When can someone be refused asylum for terrorism?

Professor Steve Peers

What happens when a person seeking refuge is suspected of terrorism or aiding terrorists? Can they still be considered a refugee? If not, how do we legally define “terrorism” to justify denying their claim? The recent EU Court of Justice judgment in the Lounani case clarifies some aspects of this complex issue but leaves some challenging questions unanswered.

Legal Framework

The UN Refugee Convention (Geneva Convention) outlines an ’exclusion’ clause in Article 1.F, which states that the convention doesn’t apply to individuals suspected of:

• Crimes against peace, war crimes, or crimes against humanity as defined by international law.
• Serious non-political crimes committed outside the country of refuge before seeking asylum.
• Acts contradicting the UN’s purposes and principles.

While all EU Member States have signed the UN rules, the EU’s Qualification Directive incorporates them with some variations. This directive applies to all but Denmark. Article 12(3) clarifies that a person cannot be a refugee if there are strong reasons to believe they:

• Committed crimes against peace, war crimes, or crimes against humanity as defined by international instruments.
• Committed a serious non-political crime outside their refuge country before receiving refugee status. This includes cruel acts, even those with an alleged political objective.
• Were involved in acts contradicting the UN’s purposes and principles outlined in the Preamble and Articles 1 and 2 of the UN Charter.

The EU rules further clarify the timing and nature of ‘serious non-political crimes,’ define acts against UN principles, and apply exclusion to those who incite or participate in any of the three categories leading to exclusion.

Despite these clarifications, interpretations remain complex. The EU Court, in its B and D judgment, stated that the second and third exclusion clauses could apply to terrorist offenses. However, each case is unique. Membership in a terrorist group listed under EU sanctions doesn’t automatically trigger exclusion but is a factor to consider. Similarly, involvement in a terrorist group, as defined by EU criminal law, requires direct involvement in offenses to trigger exclusion. There are no additional “proportionality” or “present danger” tests, and the exclusion clause is mandatory, meaning Member States cannot grant refugee status if the criteria are met.

The Judgment

The recent Lounani case involved an individual convicted of belonging to a terrorist group but not of committing terrorist acts. The EU court determined this conviction was sufficient for exclusion. Firstly, the EU Directive’s preamble references UN Resolutions on financing, planning, and inciting terrorism, indicating the third exclusion clause extends beyond just terrorist acts. Secondly, the EU legislature didn’t intend to align the asylum law exclusion clause with the narrower definition of terrorism in current EU criminal law.

Furthermore, citing a UN Security Council Resolution, the court stated that supporting the recruitment, organization, or transport of ‘foreign fighters’ could also lead to exclusion. The fact that the group was listed as terrorist by the UN and the individual’s conviction in Belgium were deemed relevant.

Comments

The court’s judgment broadens the exclusion clause, meaning even some support for ‘foreign fighters’ can lead to asylum refusal. This addresses concerns that refugees might include terrorists. Simply put, anyone directly involved in terrorist acts (B and D) or facilitating ‘foreign fighters’ (current judgment) is ineligible for refugee status. This aligns with recent developments in criminal law, such as the 2015 Protocol to the Council of Europe Convention on terrorism prevention and the EU’s revised anti-terrorism laws.

However, the judgment leaves open questions. What happens if an asylum-seeker has not been convicted but is suspected of terrorism? Would the lack of conviction be relevant if considered for exclusion? Would this change if acquitted, or if a trial is pending? Should the asylum process be halted during pending criminal proceedings? What if authorities possess intelligence information but hesitate to prosecute to protect their sources?

What if a terrorism conviction comes from another country, especially the asylum-seeker’s origin, where criticizing the government might be labeled ’terrorism’? What about ‘provocation’ to terrorism, which might include ‘glorifying’ terrorist acts as per revised EU criminal law? This raises the question of to what extent freedom of expression, not directly linked to violence, justifies refusing refugee status. Recent events demonstrate that terrorist acts and their surrounding hatred are not limited to Islamist extremists but can stem from those who intensely despise minority groups.

Barnard & Peers: chapter 25, chapter 26

JHA4: chapter I:5, chapter II:5

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