Case C-77/17 – Asylum; refugee status (Convention of Geneva)

By April 17, 2017No Category

Keywords: asylum; refugee status (Convention of Geneva).

Applicant: X.
Defendant: Commissioner General for Refugees and Stateless Persons.

Referring court: Council for Alien Litigation (Belgium)

Date of filing of the reference to the ECJ: February 13, 2017.
Date of decision to refer: February 8, 2017.

Deadline for Member States to submit their written observations to the ECJ: May 24, 2017.

Subject:

– Geneva Convention of July 28, 1951 relating to the Status of Refugees;

– Charter of Fundamental Rights Article 18 (right to asylum);

– Article 78.1 TFEU (asylum / subsidiary protection);

– Directive 2011/95 / EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification and status of third country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted.

Questions referred to the European Court of Justice for a preliminary ruling:

Is Article 14, paragraph 5 of Directive 2011/95 / EU compatible with Article 18 of the Charter of Fundamental Rights and Article 78, paragraph 1, Treaty on the Functioning of the European Union (TFEU)?
In this context, the following issues are raised:

A. Is Article 14, paragraph 5 of Directive 2011/95 / EU to be interpreted as meaning that a new ground is created to exclude someone from refugee status under Article 13 of that directive and therefore Article 1.A of the Geneva Convention?

B. If Question A is answered in the affirmative, is Article 14, paragraph 5 thus interpreted, compatible with Article 18 of the Charter of the Fundamental Rights and Article 78, paragraph 1, TFEU, which provides in particular that the derived Union law should be in accordance with the Geneva Convention, of which the exclusion provision in Article 1.F has been worded exclusively and which must be narrowly construed?

C. If Question A is answered in the negative, should Article 14, paragraph 5 of Directive 2011/95 / EU then be interpreted as introducing a ground for refusal of refugee status, which are not covered by the Geneva Convention, which pursuant to the Charter of Fundamental Rights and Article 78, paragraph 1, TFEU, should be respected?

D. If Question C is in the affirmative, is Article 14, paragraph 5, of said Directive compatible with Article 18 of the Charter of Fundamental Rights and Article 78, paragraph 1, TFEU – which specifies that the derived Union law must be consistent with the Geneva Convention – to the extent that the former provision introduces a ground to refuse refugee status without having examined whether there is fear of persecution, which is required by Article 1.A of the Geneva Convention?

E. Where the questions A and C are answered in the negative, how is Article 14, paragraph 5, of said Directive to be interpreted in accordance with Article 18 of the Charter and Article 78, paragraph 1, TFEU, which specifies that the derived EU law should be consistent with the Geneva Convention?

Object of the proceedings before the national court:

1. The applicant requests the court:

  • primarily, granting of refugee status;
  • alternatively, granting subsidiary protection status;
  • alternatively, the annulment of the decision of the Commissioner General for Refugees and Stateless Persons ( “the Commissioner-General”) of August 19, 2016 denying him refugee status and excluding him from subsidiary protection status.

Summary of the facts

2. The applicant claims to be of Ivorian nationality, having arrived in Belgium on July 1, 2003.

3. On March 10, 2010 he was sentenced by the Court of First Instance in Brussels to thirty months’ imprisonment for intentional assault, possession of a weapon without good reason, and possession of a prohibited weapon.

4. On 6 December 2012, the Brussels Court of Appeal, (the Court of Appeal) sentenced him to four years imprisonment for rape of a minor of more than 14 and less than 16 years old.

5. Both the court of first instance and the Court of Appeal pointed out that the offences were very serious (applicant behaved very aggressively and expressed a clear disdain for the physical integrity of others and public order as well as a lack of respect for the laws and the basic rules of society).

6. The Commissioner-General, who had to decide on an asylum application, has refused by decision of August 19, 2016 to grant him refugee status and has also excluded him from subsidiary protection status.

7. The Commissioner-General noted that the applicant was convicted in a final judgment for particularly serious offences within the meaning of Article 52/4, the second paragraph of the Law of December 15, 1980 on access to the territory, residence, establishment and removal of aliens ( “the aliens Act”) and felt that he was a danger to society.

