Belgium- Council for Alien Law Litigation, 12 February 2013, No. 96933

Country of Decision:
Country of Applicant:
Date of Decision:
12-02-2013
Citation:
C.C.E., arrêt no 96933
Court Name:
Council for Alien Law Litigation (CALL) (MAERTENS, LOUIS, HAYEZ)
National / Other Legislative Provisions:
Belgium - Vreemdelingenwet/loi sur les étrangers 15/12/1980 (Aliens Act) - Artikel 55/2
Belgium - Vreemdelingenwet/loi sur les étrangers 15/12/1980 (Aliens Act) - Artikel 55/4
Belgium - Vreemdelingenwet/loi sur les étrangers 15/12/1980 (Aliens Act) - Artikle 39/76
Belgium - Vreemdelingenwet/loi sur les étrangers 15/12/1980 (Aliens Act) - Artikle 48/4
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Headnote: 

The CALL required specific facts to be attributable to the Applicant and the existence of a high threshold of seriousness in order to make a finding of acts contrary to the purposes and principles of the United Nations. In this case the CALL refused to exclude the refugee status of an Applicant who had a criminal conviction for participating in the activities of a terrorist group.

Facts: 

The Applicant had been excluded from refugee status by the CGRS on the basis that there were serious reasons to believe that he had been guilty of actions contrary to the purposes and principles of the UN. These reasons were based on a criminal conviction for participation, as a leading member, in the activities of a terrorist group: the organisation of a network to send two volunteers to Iraq to fight the American forces there, the Applicant’s wish to engage in jihad, to become a martyr and to damage American interests by carrying out suicide operations.

Decision & Reasoning: 

The CALL distinguished between the facts attributable to the organisation on the one hand and those attributable to the Applicant on the other. It concluded that neither set of facts was sufficient to justify an exclusion.

In relation to the organisation, the CALL found that the group to which the Applicant belonged had not had any specific fact or act attributed to it that fell within the exclusion clause. According to the CJEU, the application of an exclusion clause requires assessment of the specific facts of which the competent authority is aware in order to determine whether serious reasons exist to believe that the organisation of which the person is a member has committed acts falling within the exclusion clause (Bundesrepublik Deutschland -v- B and D, C-57/09 and C-101/09, 09-11-2010).

In relation to the Applicant, the CALL found that the facts attributable to him were logistical support for a terrorist undertaking, in particular through material or intellectual services; the counterfeiting of passports and the fraudulent conveyance of passports described as acts of participation in the activity of a cell which lends logistical support to a terrorist movement; and the active participation in the organisation of a network to send volunteers to Iraq. These facts would not constitute, as such, acts contrary to the purposes and principles of the United Nations, namely a ‘threat to international peace and security, with the aim of seriously intimidating a population or of seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or of an international organisation’ (paragraph 5.9.7 of this judgment).

Taking into account the principle of strict interpretation of exclusion clauses, the CALL concluded that no specific act attributable to the organisation of which the Applicant was considered to be a member, nor any personal action by the Applicant sufficiently serious to be described as being contrary to the purposes and principles of the United Nations, had been established. There were therefore no grounds for exclusion.

 

Outcome: 

Appeal allowed: Refusal of exclusion and recognition of refugee status.

Subsequent Proceedings : 

This judgment is the fourth delivered by the CALL on the subject of the asylum application made by this Applicant, criminally convicted for organising a terrorist network to send volunteer fighters to Iraq.

In the first judgment, No. 54335 dated 13-01-2011, the CALL quashed the CGRS’s decision to exclude the Applicant from international protection. The CALL held that the Applicant’s criminal conviction was not sufficient to exclude him from refugee status. According to the CALL, ‘reading this judgment does not reveal any specific facts’ as per CJEU jurisprudence in B and D  (Bundesrepublik Deutschland -v- B and D, C-57/09 and C-101/09, 09-11-2010). The CALL quashed the decision to exclude international protection and sent the case back to the CGRS, inviting it to make further investigations prior to making a new decision.

In a second judgment, No. 57261 dated 03-03-2011 , the CALL quashed the decision taken by the CGRS implementing judgment No. 54335. The CGRS excluded the Applicant from refugee status, emphasising as ‘specific individual facts’ the carrying out of a suicide attack against multinational forces in Iraq by a member of the terrorist organisation led by the Applicant. Regretting that ‘no indication has, however, been given as to the source of this information, the date, the seriousness or the circumstances of the event’, the CALL again quashed the CGRS’s decision and sent the case back to the CGRS to obtain more information.

In a third judgment, No. 64356 dated 01-07-2011, the CALL was not satisfied with the further information supplied by the CGRS to justify its third consecutive decision to refuse refugee status. The CGRS emphasised the fact that the terrorist cell led by the Applicant in Belgium was part of a group responsible for attacks in Morocco, the GICM (Moroccan Islamic Combatant Group). Holding that the CGRS’s decision did not specify the support lent by the Belgian GICM cell to the attacks committed in Morocco, the CALL held that the Applicant’s refugee status should be recognised.

The CGRS lodged an appeal on points of law to the Council of State against judgment No. 64356 dated 01 July2011.  By a judgment No. 220.321 dated 13 July2012, the Council of State set aside the CALL’s judgment No. 64356 on formal grounds connected to the reasoning of the judgment (contradiction in the grounds; misinterpretation of the judgment relating to the criminal conviction).  The CALL would need to re-determine the case.

In the fourth judgment, No. 96933, which is the subject of this summary, the CALL attempted to comply with the Council of State’s requirements while confirming the recognition of the Applicant’s refugee status.

A fresh appeal on points of law to the Council of State was lodged by the CGRS against judgment No. 96933 which is the subject of this summary. That appeal is pending.

Observations/Comments: 

In this judgment, No. 96933, the CALL reaffirmed that it was not sufficient that the behaviour had been classified as terrorist at a national level, even by means of a criminal conviction; it was still necessary to examine whether it was a threat to international peace and security.

It also reiterated that, according to the CJEU’s requirements (Bundesrepublik Deutschland -v- B and D, C-57/09 and C-101/09, 09-11-2010), specific facts as defined must be attributable to the Applicant. 

Other sources cited: 

UNHCR, Guidelines on International Protection: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees, 04-09-2003;

UNHCR, Background Note on the Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees, 04-09-2003;

UNCHR, Annotated Comments on the EC Council Directive 2004/83/EC of 29 April 2004, 28-01-2005

Case Law Cited: 

Belgium - Council of State, 13 July 2012, No. 220321

Belgium - Council for Alien Litigation, 1 July 2011, No. 64356

Belgium - Council for Alien Litigation, 3 March 2011, No. 57261