CJEU - C‑373/13, H. T. v Land Baden-Württemberg

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Country of Applicant: 
Turkey
Date of Decision: 
24-06-2015
Citation: 
C‑373/13
Court Name: 
First Chamber of the CJEU
Relevant Legislative Provisions: 
International Law > 1951 Refugee Convention > Art 28
International Law > 1951 Refugee Convention > Art 32
International Law > 1951 Refugee Convention > Art 33
Headnote: 

The judgment concerns the scope of Article 21 of Council Directive 2004/83/EC of 29 April 2004 with regards to derogation from protection from refoulement and the possibility to revoke a residence permit issued to a refugee pursuant to Article 24 of said Directive. 

Facts: 

H.T. is a Turkish national of Kurdish origin who claimed asylum in Germany due to his political activities in exile in support of the PKK. He was recognised as a refugee in 1993 and granted an indefinite residence permit. H.T. was later convicted under national law due to collecting funds for the PKK (which was banned in Germany) and attending its meetings. An expulsion order was made which automatically invalidated his residence permit. The execution of this order was suspended due to H.T.’s strong family ties in Germany and his ongoing status as refugee.

He appealed against the expulsion decision, and the Administrative Court of Baden-Württemberg stayed the proceedings and referred a number of questions to the CJEU for a preliminary ruling.

Questions referred for a preliminary ruling

1. (a) Must the rule contained in the first subparagraph of Article 24(1) of Directive 2004/83, concerning the obligation of Member States to issue a residence permit to persons who have been granted refugee status, be observed even in the case of revocation of a previously issued residence permit?

(b)      Must that rule therefore be interpreted as precluding the revocation or termination of the residence permit (by expulsion under national law, for example) of a beneficiary of refugee status in cases where the conditions laid down in Article 21(3) in conjunction with (2) of Directive 2004/83 are not fulfilled and there are no ‘compelling reasons of national security or public order’ within the meaning of the first subparagraph of Article 24(1) of Directive 2004/83?

2. If parts (a) and (b) of the first question are answered in the affirmative:

(a)      How must the ground for exclusion of ‘compelling reasons of national security or public order’ in the first subparagraph of Article 24(1) of Directive 2004/83 be interpreted in relation to the risks represented by support for a terrorist association?

(b)      Is it possible for ‘compelling reasons of national security or public order’ within the meaning of the first subparagraph of Article 24(1) of Directive 2004/83 to exist in the case where a beneficiary of refugee status has supported the PKK, in particular by collecting donations and regularly participating in PKK-related events, even if the conditions for non-compliance with the principle of non-refoulement laid down in Article 33(2) of the [Geneva Convention] and also, therefore, the conditions laid down in Article 21(2) of Directive 2004/83 are not fulfilled?

3. If part (a) of the first question is answered in the negative:

Is the revocation or termination of the residence permit issued to a beneficiary of refugee status (by expulsion under national law, for example) permissible under EU law only in cases where the conditions laid down in Article 21(3) in conjunction with (2) of the Directive 2004/83 (or the identically-worded provisions of its successor, 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 (OJ 2011 L 337, p. 9]) are satisfied?’

Decision & Reasoning: 

The first and third questions

Article 21(3) gave States a discretion to revoke a refugee’s residence permit only where the conditions set out in Article 21(2) were met: where this was not prohibited by their international obligations and where there were either reasonable grounds for considering that the refugee is a danger to the security of State or, having been convicted by a final judgment of a particularly serious crime, he constitutes a danger to the community. The Court noted that its scope was restricted to situations of refoulement, as opposed to expulsion to a third country [42-44].

The wording of Article 24(1) does not explicitly rule out the possibility of revoking a residence permit if compelling reasons of national security or public order so require.  This appears to be consistent with the aim of the provision, the scheme of the Directive, the travaux préparatoires and a logical analysis [48-54].

