CJEU – Joined Cases C-331/16 K. and C-366/16 H.F., 2 May 2018

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Country of Applicant: 
Afghanistan
Bosnia and Herzegovina
Croatia
Date of Decision: 
02-05-2018
Citation: 
Court of Justice of the European Union, Joined Cases C-331/16 K. and C-366/16 H.F., 2 May 2018
Court Name: 
Court of Justice of the European Union (Grand Chamber)
Relevant Legislative Provisions: 
International Law > 1951 Refugee Convention > Art 1F
International Law
International Law > 1951 Refugee Convention
Headnote: 

The fact that a person has been the subject, in the past, of a decision excluding him from refugee status cannot automatically permit the finding that the mere presence of that person in the territory of the host Member State constitutes a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. A case-by-case assessment is necessary before a measure based on grounds of public policy or public security is adopted. This assessment includes weighing the threat against the protection of the rights of EU citizens and their family members.

Similarly, in order to adopt an expulsion decision with due regard to the principle of proportionality, account must be taken of, inter alia, the nature and gravity of the alleged conduct of the individual concerned, the duration and, when appropriate, the legality of his residence in the host Member State, the period of time that has elapsed since that conduct, the individual’s behaviour during that period, the extent to which he currently poses a danger to society, and the solidity of social, cultural and family links with the host Member State.

Facts: 

The main proceedings in case C-331/16 concern K., a Croatian and Bosnian national who unsuccessfully applied for asylum in the Netherlands on several occasions. In 2013, K. was the subject of an entry ban. With the accession of Croatia to the EU in the same year, he requested the withdrawal of the ban, which was accepted. However, he was declared an “undesirable immigrant” on the ground that he was guilty of war crimes and crimes against humanity in the past. The national authorities found that K. represented a genuine, present, and sufficiently serious threat to public security and international relations.

In turn, the proceedings in case C-366/16 concern H.F., an Afghan national who submitted an asylum application in the Netherlands in 2000, without success. In 2011, he moved and settled in Belgium with his daughter, who is a Dutch citizen. In 2013, he submitted an application for a residence permit as a family member of an EU citizen, which was refused based on the information from his asylum application in the Netherlands, which indicated that he had participated in or given order to commit, war crimes or crimes against humanity.

In essence, the referring courts requested the CJEU to give a preliminary ruling regarding: (1) whether Article 27(2) of the Citizens Rights Directive must be interpreted as meaning that the fact that a EU citizen or his/her family member who has applied for a right of residence and has, in the past, been the subject of a decision excluding him/her from refugee status on the ground that there were serious reasons to believe that he/she had been guilty of acts under the scope of Article 1F of the 1951 Refugee Convention or under Article 12(2) of the recast Qualification Directive, enables the competent authorities to consider automatically that his/her mere presence constitutes a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society; (2) how the existence of such a threat should be assessed and whether authorities should take account of the time that has elapsed since the alleged commission of the acts; (3) the effect of the principle of proportionality on the adoption of such decisions.  

Decision & Reasoning: 

Firstly, the CJEU recalled its settled case-law that, while Member States retain the freedom to determine the requirements of public policy and public security, those requirements must be interpreted strictly. Accordingly, the Court has interpreted the concept of “public policy” as the existence, in addition to general social disturbance, of a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. In its turn, “public security” covers both the internal and external security of a Member State. Internal security may be affected by, inter alia, a direct threat to the “peace of mind and physical security of the population of the Member State concerned”, and external security may be affected by, inter alia, the risk of a serious disturbance to the foreign relations of that Member State or to the “peaceful coexistence of nations”.

It follows, therefore, that the fact that the person concerned has been the subject, in the past, of a decision excluding him/her from refugee status cannot automatically permit the finding that the mere presence of that person in the territory of the host Member State constitutes a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. This should be established on a case-by-case assessment by the competent national authorities. That assessment must take into account the findings of fact made in the decision of exclusion from refugee status, in particular the nature and gravity of the crimes or acts that that individual is alleged to have committed, the degree of his individual involvement and the possible existence of grounds for excluding criminal liability such as duress or self-defence. Subject to this assessment, it is possible that past conducts alone may fulfil the requirements of “public policy”. The time that has elapsed since the commission of the acts is also a relevant factor to assess if there is a genuine, present and sufficiently serious threat. However, the possible exceptional gravity of the acts in question may be such as to require, even after a relatively long period of time, that the threat is persistent.

The CJEU also affirmed that even if it is improbable that the individual concerned will commit such crimes or acts again, if his/her conduct shows the persistence of “a disposition hostile to the fundamental values” enshrined in Articles 2 and 3 TEU, such as human dignity and human rights, this is capable of constituting a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.

The individual assessment must also involve weighing the threat the individual concerned represents to the fundamental interests of the host society against the protection of the rights which EU citizens and their family members derive from Directive 2004/38. Account must be taken of the fundamental rights of the persons involved, particularly the right to respect for private and family life as enshrined in Article 7 of the Charter of Fundamental Rights of the European Union.

The CJEU has also affirmed with respect to the questions raised by K.’s situation specifically that, since the decision to declare him an undesirable immigrant implied that he was under an obligation to leave the Netherlands, that decision could be considered as being an expulsion decision within the meaning of Article 28(1) of the Citizens Rights Directive. In order to adopt such a decision with due regard to the principle of proportionality, account must be taken of, inter alia, the nature and gravity of the alleged conduct of the individual concerned, the duration and, when appropriate, the legality of his residence in the host Member State, the period of time that has elapsed since that conduct, the individual’s behaviour during that period, the extent to which he currently poses a danger to society, and the solidity of social, cultural and family links with the host Member State.

