The Dangers of Conflation
On May 17th 2023 Advocate General de la Tour handed down the Opinion in case C-402/22. It addresses the meaning of “particularly serious crime” found in Article 14 (4) (b) of the 2011 Qualification Directive, which sets out the grounds for revocation or refusal to grant refugee status under EU law. This provision refers to “refugees delinquents” and introduces security concerns of states as the ground for depriving persons of their refugee status. In practice, it opens the question of how to treat refugees that committed certain crime(s) after they obtained refugee status.
The Opinion is the latest one arising from a string of cases dealing with the interpretation and the validity of Article 14 QD. As noted by AG himself, it is the result of unaddressed issues in his three months old Opinion given in C-663/21 and C-8/22, where he advocated that Article 14 (4) (2) lays down two cumulative conditions to permit revocation of refugee status: 1) the existence of a final conviction for a particularly serious crime and 2) the real, present and serious threat posed by the convicted person, at the time a decision to revoke refugee status is taken. However, the AG did not elaborate on the meaning of the notion of “particularly serious crime”.
In this blog, I detail the AG’s answer to that question and raise one overriding concern regarding Article 14 QD.
What does it mean to be convicted for a “particularly serious crime”?
The first question referred to by the Netherland national court regarded the establishment of common methods and criteria for the delineation of the scope of the concept of “particularly serious crime” in order to “guarantee that the exercise of the power of revocation or refusal to grant refugee status is subject to the same limits in all Member States (para. 33 of the Opinion).” There is currently significant divergence in the practice of Member States (MS) in the application of this Article (at 136-140). Only some Member States define the concept of “particularly serious crime” in their national law (Bulgaria, Czech Republic, Denmark, Hungary, Latvia, Netherland, Portugal, Slovenia); while others provide for penalty thresholds (ranging from 3 years of imprisonment in Denmark and Portugal; 5 years in Bulgaria, Hungary and Romania; 8 years in Latvia and 10 years in Czech Republic and France) or provide a case-by-case analysis.
To offer an “autonomous and uniform” interpretation of the term, the AG relied on the “usual meaning in everyday language, while also taking into account the context in which the rules occur and the purposes of the rules of which they are part (para. 35).” “Crime,” the AG concluded, refers “generally to an offense provided for by the criminal law of the Member State concerned, without being limited to specific categories of offences (para. 36).” Notably, because “the applicability of this provision […] [depends] on the finding that it is an act “particularly serious” and understood as such by that legal order (para. 50, emphasis added),” the AG focused on illuminating the notion of “particularly serious.”
The usual meaning of “particularly serious” is synonymous with „extremely serious“ or „extraordinarily serious“ (para. 38). The context, illuminated by comparison with other norms of the Qualification Directive, supports this claim while also calling for the strict interpretation of the provision. Since Article 14 (4) and (5) lay down exceptions to the general rule regarding the content of right and benefits of refugees, as provided in Article 13 and Chapters II and III of the QD, they must be interpreted strictly.
Methods and Criteria for Assessing the Seriousness of a Crime
The AG continued with presenting relevant methods and criteria for the assessment of seriousness of the crime. Regarding the former, he notes that the assessment requires “a full examination of all the circumstances specific to the individual case concerned” (para. 55); that there is the possibility to include a minimum penalty threshold, even as no automatism in the application of such threshold should be allowed (para. 56); and that the reasons stated in the judgement for conviction are an important factor to take into consideration (para. 57). These methods arguably provide the necessary safeguards, however these could be enhanced by stating that all presumptions are rebuttable, as is provided in national laws of Netherland and Sweden (Report on the Evaluation of the application of the recast Qualification Directive, p. 139).
As regards the relevant criteria for determining the seriousness of the crime, the AG lists the following:
the nature of the act in question;
the damage caused;
the form of the procedure applied to prosecute and judge the person in question;
the nature and length of the sentence imposed (including the comparison of the sentence with the maximum sentence for the offense in question; and the examination of the position of the said penalty in the scale of penalties in force in that Member State);
analysing whether most courts also consider the act in question as being a particularly serious crime;
aggravating or mitigating circumstances; and
the nature of the legal interest which has been harmed.
These criteria are sound; however, it is not entirely clear how they differ from the criteria for the establishment of a “serious non-political crime” from Article 12 (2) (b)/ 17 (1) (b) QD and Article 1 (F) (b) Refugee Convention. The AG explained that while the same criteria are indeed in place, they should, in the context of Article 14 (4) (b) “tend to demonstrate the exceptional gravity of the crime in question, which constitutes a very significant difference in degree with respect to a serious crime (para. 61).” The remark might be too vague to be of any use in practice. The vagueness might be remedied by the fact that the “particularly serious crime” is only one prong of the assessment process, with the other being the need to establish that a person “constitutes a danger to the community of that Member State.” Two prongs taken together might ensure that the “particularity” of seriousness of the crime is established. Finally, the criteria should include the proportionality assessment, whereby the gravity of a crime is leveraged against the persecution feared, as is the standard in the application of Article 33 (2) Refugee Convention (part F).
