no sympathy from the ECJ

Professor Steve Peers,
University of Essex

If an EU citizen (or his or her
family member) has been excluded from being a refugee, in what circumstances
can he or she be expelled from a Member State? The ECJ clarified this issue in
its K
and HF
judgment last week: its first ruling that touches on the relationship
between EU (and international) refugee law and EU free movement law.

There’s a good reason why these
two areas of law haven’t interacted previously in the Court’s case law: EU law
itself tries to keep them apart. A Protocol
attached to the EU Treaties, aiming to facilitate the extradition of alleged
terrorists between Member States, says that in principle EU citizens cannot
apply for asylum in another Member State, due to the presumption in that Protocol
that each Member State ensures sufficient human rights protection.

However, there are exceptions to that
general rule, and there are people it doesn’t cover. The exceptions in the Protocol
are: a) the asylum seeker’s Member State of nationality invokes the “emergency”
derogation from parts of the European Convention of Human Rights (ECHR); b) if
the EU Council is considering whether to sanction the asylum seeker’s Member State
of nationality for breaches of EU values; c) if the EU has already sanctioned the
asylum seeker’s Member State of nationality for breaches of EU values; or d) if
a Member State decides to do so unilaterally for another Member State’s
national, in which case it must inform the EU Council and presume that the
application is manifestly unfounded, without prejudice to the final decision on
the application.

The people not covered by the Protocol
include: EU citizens who obtained refugee status before they became EU citizens
(for instance, because their State of nationality joined the EU); non-EU family
members of EU citizens; those who apply for or obtain subsidiary protection
status, as distinct from refugee status; and the citizens of some non-EU countries
associated with the EU (Norway, Iceland, Switzerland and Liechtenstein), who have
free movement rights but are not EU citizens. The recent ECJ ruling concerned
people from the first two of these categories.

Exclusion from being a refugee

Some asylum seekers fail to
satisfy the authorities that they meet the definition of “refugee” set out in
the UN (Geneva) Refugee Convention.
Quite apart from that, some asylum seekers are excluded from being a refugee
under that Convention (and under the corresponding provisions of the EU’s qualification
), because their behaviour is considered so reprehensible that
they do not deserve fully-fledged international protection, even if they are
facing persecution on one of the grounds set out in the Convention. More
precisely, Article 1.F of the Convention excludes:

any person
with respect to whom there are serious reasons for considering that:

(a) he has
committed a crime against peace, a war crime, or a crime against humanity, as
defined in the international instruments drawn up to make provision in respect
of such crimes;

(b) he has
committed a serious non-political crime outside the country of refuge prior to
his admission to that country as a refugee;

(c) he has
been guilty of acts contrary to the purposes and principles of the United

The ECJ has interpreted the
exclusion clause in the EU qualification Directive in its judgments in B and
and Lounani (discussed here),
ruling inter alia that the second and
third exclusion clauses can apply to terrorist offences, although exclusion
must be assessed in each individual case, meaning that membership of a group
listed as “terrorist” in EU foreign policy sanctions
against terrorists does not automatically trigger the exclusion clause. Similarly,
participating in a terrorist group, as defined by EU criminal
 on terrorism, does not automatically trigger the exclusion clause
either. Instead, there must be direct involvement by the person concerned in
such offences, as further explained by the Court. Furthermore, there is no
additional “proportionality” or “present danger” test for exclusion, and the
exclusion clause is mandatory: ie Member States cannot assert a right to apply
higher standards and give someone refugee status if they fall within the
exclusion criteria. Finally, assisting with recruitment, organisation or
transport of “foreign fighters” can also lead to exclusion, as it constitutes a
form of “participation” in the terrorist acts covered by the exclusion clause.

