The Lounani case: when can a member of a terrorist group be excluded from refugee status?

A person applying for protection under the 1951 Refugee Convention can be excluded from its provisions under certain circumstances.

As the Court of Justice of the European Union explained in B and D in 2010, these circumstances include those guilty of committing terrorist attacks.

The background facts

Mr Lounani left Morocco in 1991. He travelled to Germany where he submitted an application for asylum which was rejected. He then travelled to Belgium. He has resided illegally there since 1997.




The legal framework

The first port of call is the Refugee Convention itself. Article 1F states that:
·         The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
·         …. (b). he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
·         (c). he has been guilty of acts contrary to the purposes and principles of the United Nations.

The questions before the Court


 

How, then, to treat Mr Lounani’s criminal offences and membership of MICG in relation to the exclusion clauses? The Court addressed three questions.

The first: must Article 12(2)(c) be interpreted so that exclusion under that provision of an applicant for international protection can only follow that applicant’s conviction for an article 1(1) Framework Decision offence(s)?

The Court’s judgment

The Court of Justice considered the exclusion clauses in light of the Geneva Convention and a number of UN Security Council resolutions. The Court also described the Geneva Convention as the “cornerstone of the international legal regime for the protection of refugees.”

There is no textual reference made to the Framework Decision in the Qualification Directive, even though the former predates the latter.

Factors for individual assessment
The Court went on to agree with AG Sharpston that individual assessment is required in each case. The Court outlined a number of factors to be taken into consideration when performing such an assessment.

The Court observed that the terrorist group of which Mr Lounani was a member of the leadership operated internationally. The MICG was also registered on a United Nations list which identifies persons and entities that are subject to sanctions.

How does Lounani sit with English law?

The Supreme Court considered the application of exclusion clauses in R (on the application of JS (Sri Lanka)) v Secretary of State for the Home Department [2010] UKSC 15


 
Looking ahead

It is clear that Lounani has expanded the scope of the exclusion clauses in EU law. Those who help terrorist organisations in ways beyond participation or planning of terrorist attacks can now clearly be excluded from international protection.

The references in the judgment to UNSC Resolutions are also important. It may be that a decision-maker seeking to exclude an applicant for international protection is now entitled to rely on the similarity between that applicant’s conduct and measures that the UNSC recommends that states combat.

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