8. For similar reasons, Commissioner-General also excluded applicant from subsidiary protection under Article 55/4, § 2, of the Aliens Act.

9. The Commissioner General also issued an opinion pursuant to Article 52/4, second paragraph, of the Aliens Act against direct or indirect return (“refoulement”) of the applicant to Ivory Coast, because of the close ties that the applicant’s father and family had with the regime the former president Gbagbo.

Applicable law

a) Geneva Convention of July 28, 1951 relating to the Status of Refugees ( “the Geneva Convention”):

  • 10. “Article 1. Definition of the term ‘refugee’
    A. For the purposes of this Convention, “refugee” means any person:
    […] (2) who […], for well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and who is unable or, owing to such fear, unwilling to avail himself to invoke the protection of that country or, who, if he has no nationality and […] being outside the country of his former habitual residence, cannot or, because of such fear, is unwilling to return.
    […] F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons to assume 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 as a refugee to this country;
    c. he has been guilty of acts contrary to the goals and principles of the United Nations.
    […]
  • Article 32. Expulsion
    1. The Contracting States shall not expel a refugee who is lawfully in their territory, save on grounds of national security or public order.
    […]
  • Article 33. Prohibition of expulsion or return (“refoulement”)
    1. No Contracting State shall, in any way, turn or return a refugee to the borders of a territory where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
    2. The benefit of this provision may not, however, be claimed by a refugee about whom there are serious grounds for regarding him as a danger to the security of the country where he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country. “

