. While these legal obligations must be rigorously applied, where information does not satisfy the authorities and assessments cannot be completed due to insufficient information, this cannot lead to the drawing of adverse inferences of otherwise credible applicants

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