Return to Socio-Economic Deprivation: A Critical Analysis of the Scope of Complementary Protection under European Law
Abstract: Migration caused by deprivation of socio-economic human rights is a topical issue that gives rise to complex questions of legal, moral and ethical nature. From a legal perspective, seeking international protection from socio-economic deprivation is often associated with conceptual challenges. The purpose of this thesis is to examine how the regime of complementary protection under European asylum law relates to migrants basing their claims for protection on socio-economic deprivation. More specifically, it examines the scope of protection provided under Article 3 ECHR and Article 15(b) QD in relation to this category of claims and critically scrutinizes the reasoning of the ECtHR and the CJEU in their respective approaches on this matter. In respect of Article 3 ECHR, a thorough analysis of the jurisprudence of the ECtHR provides that socio-economic deprivations claims, in principle, can be encompassed by its scope of protection. However, by subjecting these cases to a threshold of exceptionality, the ECtHR has effectively circumscribed their possibilities of triggering the non-refoulement obligations enshrined in Article 3. The core argument for subjecting socio-economic harm cases to a threshold of exceptionality relates to the source of their feared harm. In addition, it has been supported by a need for a balancing of interests between those of the applicant and those of the state, and the fact that the ECHR essentially is directed at the protection of civil-political rights. It is submitted in this thesis that none of these arguments stand up to scrutiny, as they are conceptually incoherent, inconsistent with fundamental principles stipulated in previous case law and underpinned by evident political concerns. In its formation of subsidiary protection under the QD, the CJEU has applied an even stricter approach than the ECtHR to claims based on socio-economic deprivation. While the ECtHR has acknowledged that such claims in highly exceptional cases can engage the protection of Article 3 ECHR, the CJEU has ruled out such a possibility for the purpose of Article 15(b) QD. Despite the inter-normative connection between these provisions, the CJEU has thus distanced itself from the jurisprudence of the ECtHR on this matter. In reaching this conclusion, the CJEU interpreted the scope of Article 15(b) QD in the light of Article 6 QD, which requires there to be an actor of serious harm. It is argued in this thesis that the approach of the CJEU can be problematized in many aspects, particularly from the perspective of the EU Charter and principles stipulated in previous case law.
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