ORIGINAL PUBLISHED ON EUROPEAN LAW BLOG ON MARCH 3, 2017 (NB: EMPHASIS ARE ADDED)
By Stephen Coutts
The on-going conflict in the Middle East has profound implications for the global legal order in two areas of law in particular: asylum law and anti-terrorist law.
The European Union and EU law have not been immune from this development and in many respects are closely affected by these geopolitical developments and their legal impact. After a fitful start, the EU has become a major actor in the area of criminal law, and in particular anti-terrorist law, on the one hand and in asylum law on the other.
The two fields meet in Article 12(2)(c) of the Qualification Directive, itself reflecting Article 1F of the Geneva convention, providing that an individual shall be excluded from eligibility for refugee status for acts contrary to the principles and purposes of the United Nations, acts which have been held to include acts of terrorism.
Furthermore, Article 12(3) of the Qualification Directive extends that exclusion to ‘persons who instigate or otherwise participate in the commission of the crimes or acts’ mentioned in Article 12(2). The status of terrorist and refugee are legally incompatible and mutually exclusive; one simply cannot be a terrorist and also a refugee. What, however, constitutes a terrorist for the purposes of Article 12 of the Qualification Directive? That essentially is the question at stake in Lounani.
Facts and Background Context
Mr Lounani, a Moroccan national, arrived in Europe in 1991 and initially applied for asylum in Germany where his application was rejected. He moved to Belgium in 1997 and lived there illegally. In 2010 he was convicted of membership of the Moroccan Islamic Combatant Group (MICG), an organisation that has been listed by the United Nations Security Council as a terrorist organisation. It appears he occupied a leading role in the MICG over many years and participated in various aspects of its organisation including fund-raising, forging of documents and arranging the travel of individuals to Iraq.
Crucially, however, he was never convicted of direct terrorist acts and there appears to be some dispute as to whether the MICG and/or individuals Mr Lounani aided in travelling to Iraq themselves participated directly in terrorist acts.
Mr Lounani subsequently claimed asylum in Belgium on the grounds that, following his conviction for terrorist related offences, he would be persecuted upon return to Morocco. An initial decision excluding him from refugee status on the basis of Article 12(2)(c) of the Qualification directive was overturned on review. That decision was in turn appealed to the Conseil d’Etat which stayed the case and referred a number of questions to the Court of Justice asking essentially if the exclusion clause operated only in relation to terrorist acts as defined in Article 1 of the Framework Decision on Combatting Terrorism (FDCT) or if ancillary acts of participation in terrorist organisation and facilitating the commission of terrorist acts could be considered contrary to the principles and values of the UN as referred to in Articles 12(2)(c) and 12(3) of the Qualification Directive.
Finally, if so, the Conseil d’Etat queried if a criminal conviction would automatically lead to the application of the exclusion clause.
Opinion of AG Sharpston
AG Sharpston in a detailed, clear and helpful opinion addressed the questions in the order in which they were referred. After outlining the underlying rationale for the exclusion clauses and identifying those issues that were not in dispute, in particular the conviction of Mr Lounani and the fact that the question of non-refoulement was not at issue, she found that the application of the exclusion clause in Article 12(2)(c) should not be limited to the acts listed in Article 1 FDCT.
She gave five reasons in particular why the scope of the exclusion clause should not be limited to the offenses outlined in Article 1 FDCT:
- firstly the wording refers to acts contrary to the purposes and principles of the UN and is not limited to terrorist offenses;
- secondly, such an interpretation would be at odds with the Geneva Convention in light of which the Qualification Directive should be interpreted;
- thirdly, the Qualification Directive as an instrument of asylum and humanitarian law and the FDCT are qualitatively different and derive from different areas of law;
- fourthly, it would unduly restrict the application of the exclusion clause and finally,
- fifthly, the fact that the FDCT is an instrument of variable geometry with varying application across the Union would lead to problems if it were used as criteria in defining terms for the purposes of the application of the Qualification Directive.
Turning to the remainder of the questions the AG found that a joint reading of Article 12(2)(c) and Article 12(3) implied that the exclusion clause was not limited to terrorist acts and that a conviction for offences listed under Article 2 FDCT could be the basis for exclusion from refugee status.
However, while a criminal conviction was certainly relevant, this did not remove the need for an individual assessment. After a determination that a particular organisation is indeed a terrorist organisation, it would be necessary to determine the precise nature of the individual’s membership in the organisation, leadership role and participation in the planning, organisation and perpetration of various acts of the organisation.
Finally, it would not be necessary to demonstrate that the individual in question, or indeed the organisation, perpetrated particularly violent or vicious acts of terrorism; mere participation in a terrorist organisation and various ancillary activities may be sufficient to disqualify an individual from asylum status.
