The Grand Chamber of the Court of Justice of the European Union (the CJEU) has interpreted EU law, coupled with the Geneva Convention, as meaning that persons who facilitate the activities of ‘foreign fighters’ can be excluded from refugee status. This is in addition to a previous CJEU decision, in B and D, that persons who are directly involved in terrorists acts are not entitled to refugee status.
The UN Refugee Convention, or the Geneva Convention, contains an exclusion clause, stating that the provisions of the Convention do not apply to persons where there are serious reasons for considering that they have committed war crimes or crimes against humanity, or serious non-political crimes outside the country of refuge, or are guilty of acts contrary to the purposes and principles of the UN. This exclusion clause has been transposed into the EU Qualification Directive 2004, and its provisions stipulate that the exclusion equally applies to those who incite or participate in the acts covered.
Mostafa Lounani, Moroccan national who left Morocco in 1991, had been living in Belgium illegally since 1997. In 2006, he was convicted of participation in the activities of a terrorist group – the Belgian cell of the Moroccan Islamic Combatant Group – as a member of its leadership. The group is listed as a terrorist group by the UN Security Council. He applied for refugee status in 2010, claiming that he feared persecution if returned to Morocco because of the likelihood that he would be regarded by authorities as a radical Islamist and jihadist. Belgian authorities rejected his application on the basis of the Geneva Convention. Lounani’s application to have this decision annulled was rejected, and he then made an appeal on a point of law to Belgium’s Council of State. The Council of State requested a preliminary ruling from the CJEU as to whether Lounani should be excluded from refugee status on the ground that he was guilty of acts contrary to the purposes and principles of the UN. The key issue was whether a person convicted of participating in a terrorist group, not of carrying out terrorist actions, can be excluded from refugee status under the exclusion clause.
The Grand Chamber ruled that Lounani could be excluded from refugee status as the preamble to the 2004 Directive refers to UN resolutions on ‘financing, planning and inciting terrorism’, so the third exclusion clause was engaged even where there had been no commission of terrorist acts per se. Participation in or facilitation of a terrorist group can suffice to engage the exclusion clause. The CJEU noted that this position was supported by a Directive issued by the UN Security Council providing that assisting with recruitment, organisation or transport of ‘foreign fighters’ could come within the exclusion clause.
Click here for the full judgment in Commissaire Général aux réfugiés et aux apatrides v Lounani.
Click here for further analysis of the Grand Chamber’s decision.