CJEU: AG Opinion Case C-573/14 Commissaire général aux réfugiés et aux apatrides v Mostafa Lounani

Tuesday, May 31, 2016

Advocate General Sharpston has given her opinion on the preliminary ruling from the Conseil d’Etat (Council of State) in Belgium. In 2006, the Brussels Criminal Court found Mr. Lounani guilty of having participated in the Belgian cell of a terrorist group called the ‘Moroccan Islamic Combatant Group’ (MICG) and ordered him to a six years’ imprisonment. In 2010 he applied for refugee status to the Commissioner General for Refugees and Stateless Persons (CGRA), but was refused international protection on the grounds of participation in a terrorist organisation. After this decision was overturned by the asylum appeal body, the Council for asylum and immigration proceedings (CCE), the CGRA went to the Council of State in a subsequent appeal. The Belgian Council of State referred several questions to the Court of Justice of the EU concerning the relation between participating in a terrorist organisation and the exclusion grounds in the Qualification Directive.

AG Sharpston considers it unnecessary to demonstrate that an asylum applicant has previously been convicted of a terrorist offence with the meaning of Article 1(1) of the Framework Decision in order to be refused refugee status on the ground laid down in Article 12(2)(c) of the Qualification Directive. The AG bases this on the fact that even though the Framework Decision is relevant for the assessment, it cannot determine the scope of the exclusion clause. Also, the interpretation of the exclusion clauses should depend on the system of rules for determining refugee status instead of concepts originating in other areas of EU law, such as the Framework Decision. 

By the second and third question the referring court asks whether participation in a terrorist activity is sufficient to trigger the exclusion grounds in the Qualification Directive. Building on the CJEU judgments in B and D and H.T, AG Sharpston concludes that a previous conviction for being part of a terrorist organisation may not automatically lead to the exclusion from international protection. A final conviction for a terrorist offence by the Courts of a Member State should however be given significant weight in the individual assessment of, whether the grounds for exclusion in Article 12(2)(c) of Directive 2004/83 apply. She argues that the assessment should include an examination of whether he shares personal responsibility and the implications of group’s activities for international peace and security. In order to invoke grounds for exclusion it is not necessary to establish that the applicant himself has instigated or participated in terrorist acts.

Finally, AG Sharpston submits that an applicant can also fall under the exclusion grounds in Article 12(2)(c) and (3) when no actual offence within the meaning of Article 1 Framework Decision has been committed.

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Exclusion from protection