A quick note on this Advocate General’s Opinion fresh from Luxembourg on the Qualification Directive. The case is C‑255/19 Secretary of State for the Home Department v OA.

The Qualification Directive sets out the criteria for determining asylum claims in the European Union. The issue in this case was around the interpretation of Article 7(1):

1. Protection can 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

The issue was whether private actors, like a network of clans and families providing protection, might fall under paragraph (b).

In this case, OA had been granted refugee status because he and his wife has been persecuted by military forces in Somalia. In 2017, the Home Office told OA that they were intended to revoke his status because:

clan support remains for you in Mogadishu and the country guidance case-law indicates that your safety would not be subject to the availability of majority clan support.

The crux of the issue was whether OA’s family and clan members could provide adequate protection against persecution. It was said he had a nuclear family who could support him and a sister in Dubai who could send him money for his daily living expenses.

The answer, said Advocate General Hogan, was clear:

parties or organisations in question must control the State or a substantial part of that State. Article 7(2) of the Qualification Directive further requires that these parties or organisations must also take reasonable steps to provide protection from persecution or serious harm by “operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm”.

In other words:

these parties or organisations must seek to exercise or duplicate State sovereignty (or something approximating to this) in respect of the applicant’s country of origin because this is what the reference to ‘controlling the State’ in Article 7(1)(b) of the Qualification Directive necessarily means and implies. Specifically, these parties or organisations must endeavour to provide for a policing and justice system based on human dignity and the rule of law in order to come within the scope of this provision.

It was apparent that OA’s family or clan in Somalia were not remotely close to the type of protection that Article 7(1) envisaged. There was nothing to suggest that the clan system had control of all or a substantial part of the territory of Somalia nor that they had a functioning legal and policing system based on the rule of law.

All of this is likely to have major consequences if the Court of Justice follows suit by accepting the opinion of the Advocate General in its final judgment. Not least because a significant chunk of the country guidance case of MOJ & Ors (Return to Mogadishu) Somalia CG [2014] UKUT 442 (IAC) is predicated on the availability of protection by clan members from persecution — which the Advocate General made clear is not acceptable. It is rare (though not unheard of) for the Court of Justice to come to a radically different decision than that recommended by the Advocate General. There is a real possibility that the Upper Tribunal will now have to revisit MOJ.

Assuming the final judgment is handed down before the end of the Brexit transition period, it will have “binding force” across the UK under Article 89 of the Withdrawal Agreement. 

Nor will Brexit make all this go away for the Home Office. As the Advocate General (and Colin) made clear, the Qualification Directive is based on international treaties including the Refugee Convention and European Convention on Human Rights. All of that will remain unchanged by Brexit and the underlying law is therefore unlikely to change substantially even if the Directive were repealed in years to come.