In C-369/17 Ahmed, the Court of Justice of the European Union has held that member states must take account of all the circumstances of the crime committed by an individual before deciding that it is a “serious crime” which justifies excluding that person from subsidiary protection.

What is subsidiary protection anyway?

The subsidiary protection regime is an EU initiative which prevents removal of people who, although they do not meet the requirements of the Refugee Convention, would face the death penalty, torture or a threat to their life because of the level of indiscriminate violence in their country of origin. Someone can be excluded from subsidiary protection if they have committed a “serious crime”. That is a broader rule than the exclusion provisions in the Refugee Convention, but has similarly drastic consequences. Exclusion from subsidiary protection might mean an individual is returned into the mire of civil war.

These rules are set out in the EU’s “recast” 2011 Qualification Directive. Although the UK has not opted in to this, it remains bound by the original 2004 Qualification Directive. The latter is transposed into domestic law by the Refugee or Person in Need of International Protection (Qualification) Regulations 2006. The provisions considered in this judgment are reproduced identically in that legislation, so the decision still binds UK courts (because any preliminary reference about the 2004 Directive would receive the same answer). Of course, this will all change after Brexit.

Mr Ahmed’s crimes

Hungary has passed a law stating that any crime which might be punished with five or more years’ imprisonment counts as a “serious crime”. The government applied this law to Mr Ahmed, who had committed attempted murder and blackmail, and tried to remove him to Afghanistan.

The Hungarian courts referred the interpretation of Article 17(2) of the Qualification Directive to the Court of Justice. Luxembourg’s response was that member states must engage in a holistic consideration of all the circumstances before deciding that a person’s crime is “serious”. The court noted that this interpretation was necessary to ensure uniformity of decision-making across the EU and to correspond to the requirements imposed by the court on member states considering exclusion from the Refugee Convention:

In that regard, it is important to note that, while the criterion of the penalty provided for under the criminal legislation of the Member State concerned is of particular importance when assessing the seriousness of the crime justifying exclusion from subsidiary protection pursuant to Article 17(1)(b) of Directive 2011/95, the competent authority of the Member State concerned may apply the ground for exclusion laid down by that provision only after undertaking, for each individual case, an assessment of the specific facts brought to its attention with a view to determining whether there are serious grounds for taking the view that the acts committed by the person in question, who otherwise satisfies the qualifying conditions for the status applied for, come within the scope of that particular ground for exclusion.

The conclusion reached by the court is based on a logical extension of the approach it already takes to exclusion from refugee status. It will not have a radical effect on UK law because the Home Office already recognises the need to take a holistic approach in its policy on this issue. This reflects the Court of Appeal’s decision in AH (Algeria) v Secretary of State for the Home Department [2012] EWCA Civ 395.

But the judgment is an example of the type of minimum standard imposed by EU law in the context of immigration decision-making. Once we leave the EU, those minimum standards imposed by EU legislation will disappear, giving the Home Office more freedom to remove people in breach of their fundamental rights. Foreign nationals who commit crimes are a particularly vulnerable group and we know the Home Office already targets them with a disproportionate number of cessation of refugee status decisions. The disappearance of subsidiary protection and oversight of the Court of Justice will make the UK a more conservative jurisdiction in which to seek protection.

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