The Court affirmed that the greater the degree of integration of EU citizens and their family members in the host Member State, the greater the safeguards those persons may rely on against expulsion. However, to benefit from the enhanced protection against expulsion under the Citizens Rights Directive, the person concerned must have a right of permanent residence, which can only be acquired if the person concerned has resided legally in the host Member State for a continuous period of five years. A period of residence which complies with the law of a Member State but does not satisfy the conditions laid down in EU law cannot be regarded as a “legal” period of residence within the meaning of that Directive.

Outcome: 

In light of the above, the Grand Chamber of the CJEU ruled:

1. Article 27(2) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, must be interpreted as meaning that the fact that a European Union citizen or a third-country national family member of such a citizen, who applies for a right of residence in the territory of a Member State, has been the subject, in the past, of a decision excluding him from refugee status under Article 1F of the Convention Relating to the Status of Refugees, signed in Geneva on 28 July 1951 and supplemented by the Protocol Relating to the Status of Refugees, concluded in New York on 31 January 1967, or Article 12(2) of Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted, does not enable the competent authorities of that Member State to consider automatically that the mere presence of that individual in its territory constitutes, whether or not there is any risk of re-offending, a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, capable of justifying the adoption of measures on grounds of public policy or public security.

The finding that there is such a threat must be based on an assessment, by the competent authorities of the host Member State, of the personal conduct of the individual concerned, taking into consideration the findings of fact in the decision to exclude that individual from refugee status and the factors on which that decision is based, particularly the nature and gravity of the crimes or acts that he is alleged to have committed, the degree of his individual involvement in them, whether there are any grounds for excluding criminal liability, and whether or not he has been convicted. That overall assessment must also take account of the time that has elapsed since the date when the crimes or acts were allegedly committed and the subsequent conduct of that individual, particularly in relation to whether that conduct reveals the persistence in him of a disposition hostile to the fundamental values enshrined in Articles 2 and 3 TEU, capable of disturbing the peace of mind and physical security of the population. The mere fact that the past conduct of that individual took place in a specific historical and social context in his country of origin, which is not liable to recur in the host Member State, does not preclude such a finding.

In accordance with the principle of proportionality, the competent authorities of the host Member State must, in addition, weigh the protection of the fundamental interest of society at issue, on the one hand, against the interests of the person concerned in the exercise of his right to freedom of movement and residence as a Union citizen and in his right to respect for private and family life.

2. Article 28(1) of Directive 2004/38 must be interpreted as meaning that, where the measures envisaged entail the expulsion of the individual concerned from the host Member State, that State must take account of, inter alia, the nature and gravity of the alleged conduct of the individual concerned, the duration and, when appropriate, the legality of his residence in that Member State, the period of time that has elapsed since that conduct, the individual’s behaviour during that period, the extent to which he currently poses a danger to society, and the solidity of social, cultural and family links with that Member State.

Article 28(3)(a) of Directive 2004/38 must be interpreted as meaning that it is not applicable to a European Union citizen who does not have a right of permanent residence in the host Member State, within the meaning of Article 16 and Article 28(2) of that directive.

Observations/Comments: 

This judgment is generally in line with the Opinion of Advocate General Øe, delivered in December 2017.

The Migration Law Clinic of the VU Amsterdam published an expert opinion on this issue in July 2016.

Relevant articles:

  • G. Renaudière, S. Sarolea and J.-B. Farcy, “Exclusion et restriction à la libre circulation pour le membre de la famille du citoyen : à évaluer au cas par cas”, Cahiers de l’EDEM, available here.
Case Law Cited: 

CJEU- C-30/77, Régina v Pierre Bouchereau

CJEU - C-430/10, Hristo Gaydarov v Director na Glavna direktsia "Ohranitelna politsia" pri Ministerstvo na vatreshnite raboti

CJEU - C-371/08, Ziebell

CJEU - C-145/09, Tsakourids

H.T., 24 June 2015, C-373/13, ECLI:EU:C:2015:413,

CJEU - C-482/01 and C-493/01 Orfanopoulos and Oliveri, 29 April 2004

CJEU - Joined Cases C-316/16 and C-424/16 B and Vomero, 17 April 2018

CJEU - Joined Cases C-424/10 and C-425/10 Ziolkowski and Szeja, 21 December 2011

CJEU - C-434/10 Aladzhov, 17 November 2011

CJEU - C-193/16 E, 13 July 2017

CJEU - C-348/09 I, 22 May 2012

CJEU - C-162/09 Lassal, 7 October 2010
Other sources cited: 

Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States – Articles 16(1), 27, 28, 28(3)(a)

Article 2 and 3 of the TEU

Authentic Language: 
English
Country of preliminary reference: 
Netherlands
National / Other Legislative Provisions: 
Netherlands - Aliens Act Article 67
Belgium – Law on the admission
residence
establishment and removal of foreign nationals of 15 December 1980 – Article 40a(2)
establishment and removal of foreign nationals of 15 December 1980 – Article 43
Belgium – Royal Decree on entry to the national territory
settlement and removal of foreign nationals of 8 October 1981 – Article 52(4)