However, it should be noted that
even if a person is excluded from being a refugee, they are still protected
against being removed to a country where they would face a real risk of torture
or other inhuman or degrading treatment, according to the case law on Article 3
ECHR and the corresponding Article 4 of the EU Charter of Fundamental Rights.
The ECJ reaffirmed as much recently in its judgment in MP (discussed here).
But this non-removal obligation falls short of refugee status (which usually
follows from recognition as a refugee) because it does not entail a
fully-fledged immigration status including rights like access to employment and

Expelling EU citizens and their family members

The grounds for restricting free movement
rights for reasons of “public policy or public security” are set out in the EU
citizens’ Directive
. The basic rule is that restrictions “shall comply with
the principle of proportionality and shall be based exclusively on the personal
conduct of the individual concerned. Previous criminal convictions shall not in
themselves constitute grounds for taking such measures.” Furthermore, “[t]he
personal conduct of the individual concerned must represent a genuine, present
and sufficiently serious threat affecting one of the fundamental interests of

Before expelling a person covered
by the Directive on such grounds, Member States are obliged to “take account of
considerations such as how long the individual concerned has resided on its
territory, his/her age, state of health, family and economic situation, social
and cultural integration into the host Member State and the extent of his/her
links with the country of origin.” For those with permanent residence, there is
a higher threshold to justify expulsion: “serious grounds of public policy or
public security”. And for those who have resided in that Member State for the
previous ten years, or who are minors, the threshold for expulsion is higher
still: “imperative grounds of public security”.

The judgment

The Court’s judgment brought
together two separate cases. In the first case, K, a dual citizen of Croatia
and Bosnia-Herzegovina, had arrived in the Netherlands and applied for asylum
in 2001 and 2011. Both applications were rejected. Subsequently, after Croatia
joined the EU in 2013, the applicant was declared (in light of his EU
citizenship) to be an “undesirable immigrant”, in light of the prior finding
that he knew about and participated in war crimes and crimes against humanity
in the Bosnian army. Since over twenty years had passed since that time, the
issue was whether such conduct was a “genuine, present and sufficiently serious
threat affecting one of the fundamental interests of society” within the
meaning of the EU citizens’ Directive, taking account of the other factors
referred to in the Directive.

In the second case, HF, an Afghan
citizen excluded from being a refugee in the Netherlands, applied for a
residence card in Belgium as the family member of an EU citizen (his Dutch
daughter). His application was refused on the basis that the information about
his exclusion, which the Dutch authorities had shared with their Belgian
counterparts, showed that he could be denied free movement rights.

The Court first examined whether
exclusion from being a refugee necessarily met the standard for restriction of
free movement rights. It recalled its prior case law, holding that “public
security” could include both internal security (including “a direct threat to
the peace of mind and physical security of the population of the Member State
concerned”) and external security (including “the risk of a serious disturbance
to the foreign relations of that Member State or to the peaceful coexistence of
nations”). Applying these principles to the facts, the Court accepted that Member
States could consider that damage to international relations, the risk of
contacting EU citizens who had been victims of war crimes could be considered
threats to public policy and public security. Restricting those persons’ free movement
rights could also contribute to ensuring “protection of the fundamental values
of society in a Member State and of the international legal order and to
maintaining social cohesion, public confidence in the justice and immigration
systems of the Member States and the credibility of their commitment to protect
the fundamental values enshrined in Articles 2 and 3 TEU”.  The Court
added that the acts and crimes which led to exclusion from being a refugee “seriously
undermine both fundamental values such as respect for human dignity and human
rights, on which, as stated in Article 2 TEU, the European Union is
founded, and the peace which it is the Union’s aim to promote, under
Article 3 TEU”.

Nevertheless, the Court ruled
that exclusion from being a refugee should not always lead to restriction on
free movement rights. There must still be a “case-by-case assessment” which
shows that “the personal conduct of the individual concerned currently constitutes
a genuine and sufficiently serious threat to a fundamental interest of society”. This assessment must “take into account the findings of fact
made in the decision of exclusion from refugee status taken with respect to the
individual concerned and the factors on which that decision was based, in
particular the nature and gravity of the crimes or acts that that individual is
alleged to have committed, the degree of his individual involvement in them and
the possible existence of grounds for excluding criminal liability such as
duress or self-defence.” Furthermore, that examination “is all the more
necessary” if, such as in these cases, “the person concerned has not been
convicted of the crimes or acts that were relied on to justify the rejection,
in the past, of his asylum application”.

