Professor Steve Peers, University of Essex

The European Court of Justice (ECJ) recently clarified the circumstances under which an EU citizen or their family member can be expelled from a Member State after being denied refugee status. This landmark judgment sheds light on the intersection of EU (and international) refugee law and EU free movement law, a relationship previously unaddressed in the Court’s case law.

This lack of legal precedent stems from EU law’s attempt to separate these two areas. A Protocol to the EU Treaties, designed to streamline the extradition of suspected terrorists between Member States, generally prevents EU citizens from seeking asylum in another Member State. This is based on the presumption that each Member State provides adequate human rights protections.

However, exceptions to this rule exist, and certain individuals fall outside its scope. The Protocol outlines exceptions such as: when an asylum seeker’s home Member State uses the “emergency” derogation from specific parts of the European Convention of Human Rights (ECHR); when the EU Council is deliberating sanctions against the asylum seeker’s home Member State for violating EU values; when such sanctions have already been imposed by the EU; or when a Member State independently decides to offer asylum to another Member State’s national, requiring notification of the EU Council and a presumption of an unfounded application, without impacting the final decision.

Individuals not covered by the Protocol include: EU citizens granted refugee status before becoming EU citizens (e.g., their country joined the EU later); non-EU family members of EU citizens; those seeking or granted subsidiary protection status, distinct from refugee status; and citizens of non-EU countries affiliated with the EU (Norway, Iceland, Switzerland, and Liechtenstein) who have free movement rights but are not EU citizens. The recent ECJ ruling addressed individuals from the first two categories.

Denial of Refugee Status

Some asylum seekers are unable to demonstrate that they meet the “refugee” definition outlined in the UN (Geneva) Refugee Convention. Additionally, certain asylum seekers are disqualified from refugee status under the Convention (and related provisions in the EU’s qualification Directive). This occurs when their actions are deemed so egregious that they are ineligible for full international protection, even when facing persecution on grounds specified in the Convention. Specifically, Article 1.F of the Convention excludes:

any person if there are substantial grounds to believe that:

(a) they have committed a crime against peace, a war crime, or a crime against humanity, as defined in relevant international instruments;

(b) they have committed a serious non-political crime outside the country of refuge before being admitted as a refugee;

(c) they have engaged in acts contrary to the United Nations’ purposes and principles.

The ECJ has interpreted the exclusion clause within the EU qualification Directive in its judgments. The Court has determined that the second and third exclusion clauses can apply to terrorism offenses, but exclusion must be evaluated on a case-by-case basis. Membership in a group designated as “terrorist” under EU foreign policy sanctions against terrorists does not automatically trigger the exclusion clause. Similarly, involvement in a terrorist group, as defined by EU criminal law on terrorism, does not automatically lead to exclusion. Instead, the individual must be directly involved in such offenses. The Court has further clarified that no additional “proportionality” or “present danger” test is required for exclusion, and the exclusion clause is obligatory. This means Member States cannot apply higher standards or grant refugee status to individuals who meet the exclusion criteria. Additionally, aiding in the recruitment, organization, or transportation of “foreign fighters” can also result in exclusion, as it constitutes a form of “participation” in the terrorist acts covered.

However, even when denied refugee status, individuals remain protected from being sent back to a country where they might face torture or other inhumane or degrading treatment, as per the case law on Article 3 ECHR and the corresponding Article 4 of the EU Charter of Fundamental Rights. The ECJ recently reaffirmed this stance. However, this protection against removal differs from refugee status (usually resulting from refugee recognition) because it does not guarantee full immigration status with rights like employment and benefits.

Expelling EU Citizens and Their Families

The grounds for limiting free movement rights for reasons of “public policy or public security” are outlined in the EU citizens’ Directive. The fundamental principle is that restrictions “must adhere to the principle of proportionality and be based solely on the individual’s actions. Prior criminal convictions are not in themselves sufficient grounds for taking such measures." Moreover, “the individual’s conduct must pose a genuine, present, and sufficiently serious threat affecting a fundamental interest of society."

Before expelling someone protected by the Directive on these grounds, Member States must “consider factors such as the individual’s length of residence in their territory, age, health, family and economic circumstances, social and cultural integration into the host Member State, and ties to their home country." For those with permanent residence, a higher threshold of “serious grounds of public policy or public security" applies to justify expulsion. This threshold is even higher for individuals residing in the Member State for the past decade or minors, requiring “imperative grounds of public security."

The Judgment

The Court’s judgment addressed two distinct cases. In the first case, K, a dual citizen of Croatia and Bosnia-Herzegovina, arrived in the Netherlands and sought asylum in 2001 and 2011. Both applications were denied. Following Croatia’s 2013 EU accession, K was declared an “undesirable immigrant” due to his EU citizenship, based on the previous finding that he was aware of and participated in war crimes and crimes against humanity while in the Bosnian army. Given that over two decades had passed, the central question was whether such actions constituted a “genuine, present and sufficiently serious threat affecting one of the fundamental interests of society" as defined in the EU citizens’ Directive, taking into account other factors outlined in the Directive.

In the second case, HF, an Afghan citizen denied refugee status in the Netherlands, applied for a residence card in Belgium as a family member of an EU citizen (his daughter, a Dutch citizen). His application was rejected because the information about his exclusion, shared by Dutch authorities with their Belgian counterparts, indicated he might be ineligible for free movement rights.