b) Union law

  • Charter of Fundamental Rights of the European Union ( ‘the Charter’):
    11. “Article 18 – Right to asylum
    The right to asylum is guaranteed with due respect for the rules of the Geneva Convention of July 28, 1951 and the Protocol of January 31, 1967 relating to the status of refugees and in accordance with
    the Treaty on the European Union and the Treaty on the Functioning of the European Union (TFEU) […]. “
  • TFEU:
    12. “Article 78, paragraph 1
    The Union shall develop a common policy on asylum, subsidiary protection and temporary protection in order to grant to any third-country national requiring international protection, appropriate status and to ensure compliance with the principle of “non-refoulement”. This policy must be in accordance with the Geneva Convention of July 28, 1951 and the Protocol of January 31, 1967 relating to the status of refugees, and other relevant treaties. “
  • Directive 2011/95 / EU of the European Parliament and of the Council of 13 December 2011 on standards for the recognition and uniform status of third country nationals or stateless persons, as beneficiaries of international protection, or for persons eligible for subsidiary protection and the content of the protection granted ( ‘Directive 2011/95 / EU “):
    13 Recital 4:
    “The Geneva Convention and the Protocol provide the cornerstone of the international legal regime for the protection of refugees.”
    14 Recital 12:
    “The main objective of this directive is both to ensure that Member States apply common criteria for the identification of persons genuinely in need of protection and to ensure that these persons in all Member States have certain minimum benefits.”
    15 Recital 16:
    “This Directive respects the fundamental rights and observes the principles recognized in particular in the Charter of Fundamental Rights of the European Union. In particular, this directive is trying to fully respect the human dignity and the right to asylum of applicants and their accompanying family and the use of the Articles 1, 7, 11, 14, 15, 16, 18, 21, 24, 34 and 35, to promote that Charter, and should therefore be applied accordingly.”
  • 16 “Article 2 – Definitions
    In this Directive, the following definitions apply:
    d) “refugee” means a third country national who is, for a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, is outside the country of his nationality and who is unable or, owing to such fear, unwilling to avail himself of the protection of that country, or a stateless person who for the same reason outside the country where former habitual residence and can not go there, or unwilling to return owing to such fear, and to whom Article 12 does not apply;
    […]
  • Article 12 – Exclusion
    […] 2. A third-country national or a stateless person is excluded from refugee status where there are serious reasons for considering that:
    a. he 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 prior to his admission as a refugee to this country outside the country of refuge, (..); particularly cruel actions, even if they are deemed to be carried out with a purportedly political objective, can be qualified as serious non-political crimes;
    c. he has been guilty of acts contrary to the purposes and principles of the United Nations as set out in the Preamble and Articles 1 and 2 of the United Nations Charter.
    3. Paragraph 2 applies to persons who incite or otherwise participate in the crimes or acts mentioned therein.
    […]
  • Article 14 – Withdrawal, termination or refusal to renew refugee status
    […] 4. Member States may extend, withdraw, terminate or refuse a refugee status granted by a governmental, administrative, judicial or quasi-judicial authority, in the event that:
    a. there are reasonable grounds for regarding him as a danger to the security of the Member State in which he is located;
    b. he poses a danger to the society of that State because he was finally convicted of a particularly serious crime.
    5. under the circumstances described in paragraph 4, Member States may decide not to grant status to a refugee, where no decision to that effect has been taken yet.
    6. Persons to whom paragraphs 4 or 5 apply, are entitled to rights set out in Articles 3, 4, 16, 22, 31, 32 and 33 of the Geneva Convention or similar rights, if they are present in the Member State.
    […]
  • Article 17 – Exclusion
    1. A third country national or a stateless person is excluded from subsidiary protection where there are serious reasons for considering that:
    a. he 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 crime;
    c. he has been guilty of acts contrary to the purposes and principles of the United Nations as set out in the Preamble and Articles 1 and 2 of the United Nations Charter;
    d. He is a danger to the community or to the security of the Member State where he resides.
    2. Paragraph 1 shall apply to persons who instigate or otherwise participate in the crimes or acts mentioned therein.
    […]”
  • National legislation: Aliens Act
  • 17 “Article 48/3
    § 1. Refugee status is granted to an alien who fulfills the requirements of Article 1 of the [Geneva Convention].
    […] Article 48/4
    § 1. The subsidiary protection status is granted to an alien who does not qualify for refugee status and can not invoke Article 9 (ter), and with respect to whom there are serious grounds for believing that, if he would return to his country of origin, or in the case of a stateless person, to the country of his former habitual residence, he would face a real risk of serious harm as defined in paragraph 2 and who is unable or unwilling to avail him self of the protection of that country because of that risk, and who is does not fall within the exclusion clauses as set out in Article 55/4.
    […] Article 52/4
    […] The [Commissioner General] may refuse to recognize refugee status, if the alien is a danger to society because he was finally convicted of a particularly serious crime, or if there are reasonable grounds for regarding him as a danger to national security. In that case, the [Commissioner General] issues an opinion on the compatibility of an expulsion measure with Articles 48/3 and 48/4.
    […] Article 55/4
    § 1. A foreigner is excluded from subsidiary protection status where there are serious reasons for considering that:
    a. he 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 been guilty of acts contrary to the purposes and principles of the United Nations as set out in the Preamble and Articles 1 and 2 of the United Nations Charter;
    c. he has committed a serious crime;
    […] § 2. A foreigner is also excluded from subsidiary protection status when he poses a danger to the community or national security.
    […] § 4. When the Commissioner General decides to deny subsidiary protection status, he will, in the context of this decision, issue an opinion on the compatibility of an expulsion measure with Articles 48/3 and 48/4. “

Justification of the reference for a preliminary ruling and assessment by the referring national court

18. The contested decision is based in particular on Article 52/4, second paragraph, of the Aliens Act, which transposed Article 14, paragraph 5 of Directive 2011/95 / EU into Belgian law.

19. The applicant maintains that the aforementioned national rule adds an exclusion clause to the Geneva Convention that is not contained in Article 1.F thereof, and thus contrary to the Convention.

20. The referring court also wonders whether such an addition was legitimate and he therefore asks the Court to rule on the validity of Article 14, paragraph 5 of Directive 2011/95 / EU.