Judgment of the Court of Justice
The Court of Justice to a large extent followed the findings of the AG with perhaps a slight shift in emphasis. There are essentially four findings in the judgment.
Firstly, based on a reading of the exclusion clause in light of the Geneva Convention and in particular various UNSC resolutions, Article 12(2)(c) is not limited to direct terrorist acts but rather extends to various other activities associated with terrorism and terrorist organisations. It would not therefore be appropriate to limit the application of Article 12(2)(c) of the Qualification Directive to those offences listed in Article 1 of the FDCT. Indeed the Court pointed out that there was no direct textual reference between the FDCT and Article 12 of the Qualification Directive, a reference that could certainly have been made in light of the fact that the FDCT was already adopted when the Qualification Directive was being drafted.
Secondly, it followed therefore that those acts for which Mr Lounani was convicted, ie membership and participation in the running and activities of a terrorist organisation, forgery of documents and facilitating travel of foreign fighters to Iraq, could fall within the scope of the exclusion clause despite the fact that there is no direct link between Mr Lounani’s activities and specific acts of terrorism, nor indeed is there direct evidence that the individuals he aided in travelling to Iraq themselves engaged in specific acts of terrorism. Thus it seems that, provided such acts reach a certain level of seriousness, they can form the basis for Mr Lounani’s exclusion from refugee status.
Thirdly, following its judgment in B&D the Court reaffirmed the need for an individual assessment, thus excluding the automatic application of the exclusion clause on foot of a criminal conviction.
Fourthly, however, such a criminal conviction would be of ‘particular importance’ in any such assessment regarding the application of the exclusion clause.
Lounani is a continuation of a line of jurisprudence beginning with B&D and touched on in HT regarding the interaction of terrorist activity and the asylum acquis. It continues a number of themes, particularly from B&D, which are namely a reading of the Qualification Directive and in particular the exclusion clause in light of the Geneva Convention and the resolutions of the UNSC, and secondly an insistence on an individual assessment. It develops the finding in B&D by extending the application of the exclusion clause beyond the context of direct terrorist acts to a broad range of terrorist related activities. There is, however, a tension at play in these cases. On the one hand there is an effort to maintain the distinction between counter-terrorism law and asylum law and to maintain the integrity and coherence of the asylum acquis as something distinct and serving different purposes to counter-terrorism law. This distinction, while understandable and useful from a methodological point of view, ensuring that the appropriate perspective is in fact adopted, does begin to break down on further analysis and in the interpretation and application of the exclusion clause in particular.
The starting point is well illustrated by the Opinion of AG Sharptson who makes an explicit and forceful effort to draw a distinction between EU criminal law and EU asylum law. Thus ‘it is the system of rules for determining refugee status that provides the context and the starting point for interpreting the provisions of the Qualification Directive, rather than concepts derived from other areas of EU law, such as measures aimed at combatting terrorism.’
Similarly, the Court finds that the concept contained in Article 12(2)(c) of the Qualification Directive ‘cannot be interpreted as applying solely to terrorist offences specified in Article 1(1) of the [FDCT]’ and justifies this by the absence of a textual reference to the FDCT. Unlike, say in the area of expulsion of Union citizens, there is a reluctance to draw on EU criminal law to justify the national decision of exclusion. The distinction makes sense for the practical reasons outlined by the AG, particularly the very different nature of the two bodies of law and their origins, the variable application and indeed the absence of a textual link between the two instruments. Perhaps more importantly, the broader systemic and even conceptual distinction between the two areas of law is important to maintain.
As pointed out by the AG, asylum law is a derivation of humanitarian law with an ethos geared towards rights protection. Counter-terrorism law, at least as it is conceived within the formal scheme of EU law, is a form of criminal law, albeit one aimed at a particularly reprehensible and systemic form of political violence. It is repressive and punitive in nature.
However, a meaningful insulation of asylum law from criminal law is impossible to maintain in practice and it is inevitable that the exclusion clause is closely connected with counter-terrorism law. This link however takes place not at the level of EU law and the relationship between EU counter-terrorism law and EU asylum law but rather in the context of the vertical relationship between UN counter-terrorism law and EU asylum law.
There is a marked effort to separate out criminal law/counter-terrorism law and asylum law within EU law. However, once the analysis shifts to the level of global law and in particular UN instruments, a level shift that is mandated by the Qualification Directive itself and its reference to the Geneva Convention and UN Security Council Resolutions, the separation between criminal law and asylum law is impossible to maintain.
Once terrorist acts are defined as acts contrary to the principles and purposes of the UN by the UN itself, a direct link exists between the exclusion clause and counter-terrorism law. In such circumstances it is difficult to see how in practice the operation of the exclusion clause could be insulated or remain immune from counter-terror norms.
