The enhanced protection in Article 28(3) of Directive 2004/38/EC — that a person may only be expelled on “imperative grounds of public security” if they have resided in a member state for ten years prior to the decision to expel them — benefits only those who have satisfied the eligibility condition for the lower level of enhanced protection, that they enjoy a right of permanent residence.

Hard on the heels of the judgment on the references in C-316/16 B v Land Baden-Württemberg and C-424/16 Secretary of State for the Home Department v Franco Vomero, the subject of a recent post by Nath Gbikpi, comes another judgment on expulsion and exclusion.

The joined cases of C-331/16 K v Staatssecretris van Veiligheid en Justistie and C-366/16 H.F. v Belgische Staat (Right of Residence and alleged war crimes) were decided by the Court of Justice of the European Union on 2 May 2018. They concern the relationship between Article 1F of the Refugee Convention and the expulsion and exclusion of persons exercising treaty rights.

Article 1F denies the dignity of recognition as a refugee to those whom there are serious reasons for considering have committed crimes against peace, war crimes, crimes against humanity, serious non-political crimes outside the country of refugee prior to admission as a refugee or who have been guilty of acts contrary to the principles and purposes of the United Nations.

Article 1F

The provisions of this Convention shall not apply to any person with respect to whom there  are serious reasons for considering that:

(a) He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

(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 court held that just because a person has been excluded from recognition as a refugee by application of Article 1F does not mean that they are automatically a person who can be excluded from a member state on the grounds of public policy and public security under Article 27 of Directive 2004/38/EC. Rather, a case by case assessment of whether their presence constitutes a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society is required.

Article 1F had been invoked to deny K recognition as a refugee on the grounds of war crimes and crimes against humanity committed by special units of the Bosnian army. K, an EU citizen as a Bosnian and Croatian national, now sought entry to the Netherlands.

Similarly, Article 1F had been relied upon by the Netherlands to deny HF, an Afghan national, recognition as a refugee.  He made an application as a family member in the ascending line of his daughter, a Netherlands’ national, to reside with her in Belgium.

While requiring a case by case assessment, the court held that even where it appeared unlikely that the crimes or acts would recur outside their specific historical and society context, it was open to the member state to identify

that the persistence in [the person falling within Article 1F] of a disposition hostile to the fundamental values enshrined in Articles 2 and 3 TEU, such as human dignity and human rights, as revealed by those crimes or those acts, is, for its part, capable of constituting a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.

Nothing could be further than the UK’s knee jerk and “automatic” approach to deportation than the “it depends” assessment of the Court of Justice. As with B and Vomero, EU nationals are likely to be able to rely on these judgments to resist expulsion and exclusion, at least until Brexit. At that point, it is predicted, the good character test for being permitted to enjoy the new settled status will turn its back on taking account of integration and rehabilitation and get rid of those whose history includes criminal offences.