Therefore, the answer to these questions is that Directive 2004/183 must be interpreted as meaning that a residence permit, once granted to a refugee, may be revoked, either pursuant to Article 24(1) of that directive, where there are compelling reasons of national security or public order within the meaning of that provision, or pursuant to Article 21(3) of that directive, where there are reasons to apply the derogation from the principle of non-refoulement laid down in Article 21(2) of the same directive [55].

The second question

Considering the principle of non-refoulement outlined in EU primary law  and in article 21(1) of Directive 2004/83, which lays down the principle that refugees are normally protected from refoulement, the Court examined the derogation provided in said articles, which is only to be used as a last resort.  The Court went onto find that in the event that a Member State, pursuant to Article 14(4) of that directive, revokes, ends or refuses to renew the refugee status granted to a person, that person is entitled, in accordance with Article 14(6) of that directive, to rights set out inter alia in Articles 32 and 33 of the Geneva Convention. The consequences for the refugee concerned of applying the derogation provided for in Article 21(2) of Directive 2004/83 are potentially very drastic since he might be returned to a country where he is at risk. It is for that reason that that provision subjects the practice of refoulement to rigorous conditions, since, in particular, only a refugee who has been convicted by a final judgment of a ‘particularly serious crime’ may be regarded as constituting a ‘danger to the community of that Member State’ within the meaning of that provision. Moreover, even where those conditions are satisfied, refoulement of the refugee concerned constitutes only one option at the discretion of the Member States, the latter being free to opt for other, less rigorous, options. [70-72].

Furthermore the Court went onto consider that Article 24(1) of Directive 2004/83, whose wording is more abstract than that of Article 21(2) of that directive, pertains only to the refusal to issue a residence permit to a refugee and to the revocation of that residence permit, and not to the refoulement of that refugee. That provision therefore concerns only situations where the threat posed by that refugee to the national security, public order or public of the Member State in question cannot justify loss of refugee status, let alone the refoulement of that refugee. That is why implementation of the derogation provided for in Article 24(1) of Directive 2004/83 does not presuppose the existence of a particularly serious crime. The consequences, for the refugee, of revoking his residence permit pursuant to Article 24(1) of Directive 2004/83 are therefore less onerous, in so far as that measure cannot lead to the revocation of his refugee status and, even less, to his refoulement within the meaning of Article 21(2) of that directive. [73-74].

The Court thus surmised that it follows that the concept of ‘compelling reasons’ contained in Article 24(1) of Directive 2004/83 has a broader scope than the concept of ‘serious reasons’ contained in Article 21(2) of that directive, and that certain circumstances which do not exhibit the degree of seriousness authorising a Member State to use the derogation provided for in Article 21(2) of that directive and to take a refoulement decision can nevertheless permit that Member State, on the basis of Article 24(1) of the same directive, to deny the refugee concerned his residence permit. [75].

The Court considered the concept of ‘compelling reasons of national security or public order’ in Article 24(1) with reference to its previous jurisprudence on the meaning of the concepts of ‘public security’ and ‘public order’ in the Citizenship Directive. It concluded that support provided by a refugee to a terrorist organisation fell within the scope of Article 24(1) in principle and justified the revocation of a refugee’s residence permit. However, the referring court was obliged to undertake an individual assessment of the specific facts relating to H.T. before this step was taken, considering the actions of the terrorist organisation, the involvement of H.T. and the principle of proportionality [86-92].

The Court emphasised that revocation of his residence permit under Article 24(1) would not deprive H.T. of the rights he was entitled to as a refugee pursuant to Chapter VII of the Qualification Directive [95].

Outcome: 

The Court ruled:

1.      Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted must be interpreted as meaning that a residence permit, once granted to a refugee, may be revoked, either pursuant to Article 24(1) of that directive, where there are compelling reasons of national security or public order within the meaning of that provision, or pursuant to Article 21(3) of that directive, where there are reasons to apply the derogation from the principle of non-refoulement laid down in Article 21(2) of the same directive.

