Expelling Eu Citizen Nation Of War Criminals: No Sympathy From The Ecj

Professor Steve Peers, University of Essex

If an European Union citizen (or his or her household unit of measurement member) has been excluded from existence a refugee, inwards what circumstances tin he or she endure expelled from a Member State? The ECJ clarified this lawsuit inwards its K together with HF judgment in conclusion week: its start ruling that touches on the human relationship betwixt European Union (and international) refugee police together with European Union gratis movement law.

There’s a skillful argue why these 2 areas of police haven’t interacted previously inwards the Court’s illustration law: European Union police itself tries to maintain them apart. H5N1 Protocol attached to the European Union Treaties, aiming to facilitate the extradition of alleged terrorists betwixt Member States, says that inwards regulation European Union citizens cannot apply for asylum inwards unopen to other Member State, due to the presumption inwards that Protocol that each Member State ensures sufficient human rights protection.

However, at that spot are exceptions to that full general rule, together with at that spot are people it doesn’t cover. The exceptions inwards the Protocol are: a) the asylum seeker’s Member State of nationality invokes the “emergency” derogation from parts of the European Convention of Human Rights (ECHR); b) if the European Union Council is considering whether to sanction the asylum seeker’s Member State of nationality for breaches of European Union values; c) if the European Union has already sanctioned the asylum seeker’s Member State of nationality for breaches of European Union values; or d) if a Member State decides to produce together with then unilaterally for unopen to other Member State’s national, inwards which illustration it must inform the European Union Council together with presume that the application is apparently unfounded, without prejudice to the terminal determination on the application.

The people non covered past times the Protocol include: European Union citizens who obtained refugee condition earlier they became European Union citizens (for instance, because their State of nationality joined the EU); non-EU household unit of measurement members of European Union citizens; those who apply for or obtain subsidiary protection status, equally distinct from refugee status; together with the citizens of unopen to non-EU countries associated alongside the European Union (Norway, Iceland, Switzerland together with Liechtenstein), who own got gratis movement rights but are non European Union citizens. The recent ECJ ruling concerned people from the start 2 of these categories.

Exclusion from existence a refugee

Some asylum seekers neglect to satisfy the regime that they encounter the Definition of “refugee” laid out inwards the United Nations (Geneva) Refugee Convention. Quite apart from that, unopen to asylum seekers are excluded from existence a refugee nether that Convention (and nether the corresponding provisions of the EU’s qualification Directive), because their deportment is considered together with then reprehensible that they produce non deserve fully-fledged international protection, fifty-fifty if they are facing persecution on 1 of the grounds laid out inwards the Convention. More precisely, Article 1.F of the Convention excludes:

any individual alongside honour to whom at that spot are serious reasons for considering that:

(a) he has committed a offense against peace, a state of war crime, or a offense 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 offense 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 together with principles of the United Nations.

The ECJ has interpreted the exclusion clause inwards the European Union qualification Directive inwards its judgments inwards B together with D together with Lounani (discussed here), ruling inter alia that the mo together with 3rd exclusion clauses tin apply to terrorist offences, although exclusion must endure 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. Similarly, 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 endure straight involvement past times the individual concerned inwards such offences, equally farther explained past times the Court. Furthermore, at that spot is no additional “proportionality” or “present danger” examine for exclusion, together with the exclusion clause is mandatory: ie Member United States cannot assert a correct to apply higher standards together with give someone refugee condition if they autumn inside the exclusion criteria. Finally, assisting alongside recruitment, organisation or carry of “foreign fighters” tin equally good Pb to exclusion, equally it constitutes a cast of “participation” inwards the terrorist acts covered past times the exclusion clause.

However, it should endure noted that fifty-fifty if a individual is excluded from existence a refugee, they are soundless protected against existence removed to a province where they would human face upward a existent opportunity of torture or other inhuman or degrading treatment, according to the illustration police on Article iii ECHR together with the corresponding Article four of the European Union Charter of Fundamental Rights. The ECJ reaffirmed equally much of late inwards its judgment inwards MP (discussed here). But this non-removal obligation falls curt of refugee condition (which normally follows from recognition equally a refugee) because it does non entail a fully-fledged immigration condition including rights similar access to occupation together with benefits.

Expelling European Union citizens together with their household unit of measurement members

The grounds for restricting gratis movement rights for reasons of “public policy or populace security” are laid out inwards the EU citizens’ Directive. The basic dominion is that restrictions “shall comply alongside the regulation of proportionality together with shall endure based only on the personal bear of the private concerned. Previous criminal convictions shall non inwards themselves constitute grounds for taking such measures.” Furthermore, “[t]he personal bear of the private concerned must stand upward for a genuine, acquaint together with sufficiently serious threat affecting 1 of the cardinal interests of society.”