The Court first assessed whether exclusion from refugee status inherently met the criteria for restricting free movement rights. It referenced previous case law, stating that “public security” encompasses both internal security (including “a direct threat to the peace of mind and physical security of the population”) and external security (including “the risk of serious disruption to foreign relations or the peaceful coexistence of nations”). Applying these principles, the Court acknowledged that Member States could view damage to international relations and the risk of contact between EU citizens who were victims of war crimes as threats to public policy and public security. Restricting the free movement rights of such individuals could also help safeguard “the fundamental values of society, the international legal order, social cohesion, public trust in Member States’ justice and immigration systems, and the credibility of their commitment to protecting fundamental values enshrined in Articles 2 and 3 TEU”.  The Court emphasized that actions and crimes leading to exclusion from refugee status “severely undermine fundamental values like respect for human dignity and human rights, upon which the European Union is founded (Article 2 TEU), and the peace it aims to promote (Article 3 TEU)”.

However, the Court determined that denial of refugee status should not automatically result in limitations on free movement rights. A “case-by-case assessment” is still necessary to establish if “the individual’s conduct currently presents a genuine and sufficiently serious threat to a fundamental interest of society.” This assessment must “consider the factual findings and basis for the exclusion from refugee status decision, particularly the nature and severity of the alleged crimes or acts, the individual’s level of involvement, and any grounds for excluding criminal liability, such as duress or self-defense.” The Court stressed that such scrutiny is “even more crucial” when, as in these cases, “the individual has not been convicted of the crimes or acts used to justify the past rejection of their asylum application.”

The Court demonstrated a willingness to deviate from its usual practice of closely examining the EU citizen’s current threat. It noted that, in certain situations, “past conduct alone might constitute such a threat to the requirements of public policy.” Regarding war crimes, while “the time elapsed since the alleged acts is a relevant factor…the potential exceptional gravity of the acts in question may necessitate, even after a significant period, classifying the genuine, present, and sufficiently serious threat to fundamental societal interests as persistent.” Similarly, the Court downplayed the requirement of the individual’s likelihood to re-offend, stating that:

…regardless of how improbable it might seem for such crimes or acts to occur again outside their specific historical and social context, conduct demonstrating the persistence 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 past actions, can in itself constitute a genuine, present, and sufficiently serious threat affecting a fundamental interest of society…

Nevertheless, the individual’s rights to private and family life and the principle of proportionality must still be weighed against such threats.

The Court then reiterated that an expulsion decision must carefully consider “the principle of proportionality…including the nature and severity of the alleged conduct, the duration and, if applicable, the legality of residence in the host Member State, the time elapsed since the conduct, the individual’s behavior during that period, the current danger they pose to society, and the strength of their social, cultural, and family ties with the host Member State.”

However, the extended period spent in the Netherlands in the first case was insufficient to qualify for the heightened level of protection against expulsion granted to EU citizens residing in a Member State for ten years (“imperative grounds of public security”). This is because, as the Court recently clarified, such special status is only attainable if the individual has already qualified for permanent residence (based on five years of legal residence). Residence based on national law grounds, other than those stipulated in the citizens’ Directive or its predecessors, does not count toward this purpose. It appeared that K could not demonstrate residence based on EU law but only on national law, thus not qualifying for any additional protection against expulsion.

Analysis

The Court’s judgment centers on individuals denied refugee status based on Article 1.F of the Refugee Convention. The ruling’s language is not limited to the “war criminal” exclusion ground and therefore applies to individuals denied refugee status on any of the Article 1.F grounds. Logically, it should be relevant if EU law issues arise regarding the surrender of an individual to the International Criminal Court or a UN criminal tribunal for prosecution of war crimes or similar offenses. But does its applicability extend further?

Firstly, it undoubtedly applies to those seeking refugee status through what might be termed the “Palestinian track” as outlined in Article 1.D of the Convention, since the general rules on exclusion extend to such cases.

Secondly, it’s uncertain whether it covers all instances of exclusion from subsidiary protection status. This is because such exclusion is possible for less serious offenses compared to refugee recognition. Notably, the qualification Directive allows for exclusion from subsidiary protection status on the grounds of a “serious crime,” or even any crime punishable by imprisonment in the relevant Member State.

Thirdly, one might argue about the judgment’s relevance, by analogy, to the revocation of refugee status due to criminal behavior or security risks, or to denying a residence permit or travel document on national security or public order grounds. In the latter scenario, the ECJ has ruled that a lower threshold applies.

Furthermore, the judgment might be pertinent to cases where a Member State aims to revoke citizenship (and consequently, EU citizenship) from an individual, potentially due to their actions as a “foreign fighter.”

Could the judgment even be relevant, by analogy, to “ordinary” EU citizens without any connection to refugee law? At first glance, this seems unlikely because the Court primarily focuses on the Refugee Convention’s exclusion clause. However, its willingness to consider exceptionally egregious past behavior as potentially outweighing an assessment of present threat and probable future conduct could be applicable to cases where an EU citizen has been convicted of crimes like child abuse, rape, murder, or terrorism.

This judgment reinforces the Court’s established pattern of disapproving criminality by EU citizens or their family members. Its concern for crime victims is particularly noticeable in this case. However, it strikes a dissonant chord by only referencing the victims of war criminals who are EU criminals residing in EU Member States. This perspective overlooks the potential existence of non-EU victims, including those seeking protection within a Member State and those residing in the war criminal’s country of origin if they are returned there. More precisely, it overlooks the surviving victims, as the return of war criminals would likely cast a long shadow over the memory of their victims.

Barnard & Peers: chapter 26

JHA4: chapter I:5

Photo credit: Human Rights Watch