The necessary connection between the two areas of law – criminal and asylum – becomes apparent in Lounani at three points in particular: at the procedural level, at a conceptual level and finally and most importantly at the normative level.
Firstly, on a procedural level between the criminal conviction and the application of the exclusion clause, a formal distinction is certainly maintained by the Court, and there is an insistence on the need for an individual assessment, first established in B&D. However, the distinction is diminished in practice by the Court’s finding that the criminal conviction is of ‘particular importance’ in the asylum procedure and in particular in assessing whether or not the exclusion clause should apply.
Secondly, there are shared conceptual justificatory reasons between counterterrorism law on the one hand and the exclusion clause on the other. Counter-terrorism law as formulated both at the level of the UN and the EU is remarkably value-laden and is said to reflect a legal and societal condemnation of actions that have violated core constitutional principles of the rule of law and an understanding that political violence is unjustified. Similar ideals underpin and justify the operation of the exclusion clause and in particular its references to the principles and purposes of the UN. This is particularly clear once the authoritative decision making body of the UN, namely its Security Council, has adopted provisions stating that there is a direct contradiction between terrorist activities and the principles and purposes of the UN.
This points to the final and most important connection between counter-terrorism law and the exclusion clause in particular; their joint normative origins in the UN legal system, where they are explicitly linked through instruments adopted by the UNSC itself. The UNSC resolutions are used as a clear interpretative aid in relation to the Qualification Directive and in doing so they act as a key bridge between global counter-terrorism law and EU asylum law. The influence of the UNSC resolutions can be identified at two points in the judgment in particular.
Firstly in the designation of MICG as a terrorist organisation, and secondly in the finding that the various acts of which Mr Lounani had been convicted may in fact disqualify him from refugee status.
Secondly, the UNSC resolutions are used in a very direct manner to interpret the exclusion clause in such a manner so as to catch terrorist activities that fall short of direct terrorist acts (understood as direct acts of violence), including aiding foreign fighters travel abroad.
Two consequences in particular flow from this interaction of UN counter-terror law and EU asylum law and the application of the exclusion clause.
Firstly, the perhaps inevitable use of counter-terrorism law and criminal law more generally as techniques of exclusion in an era of increasing closure of national communities and rising public tensions surrounding migration. An individual is denied a status of inclusion he or she would otherwise enjoy on the basis of actions that are deemed incompatible with certain underlying norms and values of the host political community (norms shared with the global community).
Secondly, the use of UNSC’s resolutions broadens the application of the exclusion clause from terrorist acts as found in B&D to terrorist activities, such as those falling within the scope of the various UNSC Resolutions cited by the Court and listed in Article 2 of the FDCT.
This is the true innovation in Lounani and it fits EU asylum law within the broader thrust of global and EU counter-terrorism law to target not only direct terrorist acts of violence but rather to adopt an aggressively preventative approach towards the suppression of terrorist activity through the disruption of the peripheral acts involved in the organisation and funding of terrorism.
This more holistic approach towards combatting terrorism, targeting the whole infrastructure of terrorism, is now imported into the operation of the exclusion clause. Developments in counter-terrorism law have thus had a direct influence in broadening the application of the exclusion clause in EU asylum law. It seems that now, in light of Lounani and the extension of the exclusion clause, it is increasingly the case that asylum law is also being drafted into the service of global counter-terrorism efforts.
 For a detailed account see Steve Peers, EU Justice and Home Affairs Law (4 edn, OUP 2016).
 Directive 2004/83/EC on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted  OJ L 304/12 (Qualification Directive).
 Case C-573/14 Commissaire général aux réfugiés et aux apatrides v Mostafa Lounani EU:C:2017:71.
 Framework Decision 2002/475/JHA on combating terrorism  OJ L 164/3 (FDCT).
 Allowing exclusion for participation and instigation of acts contained in Article 12(2)(c) Qualification Directive (n 2).
 Case C-573/14 Commissaire général aux réfugiés et aux apatrides v Mostafa Lounani (Opinion of AG Sharpston) EU:C:2016:380.
 Joined Cases C-57/09 and C-101/09 Bundesrepublik Deutschland v B und D EU:C:2010:661,  ECR I-10979.
 Case C-373/13 HT v Land Baden-Württemberg EU:C:2015:413.
 Lounani (Opinion of AG Sharpston) (n 6) para 55.
 Lounani (n 3) para 49.
 The link is perhaps even more direct that the phrase interpretative aid might suggest, thus ‘Article 12(2)(c) [of the Qualification Directive] corresponds in essence to Article 1F(c) of the Geneva Convention.’ See Lounani (n 3) para 43.