A recent decree issued by the Italian Tribunal of Milan recognizes subsidiary protection in the context of disaster displacement. Severe human rights violations caused by extreme weather events in combination with the country of origin’s failure to prevent and protect against disasters have been considered as reaching the threshold of serious harm required by the EU Qualification Directive. This decree enshrines both positive elements, indicative of an evolutive interpretation of disaster displacement and of human rights obligations in such context, as well as a shaky interpretation of key requirements of subsidiary protection as provided by EU law and as interpreted by the Court of Justice of the EU.

1. Abstract of the Decision - 2. Key Passages from the Ruling - 3. Comment - 3.1. The Tribunal’s evolutive interpretation of human rights law in the context of disaster displacement - 3.2. The Use of Scientific Climate Evidence in Legal Asylum Proceedings - 3.3. The State as an Actor of Serious Harm in the Context of Disaster Displacement - 3.3.1. The Equivalence of Article 3 ECHR and Article 15(b) of the Qualification Directive - 4. Conclusions - NOTE

1. Abstract of the Decision

On 13 March 2024, the Italian Tribunal of Milan – Section on Immigration, International Protection and Freedom of Movement of EU citizens issued decree no. 8753/2020, concerning the recognition of the status of subsidiary protection in the context of disasters. [1] In this decree, judges recognized that extreme weather events combined with the country of origin’s failure to prevent and protect against disasters could substantiate the direct and individual serious harm required by Article 15(b) of the EU Qualification Directive (transposed in Article 14(b) of the legislative decree no. 251/2007) and reach the threshold of inhuman and degrading treatment. The case concerned a young Muslim man from Char Naria in Shariatpur district in Bangladesh, who appealed against the negative outcome of his asylum claim decided by the Territorial Commission for the Recognition of International Protection of Monza Brianza. The Territorial Commission reported that the claimant used to live on a “Char” with his family (his wife and two children) and had been forced into displacement several times due to continuous flooding since 1998, which had also caused the repetitive destruction of his home, while also resulting in field losses. In order to rebuild his house, the applicant had incurred debts that he was supposed to pay back with his work in the field. However, floods were so recurrent that not only could he not repay his existing debts, but every single time he was forced into new ones in order to shelter his family. He then decided to move first to Libya to get a job to repay his debts and support his family, and then to Italy. Although the Territorial Commission found the claimant and his fear in case of return credible, it rejected his claim because based on grounds that did not meet the requirements for international protection, while his return in Bangladesh would not have threatened the principle of non-refoulement. On appeal, the Tribunal noted that the Territorial Commission did not collect sufficient information, which was condensed in a 4-page long document, for the judges to make a decision on the case. [2] On the basis of the declarations the claimant made during an oral interview in front of the judges, the Tribunal was able to gather additional and relevant information on the claimant’s predicament. In particular, the applicant used to live in a house made of bamboo and woven rice plant panels located on a [...]

2. Key Passages from the Ruling

To establish whether the predicament of the claimant could meet the requirements set out in Article 14(b) of the legislative decree no. 251/2007, which transposes ab litteram Article 15(b) of the Qualification Directive, the Tribunal relied on the judicial interpretation of Article 3 ECHR by the ECtHR. In particular, it reminded that the provision covers treatments that 1) cause intentional physical, mental or physical harm; 2) humiliate an individual in violation of their dignity; 3) instigate feelings of fear, distress and inferiority in the victim for the purpose of humiliating and demeaning them. [5] It then recalled respectively the findings of the Court of Justice of the EU (CJEU) in Elgafaji on subsidiary protection and of the Italian Court of Cassation, whereby subsidiary protection should also cover serious harm caused by private actors in cases where the State is not able to offer adequate and effective protection. [6] In light of the foregoing, the Tribunal combined the treatments contravening Article 3 ECHR with the failure of State protection and established, in principle, the possibility to recognize subsidiary protection when the State is not able, or does not want, to offer protection against serious harm. In the present case, the judges acknowledged the lack of State-led post-disaster aid programs and the precarious terms on which the State occasionally concedes loans on land. The Tribunal then proceeded by assessing whether such conditions could reach the threshold of inhuman or degrading treatment that, according to the ECtHR jurisprudence, requires the occurrence of an active or omissive conduct. By analyzing Sufi & Elmi v. the UK and MSS v. Belgium and Greece, the Tribunal concluded that conditions of extreme poverty caused by disasters that are able to jeopardize the primary needs of a person, if aggravated by either the action of State actors or of private subjects in case of State failure to protection, could well constitute serious harm in the form of inhuman and degrading treatment pursuant to Article 15(b) of the Qualification Directive. [7] The judges continued by arguing that the effects of foreseeable and recurring disasters, such as the floods, in Bangladesh may well depend on the conduct of the State that, despite its efforts and policy developments in the field of climate change, still lacks an effective disaster risk management policy. The country’s current incapacity depends not only on [...]