The Court showed willingness to
relax its usual insistence of looking closely at the EU citizen’s present
threat, noting that in some cases “it is also possible that past conduct alone
may constitute such a threat to the requirements of public policy”. In the case
of war crimes, although “the time that has elapsed since
the assumed commission of those acts is, indeed, a relevant factor….the
possible exceptional gravity of the acts in question may be such as to require,
even after a relatively long period of time, that the genuine, present and
sufficiently serious threat affecting one of the fundamental interests of
society be classified as persistent”. Equally, the Court de-emphasised the
requirement that the person concerned was likely to reoffend, ruling that:

improbable it may appear that such crimes or acts may recur outside their
specific historical and social context, conduct of the individual concerned
that shows the persistence in him of a disposition hostile to the fundamental values
enshrined in Articles 2 and 3 TEU, such as human dignity and human rights,
as revealed by those crimes or those acts, is, for its part, capable of
constituting a genuine, present and sufficiently serious threat affecting one
of the fundamental interests of society…

Yet the person’s rights
to private and family life and the principle of proportionality still had
to be weighed against such threats.

Next, the Court
reiterated that an expulsion decision has to consider with
due regard to the principle of proportionality…inter alia, the nature and
gravity of the alleged conduct of the individual concerned, the duration and,
when appropriate, the legality of his residence in the host Member State, the
period of time that has elapsed since that conduct, the individual’s behaviour
during that period, the extent to which he currently poses a danger to society,
and the solidity of social, cultural and family links with the host Member
Yet the lengthy period of time spent on the territory in the Dutch case
was not enough to qualify for the especially high level of protection against expulsion for EU citizens resident for ten years (“imperative
grounds of public security”). For as the Court had recently ruled in B
and Vomero
, such special status was only attainable if the person
concerned had already qualified for permanent residence (based on five years’
legal residence); and residence on national
grounds other than those set out in the citizens’ Directive or its
predecessor laws did not count to that end (see Ziolkowski).
It appeared that K could not show residence on an EU law basis, but only a
national law basis, and therefore was not going to qualify for any extra degree of protection against expulsion.


The Court’s judgment is focussed
on those excluded from refugee status on the basis of Article 1.F of the Refugee
Convention. The wording of the ruling does not confine itself to the “war
criminal” ground of exclusion, and so it applies to persons excluded from being
a refugee on any of the Article 1.F grounds. It should logically be relevant if
any EU law issues are raised about handing over any person to the International
Criminal Court, or any ad hoc UN criminal tribunal, for prosecution for war
crimes et al. But does it have any broader application?

First of all, it definitely
applies to those who might apply for refugee status on what might be called the
“Palestinian track” set out in Article 1.D of the Convention, since the general
rules on exclusion also apply to such cases: see the ECJ’s El
judgment (para 76).

Secondly, it is questionable
whether it applies to all cases of exclusion from subsidiary protection status, given that such exclusion is also
possible for less serious behaviour
than as regards refugee recognition. In particular, the qualification Directive
allows for exclusion from subsidiary protection status on grounds of a “serious
crime”, or in fact any crime which
would be punishable by imprisonment in the Member State concerned.

Thirdly, it may be arguable whether
the judgment is relevant by analogy to revoking
refugee status due to criminal behaviour or a security risk (relevant in
pending ECJ cases, discussed here), or to refusing
a residence permit or travel document on national security or public order grounds,
where the ECJ has ruled that a lower threshold applies (see the ruling in HT, discussed here).

Next, the judgment might be
relevant to cases where a Member State seeks to revoke its nationality (and
therefore EU citizenship) from a person, for instance due to their activities
as a “foreign fighter”. (On the reviewability of such decisions as a matter of
EU law, see Rottmann
and the pending case of Tjebbes).

Could the judgment even be
relevant by analogy to “ordinary” EU citizens, where there is no link to refugee
law issues? At first sight no, because the Court’s focus is on the Refugee
Convention’s exclusion clause. However, its willingness to consider that
especially vile prior behaviour can outweigh an assessment of present threat
and likely future conduct could arguably be relevant where an EU citizen has
been convicted of crimes such as child abuse, rape, murder, or terrorism.

The judgment continues the Court’s
established trend of disdain for criminality by EU citizens or their family
members. In this case, its concern for crime victims is particularly striking;
but here it strikes a discordant note in referring only to the victims of war
criminals who are EU criminals living in EU Member States. For this overlooks
the likely existence also of non-EU
victims, both those who sought protection in a Member State and those in the
war criminal’s state of origin, if he or she is referred there. Or rather, the surviving victims: the returning war
criminals will likely cast a long shadow over the graves of those whom they

Barnard & Peers: chapter 26

JHA4: chapter I:5

Photo credit: Human Rights Watch

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