Foreign Fighters' Helpers Excluded From Refugee Status: The Ecj Clarifies The Law

Professor Steve Peers

What if a soul claiming to locomote a refugee is an alleged terrorist, or at to the lowest degree giving assistance to alleged terrorists? Can they nonetheless claim to locomote a refugee – in addition to if not, how should nosotros define ‘terrorism’ for the purposes of rejecting their claim to locomote one? Today’s judgment of the European Union Court of Justice inwards the Lounani example usefully clarifies unopen to aspects of this controversial in addition to legally complex issue, but inevitably leaves unopen to hard questions open.

Legal framework

The starting quest for this number is the wording of the United Nations Refugee Convention, known past times the European Union equally the ‘Geneva Convention’, which contains an ‘exclusion’ clause inwards Article 1.F:

F. The provisions of this Convention shall non apply to whatever soul amongst honour to whom at that spot are serious reasons for considering that:

(a) he has committed a criminal offence against peace, a state of war crime, or a criminal offence against humanity, equally defined inwards the international instruments drawn upward to brand provision inwards honour of such crimes;

(b) he has committed a serious non-political criminal offence exterior the province of refuge prior to his admission to that province equally a refugee;

(c) he has been guilty of acts reverse to the purposes in addition to principles of the United Nations.

The United Nations rules (which all European Union Member US select signed upward to) select been transposed, but amongst variations, inwards the EU’s Qualification Directive, which applies to every Member State except Denmark. (Technically the UK of Britain in addition to Northern Republic of Ireland in addition to Republic of Ireland are natural springtime entirely past times the first version of this Directive, but the rules on exclusion haven’t changed).  Article 12(3) of that Directive reads equally follows:

2. Influenza A virus subtype H5N1 third-country national or a stateless soul is excluded from existence a refugee where at that spot are serious reasons for considering that:

(a) he or she has committed a criminal offence against peace, a state of war crime, or a criminal offence against humanity, equally defined inwards the international instruments drawn upward to brand provision inwards honour of such crimes;

(b) he or she has committed a serious non-political criminal offence exterior the province of refuge prior to his or her admission equally a refugee, which way the fourth dimension of issuing a residence permit based on the granting of refugee status; specially roughshod actions, fifty-fifty if committed amongst an allegedly political objective, may locomote classified equally serious non-political crimes;

(c) he or she has been guilty of acts reverse to the purposes in addition to principles of the United Nations equally fix out inwards the Preamble in addition to Articles 1 in addition to two of the Charter of the United Nations.

3. Paragraph two applies to persons who incite or otherwise participate inwards the committee of the crimes or acts mentioned therein.

It tin terminate locomote seen that the European Union rules differ from the United Nations rules to the extent that: they add together unopen to wording on the timing in addition to nature of ‘serious non-political crimes’; they clarify the reference to acts reverse to United Nations ‘purposes in addition to principles’; in addition to they apply the exclusion to those who ‘incite or otherwise participate’ inwards all 3 categories of acts leading to exclusion.

Despite this endeavour at clarification, at that spot volition ever locomote issues of interpreting these rules. The European Union Court has ruled on them in 1 trial before, inwards its judgment inwards B in addition to D, when it stated that starting fourth dimension of all that the minute in addition to 3rd exclusion clauses tin terminate apply to terrorist offences.  However, exclusion must locomote assessed inwards each private case, pregnant that membership of a grouping listed equally ‘terrorist’ inwards European Union unusual policy sanctions against terrorists does non automatically trigger the exclusion clause, although it is a ‘factor’ to consider. Participating inwards a terrorist group, equally defined past times European Union criminal law on terrorism, does non automatically trigger the exclusion clause either. Instead, at that spot must locomote direct interest past times the soul concerned inwards such offences, equally farther explained past times the Court. Furthermore, at that spot is no additional ‘proportionality’ or ‘present danger’ examination for exclusion. Finally, the exclusion clause is mandatory: ie Member US cannot assert a correct to apply higher standards in addition to hand someone refugee condition if they autumn inside the exclusion criteria.

The judgment

What does today’s judgment add? The soul concerned was convicted of participating inwards a terrorist group, but non of carrying out whatever terrorist acts equally such. So is such a conviction sufficient to trigger the exclusion clause?

The European Union courtroom ruled that it was. First of all, the preamble to the European Union Directive referred to United Nations Resolutions on ‘financing, planning in addition to inciting’ terrorism; in addition to thence the 3rd exclusion clause goes beyond terrorist acts equally such. Secondly, the European Union legislature had non intended to fit the exclusion clause inwards asylum constabulary amongst the narrower Definition of terrorism inwards (current) European Union criminal constabulary legislation.

Next, the European Union courtroom ruled that next a afterwards United Nations Security Council Resolution, assisting amongst recruitment, scheme or carry of ‘foreign fighters’ could too autumn inside the compass of the exclusion clause. So could ‘participation’ inwards such activities, pursuant to Article 12(3) of the European Union Directive. It was relevant that the grouping inwards query was listed equally terrorist past times the United Nations Security Council, in addition to specially relevant that the soul concerned had been convicted of terrorist offences inwards Belgium.

Comments

The Court’s judgment asserts a wide compass of the exclusion clause, pregnant that a grade of back upward for ‘foreign fighters’ volition too effect inwards exclusion from refugee status. In doing so, it answers the claims of those who believe that many refugees are ‘jihadists’. Simply put, anyone who has been straight involved inwards terrorist acts (B in addition to D) or inwards facilitating the activities of ‘foreign fighters’ (today’s judgment) is non entitled to refugee status. Although the judgment does non cite it, this aligns the interpretation of the exclusion clause to unopen to extent amongst recent developments inwards criminal law, namely the 2015 Protocol to the Council of Europe Convention on the prevention of terrorism, in addition to the agreed revision of the EU’s anti-terrorism laws.

But the judgment cannot assist leaving unopen to hard questions open. What if the asylum-seeker has non been convicted of terrorist offences anywhere, but at that spot are allegations of such action? Since a conviction is specially relevant to applying the exclusion clause, would a lack of such conviction conversely locomote specially relevant inwards determining that the clause should non apply? Would that assessment locomote dissimilar if the soul had been acquitted, or if an investigation or trial was pending? If the criminal constabulary procedure was pending, should the asylum conclusion procedure locomote seat on hold? What if the authorities had claimed to select data supplied from the safety services, in addition to were reluctant to convey criminal proceedings inwards social club to save their sources in addition to intelligence capability? 

What if at that spot is a criminal conviction for terrorism from unopen to other province – specially inwards the asylum-seeker’s province of origin, which mightiness define criticism of the authorities equally ‘terrorism’? Similarly what most ‘provocation’ to terrorism, which mightiness include ‘glorification’ of terrorist acts, according to the revised European Union criminal law? Here the query is to what extent liberty of expression, non straight connected to tearing acts, mightiness justify a refusal of refugee status. Recent acts remind us that equally far equally criminal constabulary is concerned, terrorist acts – in addition to the climate of hatred that surrounds them – are non confined to Islamist extremists, but stalk too from those who fanatically loathe minority groups equally well.

Barnard & Peers: chapter 25, chapter 26

JHA4: chapter I:5, chapter II:5

Photo image: Worldbulletin

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