Steve Peers
What happens if a refugee
allegedly supports terrorism? The most obvious answer is that the person
concerned might be excluded from getting refugee status in the first place, in
accordance with Article 1.F of the Geneva (UN) Convention on Refugees,
as reflected in the EU’s qualification Directive and interpreted in the
CJEU’s B and D judgment of 2010. However, the situation is more
complicated if the person already has refugee status, and his or her alleged
support for terrorism begins or comes to light only later. This issue was
addressed for the first time in today’s CJEU judgment in T.
Background
The qualification Directive
offers three possible responses to a situation like this. First of all, a
Member State may revoke refugee status where there are ‘reasonable grounds for
regarding [a refugee] as a danger to the security of the Member State in which
he or she is present’, or where the refugee was ‘convicted by a final judgment
of a particularly serious crime’ so ‘constitutes a danger to the community of
that Member State’. Secondly, it is possible to refoule a refugee (ie return
the refugee to an unsafe country) on the same two grounds (which are also the
exceptions to non-refoulement set out in the Geneva Convention), if that is not
‘prohibited’ by Member States’ international obligations. In that case, Member
States may revoke or refuse to renew the refugee’s residence permit. Finally,
Member States must issue refugees with a residence permit and renew it, ‘unless
compelling reasons of national security or public order otherwise require’.
Also, a Member State is obliged
to revoke refugee status if the refugee ‘should have been’ excluded from
refugee status in the first place, but presumably this only applies where the activity
justifying exclusion took place before the refugee status was granted. All of
the same rules apply to the parallel status of ‘subsidiary protection’, which
exists for persons who don’t qualify for refugee status but who otherwise need
international protection because they are fleeing torture, the death penalty or
a civil war.
Judgment
This case concerned a Turkish
national who moved to Germany back in 1989 and obtained refugee status there in
1993, on the basis of his activities in support of the PKK, the Kurdish group
which Turkey (and subsequently also the EU) regards as a terrorist organisation.
However, those links later led to a conviction for supporting terrorism, due to
his collection of money for the PKK and distribution of PKK literature. His
residence permit was revoked but he retained refugee status, and he was not
expelled from the country. Nevertheless, he still challenged the revocation of
his residence permit.
The CJEU’s judgment considers the
second and third of the two issues above: refoulement (which might lead to the
loss of a residence permit) and the loss of the residence permit as such. First
of all, the Court explains the relationship between these two overlapping
rules. If the criteria to refoule a refugee are satisfied, a Member State can
either (a) refoule the refugee; (b) expel the refugee to a safe country; or (c)
allow the refugee to stay. In the event that Member States can refoule the
refugee, then they can also revoke a residence permit. But conversely, if the
criteria to refoule the refugee are not satisfied, then the Member State cannot withdraw a residence permit on
this ground.
In that case, the Court ruled,
the question arises whether the rules on granting residence permits apply.
Those rules don’t expressly refer to revoking a permit which has already been
issued, but the Court ruled that this possibility was implicit.
The Court then moved on to
interpret the two sets of grounds for loss of a residence permit at issue in
this case: the ‘reasonable grounds’ that the refugee is a security risk, and
the ‘compelling reasons of national security or public order’. These concepts
aren’t further defined in the Directive, and the language versions of the
Directive differ. So the Court proceeded to interpret these rules in the
overall context of the Directive – protecting human rights and developing a
common policy. In the Court’s view, refoulement of a refugee is a ‘last resort’
in the event that there is no other option to protect national security or the
public. Since it could have a ‘drastic’ impact on the refugee, it was subject
to ‘rigorous conditions’.
In contract, the mere loss of a
residence permit did not lead to refoulement, and so the threshold for the
application of the relevant rules was lower. The rules on loss of a residence
permit ‘only’ apply where the refugee’s actions ‘cannot justify loss of refugee
status, let alone the refoulement of that refugee’, and so did not ‘presuppose
the existence of a particularly serious crime’.
So does support for a terrorist
group meet the threshold to be one of the ‘compelling reasons of national
security or public order’? The Court ruled that the concept should be
interpreted consistently with the public security exceptions in the EU’s
citizens’ Directive, because ‘the extent of protection a company (sic) intends
to afford to its fundamental interests cannot vary according to the legal
status of the person that undermines those interests.’ So terrorism is covered
by that concept, and there must be a ‘genuine, present and sufficiently serious
threat affecting one of the fundamental interests of society’. Moreover, the EU
has listed the PKK as a terrorist group, which is a ‘strong indication’ that
must be ‘taken into account’. Since the CJEU had already ruled (in B and D) that terrorist acts could lead
to exclusion from refugee status, it must follow that they could equally
justify revocation of a residence permit.
But that was not the end of the
matter. The national court has to go on to a second step, to consider whether
the specific actions of a refugee in fact constitute support for terrorism so
as to justify revocation of a residence permit. Not all forms of support for an
organisation which the EU considers to be terrorist can lead to revocation of a
refugee’s residence permit. As with the exclusion clause (see B and D), it was necessary to look at
the individual’s behaviour, examining ‘in particular whether he himself has
committed terrorist acts, whether and to what extent he was involved in
planning, decision-making or directing other persons with a view to committing
acts of that nature, and whether and to what extent he financed such acts or
procured for other persons the means to commit them’.