Before expelling a individual covered past times the Directive on such grounds, Member United States are obliged to “take trouble concern human relationship of considerations such equally how long the private concerned has resided on its territory, his/her age, province of health, household unit of measurement together with economical situation, social together with cultural integration into the host Member State together with the extent of his/her links alongside the province of origin.” For those alongside permanent residence, at that spot is a higher threshold to justify expulsion: “serious grounds of populace policy or populace security”. And for those who own got resided inwards that Member State for the previous 10 years, or who are minors, the threshold for expulsion is higher still: “imperative grounds of populace security”.

The judgment

The Court’s judgment brought together 2 dissever cases. In the start case, K, a dual citizen of Republic of Croatia together with Bosnia-Herzegovina, had arrived inwards the Netherlands together with applied for asylum inwards 2001 together with 2011. Both applications were rejected. Subsequently, after Republic of Croatia joined the European Union inwards 2013, the applicant was declared (in calorie-free of his European Union citizenship) to endure an “undesirable immigrant”, inwards calorie-free of the prior finding that he knew well-nigh together with participated inwards state of war crimes together with crimes against humanity inwards the Bosnian army. Since over 20 years had passed since that time, the lawsuit was whether such bear was a “genuine, acquaint together with sufficiently serious threat affecting 1 of the cardinal interests of society” inside the pregnant of the European Union citizens’ Directive, taking trouble concern human relationship of the other factors referred to inwards the Directive.

In the mo case, HF, an Afghan citizen excluded from existence a refugee inwards the Netherlands, applied for a residence carte inwards Kingdom of Belgium equally the household unit of measurement fellow member of an European Union citizen (his Dutch daughter). His application was refused on the footing that the information well-nigh his exclusion, which the Dutch regime had shared alongside their Belgian counterparts, showed that he could endure denied gratis movement rights.

The Court start examined whether exclusion from existence a refugee necessarily met the measure for restriction of gratis movement rights. It recalled its prior illustration law, belongings that “public security” could include both internal safety (including “a straight threat to the peace of hear together with physical safety of the population of the Member State concerned”) together with external safety (including “the opportunity of a serious disturbance to the unusual relations of that Member State or to the peaceful coexistence of nations”). Applying these principles to the facts, the Court accepted that Member United States could consider that impairment to international relations, the opportunity of contacting European Union citizens who had been victims of state of war crimes could endure considered threats to populace policy together with populace security. Restricting those persons’ gratis movement rights could equally good contribute to ensuring “protection of the cardinal values of guild inwards a Member State together with of the international legal monastic enjoin together with to maintaining social cohesion, populace confidence inwards the jurist together with immigration systems of the Member United States together with the credibility of their commitment to protect the cardinal values enshrined inwards Articles 2 together with iii TEU”.  The Court added that the acts together with crimes which led to exclusion from existence a refugee “seriously undermine both cardinal values such equally honour for human dignity together with human rights, on which, equally stated inwards Article 2 TEU, the European Union is founded, together with the peace which it is the Union’s aim to promote, nether Article 3 TEU”.

Nevertheless, the Court ruled that exclusion from existence a refugee should non ever Pb to restriction on gratis movement rights. There must soundless endure a “case-by-case assessment” which shows that “the personal bear of the private concerned currently constitutes a genuine together with sufficiently serious threat to a cardinal involvement of society”. This assessment must “take into trouble concern human relationship the findings of fact made inwards the determination of exclusion from refugee condition taken alongside honour to the private concerned together with the factors on which that determination was based, inwards item the nature together with gravity of the crimes or acts that that private is alleged to own got committed, the marking of his private involvement inwards them together with the possible existence of grounds for excluding criminal liability such equally duress or self-defence.” Furthermore, that exam “is all the to a greater extent than necessary” if, such equally inwards these cases, “the individual concerned has non been convicted of the crimes or acts that were relied on to justify the rejection, inwards the past, of his asylum application”.

The Court showed willingness to relax its commons insistence of looking closely at the European Union citizen’s acquaint threat, noting that inwards unopen to cases “it is equally good possible that past times bear lone may constitute such a threat to the requirements of populace policy”. In the illustration of state of war crimes, although “the fourth dimension that has elapsed since the assumed committee of those acts is, indeed, a relevant factor….the possible exceptional gravity of the acts inwards enquiry may endure such equally to require, fifty-fifty after a relatively long menstruation of time, that the genuine, acquaint together with sufficiently serious threat affecting 1 of the cardinal interests of guild endure classified equally persistent”. Equally, the Court de-emphasised the requirement that the individual concerned was in all likelihood to reoffend, ruling that:

…however improbable it may appear that such crimes or acts may recur exterior their specific historical together with social context, bear of the private concerned that shows the persistence inwards him of a disposition hostile to the cardinal values enshrined inwards Articles 2 together with iii TEU, such equally human dignity together with human rights, equally revealed past times those crimes or those acts, is, for its part, capable of constituting a genuine, acquaint together with sufficiently serious threat affecting 1 of the cardinal interests of society...

