Towards a Re-definition of Persecution? Assessing the Potential Impact of Y and Z

In its judgment in the Y and Z case1 the Court of Justice of the European Union (CJEU) provided interpretative guidance on two important issues linked to the recognition of refugee status. First, what is the content of the notion of persecution? Second, is there a requirement to be ‘discreet’ in order to avoid persecution? The CJEU is increasingly called upon by national courts to interpret provisions of the legal instruments setting up the various aspects of the common European asylum system.2 According to the EU treaties and the EU Charter of Fundamental Rights (EU Charter),3 this policy must respect the 1951 Refugee Convention.4 This is also affirmed by secondary legislation, in this case the Qualification Directive,5 as well as by the CJEU itself in its case law.6 Thus, the CJEU has been called on, albeit indirectly, to interpret key provisions of the Refugee Convention. All EU Member States are also parties to the European Convention on Human Rights (ECHR). While the Convention does not recognise a right to asylum as such, the substantial body of jurisprudence that has emerged from the European Court of Human Rights (ECtHR) has a bearing on the rights of asylum seekers all across Europe.7 Therefore, the CJEU jurisprudence in this area interrelates with that of the ECtHR. As Advocate General Maduro stated in his Opinion on the Elgafaji case, ‘[t]he relationship between the two legal orders ... cannot be disregarded in view of the objective of creating a European area of protection of fundamental rights, such as the right to asylum’.8

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