This piece argues that EU asylum law remains ill-equipped to address cross-border climate displacement, leaving significant protection gaps.  To clarify how and why these gaps persist, the piece proceeds in four steps. First, it contextualises the EU’s fragmented response to climate-related mobility and the absence of a coherent protection strategy. Second, it examines the limits of the refugee definition, particularly the “nexus requirement”, and explores whether climate-affected communities could qualify as a “particular social group.” Third, it assesses the relevance and limits of subsidiary protection, highlighting recent national case law that pushes the boundaries of EU law. Finally, it shows how EU principles could support a more robust protection framework, and argues for an evolution of EU asylum law that recognises harm arising from vulnerabilities, climate change and disasters.

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Climate displacement refers to the forced movement of people due to environmental factors linked to climate change. Some are displaced internally by sudden-onset disasters, such as floods and hurricanes, while others are displaced by slow-onset processes, including sea-level rise, drought, and desertification. Cross-border displacement occurs when those same forces push people to seek safety beyond national borders. Migration can serve as a form of adaptation, yet legal and socio-economic barriers often prevent it from doing so.

Despite rising awareness, cross-border climate displacement remains largely unaddressed in EU and international asylum law, leaving millions exposed to protection gaps. The Platform on Disaster Displacement has raised the issue internationally since 2016, but the EU’s own legal framework under Articles 67(2) and 78-79-80 TFEU, in conjunction with Article 18 of the EU Charter of Fundamental Rights, the Common European Asylum System (CEAS), does not address this explicitly.

In May 2023, the Tribunal of Florence (Decreto del 3 maggio 2023, X c Ministero dell’Interno, N. R.G. 2019/16935) delivered a key judgment. It granted refugee status to a man from Bangladesh who had been trafficked to Italy after devastating floods destroyed his livelihood. Recognising him as a victim of human trafficking, the Tribunal classified the applicant as a member of a “particular social group”, a ground for persecution under Articles 10  of the Qualification Directive 2011/95/EU (QD) and the Qualification Regulation 2024/1347/EU (QR) under the New Pact for Migration and Asylum.

In doing so, the Tribunal made an important observation: climate change had amplified his vulnerability to exploitation. Yet this recognition also revealed a deeper paradox embedded in European asylum law and, more fundamentally, in the  Convention of 28 July 1951 relating to the status of refugees (Refugee Convention) itself, that has been transposed in the  QD and QR. Climate change can uproot lives and create conditions that make survival impossible. However, the Convention’s refugee definition still hinges on identifying an actor of persecution and establishing a link to one of the five Convention grounds in Article 1(A)(2) (“nexus requirement”). Climate disasters such as floods or droughts, however life-threatening, do not qualify as persecution, and neither, in most cases, does the State that fails to prevent them.

The EU’s fragmented response

While the EU recognises climate change as a driver of migration, it has yet to translate that insight into a coherent protection strategy. The European Green Deal, the EU Climate Adaptation Strategy, and the European Climate Law 2021/1119/EU all acknowledge environmental risks, yet none provide a legal pathway for those displaced across borders.

Instead, EU action has largely remained external focusssed on humanitarian aid, development cooperation, and disaster-risk reduction through instruments like the EU Civil Protection Mechanism and support for an upcoming Global Treaty on Disaster Displacement expected by 2027. While these initiatives are vital, they reflect a broader pattern: the EU helps people adapt in situ, but is not prepared to receive those forced to move.

The European Climate Risk Assessment recently identified 36 major climate risks threatening Europe’s own security, health, and infrastructure. These events remind us that climate displacement is not a distant or purely “Southern” issue. Yet the EU’s legal and institutional landscape remains fragmented, divided between migration control, humanitarian response, and development policy.

The forthcoming New Pact on Migration and Asylum, due to be implemented by 2026, reinforces this fragmentation. Its security-oriented approach frames climate-related mobility mainly as a risk to be managed rather than a reality to be addressed through protection.

The limits of the refugee definition

Under  Article  2(d) QD or Article 3(5) QR, refugee status is available only to third-country nationals who face a “well-founded fear of being persecuted” for reasons of race, religion, nationality, political opinion, or membership of a particular social group. This “nexus requirement” reflects the logic of the Refugee Convention, which is designed to respond to politically motivated oppression, rather than environmental collapse.

The European Court of Justice (ECJ) has, in recent years, interpreted “acts of persecution” in a broad manner under Article 9 QD. In Femmes Afghanes (C-608/22 and C-609/22), the Court confirmed that persecution encompasses serious or systemic violations of fundamental rights (para. 40; see also C‑238/19), particularly non-derogable rights under Article 15(2) of the European Convention on Human Rights (ECHR), such as the right to life and freedom from torture or slavery (C‑71/11 and C‑99/11). But Advocate General de la Tour also warned that refugee protection is reserved for violations so severe that they render life in the country of origin intolerable (para. 51).

Could climate-affected communities form a “particular social group”?

One possible pathway for recognition lies in being a part of a particular social group. In Staatssecretaris van Justitie en Veiligheid (C-646/21), the ECJ held that Iraqi women who had adopted a Western lifestyle in Europe constituted such a group, because they shared immutable characteristics and were perceived as different by their society. The Court held that women, including minors, who adopt the value of gender equality during their stay in the EU under Article 2 TEU may qualify as such a group, reflecting the Union’s core values of dignity, freedom, tolerance, and equality (para. 64: see also Article 10(1)(d) and (2) QD).