21. The referring court notes in this regard that Article 18 of the Charter and Article 78 TFEU guarantee the right to asylum in the European Union and determine that the derived Union law must be consistent with the fundamental principles of the international legal regime on aliens, including first and foremost the Geneva Convention. The referring court cites in this regard in particular the judgment of March 2, 2010 and other judgments (C-175/08, C-176/08, C-178/08 and C-179/08, EU: C: 2010: 105, paragraphs 51-54):

  • “51. [Directive 2004/83 / EC, which was replaced by Directive 2011/95 / EU] was adopted on the basis of in particular Article 63, first paragraph, point 1 c) EC, whereby the Council was ordered to take measures on asylum, in accordance with the Geneva Convention and other relevant treaties, in terms of the minimum standards for the qualification of persons who are nationals of third countries as refugees.
  • 52. According to [recitals 3, 16 and 17] of the Directive, the Geneva Convention, is the cornerstone of the international legal regime for the protection of refugees and the provisions of the Directive on the conditions for recognition as refugees and the content of refugee status have been adopted to help the competent authorities of the Member States to apply the Convention on the basis of common concepts and criteria.
  • 53. The provisions of the Directive must therefore be interpreted in the light of the overall scheme and purpose of the directive, while respecting the Geneva Convention and other relevant treaties referred to in Article 63, first paragraph, point 1, EC.
  • 54. The interpretation must also, as follows from paragraph 10 of the preamble to the Directive, respect the rights and observe the principles recognized in particular by the Charter. “

22. Although both the national provision at issue ( “refusal to grant refugee status”) and Article 14, paragraph 5 of Directive 2011/95 / EU ( “decision not to grant status”) are formulated as a ground for refusal, the referring court is asking whether the refusal to grant refugee status, in the situations referred to in articles 32 and 33 of the Geneva Convention – relating to the expulsion of refugees -, does not, in practice, result in the creation of a new exclusion provision which is not in the Geneva Convention. He notes in that regard that the same case of a person who is “a danger to the community or to the security of the State” is mentioned in Article 17 of Directive 2011/95 / EU, entitled ‘Exclusion’ [subsidiary protection].

23. However, a person can only be excluded from refugee status, if he falls within one of the situations in Article 1, D, E and F, which have been listed exhaustively in the Geneva Convention (Article 1.F of the Geneva Convention specifically relates in cases where someone is excluded because he has committed very serious crimes), and not for offenses related to the national security of the state of refuge. If a new exclusion provision is created for such offenses, the Geneva Convention is thus altered, which is contrary to the principle “pacta sunt servanda” and the requirement of consent to the amendment of multilateral treaties (Articles 26, 27, 39 and 40 of the Vienna Convention on the law of Treaties).

24. The referring court also cites the comments of the High Commissioner for Refugees of the United Nations (hereinafter “HCV”) concerning article 14, paragraphs 4 to 6 of Directive 2004/83 / EC in the text “Annotated commentary HCV to Directive 2004/83 / EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals and stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted”:

  • “Article 14, paragraph 4, of the Directive results in the that the exclusion clauses of the 1951 Convention are substantially altered, since the provision of Article 33, paragraph 2, of the 1951 Convention (exceptions to the principle of non-refoulement) is added to the grounds to exclude someone from refugee status. Under the Treaty, the principle of ‘non-refoulement’ serves a different objective than the exclusion clauses. Article 1.F, in which are listed exhaustive the exclusions based on the conduct of the applicant, responds to a double logic. First, some facts are so serious that the perpetrators do not deserve international protection. Second, the asylum framework should not stand in the way of prosecution of serious criminals.
  • On the other hand, Article 33, paragraph 2, relates to the treatment of refugee and defines the circumstances in which he may be sent home. It aims to protect the security of the country of refuge or the community of that country. This determination is based on whether the foreigner in question is a threat to the national security of the country or whether the alien who has been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country. Article 33, paragraph 2 is not designed as a ground for terminating refugee status (see the commentary on Article 21, paragraph 2 and 3). It is therefore not consistent with the 1951 Treaty under Article 33, paragraph 2, to equate exceptions to the principle of non-refoulement permitted thereunder with the exclusion clauses of Article 1.F. Such equation could also lead to a misinterpretation of these two provisions of the Treaty.”

