What if a refugee allegedly supports terrorism? The CJEU judgment in T

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 Ton 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

Photo credit: kufarooq93.wordpress.com

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Penalising Refugees: when should the CJEU have jurisdiction to interpret Article 31 of the Refugee Convention?

Yewa Holiday

PhD Candidate at Queen Mary, University of London researching Article 31 of the Refugee Convention and prosecutions of asylum seekers and refugees in the UK.

The CJEU has held in  Qurbani (Case -481/13) that it does not have jurisdiction in relation to the interpretation of Article 31 of the 1951 Refugee Convention and its 1967 Protocol.  Article 31(1) states that refugees (which includes asylum seekers) must not be penalised by states which have ratified the Refugee Convention for entry or presence without authorisation if they ‘present themselves without delay to the authorities and show good cause for their illegal entry or presence.’ The article also requires that the refugee comes ‘directly’ from a country where his life or freedom was threatened in the sense of Article 1 of the Refugee Convention.[1]This cautious conclusion arose from the request by the Bamberg Higher Regional Court, Germany of a preliminary ruling under Article 267 TFEU in relation to criminal proceedings against Mr Mohammed Ferooz Qurbani for forgery of documents, illegal entry, unauthorised stay and unauthorised stay without a passport. It is arguable that Qurbani is a missed opportunity to address the questions raised by the Bamberg Higher Regional Court which demonstrate the importance and continuing relevance of Article 31(1) protection for asylum seekers and refugees.

Mr Qurbani is an asylum seeker from Afghanistan. He had used the services of a ‘human trafficker’ to travel through Iran and Turkey to Greece. He then flew on 17 August 2010, using a false Pakistani passport which he obtained from another ‘human trafficker’, to Munich where he was arrested when he presented the false passport. Mr Qurbani immediately claimed asylum (the application remains outstanding).  On 11 April 2011, the Warzburg Public Prosecution Service applied to the Local Court for a penal order against Mr Qurbani in relation to the above offences. The order was challenged by Mr Qurbani.  On 4 February 2013, the Local Court acquitted him of all charges and noted that the right of asylum, contained in the German constitution, prevented Mr Qurbani being convicted of unauthorised stay and unauthorised stay without a passport; and the exemption from penalties provided for in Article 31 of the Refugee Convention applied to the offences of unauthorised entry and forgery of documents. The Public Prosecution Service appealed on a point of law to the Bamberg Higher Regional Court arguing that Article 31(1) was not applicable because Mr Qurbani had not entered Germany from a state of persecution but had passed through another member state, namely Greece. It was also argued that Article 31(1) concerns only unauthorised entry and could not therefore deprive the German authorities of the possibility of punishing offences connected to that entry. The Higher Regional Court stayed the proceedings and referred three questions to the CJEU for a preliminary ruling. Firstly, the Bamberg Court wanted to know whether the suspension of penalties in Article 31(1) included offences which were additional to illegal entry, such as the forgery of a passport when the forged passport was not necessary to apply for asylum in Germany. The second question was whether the use of human traffickers precluded reliance on Article 31(1). The final question was whether the factual requirement in Article 31(1) of coming ‘directly’ from a territory where the life or freedom of the person concerned was threatened, was to be interpreted as meaning that that element was satisfied if the person concerned first entered another Member State (in this case, Greece) from where he continued to another Member State (Germany) in which he sought asylum.