Applying this reasoning, climate-affected communities might also qualify. Farmers from drought-stricken regions, small-island inhabitants facing sea-level rise, or former disaster victims could share common immutable experiences that shape their identity and expose them to stigma or exclusion. The UNHCR has similarly argued that people displaced by climate-exacerbated disasters may form social groups when discrimination interacts with environmental vulnerability.

State protection and persecution

The ECJ’s interpretation of persecution still hinges on human agency. In W.S. (C-621/21), concerning gender-based violence, the Court ruled that for the recognition of refugee status under Articles 9 (3), 6 (c) and 7 (1) QD, there must be a link either (i) between the reasons for persecution under Articles 10 (1) QD  and the acts of persecution under Article 9 QD or (ii) between the reasons for persecution and the absence of protection by the relevant actors (para. 66). This is particularly relevant for climate-displaced individuals, whose situation may fall under different grounds depending on the case.

The ECJ held that where persecution is attributed to non-State actors under Article 6(c) QD, it must be demonstrated that the actors of protection referred to in Article 7 QD, primarily States, are unable or unwilling to provide protection (para. 64).

In disaster contexts, persecution often emerges from human inaction, from structural inequality, corruption, or the deliberate neglect of marginalised groups. A government that leaves minority communities in flood-prone areas effectively condemns them to harm. Yet under EU law, that failure remains conceptually distinct from persecution unless it is proven to be discriminatory or deliberate.

Because incapacity is not the same as unwillingness, applicants from such countries often fall through the cracks: their governments are unable to protect, but not unwilling in the Convention sense. Their citizens, in turn, are left without a legal category that captures their displacement. The persecution framework fails to address harm born of systemic vulnerability and inequality.

Subsidiary protection: A narrow fallback

Where refugee status fails, applicants may seek subsidiary protection under Articles 15 QD and QR. This covers those facing a real risk of serious harm, such as torture, the death penalty, or inhuman or degrading treatment, if returned to their home country.

Climate-displaced individuals could be granted subsidiary protection if climate impacts (e.g., resource scarcity or environmental disasters) result in serious harm or contribute to persecution or violence, particularly when state actors fail to protect vulnerable groups.

The ECJ has clarified that there are three types of “serious harm” defined in Article 15 QD. These types of harm are essential for qualifying for subsidiary protection. According to Article 2(f) QD, substantial grounds must be demonstrated to believe that the applicant faces “a real risk of [such] harm” if they are returned to their country of origin (Elgafaji (C-465/07), para. 31)

It is important to clarify that the terms “death penalty,” “execution,” and “torture or inhuman or degrading treatment or punishment of an applicant in their country of origin”, mentioned in Article 15(a) and (b) QD, refer to specific situations where an applicant for subsidiary protection faces a particular type of harm. In contrast, the harm described in Article 15(c) QD, which refers to a “serious and individual threat to [the applicant’s] life or person”, encompasses a more general risk of harm (Elgafaji (C-465/07), paras. 32-33).

In theory, it could protect people exposed to life-threatening environmental conditions. In practice, its scope has been narrowed by the ECJ (see also: Mohamed M’Bodj v État belge (C-542/13))

The Tribunal of Milan’s 2024 decision (Decreto del 13 marzo 2024 con R.G. n. 8753/2020) offers a national counter-example, echoing the Tribunal of Florence’s 2023 decision mentioned above, but reaching a different outcome. Whereas the Florence tribunal granted refugee status, the Milan tribunal instead recognised subsidiary protection to a Bangladeshi man who had been repeatedly displaced by flooding. It found that the State’s failure to prevent foreseeable disasters or provide adequate recovery measures amounted to inhuman and degrading treatment under Article 3 ECHR. This reasoning, drawing on Sufi & Elmi v UK and M.S.S. v Belgium and Greece before the ECtHR, demonstrates how EU law could evolve by analogy. Yet such cases remain exceptional, dependent on the creativity of national judges rather than a coherent EU framework.

From non-refoulement to solidarity: The EU’s responsibility to protect

In the context of international protection, the principle of non-refoulement is a crucial safeguard. It prohibits returning anyone to a place where they face a real risk of serious harm, as established in Article 19(2) of the Charter and reinforced in cases like Teitiota v New Zealand and Jawo (C-163/17). Non-refoulement is an absolute principle in international human rights law, linking refugee law and human rights obligations. To be effective, asylum authorities must conduct climate risk assessments that consider environmental science and human rights, particularly those in Article 15(2) ECHR.

While Article 80 TFEU is primarily concerned with solidarity and fair responsibility-sharing among Member States, it also reflects the broader value that underpins EU action in the field of asylum and migration. Interpreted systemically alongside Articles 2 TEU  and 18–19 of the Charter, solidarity can complement non-refoulement. Where the latter imposes a duty not to return individuals to harm, the former calls for collective engagement to protect them.

Conclusion: From climate threat to legal responsibility

Climate displacement highlights a gap between the EU’s commitments and its asylum framework. Existing international protection frameworks could address this issue, rooted in human dignity and the principle of non-refoulement found in Articles 2 TEU  and 18–19 of the Charter. Additionally, Article 80 TFEU‘s principle of solidarity could be used to extend protection to asylum seekers. As climate change increasingly merges natural and human-made crises, the EU must adapt its protection regime to recognise that persecution can arise from governance failure, systemic neglect, and environmental vulnerability, not just from violence.

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Posted by Adeodata Kanyamihanda(PhD fellow of the Research Foundation Flanders (FWO) – 1128826N)