On balance

On 9 November 2010, the ECJ (Grand Chamber) gave its judgment in Joined Cases C-57/09 and C-101/09 B and D. This was the second time the court has had an opportunity to consider the sub-stance of directive 2004/83/EC, which sets minimum standards for the grant of refugee status and subsidiary protection.

There were two cases before the court, both on references from the German courts. One concerned a Turkish national who claimed asylum in 2002. He admitted that, from around when he was 18 until he was 20, he had been a sympathiser of the Revolutionary People's Liberation Party-Front (the DHKP/C) and had assisted in guerrilla warfare. The second case concerned D, who had been a senior member of the Kurdistan Workers' Party (the PKK) and a guerrilla fighter in northern Iraq. He was initially granted asylum in Germany, but proceedings were then taken to revoke that grant.

The essential question in both cases was whether the applicant for asylum should be disqualified under article 12(2) of the directive, which removes refugee status from anyone who has 'committed a serious non-political crime outside the country of refuge prior to his or her admission as a refugee' or 'been guilty of acts contrary to the purposes and principles of the United Nations as set out in the preamble and articles 1 and 2 of the [UN] Charter'. Those provisions mirror article 1A of the Geneva Convention on the status of refugees.

The DHKP/C and the PKK were, from 2002, included in a list of organisations that were considered by the EU to be 'involved in terrorist acts'. This led the German Federal Administrative Court to wonder whether membership of those organisations meant that a person was automatically to be deprived of a refugee status. There were two sets of subsidiary questions. Was deprivation of refugee status because of involvement in terrorism subject to any sort of proportionality test? And, supposing that a person was excluded from refugee status, was it incompatible with the directive to permit such a person to enjoy that status under national law?

The ECJ accepted that terrorist crimes are 'serious non-political crime' and are 'contrary to the purposes and principles of the United Nations'. But it did not accept that membership of an organisation regarded by the EU as 'terrorist' automatically deprives a person of refugee status.

The question was whether the individual had 'committed' crimes or 'been guilty' of terrorist acts. That question had to be answered for the individual concerned. It must be possible to attribute, to the particular applicant, 'a share of the responsibility for the acts committed by the organisation in question while that person was a member': the role he played in the acts, his position within the organisation, the extent of his knowledge of its activities, any pressure to which he was subject, and any other facts influencing his conduct.

A hard line

However, when it came to consider issues of proportionality, the ECJ took a more robust line. It is not necessary to show that the person concerned poses a present danger. Nor is any assessment of the seriousness of the acts to be undertaken separately: the assessment of an applicant's culpability arises in deciding whether he has committed a serious non-political crime or been guilty of conduct contrary to the purposes and principles of the United Nations. If he has, then that is the end of the matter.

As to the possibility of more extensive protections for individuals, the ECJ pointed out that the directive lays down minimum standards. If member states wish to accord more generous protection, they can do so. However, said the ECJ, they must be careful to make sure that such additional protection is not confused with refugee status under the directive '“ any additional rights must be drawn up in such a way as to make it clear that they are distinct.

Overall the decision in this case seems to be carefully balanced. In stressing the need to consider each applicant's case in detail, it pays proper attention to individual rights. But, in refusing to countenance any further 'proportionality' test, and in insisting that any more generous protection be clearly distinguished from refugee status under the directive, it underlines the importance of preventing proven terrorists from enjoying the benefits of asylum protections.