Article 31 does not find a direct counterpart anywhere in EU legislation. Article 14(4) and (5) of the 2004 EU Qualification Directive provides for situations where member States might revoke or decline to grant refugee status, such as if there are ‘reasonable grounds’ that the person is a danger to national security, and Article 14(6) provides that such persons are nevertheless entitled to the rights set out in the Refugee Convention, including Article 31. The CJEU also considered the relevant German law (paragraph 267(1) of the Criminal Code). The CJEU noted that there was no clause conferring jurisdiction on it by the Refugee Convention and the CJEU could only interpret Article 31 if this was covered by Article 267 TEU. However, the CJEU (citing TNT Express Nederland, paras. 58 and 59) could only provide interpretations by way of preliminary ruling if the law or rules were part of EU law. While international agreements concluded by the EU were thereby part of the EU legal order and could therefore be the subject of a preliminary ruling, the CJEU did not have jurisdiction to interpret, in preliminary ruling proceedings, international agreements concluded between member states and non member countries. The CJEU would only have jurisdiction to interpret such a convention where the EU had assumed the power previously exercised by the member states in the field in which the international agreement was concluded and therefore provisions of the convention would bind the EU. Although EU legislation had been adopted in the field to which the Refugee Convention applied as part of the implementation of a Common European Asylum System, member states had retained certain powers within this field, specifically, in relation to Article 31. The court therefore did not have jurisdiction to interpret Article 31 notwithstanding Article 78 TFEU and Article 18 of the Charter of Fundamental Rights of the European Union. The CJEU noted that while it accepted it had jurisdiction to interpret the provisions of the Refugee Convention to which EU law made reference (referring to Bolbol (C-31/09 EU:C:2010:351); and Abed El Karem El Kott and Others (C-364/11, EU:C:2012:826)), no reference to any rule of EU law had been made in Mr Qurbani’s case and his case did not raise any issue under Article 14 of the 2004 EU Qualifications Directive.  

Comment

It is disappointing that the court concluded that it did not have jurisdiction in relation to Article 31 in this case.  The CJEU recognised that it might have jurisdiction in a future case in relation to Article 31, for example, if issues were raised relating to article 14 of the 2004 EU Qualifications Directive. The second-phase reception condition Directive and the Dublin III Regulation both mention Article 31 of the Convention in their preambles. This is in the context of the detention of asylum-seekers which relates to Article 31(2) rather than Article 31(1). This suggests that Article 31 could also be interpreted by the CJEU in this context. However, it can be argued that Qurbani did have jurisdiction. Article 3a of the Schengen Border Code (in force 19 July 2013) refers to compliance with the Refugee Convention generally. Article 3 of the same Code applies to any person crossing an internal or external border of a state ‘without prejudice to:…(b) the rights of refugees and persons requesting international protection, in particular as regards non-refoulement.’  Article 5 refers to the requirement of valid documents and visas for third country nationals. Article 7 refers to the falsification of travel documents.  Article 4(3) refers to the imposition of penalties for the unauthorised crossing of external borders (although it adds ‘at places other than border crossing points or at times other than the fixed opening hours’).  It would seem to be at least implicit that Article 31 of the Refugee Convention would be relevant to the obligation in the Code to impose penalties for crossing the borders without authorisation.

The questions raised by the German court remain unanswered by the CJEU but I have provided some provisional answers below.  

Is Article 31(1) of the Refugee Convention applicable to the forgery of documents which take place when a forged passport is presented to a police officer on entry to Germany by air, when the forged passport is not necessary to apply for asylum?

It is not necessary to present a passport, forged or otherwise, to claim asylum. However, claiming asylum would be impossible for many if they did not have recourse to false documents. This was recognised in the 1949 UN Study on Statelessness and a 1950 Memorandum by the UN Secretary-General which both stated that refugees fleeing from their country were rarely in a position to obtain and use (genuine) passports or obtain visas into the country of refuge. The Secretary-General’s draft convention therefore contained the novel Article 24(2) which corresponded to what later became Article 31(1). Illegal entry includes the use of false or falsified documents while illegal presence includes, as noted by Goodwin-Gill, ‘the use of other methods of deception, clandestine entry (for example, as a stowaway), and entry into State territory with the assistance of smugglers or traffickers’. In the UK, it was accepted in Adimi, and subsequent cases such as Mateta, that the exemption from penalties in Article 31(1) applied to the use of false passports. Similarly, in Asfaw, the then House of Lords recognised that an offence of attempting to obtain services by deception (that is, when transiting the UK, trying to get on a plane to claim asylum elsewhere) was caught by Article 31(1) of the Refugee Convention. Article 31 is applicable to Mr Qurbani’s presentation of the forged passport at Munich airport (as indeed it would be to all the offences with which he was charged).

