Belgium – Council for Alien Law Litigation, 10 February 2017, n 182.109

Country of Decision:
Country of Applicant:
Date of Decision:
10-02-2017
Citation:
N 182.109
Court Name:
Council for Alien Law Litigation
National / Other Legislative Provisions:
Belgium - Law of December 15th 1980
Article 48/3
Article 48/4
Article 55/53/1
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Headnote: 

After having committed several offences qualified as being of a ‘particular gravity’, Mr.O’s refugee status was revoked on April 21st 2006.

Upon appeal to the Council of Alien Law Litigation (‘CALL’), the question of the validity of article 55/3/1 of December 15th 1980 law (the ‘1980 Law’) arose. Although it is established that this provision is transposing article 14(4) of the Directive 2011/95/EU, its compatibility with the Geneva Convention must be verified.

The Council refuses then to pronounce itself on the question, arguing the competency of such matter is vested in the Court of Justice of the European Union.

Facts: 

Following a series of offences committed on the Belgian territory during his stay and leading to the death of one of his victims, Mr. O’s refugee status was revoked by the Commissioner-General for Refugees and Stateless Persons (‘the Commissioner’) on the basis of article 55/3/1 of the 1980 Law. The revocation was based upon the threat that M.O. posed for the internal security of the state of Belgium due to his sentences for offences characterised as being of a ‘particular gravity’.

Moreover, as he was entitled to do so following the 3rd subsection of the same article, the Commissioner gave a favourable opinion to an expulsion order being pronounced against Mr.O. Indeed, by appreciating that the fear of persecutions were he to come back to his country of origin was not well-founded anymore, as his claim dated back to his desertion 15 years ago, the Commissioner judged that such order would be compatible with articles 48/3 and 48/4 of the 1980 Law. 

Mr.O. then appealed to the CALL for his refugee status to be maintained or at least for the Commissioner’s decision to be annulled.

Decision & Reasoning: 

Although it is called to rule on the decision of revoking M.O’s refugee status and the possible expulsion of M.O. to the DRC, the Council finds itself forced to address the issue of the legality of article 55/3/1 of the 1980 Law in its 2015 updated version.

The Council first emphasises that the article in question is merely a transposition of article 14(4) of the Qualification Directive (Directive 2011/95/EU). The question therefore arises as to whether the Directive is in conformity with the Geneva Convention, a requirement of any EU secondary legislation falling within the scope of asylum law (as per article 18 of the EU Charter of Fundamental Rights and article 78 of the Treaty on the Functioning of the European Union).

In particular the Council must decide whether the letter of article 55/3/1 of the 1980 Law and of article 14(4) of the Qualification Directive does not result in adding a ground of exclusion to those expressly and exhaustively provided by the Geneva Convention, thus acting in breach of the pacta sunt servenda principle and of the requirement of consent. The Convention has the status of an international treaty signed by all the Member States: the consent of all the parties is as such needed for any modification.

Following a reading of the Convention, the Council explains that the legislator, in 1951, did not introduce the possibility of revoking refugee status for reasons of national security following convictions in the receiving country. This ground rather relates to the exception to the prohibition of non-refoulement in Article 33 of the Geneva Convention. It thus appears that it cannot be adduced, neither explicitly or implicitly, that it is permitted to derogate from the conditions of article 1F of the Convention relating to the clauses of exclusion from refugee status because of offences committed by a refugee.

In order to justify the relevance of its analysis, the Council quotes two recommendations by the United Nation High Commissioner for Refugees (‘UNHCR’) and by the Belgian Council of State. The UNHCR regrets the fact that article 14(4) of the transposed Directive risks substantially modifying the exclusion clauses already set out in the 1951 Convention. For its part, the Council of State addresses the issue of the pertinence of the distinction between ordinary offences of a particular gravity according to the Geneva Convention and the definitive sentences for offences of a particular gravity absent the wording of the Geneva Convention but nevertheless presenting a threat to the society or to the national security.

As such, by evoking as a possible ground of exclusion from refugee status the threat to national security that an individual poses where convicted for offences of a particular gravity, the Directive seems to be adding to the conditions enounced in article 1F of the Geneva Convention.

Yet such a competence for a conformity control is not devolved to the national judge. Consequently, the CALL refers the following questions to the CJEU (C-78/17 and C-77/17) for a preliminary ruling before giving a decision on the merits of M.O.’s claim:

Is Article 14 § 4 of Directive 2011/95/EU compatible with Article 18 of the EU Charter of Fundamental Rights (CFR EU) and Article 78 § 1 of the Treaty on the Functioning of the EU (TFEU)? In this regard:
 
A. Should Article 14 § 4 of Directive 2011/95/EU be interpreted as creating a new exclusion clause to granting refugee status as prescribed by Article 13 of the same directive and, consequently, by Article 1A of the 1951 Refugee Convention?


B. If question A is answered in the affirmative, is Article 14 § 4 interpreted in such sense compatible with Article 18 of the CFR EU and Article 78 § 1 TFEU, requiring EU law to be in conformity with the 1951 Refugee Convention, of which Article 1F provides an exhaustive list of exclusion clauses of strict interpretation?


C: If question A is answered in the negative, should Article 14 § 4 of Directive 2011/95/EU be interpreted as creating a new ground for withdrawing refugee status that is not foreseen by the 1951 Refugee Convention, which, according to Article 18 of the EU CFR and Article 78 § 1 TFEU, must be respected?


D: If question C is answered in the affirmative, is Article 14 § 4 of Directive 2011/95/EU compatible with Article 18 of the EU CFR and Article 78 § 1 TFEU, both of which require the conformity of EU law with the 1951 Refugee Convention, since it introduces a ground for withdrawing refugee status that is not foreseen by nor can find basis on the 1951 Refugee Convention?


E: If questions A and C are answered in the negative, how should Article 14 § 4 of Directive 2011/95/CE be interpreted, in conformity with Article 18 of the EU CFR and Article 78 § 1 TFEU, both of which require the conformity of EU law with the 1951 Refugee Convention?
 

Outcome: 

Suspension of M.O.’s claim pending determination by the CJEU. 

Subsequent Proceedings : 

This case has been joined with C-391/16 M, referred by the Czech Republic.

Observations/Comments: 

This case summary was written by Romain Tourenne, LPC student at BPP Univeristy. 

Other sources cited: