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.
But what of those who merely assist in the organisation of a terrorist group? The Lounani case widens the kind of acts which will trigger an exclusion. Whilst the parameters remain unclear, those who have merely provided assistance to those committing terrorist attacks may be excluded under the provisions.
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.
On 16 February 2006, Mr Lounani was convicted in Belgium of participation in the activities of a terrorist group, the Moroccan Islamic Combatant Group (“the MICG”). The reference to the CJEU summarised the Criminal Court’s findings in relation to Mr Lounani’s conviction as:
‘providing logistical support to a terrorist group by the provision of, inter alia, material resources or information’; ‘forgery of passports’ and ‘fraudulent transfer of passports’, ‘active participation in the organisation of a network for sending volunteers to Iraq’.
On 16 March 2010 Mr Lounani applied to the Belgian authorities for refugee status. He claimed that he feared persecution on return to Morocco because he would be regarded by the Moroccan authorities as a radical Islamist and jihadist. Mr Lounani’s application was initially refused on the basis that the findings of fact in relation to his conviction excluded him from protection under the Refugee Convention. That refusal was overturned on review, which was in turn appealed to the Conseil d’Etat. The case was stayed and referred to the CJEU.
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.
This is transposed into Articles 12(2) and (3) of Directive 2004/83/EC (the “Qualification Directive”), which provide:
2. A third country national or stateless person is excluded from being a refugee, where there are serious reasons for considering that:
… (c) he or she has 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 Charter of the United Nations.
3. Paragraph 2 applies to persons who instigate or otherwise participate in the commission of the crimes or acts mentioned therein.
Also of relevance were the EU rules on terrorist offences and related penalties. Amongst these is Decision 2002/475/JHA (“the Framework Decision”). This requires EU Member States to align their legislation relating to terrorist offences and introduces minimum penalties for such offences.
In particular, Article 1(1) of the Framework Decision outlines a number of terrorist offences. These include kidnapping and hostage taking, the seizure of aircraft and ships, and other ‘direct’ terrorist attacks. Crucially, it does not include offences of the kind committed by Mr Lounani. These are more readily described as the provision of resources and logistical support to a terrorist group.
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 second: if not, are the acts such as those of which Mr Lounani was convicted considered to be acts which fall under the Article 12(2)(c) and exclusion clause? In essence, what other kind of acts are capable of falling within the section?
The third: is a conviction of leadership of a terrorist organisation sufficient to fall within Article 12(3), even where there has been no finding of the person committing, attempting to commit or threatening to commit a terrorist act, or it an individual investigation necessary in each case?
AG Sharpston’s Opinion
AG Sharpton’s wide-ranging Opinion is worth a read in full here, as it addresses the basis in principle of the exclusion clauses.
In relation to the questions for the Court’s consideration, she was of the view that the application of the Article 12(2)(c) exclusion clause should not be confined to the Article 1(1) offences. This conclusion stemmed from five main findings.
- First, the wording of “acts contrary to the purposes and principles of the UN” does not suggest that those acts should be restricted by reference to other EU acts.
- Second, such a restriction would be inconsistent with the proposition that the “Geneva Convention constitutes the cornerstone of the international legal regime for the protection of refugees.”
- Third, the Framework Decision is based on police and judicial cooperation in criminal matters. By contrast, the Qualification Directive is a humanitarian measure. This distinction should be maintained, therefore the meaning of one should not be parasitic on the other.
- Fourth, it would restrict the application of the exclusion clauses. Being guilty of terrorist acts other than those in Article 1(1) would be outside the application of the clauses, and “acts contrary to the purposes and principles of the United Nations” would be restricted to one sub-category of such acts.
- Finally, the Framework Directive is of “variable geometry,” i.e. with varying application across the EU. For instance, the UK opts out of its requirements. It would be problematic if it constituted the criteria for the application of the Qualification Directive across the EU.
AG Sharpston then considered the relevance of Mr Lounani’s criminal convictions in determining the application of the exclusion clauses. She found that while a criminal conviction under Article 2 of the Framework Decision was capable of forming a basis for exclusion, an individual assessment in each case was required.
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.
It followed that the Qualification Directive must be interpreted in the light of its “general scheme and purpose, and in a manner consistent with the Geneva Convention and the other relevant treaties” arising out of the common application of asylum policy by Member States. It is therefore also not necessary that the person committed, attempted to commit or threatened to commit a terrorist act as defined in UNSC resolutions.
The Court also drew attention to the reference in Article 12(2)(c) to the preamble and Articles 1 and 2 of the Charter of the United Nations. These refer to UN Resolutions on “financing, planning and inciting terrorism.” Therefore, “acts contrary to the purposes and principles of the United Nations” cannot be confined to direct terrorist attacks.
Finally, the Court agreed with AG Sharpston that the exclusion clauses as in asylum law were not intended to mirror the definition of terrorism in EU criminal law.
Therefore it is not appropriate to limit the application of Article 12(2)(c) to the Article 1(1) offences.
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.