In this case, Mr. T had
participated in legal meetings, celebrated the Kurdish New Year and collected
money for the PKK. The Court asserted that this ‘does not necessarily mean that
he supported the legitimacy of terrorist activities’. Indeed, such acts ‘do not
constitute, in themselves, terrorist acts’. The national court also had to
consider the ‘degree of seriousness of danger’ Mr. T posed. It could take into
account his criminal conviction but also had to consider that he was only
sentenced to a fine. Also, the principle of proportionality (which the Court
stated was not relevant when applying
the exclusion clause, in B and D) was relevant here: the national court
had to consider if Mr. T was still a threat to public security at the time the
decision to revoke the permit was taken.
Finally, the Court ruled on the
consequences of the loss of a residence permit. The person concerned retained
refugee status and so was still entitled to all of the rights granted to a
refugee, including access to employment, education, welfare, healthcare and
housing. Although a clause in the preamble to the Directive stated that a
residence permit could be made a condition of obtaining such benefits, the
Court said that this clause was irrelevant since it was not reflected in the
main text. Those rights could ‘only’ be restricted in accordance with the
conditions in the Directive, and Member States ‘are not entitled to add
restrictions not already listed there’. This was directly relevant to Mr. T,
since Germany had indeed restricted his access to all of those benefits. But
this is ‘incompatible’ with the Directive.
Comments
This was the first chance for the
Court to rule on the status of refugees, ie the various benefits attached to
refugee status, since its previous judgments on the qualification Directive
have essentially concerned the definition of refugee or subsidiary protection status
(or the linked issues of exclusion from or cessation of that status). Broadly
speaking, the judgment does a good job clarifying the points which the Court
set out to tackle – but inevitably the Court could not deal with every possible
issue, and some of its answers raise further questions of their own.
First of all, the Court provides
a useful clarification of the distinction between the non-refoulement rules and
the rules on residence permits as such. The crucial point here is that the
latter rules apply only when the former do not. While this makes the residence
permit rules sound as if they have secondary importance, in fact the reverse is
true. In practice, the residence permit rules are more important, since it is
rarely if ever possible to refoule a refugee consistently with international
obligations. This is because the case law on Article 3 of the European
Convention on Human Rights (ECHR) makes clear that even if a person has done things
awful enough to justify refoulement under the Geneva Convention, he or she cannot
be removed to face a real risk of torture or inhuman or degrading treatment in
violation of Article 3 ECHR – since that provision is not subject to any exception
relating to the behaviour of the person concerned (or any other exception either).
It was not necessary for the CJEU to rule on this point in the T case, since Germany was not seeking to
remove him, but it would surely be willing to do so if the case arose (see the
judgment in Abdida, discussed here,
where the CJEU relied upon another strand of the Article 3 case law).
In the unusual event that
refoulement might be possible, the CJEU’s ruling leaves some questions to
ponder. It refers to the possible removal of a refugee to a safe third country.
Presumably the criteria to determine the meaning of that concept are those in
the asylum procedures Directive. It is also possible that the Court
would be willing to rule on the interpretation of Article 32 of the Geneva Convention
– which regulates the substance and procedure of the expulsion of refugees to
safe countries (if the refugees are legally resident) – in this context. The
CJEU might also be called upon to elaborate further what it means by saying
that refoulement is a ‘last resort’ in the event that no other alternatives are
available.
As for the main thrust of the
Court’s ruling, on the ‘compelling reasons’ exception to the grant of residence
permits, it is striking that the Court continues its recent trend of applying
its case law on the EU citizens’ Directive to the ‘public policy’ clauses in EU
immigration and asylum law. It did the same thing just a few weeks ago as
regards the voluntary departure rules in the EU Returns Directive (see the Zh and O judgment, discussed here),
and the broad wording of its judgment in T
on this point suggests that all public policy clauses (they appear in swathes
of EU legislation in this area) should have the same meaning. Having said that,
the Court clearly accepts that the threshold for refoulement of a refugee is higher
than for the normal public policy exception.
The Court also borrows most of
its prior reasoning on the exclusion clause (with the addition of a proportionality
element) to make clear that broad support of a group which the EU considers to
be terrorist is not enough: there must be an active participation in violent
acts or the funding of those acts. Presumably there must be a direct link with the
funding of those acts, since the Court finds that Mr. T’s participation in
collecting money for the PKK generally is not enough. Implicitly the Court
shows little sympathy with recent EU and national moves against ‘radicalisation’
of Islamic communities (as very broadly defined), and it makes no reference to
the Council of Europe measure (reflected in EU legislation) which criminalises
‘public provocation’ of terrorism. But nor does it refer to the countervailing
case law of the European Court of Human Rights on freedom of speech, which requires
States to allow the free expression of radical political beliefs and allows
limits on that expression only where there is a direct incitement to commit
violent acts. Nevertheless, the Court’s approach fits squarely into that latter
line of case law.
Finally, the Court’s ruling on
the consequences of loss of a residence permit are highly relevant, especially in
Germany and any other Member States which do indeed make the receipt of benefits,
access to employment et al dependent upon holding a residence permit. In
effect, the judgment means that for many refugees the loss of a residence
permit, even if justified, will have no real impact on their day-to-day life. It
will only have an impact as regards journeys within the Schengen area (since
holding a residence permit or long-stay visa is a condition of freedom to
travel), or travels to non-Schengen and non-EU countries (since the criteria to
revoke a residence permit also apply to the travel documents which refugees
obtain from their host States in lieu of passports). It would also have an
impact upon those refugees who do not yet have family living with them, since
the EU’s family reunion Directive requires a third-country national to
have a residence permit as a condition for family reunion. But that doesn’t
matter to Mr. T, since he is already surrounded by his very large family in
Germany.
Barnard & Peers: chapter 26
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