The 1951 Geneva Convention and its 1967 Protocol are not the only instruments governing international protection in European Union Member States. In fact, both primary and secondary EU law focus on international protection within the European Union (EU).
Primary law includes the treaties establishing the EU and the Charter of Fundamental Rights, whereas
secondary law refers to specific legal instruments adopted based on the treaties. According to article 288 of the
Treaty on the Functioning of the European Union (TFEU), the European institutions may adopt 5 types of legal acts: regulations, directives, decisions, recommendations and the opinions. Article 78 of the TFEU foresees the development of “a common policy on asylum, subsidiary protection and temporary protection” and that the EU is bound by the 1951 Geneva Convention and its 1967 Protocol “and other relevant treaties”. It also stipulates that the EU must ensure “compliance with the principle of non-refoulement” and that those requiring international protection are offered an “appropriate status”.
Other relevant instrument of primary EU law is the
Charter of Fundamental Rights, which specifically contains the right to asylum (article 18), as well as an important prohibition against collective expulsions and the principle of non-refoulement (article 19), as the prohibition of removal, expulsion or extradition of anyone “to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment”. The principle mirrors that of international human rights law and is applicable to anyone, including to asylum seekers and to refugees, not allowing for any exceptions, derogations or limitations [see
FRA].