3. Comment

The decree issued by the Tribunal of Milan allows for deep reflections on the evolutive interpretation of human rights law in the context of disaster displacement. It also spurs insights into the use of scientific climate evidence in the asylum adjudication process and the responsibility of the country of origin in preventing and protecting against the worsening impact of climate change. Finally, it stimulates the debate on the national interpretation of the key component of serious harm as established by EU law. These elements will be analyzed in greater detail here below.

3.1. The Tribunal’s evolutive interpretation of human rights law in the context of disaster displacement

Until some time ago, Italian judges used to swiftly dismiss protection claims based on disasters as economic in terms. Among others, in 2021, the Italian Supreme Court was called to deal with a protection claim lodged by a Bangladeshi citizen seeking protection due to a condition of destitution caused by recurrent floods that had destroyed his home. The Court swiftly dismissed the case and found that the claimant’s predicament “only deal with severe economic hardship, common to local people, not justifying the recognition of the protection invoked”. [9] In other words, the judges thought the claimant fled because of economic reasons making it unnecessary to ascertain whether the claimant could be an “environmental refugee”. [10] Here, the judges failed in investigating the link between destitution and disasters as a source of vulnerability, and used the label of “economic migrant” as a shield not to proceed with a thorough assessment of the claim. Conversely, destitution owing to disasters and related displacement are now progressively read through human rights lenses. [11] In the present case, disaster displacement is interpreted as a phenomenon that can lead to a violation of key socio-economic and civil rights and impinge the right to life with dignity. This perspective allows judges to evaluate disaster displacement from the lenses of protection, being it international protection or in its complementary forms. [12] In addition, several Courts and Tribunals in Italy have started to look at disasters not as mere “natural” events beyond human control, but rather as the product of State’s inefficient prevention and protection measures and social vulnerability, which disproportionately expose the most vulnerable groups in society to disasters. In the case at hand, the Tribunal proceeds on this path and explores the multifaceted impacts of climate change and disasters on the claimant’s life and human rights.

3.2. The Use of Scientific Climate Evidence in Legal Asylum Proceedings

Another relevant and increasing trend, which is tangible not only in Italy but in several domestic and supranational jurisdictions, is the use of scientific evidence to evaluate the impact of climate change in terms of human rights violations as well as to assess the State’s responsibility in the field of climate prevention and mitigation. This is the case of climate litigation as well as of human rights compliance and asylum adjudication, among others. [13] In the landmark case Teitiota v. New Zealand, the UN Human Rights Committee, the monitoring body of the International Covenant of Civil and Political Rights (ICCPR), used authoritative climate evidence and experts’ views to evaluate the climate and environmental conditions of the small Pacific island of Kiribati, the projected impact of climate change on its territory and sovereignty as well as the availability of food, water and land to assess if and how climate change could have threatened the right to life with dignity of Mr. Teitiota and whether New Zealand had violated its non-refoulement obligations by deporting him back to Kiribati. [14] Among other relevant cases, New Zealand’s Courts are also using scientific climate evidence in the refugee status determination process. [15] More and more Courts engage with climate data substantiating the country’s vulnerability to climate change, the number of disasters occurred in the country and the consequent economic losses, and the socio-economic impact of climate change on the population. Frequently, Courts cite international sources measuring the impact of climate change on society and on displacement – such as the reports prepared by the Intergovernmental Panel on Climate Change (IPCC), the World Bank, the International Organization for Migration (IOM), and the Internal Displacement Monitoring Centre (IDMC) – as well as NGOs’ policy briefs on humanitarian conditions in the aftermath of a disaster. In addition, the judiciary increasingly supports its findings with Country of Origin Information corroborating the occurrence and magnitude of a disaster as well as with journal articles. These sources provide judges with a bigger picture, which not only refers to the impact of climate change on the claimant in terms of human rights violations, but also takes into account the context in which the person lives, the climate and environmental conditions of the country of origin, the types of disasters [...]