25. The legislation at hand is anyway – even if it is conceived as a ground for refusal – problematic, as the Geneva Convention defines the term refugee as any person who “for well-founded fear of being persecuted for reasons of race, religion , nationality, membership of a particular social group or political opinion, is outside the country of his nationality, and who is, owing to that fear, unable or unwilling to invoke the protection of that country or, owing to such fear, unwilling to avail himself, ” and does not provide for the possibility to refuse the granting of refugee status to such person on the ground that he is a danger to
national security or a serious threat to the community of the country of refuge. A new ground for refusal would amount to a substantial modification of the Geneva Convention.

26. If it was envisaged by the Geneva Convention to exclude (or reject) the protection for reasons related to national security, public order or the danger to society of the country of refuge, it would have been expressly so stated in the Convention, as has happened with very serious non-political crimes committed outside the country of refuge.

27. The referring court also wonders whether the situation in which Article 32 of the Geneva Convention (on the residence of refugees) provides an exception to the principle of “non-refoulement” for reasons of national security is used as a ground for refusal (or exclusion ) of refugee status, is consistent with the Geneva Convention. Confusing these two situations can have serious consequences, namely the loss of the benefits associated with refugee status. The court cites in this respect the judgment of June 24, 2015, HT (C-373/13, EU: C: 2015: 413, paragraph 95), which states that “the refugees whose residence permit is revoked under Article 24, paragraph 1 of Directive [2011/95 / EU – which states that no permit shall be issued to a refugee, where compelling reasons of national security or public order otherwise require -] retain their refugee status, unless and until that status terminates. So even if his residence permit is denied, the person remains a refugee and he remains entitled to the benefits Chapter VII of this Directive guarantees to all refugees, particularly the right to protection against refoulement, to maintaining family, to issuing travel documents, access to employment and education, social services, health care and housing, freedom of movement within the Member States and access to integration facilities involved”.

Questions referred to the European Court of Justice for a preliminary ruling:

28. Given these uncertainties, the referring court asks the European Court of Justice for a preliminary ruling on the following questions.

Is Article 14, paragraph 5 of Directive 2011/95 / EU compatible with Article 18 of the Charter of Fundamental Rights and Article 78, paragraph 1, Treaty on the Functioning of the European Union (TFEU)?
In this context, the following issues are raised:

  • A. Is Article 14, paragraph 5 of Directive 2011/95 / EU to be interpreted as meaning that a new ground is created to exclude someone from refugee status under Article 13 of that directive and therefore Article 1.A of the Geneva Convention?
  • B. If Question A is answered in the affirmative, is Article 14, paragraph 5 thus interpreted, compatible with Article 18 of the Charter of the Fundamental Rights and Article 78, paragraph 1, TFEU, which provides in particular that the derived Union law should be in accordance with the Geneva Convention, of which the exclusion provision in Article 1.F has been worded exclusively and which must be narrowly construed?
  • C. If Question A is answered in the negative, should Article 14, paragraph 5 of Directive 2011/95 / EU then be interpreted as introducing a ground for refusal of refugee status, which are not covered by the Geneva Convention, which pursuant to the Charter of Fundamental Rights and Article 78, paragraph 1, TFEU, should be respected?
  • D. If Question C is in the affirmative, is Article 14, paragraph 5, of said Directive compatible with Article 18 of the Charter of Fundamental Rights and Article 78, paragraph 1, TFEU – which specifies that the derived Union law must be consistent with the Geneva Convention – to the extent that the former provision introduces a ground to refuse refugee status without having examined whether there is fear of persecution, which is required by Article 1.A of the Geneva Convention?
  • E. Where the questions A and C are answered in the negative, how is Article 14, paragraph 5, of said Directive to be interpreted in accordance with Article 18 of the Charter and Article 78, paragraph 1, TFEU, which specifies that the derived EU law should be consistent with the Geneva Convention?

 

Join the discussion One Comment

  • Henk Crop says:

    The applicant with his criminal record has no future in the EU. He has little chance of finding employment and probably will live at the expense of society and pose a danger to other people.
    He has to be extradited and kept in custody until that happens.

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