The Court then pointed out that UNSC Resolution 2178 (2014) identifies the organisation of travel to foreign countries for the purpose of the perpetration, planning or preparation of terrorist acts as “among the activities to be combated by States as part of the fight against international terrorism.” Such a proscription
Finally, the Court held that criminal conviction cannot be solely determinative of the matter. It would, however, be of “particular importance” in such an assessment.
It followed that acts such as those committed by Mr Lounani were capable of engaging the exclusion clause.
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  UKSC 15. The Court held that the factors to consider the level of personal responsibility of the applicant would be:
- the nature and (potentially of some importance) the size of the organisation and particularly that part of it with which the asylum-seeker was himself most directly concerned,
- whether and, if so, by whom the organisation was proscribed,
- how the asylum-seeker came to be recruited,
- the length of time he remained in the organisation and what, if any, opportunities he had to leave it,
- his position, rank, standing and influence in the organisation,
- his knowledge of the organisation’s war crimes activities, and
- his own personal involvement and role in the organisation including particularly whatever contribution he made towards the commission of war crimes
JS (Sri Lanka) involved allegations of war crimes, which fall under Article 1F(a) of the Refugee Convention. However, the Court’s judgment relates to the “correct approach to Article 1F” as a whole. Therefore the reference here to the commission of war crimes can be substituted by the commission of acts contrary to the principles and purposes of the United Nations.
These factors share a number of features with those articulated by the CJEU. In Mr Lounani’s case, his position of leadership, the proscription of the MICG, and the international nature of the organisation are relevant considerations according to both approaches. There are differences of emphasis between the approach of the CJEU and the Supreme Court, though. The Supreme Court requires decision-makers to make a qualitative assessment of the importance of the role of the applicant in that organisation. It introduces a test of significant contribution:
“I would hold an accused disqualified under article 1F if there are serious reasons for considering him voluntarily to have contributed in a significant way to the organisation’s ability to pursue its purpose of committing war crimes, aware that his assistance will in fact further that purpose.”
By contrast, the CJEU’s approach does not require the decision-maker to undertake such an assessment. Instead, proxy indicators are used such as proscription by UNSC Resolutions of particular actions, presumably to determine how significant a contribution is in furthering a terrorist organisation’s aims. For example, it is notable that Mr Lounani’s organisation of travel was not sufficient to engage the exclusion clause because such travel was of substantial importance to the MICG’s terrorist activities. Rather, they constituted acts contrary to the purposes and principles of the United Nations in part because of their proscription by UNSC Resolutions.
The position of the Supreme Court allows for a greater flexibility in assessing the culpability of the applicant. For example, consideration of the manner of recruitment and of the possibility of leaving the organisation allow the decision-maker to consider whether the applicant had any real choice in committing the acts contrary to the purposes and principles of the United Nations. This allows a form of mitigation. A more rounded approach is also reflected in Home Office Guidance available here, which entitles decision-makers to consider defences such as self defence to the commission of acts capable of engaging the exclusion clause. By contrast, the CJEU’s position in Lounani does not expressly provide for consideration of either a form of mitigation or defence to the commission of acts contrary to the purposes and principles of the United Nations.
English case law has also provided a partial answer to the question of the relevance of the integrity of the evidence upon which a relevant criminal conviction was based. In YS (Egypt v Secretary of State for the Home Department & Anor  EWCA Civ 222 the Court of Appeal found that no weight whatsoever should be attached to a criminal conviction in another country which relied on evidence obtained by torture. Beyond this, for example the relevance of a pending appeal or unexhausted appeal rights, the issue remains unclear.
If there is a difference between the two legal regimes, the approach of the Supreme Court is to be preferred. Directive 2004/83/EC, the Qualification Directive, explicitly states at preamble paragraph (8):
It is in the very nature of minimum standards that Member States should have the power to introduce or maintain more favourable provisions for third country nationals or stateless persons who request international protection from a Member State…
This module of the Free Movement Refugee Law in the UK course provides an overview of exclusion and refoulement in international and domestic law.
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.
UNSC Resolutions can be fairly widely drawn. In Resolution 2178 (2014), the UNSC expressed a “strong determination” to list as prohibited those who support groups associated with Al-Qaida by using “social media” to further their ends. Is it now likely that a person who has supported a terrorist group only on Twitter be excluded under the clause? It is again notable that such a person would be unlikely to be excluded under the Supreme Court’s reasoning in JS (Sri Lanka) above.
The “particular importance” of Mr Lounani’s criminal conviction will also give decision-makers pause for thought. This raises a number of issues. As pointed out by Steve Peers in his blog here, will the lack of conviction, following trial or otherwise, weigh as heavily in mitigating against the application of the exclusion? If a trial which led to the relevant conviction was subject to appeal or review, does this make it less likely the exclusion clause would apply?
Finally, what if the integrity of the trial which led to the relevant conviction was in issue? AG Sharpston in her Opinion noted that Mr Lounani did not suggest that they were tainted in any way. Perhaps this forms part of the justification for reliance on the conviction for AG Sharpston. The Court of Justice, however, is silent on that point.
The means of supporting terrorism are changing. Lounani is a significant step in providing a framework of factors to assess the application of the exclusion clauses in each case.