3.3. The State as an Actor of Serious Harm in the Context of Disaster Displacement

According to Article 15 of the Qualification Directive, subsidiary protection applies where there is a real risk, if returned back to their country of origin, of facing serious harm, which can materialize as a) death penalty or execution; b) torture or inhuman or degrading treatment or punishment in the country of origin; or c) serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict. According to the author, the Tribunal of Milan in the present case advanced a shaky interpretation of “inhuman and degrading treatment” pursuant to Article 15(b). Indeed, it considered that recurrent floods induced by climate change have caused human rights violations upon the claimant of such severity to reach the threshold of Article 3 ECHR. Accordingly, the State’s incapacity and unpreparedness to deal with disasters in addition to instances of corruption and discrimination in aid distribution concurred in demonstrating the existence of serious harm pursuant to Article 15(b) of the Qualification Directive. This reasoning raises some relevant concerns with reference to the equivalence between Article 3 ECHR and Article 15(b) of the Qualification Directive for the purposes of subsidiary protection and the specific requirement of intentionality.

3.3.1. The Equivalence of Article 3 ECHR and Article 15(b) of the Qualification Directive

The begin with, it is relevant to note that the decree is based on a copious analysis of the jurisprudence of the ECtHR on Article 3 ECHR, while reference to the CJEU case law on Article 15(b) is widely missing. In other words, the Tribunal assesses whether the claimant’s predicament can substantiate the need for subsidiary protection on the basis of Article 3 ECHR and not of Article 15(b) of the Qualification Directive. This is problematic. Indeed, it has been long established that Article 15(b) of the Qualification Directive corresponds in essence to Article 3 ECHR. [16] Thus, the case-law of the ECtHR regarding the interpretation of the terms “inhuman or degrading treatment” under the ECHR should inform the interpretation to be given to those terms under the Qualification Directive. Yet, the Qualification Directive and the jurisprudence of the CJEU have restricted the scope of application of Article 15(b) in opposition to Article 3 ECHR. [17] Indeed, the Qualification Directive requires additional elements for an inhuman or degrading treatment to qualify as serious harm. As a matter of fact, Recital 35 of the Qualification Directive maintains that the risks to which a group or a population is generally exposed to cannot normally create in themselves an individual threat which would qualify as serious harm. Rather, pursuant to Article 6 of the Qualification Directive, serious harm must be inflicted by an actor of harm, such as the State, parties or organizations controlling the State or a substantial part of the State territory, or non-State actors. In the famous case Mohamed M’Bodj v État belge, the CJEU supports this view and specifies that serious harm is such only if it takes the form of conduct involving human agency, and it is not the mere result of general shortcomings of the country of origin (and specifically of the health system in the case of M’Bodj). [18] In addition, torture or inhuman or degrading treatment or punishment need to be inflicted deliberately for that to qualify as serious harm. [19] In the case of M’Bodj, concerning an asylum-seeker suffering from a serious illness whose return in his country of origin would have endangered his right to life due to the lack of appropriate medical treatment, the CJEU stated that such situation does not fall within the scope of serious harm as defined in Article 15 of the Qualification Directive unless he is intentionally deprived [...]

4. Conclusions

The decree no. 8753/2020 issued by the Tribunal of Milan offers interesting insights into the interpretation of EU asylum law, in particular Article 15(b) of the Qualification Directive, and of disaster displacement. Positive and shaky interpretative elements may be detected in this judgement. On the one hand, the Tribunal adopts an evolutive conceptualization of disasters and related displacement, which is linked to social vulnerability and the responsibility of the State, while interpreting disaster displacement from a human rights law perspective. Hence, the applicant’s condition of extreme poverty induced by floods is not reduced to mere economic difficulties, but it’s framed in terms of severe socio-economic and civil human rights violations leading to potentially degrading existential conditions. In addition, the Tribunal makes exhaustive use of authoritative scientific evidence on climate change and its impacts on vulnerable groups to better understand the risk the claimant would face in case of return and the responsibility of the country of origin to prevent and protect against disasters. On the other hand, the Tribunal overlooks the different scopes of application of inhuman and degrading treatment under Article 15(b) of the Qualification Directive in comparison to Article 3 ECHR and the higher requirements that subsidiary protection mandates for it to be applied (as questionable as they may be). [34] The Tribunal indeed disregards the requirement for the ill-treatment to be intentionally inflicted by the actor of harm as established by EU law and grounds its legal reasoning mainly on the jurisprudence of the ECtHR, which provides for broader protection. Reference to the CJEU’s rulings on subsidiary protection is severely lacking, thus undermining the importance of the intentionality requirement as set in M’Bodj and MP. In so doing, the decision at stake does not fully align with the requirements set out in EU law and does not comply with the jurisprudence of the CJEU on subsidiary protection. Although the judicial recognition that claims based on disaster displacement can be eligible for international protection is a laudable and welcome achievement, national judgements need to be in full compliance with what EU asylum law requires so to trace a principled and pursuable judicial path.

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