The Court of Justice of the European Union has decided in joined cases C‑391/16, C‑77/17 and C‑78/17 M, X and X that recognised refugees who commit serious crimes can be lawfully deprived of their refugee status under EU law and that there is no incompatibility on this issue between EU law and the Refugee Convention itself.

The facts of the cases were that three men had been recognised as refugees under EU law but had gone on to commit very serious crimes in their countries of refuge, the Czech Republic and Belgium. The issue for the court to decide arose from the differing approaches in law to the exclusion of refugees in EU law and in the Refugee Convention.

Exclusion clauses contrasted

In the Refugee Convention, there are two separate “exclusion clauses” by which a person who qualifies for refugee status as defined in Article 1A can nevertheless be expelled from the country of refuge. The first exclusion clause is Article 1F, which relates to crimes and conduct before seeking asylum. The second exclusion clause is Article 33(2), which relates to crimes and conduct in the country of refuge.

As the Court of Justice notes in this judgment, under the scheme of the Refugee Convention these exclusion clauses do not legally lead to revocation or removal of the person’s refugee status; the person keeps their refugee status but can be removed (“refouled”) anyway even though they are a refugee.

In EU law, the reasons for exclusion of a refugee are basically the same, but with an important practical difference: instead of the refugee retaining his or her status but being removable, refugee status is revoked.

Excluded but not removed

This might not seem to be much of a difference in practice. Does it really matter if the person technically retains their refugee status if that person is being removed anyway? Retaining refugee status is cold comfort in such circumstances.

What makes the differing approaches of EU law and the Refugee Convention significant is that under EU law the person concerned often cannot be removed for other reasons.

Here I’m going to introduce a third legal scheme: human rights law. The framers of the Refugee Convention designed an essentially moral system that was intended to retain public confidence. Refugees were victims, were persecuted in and failed by their own state and were therefore entitled to the protection of other states. However, if they did something bad, they could be excluded from that system.

In contrast, the foundational principle of the whole concept of human rights is that human rights are inalienable. Some are absolute, including Article 3 of the European Convention on Human Rights: no-one shall be subjected to torture, no matter what they have themselves done.

Human rights law is built into EU law, and Article 3 of the European Convention on Human Rights and Article 15 of the EU Qualification Directive mean that even a very bad person who has done terrible things cannot be sent to a country to face torture or inhuman or degrading treatment.

Whether that person retains his or her refugee status is therefore important because under EU law, unlike the Refugee Convention itself, the refugee will not be removed, and refugee status carries with it several other benefits, such as the rights to employment, health care and education.

EU law and the Refugee Convention

The Court of Justice held that even though EU law is not the same as the Refugee Convention, it is not incompatible as such. Yes, EU law leads to removal of refugee status if the exclusion clauses apply and that is not how the Refugee Convention works. But, the court holds, EU law is a set of minimum standards and is its own legal scheme. Withdrawal of refugee status under EU is not the same as withdrawal of refugee status under the Refugee Convention. The men M, X and X remain refugees under the Convention even if they have lost their EU law refugee status.

The judgment is therefore an interesting one for refugee law geeks and refugee rights aficionados.

It is helpful for the Court of Justice to remind us that EU law supplements and does not replace the Refugee Convention, and to reaffirm that refugee status is declaratory in nature; a person is a refugee if the conditions of the Refugee Convention are met and does not depend on formal recognition of status or the grant of any form of status.

It would be more helpful to those refugees affected — but who remember may well not be very nice people given the context — if the court had held that EU law refugee status could not be removed even if the exclusion clauses applied. The outcome for those affected is that they can be stripped of the benefits of EU law protection for refugees and have to fall back on the inferior and less comprehensive protection of the Refugee Convention.

Perhaps most crucially, it is relatively easy to enforce EU law and there are clear mechanisms for a person to do so. There are no enforcement mechanisms built into the Refugee Convention. In many states, including the UK, it is very difficult and perhaps impossible to enforce the various rather limited rights conferred on refugees by the Convention. Here in the UK, the Refugee Convention is not incorporated into domestic law, so it is not possible to say to a judge that one’s right to employment is being denied, please reinstate it. The idea of anyone having to fall back on the Refugee Convention may well prove to be illusory in practice.