2.      Support for a terrorist organisation included on the list annexed to Council Common Position 2001/931/CFSP of 27 December 2001 on the application of specific measures to combat terrorism, in the version in force at the material date, may constitute one of the ‘compelling reasons of national security or public order’ within the meaning of Article 24(1) of Directive 2004/83, even if the conditions set out in Article 21(2) of that directive are not met. In order to be able to revoke, on the basis of Article 24(1) of that directive, a residence permit granted to a refugee on the ground that that refugee supports such a terrorist organisation, the competent authorities are nevertheless obliged to carry out, under the supervision of the national courts, an individual assessment of the specific facts concerning the actions of both the organisation and the refugee in question. Where a Member State decides to expel a refugee whose residence permit has been revoked, but suspends the implementation of that decision, it is incompatible with that directive to deny access to the benefits guaranteed by Chapter VII of the same directive, unless an exception expressly laid down in the directive applies.

Observations/Comments: 

The Advocate General Sharpston opinion on the case is available here. She proposed the following response to the CJEU:

A residence permit once granted to a refugee may be revoked either where there are compelling reasons of national security or public order within the meaning of Article 24(1) of Council Directive 2004/83/EC of 29 April 2004 (on minimum standards for the qualification and status of third-country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted) or where there are grounds for applying the exception to the principle of non-refoulement in Article 21(2) of that directive.

The words ‘compelling reasons of national security or public order’ in Article 24(1) of Directive 2004/83 mean that there are serious reasons for considering that national security or public order are threatened. That expression is wider in scope than the condition in Article 21(2) of that directive, namely, reasonable grounds for considering the refugee concerned to be a danger to the security of the Member State in question (within Article 21(2)(a)) or where, having been convicted by a final judgment of a particularly serious crime, he constitutes a danger to the community of that State (within Article 21(2)(b)).

Before a residence permit granted to a refugee may be revoked under Article 24(1) of Directive 2004/83 on the grounds that he supports a proscribed organisation, there must first be an individual assessment of the specific facts. The following elements are relevant to that assessment: (i) the refugee’s own precise actions; (ii) the actions of the organisation he is deemed to have supported; and (iii) whether there are further elements or circumstances that create an enhanced likelihood of a threat to national security or public order. It is for the competent authorities of the Member State, under the judicial supervision of the national courts, to evaluate the precise facts in any individual case.

In circumstances where a Member State expels a refugee but suspends enforcement of that decision, it is incompatible with Directive 2004/83 to deny that person access to the benefits guaranteed by Chapter VII thereof, unless an express exception applies; and any measures taken by a Member State in pursuing the aims of that provision must be proportionate.

An individual’s refugee status may only be revoked pursuant to the express provisions of Directive 2004/83. Thus, where a refugee retains his status under that directive but the effect of national rules is to deny him the benefits that he is entitled to as a refugee under that measure, such national rules are incompatible with Directive 2004/83. Where national law is inconsistent with a directive, a national court which is called upon, within the exercise of its jurisdiction, to apply provisions of EU law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation.

Case comment:

What if a refugee allegedly supports terrorism? The CJEU judgment in T, Steve Peers, June 2015

http://eulawanalysis.blogspot.be/2015/06/what-if-refugee-allegedly-suppo...

Case Law Cited: 

CJEU - C-627/13 and C-2/14, Criminal proceedings against Miguel M., Thi Bich Ngoc Nguyen, Nadine Schönherr

Theodora Hendrika Bouman v Rijksdienst voor Pensioenen

C-317/12, Criminal proceedings against Daniel Lundberg

CJEU - C-145/09, Tsakourids
Attachment(s): 
Other sources cited: 

United Nations Security Council Resolution 1377 (2001) of 12 November 2001, concerning threats to international peace and security caused by terrorist acts

 

Authentic Language: 
German
Country of preliminary reference: 
Germany
National / Other Legislative Provisions: 
Germany - Law on residence
gainful employment and integration of foreign nationals in federal territory (Gestez uber den Aufenthalt
Germany - The law governing the public law of associations (Gesetz zur Regelung des offentlichen Vereinsrechts) of 5 August 1964