Yet the person’s rights to private together with household unit of measurement life together with the regulation of proportionality soundless had to endure weighed against such threats.

Next, the Court reiterated that an expulsion determination has to consider “with due regard to the regulation of proportionality…inter alia, the nature together with gravity of the alleged bear of the private concerned, the duration and, when appropriate, the legality of his residence inwards the host Member State, the menstruation of fourth dimension that has elapsed since that conduct, the individual’s deportment during that period, the extent to which he currently poses a danger to society, together with the solidity of social, cultural together with household unit of measurement links alongside the host Member State.”

Yet the lengthy menstruation of fourth dimension spent on the territory inwards the Dutch illustration was non plenty to qualify for the especially high flat of protection against expulsion for European Union citizens resident for 10 years (“imperative grounds of populace security”). For equally the Court had of late ruled inwards B together with Vomero, such special condition was only attainable if the individual concerned had already qualified for permanent residence (based on 5 years’ legal residence); together with residence on national law grounds other than those laid out inwards the citizens’ Directive or its predecessor laws did non count to that halt (see Ziolkowski). It appeared that K could non exhibit residence on an European Union police basis, but only a national police basis, together with thus was non going to qualify for whatever extra marking of protection against expulsion.

Comments

The Court’s judgment is focussed on those excluded from refugee condition on the footing of Article 1.F of the Refugee Convention. The wording of the ruling does non confine itself to the “war criminal” Blue Planet of exclusion, together with and then it applies to persons excluded from existence a refugee on whatever of the Article 1.F grounds. It should logically endure relevant if whatever European Union police issues are raised well-nigh handing over whatever individual to the International Criminal Court, or whatever advertising hoc United Nations criminal tribunal, for prosecution for state of war crimes et al. But does it own got whatever broader application?

First of all, it definitely applies to those who mightiness apply for refugee condition on what mightiness endure called the “Palestinian track” laid out inwards Article 1.D of the Convention, since the full general rules on exclusion equally good apply to such cases: reckon the ECJ’s El Kott judgment (para 76).

Secondly, it is questionable whether it applies to all cases of exclusion from subsidiary protection status, given that such exclusion is equally good possible for less serious deportment than equally regards refugee recognition. In particular, the qualification Directive allows for exclusion from subsidiary protection condition on grounds of a “serious crime”, or inwards fact any offense which would endure punishable past times imprisonment inwards the Member State concerned.

Thirdly, it may endure arguable whether the judgment is relevant past times analogy to revoking refugee condition due to criminal deportment or a safety opportunity (relevant inwards pending ECJ cases, discussed here), or to refusing a residence permit or locomote document on national safety or populace monastic enjoin grounds, where the ECJ has ruled that a lower threshold applies (see the ruling inwards HT, discussed here).

Next, the judgment mightiness endure relevant to cases where a Member State seeks to revoke its nationality (and thus European Union citizenship) from a person, for illustration due to their activities equally a “foreign fighter”. (On the reviewability of such decisions equally a thing of European Union law, reckon Rottmann together with the pending illustration of Tjebbes).

Could the judgment fifty-fifty endure relevant past times analogy to “ordinary” European Union citizens, where at that spot is no link to refugee police issues? At start sight no, because the Court’s focus is on the Refugee Convention’s exclusion clause. However, its willingness to consider that especially vile prior deportment tin outweigh an assessment of acquaint threat together with in all likelihood time to come bear could arguably endure relevant where an European Union citizen has been convicted of crimes such equally fry abuse, rape, murder, or terrorism.

The judgment continues the Court’s established tendency of disdain for criminality past times European Union citizens or their household unit of measurement members. In this case, its concern for offense victims is peculiarly striking; but hither it strikes a discordant Federal Reserve notation inwards referring only to the victims of state of war criminals who are European Union criminals living inwards European Union Member States. For this overlooks the in all likelihood existence equally good of non-EU victims, both those who sought protection inwards a Member State together with those inwards the state of war criminal’s province of origin, if he or she is referred there. Or rather, the surviving victims: the returning state of war criminals volition in all likelihood cast a long shadow over the graves of those whom they murdered.

Barnard & Peers: chapter 26

JHA4: chapter I:5

Photo credit: Human Rights Watch

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