Brussels, 02/06/2010 (Agence Europe) - On Tuesday 1 June, the advocate general delivered his opinion in two joined cases (C-57/09 and C-101/09) in relation to the reasons for not granting refugee status to Turkish nationals of Kurdish origin, who had sought political refugee status in Germany but who were refused it because they had, in the past, belonged to two movements which feature on the EU list of terrorist organisations. The German court hearing the case (the Bundesverwaltungsgericht) asked the Court of Justice to interpret the grounds for not allowing refugee status to be granted set out in Article 12 §2b and 2c of Council 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. The advocate general proposed that the Court respond as follows to the questions (see Official Journal C129 of 6 June 2009):
For the purposes of applying causes for excluding a person from being a refugee, where the applicant has, in the past, been affiliated to a group that features on the list of suspected terrorist organisations, the competent authorities in member states must consider the nature, organisation, activities and methods of the group in question, and also the political, economic and social context in which it was operating at the time the person concerned was a member. They must also make certain that there is sufficient proof of the individual responsibility of the person concerned for acts that may be attributed to the group in the period when the person was a member and if those acts were among those which can give reason for not granting refugee status within the meaning of Article 12 of the same directive. For that, they will have to take account of all aggravating and extenuating circumstances and any other relevant circumstances.
Responding to another specific question, the advocate general said that exclusion from refugee status under the terms of Article 12 §2b or 2c of Directive 2004/83/EC did not mean that the applicant continued to pose a threat. The competent authorities or the courts in the member states with which a request for refugee status has been lodged must weigh up the seriousness of the conduct which justifies exclusion from the said status and the potential consequences of such exclusion. To do so, they will have to take account of whether the applicant otherwise enjoys effective protection against being sent back. When this protection is available and accessible, the applicant may be excluded. On the other hand, the person may not be excluded from being a refugee when granting of this status is the only way for him/her to avoid being sent to a country where for reasons of race, religion, nationality, membership of a certain social group or for political opinions, the applicant has serious reason to believe his/her life or physical well-being will be put at risk or that he/she would be subjected to inhuman or degrading treatment. However, in the event of exceptionally serious crimes, such weighing up is irrelevant.
As for whether exclusion from refugee status is disproportionate only in exceptional cases, with specific characteristics, the advocate general said that the competent authorities and courts of the member states must ensure that application of Article 12 is proportionate with its aim and, more generally, with the humanitarian nature of the refugee law.
The advocate general decided that Directive 2004/83/EC, and in particular its Article 3, does not prevent a member state from granting a third country national or stateless person, excluded from being a refugee under the terms of Article 12 §2 of the directive, protection under national provisions on the right to asylum, on condition that this protection cannot be confused with the protection granted refugees under the directive. (F.G./transl.rt)