Published by The Lawfare Institute
in Cooperation With
The European Court of Justice (ECJ) recently ruled that European Union (EU) member nations no longer have the right to deport a refugee for committing a serious crime, as long as the refugee can prove that returning to the home country would threaten his or her life. In the case of M and Others v. Commissaire Général aux Réfugiés et aux Apatrides, the ECJ concluded that EU member nations now have a higher threshold for deporting refugees. Previously, EU members could deport refugees for reasons in accordance with the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the Status of Refugees (the Convention and Protocol Relating to the Status of Refugees). In May, however, the ECJ ruled that EU member nations were subject to a higher standard for deporting refugees due to obligations in the Charter of Fundamental Rights (the Charter) and the Treaty on the Functioning of the EU (TFEU).
Origins of EU Refugee Policy
In June 1999, the European Council decided to establish a convention to create the Charter. The European Parliament, Council of Ministers and European Commission opted to make the Charter a nonbinding proclamation rather than part of a legally binding treaty. The governing institutions of the EU continued to debate this issue until 2009, when all EU member nations formally ratified the Charter as part of the Treaty of Lisbon.
The Charter seeks to guarantee universal rights for all individuals within the EU, organized into six categories: Dignity, Freedom, Equality, Solidarity, Citizens’ Rights and Justice. Article 18 of the Dignity section says, “The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees.”
The TFEU originated as the Treaty of Rome in 1957 and established the European Economic Community, a precursor to the EU. In 1992, the Maastricht Treaty established the EU and updated the TFEU, which eventually became the Treaty of Lisbon. As a result, the text of the TFEU echoed the language of the Charter regarding refugee status.
Article I of the Convention and Protocol Relating to the Status of Refugees lays out the requirements for an individual being defined as a “refugee.” Generally, the document defines a refugee as anyone fleeing his or her country due to dangerous conditions. Article I(F) lists a few ways someone meeting that definition can still not qualify as a refugee, including if someone has committed a war crime or crime against humanity, if someone has committed a grave nonpolitical crime prior to his or her admission as a refugee, or if the individual has committed an act contrary to the purposes and principles of the United Nations.
Moreover, Article 33(1) declares that a refugee cannot be deported if he or she faces torture or death in the home country. However, Article 33(2) provides an exception similar to I(F), stating that the country can deport the refugee if he or she poses a threat to the safety of the country.
Related ECJ Rulings
The ECJ has ruled on issues relating to refugees several times in recent years, sometimes favorably toward refugees. In April 2018, the ECJ ruled that refugees who turned 18 during their asylum application process still have the same rights that refugees of minor age have to reunite with their families. In September 2017, the court upheld an EU policy that established quotas for the minimum number of refugees that every member nation of the EU had to take, which forced many Eastern European EU member nations to take in a greater number of refugees.
Conversely, the ECJ has ruled against refugees in several cases. In July 2017, it found that refugees had to apply for asylum in the country in which they arrived when they first came to the EU, even if that country had less favorable asylum policies than the country in which they wanted to reside. Furthermore, the ECJ ruled in March 2017 that EU members could enact policies that limit or bar asylum visas to individuals not part of an EU mandate program.
M and Others v. Commissaire Général aux Réfugiés et aux Apatrides
M and Others came from two cases in Belgium and one in the Czech Republic. The first case involved a refugee, referred to as “M,” who moved to the Czech Republic from Chechnya in 2006—seeking asylum due to fear of persecution in Chechnya. While waiting to receive asylum, M was convicted for a robbery. After receiving asylum, M was convicted for repeat robbery and extortion offenses. In response, the Czech government revoked M’s refugee status on the basis that he had been convicted of a serious crime and represented a danger to the country. M challenged the decision in the Prague City Court, which dismissed his case, resulting in M’s appeal to the ECJ.
The second case involved a refugee, “X,” who moved from Côte d’Ivoire to Belgium. In 2015, X applied for asylum on the basis that he would face political persecution if he returned to Côte d’Ivoire. Belgium’s leading legal authority, the Commissaire General, refused to grant X asylum due to 2010 convictions for assault and battery and a 2011 conviction for rape of a minor. X later challenged this decision at the ECJ.
Finally, the third case involved a refugee from the Democratic Republic of the Congo, also referred to as “X,” who was granted refugee status in Belgium in 2007. Three years later, X was convicted of homicide and robbery, to which the Commissaire General responded by removing X’s refugee status again on the basis that he was a threat to Belgium—a decision the plaintiff challenged at the ECJ.
The ECJ found that the three refugees could not be deported, as they could face death or torture upon return to their home countries, based on the fact that all EU member nations had to follow the Charter’s and TFEU’s rules on refugees and deportation. These rules mandate that EU member nations follow the Convention and Protocol Relating to the Status of Refugees’s protocol for refugee treatment. The ECJ noted that although a strict textual reading would make it seem as though member nations had a right to deport the refugees based on the exclusions listed in 1(F) and 33(2), the rules of deportation in the Charter took precedent over these exceptions. The ECJ noted that Article 4 of the Charter prohibits torture for anyone in the EU, and Article 19 prohibits expulsion of someone if there is a risk of torture and death. The ECJ also clarified that, although EU member nations had to keep refugees in the country where these situations occurred, they could take punitive measures to remove certain rights from the refugees in question as punishment.
Italy’s Deputy Prime Minister Matteo Salvini reacted angrily to the ruling and said, “I don’t change my mind and I don’t want to change my decree: migrants that rape, steal and deal drugs must return home.” Given Salvini’s known hardline views on immigration, his reaction is hardly a surprise. However, based on the ECJ’s ruling, Italy, like all other EU member nations, cannot deport migrants who are refugees and can prove that returning to their home country would endanger their lives, regardless of the beliefs of the EU member nation’s government.