Misplaced Analogies
The criteria enlisted by the AG are derived by way of analogy with the already existing interpretations of Article 12 and 17 QD- the exclusion clauses (see paras 60, 61)- and Article 33 (2) Refugee Convention – the exception to the non-refoulement principle (see paras 48-51, 62). While this analogy is practically useful and to be expected given the similar wording of these provision, it is not legally sound. Article 14 (4) (b) is not an exclusion clause as Articles 12 and 17 QD are, nor does it deal with the non-refoulement as Article 33 of the Refugee Convention does.
The first point is especially important to grasp because the validity of the Article 14 was previously challenged for being an additional exclusion clause that contravenes the Refugee Convention. The Court rejected this claim in M and Others, claiming that while the person who falls under Article 14 (4) or (5) does lose the status of a refugee and the pertaining rights and benefits under the Qualification Directive, they still remain a refugee under the Refugee Convention with the right and privileges guaranteed under Article 14 (6). This reasoning effectively established a novel form of refugee status, one that is marked by a reduced set of rights, in particular the absence of a residence permit. This ignores that “Article 14 (6) refugees” usually remain present in the MS, either because of the non-refoulement principle or practical constrains (pp. 3-4). As a result, they become “undesirable and unreturnable” third country nationals who are exposed to restrictive measures or ad hoc solutions (pp. 4-5). In other words, Article 14’s classification as an exclusion clause has not only weakened the legal protection afforded to refugees but the reasoning in M and Others has also failed to serve the security of a member state because the individuals remain territorially present.
At the same time, while the AG recognized that Article 33(2) of the Refugee Convention which contains an exception to the non-refoulement principle “has a different purpose [from Article 14],” he nonetheless considered Article 33(2) “a model for the EU legislator in Article 14 (4) and (5) of Directive 2011/95 for revoking or refusing refugee status (para. 47).” However, this underplays the significance of the distinct purpose of the two articles, and ignores the significance of the difference between exclusion from refugee status and the exceptions to non-refoulement. Thus, while “the exclusion clause has a moral background; it seeks to exclude those persons who are undeserving of refugee protection, […] the exception to non-refoulement has a security background; it seeks to include considerations about the security of a receiving state.”
The Dangers of the AG’s Conflation
The conflation of the two undermines the refugee protection framework in normative and practical terms. To withdraw legal status and protection from a person who falls within the refugee category is not permitted under the Refugee Convention. Cessation and exclusion clauses which are permitted under the Refugee Convention, are distinct and do not amount to withdrawing protection to a refugee. The former is triggered in cases where it is established that the refugee will gain protection elsewhere, and the latter excludes a person from being defined as a refugee in the first place. In practical terms, as already mentioned, the absolute prohibition of refoulement or practical constrains will usually lead to the refugee staying in the member state even after the legal status was withdrawn. This is completely opposite to the raison d’ être of the exception to non-refoulement. As its goal is not to punish the refugees for its (mis)behaviour (moral aspect), but to protect the security of a state (security aspect) it does not mandate the revocation of the refugee’s legal status. Instead, it insists on their territorial removal, and even that only as an exceptional measure of last resort.
The invocation of Article 33 (2)’s wording as the ground for not granting refugee status has meant that Article 14(4) now operates as a de facto exclusion clause (p. 129). However, this is not a sound reason to forget about the continued difference between exclusion, exceptions to non-refoulement and revocation of refugee status. The interpretative approach leading to this outcome is also contrary to the rule of interpretation presented by the AG, in which the language is only one tool for interpretation, alongside taking account of the context and the purpose of a rule. While it was not within the remit of the AG’s role to question the Court’s previous decisions regarding the validity of Article 14, it is important to keep open at least the doctrinal debate about this issue.
To conclude, the road taken by the AG de la Tour in advocating for the strict interpretation of the “particularly serious crime” concept is laudable; the methods and criteria he presented are of practical use; however, we should not forget that such constructive solutions are offered amidst a misguided normative setting.
*The Opinion is currently not available in English. The author used the version in French. The translation is done by the author with the help of Google Translate.
Simentić Popović, Janja: The Dangers of Conflation, VerfBlog,2023/7/08, https://verfassungsblog.de/the-dangers-of-conflation/, DOI: 10.17176/20230708-111020-0.