Does the use of human traffickers preclude reliance on Article 31 of the Refugee Convention?

The use of false passports and travelling without a passport are inextricably linked with the use of smugglers and traffickers. The use of the term human traffickers by the German court is interesting. In the UK, the language used by the courts is usually ‘agent’. In reality, the term trafficker or smuggler is probably more appropriate. In some UK cases, the facts appear to raise issues that the asylum seeker has been trafficked (for example, Sadighpour) but it is rare for this to be raised in the court. In other cases (for example, Mateta), the refugee is under the control of an agent who decides on the route, the means of travel, when and where the person will stay and the country of asylum. Refugees do not usually have a choice in how they flee. To decide that refugees cannot rely on the prohibition in Article 31 if they rely on traffickers would therefore render Article 31 useless as a form of protection for asylum seekers and refugees.

Can a person who enters a first member State (Greece) but then goes on to apply for asylum in a second member state (Germany) come within the phrase coming ‘directly’ from a territory where the life or freedom of the person concerned was threatened in Article 31 of the Refugee Convention?

The short answer to the final question is ‘Yes!’ In considering a stay or transit in an intermediate country, what must be assessed is whether the asylum seeker or refugee is able to obtain protection there. The Conference of Plenipotentiaries which negotiated the Refugee Convention was particularly concerned with the subsequent movement of refugees after they had reached safety. However, this cannot be interpreted to mean that a refugee cannot move on subsequently if in fact he or she does not obtain protection in the country of first or subsequent stay. Mr Qurbani travelled via Iran and Turkey before reaching Greece. Iran has ratified the Refugee Convention. However, there are barriers to obtaining (and retaining) refugee status in Iran for Afghani asylum seekers. For example, Human Rights Watch has described in a 2013 report how it is ‘virtually impossible’ for newly arrived Afghan asylum seekers to lodge asylum claims in Iran. In any case, if Mr Qurbani was in transit under the control of an agent or trafficker, he would not have been in a position to claim asylum. Turkey has also ratified the Refugee Convention but it has limited its application to refugees coming from Europe. It has traditionally had a temporary protection refugee regime for non-European refugees, such as Afghanis, which runs parallel to UNHCR procedures. In April 2013, Turkey enacted a Law on Foreigners and International Protection. However, this maintains the geographical limitation. In relation to Greece, the CJEU, in NS & Others, held that EU Member States cannot return asylum seekers to countries, such as Greece, where they would be at risk of ill-treatment contrary to Article 3 of the ECHR. The ECrtHR, in MSS v Belgium and Greece held there to be deficiencies in the Greek examination of the applicant’s asylum claim and a consequent risk that he would be returned directly or indirectly to his country of origin; and the applicant was exposed to conditions of detention and living conditions which violated Article 3 of the ECHR. It would therefore appear that a country such as Greece cannot be said to be a place where an asylum seeker may obtain protection from persecution such as would preclude reliance on Article 31. This argument was accepted in cases such as Matetaand Jaddi. In Norway, following a judgment of the Norwegian Supreme Court (see also ECRE) on 24 June 2014, new guidelines exempt from prosecution refugees who have made necessary stops in other safe countries before reaching Norway. Previously, Norwegian police interpreted this as exempting from prosecution only those asylum seekers who had not passed through any other ‘safe country’ during transit.

            Prosecutions of asylum seekers and refugees occur in the UK, Germany and Norway (with local differences). There may be prosecutions in other countries. What Qurbanihighlights is the restrictive interpretation being placed on Article 31(1) by European governments and the continuing relevance of Article 31(1).

Barnard & Peers: chapter 26

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[1] At the time it was drafted, this reference to Article 1 meant that it applied only to events occurring before 1 January 1951. The ‘coming directly’ phrase was inserted at the request of the French at a late stage because France was concerned that Article 31 would apply to others who had no connection with the events occurring before January 1951. It is debatable how relevant the phrase is after the coming into force of the 1967 Protocol which has removed this temporal limitation.

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