Under certain conditions, member states may restrict the freedom of movement and residence of a European Union citizen or a member of his or her family if the asylum application of this individual was previously rejected on the grounds that he or she was suspected of war crimes, concluded Advocate General Henrik Saugmandsgaard Øe, in conclusions returned on Thursday 14 December (joined cases C-331/116 and C-366/16).
K, a Croatian national, and HF, an Afghan citizen, applied for asylum in the Netherlands (before Croatia joined the EU). The Dutch authorities rejected these applications on the grounds that there were weighty reasons to believe that these individuals had committed a war crime in the former Yugoslavia, in the case of K, and in Afghanistan for HF. K subsequently became an EU citizen and HF a family member of an EU citizen, through his daughter, who took Dutch citizenship.
K is challenging the decision of the Dutch authorities, which declared him 'undesirable' on Dutch territory. HF, who has settled in Belgium, is challenging the Belgian authorities' refusal to grant him a residence permit. In both cases, the competent national authorities justified their decisions by invoking the respective pasts of the plaintiffs.
In his conclusions, the Advocate General reiterates that the freedom of movement of EU citizens and their family members may be restricted if these individuals constitute a real, current and sufficiently serious threat to society. However, Øe added, the fact that an EU citizen or a member of his or her family was previously declined refugee status on the grounds of probably having committed war crimes cannot automatically constitute a real, current and sufficiently serious threat.
However, the past of the individual in question may be taken into account if the circumstances leading to the rejection of refugee status highlight the existence of personal behaviour that constitutes such a threat. In this regard, the host member state must carry out an individual assessment of the individual's behaviour in light of the following: the seriousness of the alleged events, the individual's level of personal involvement in perpetrating these crimes, the possible existence of grounds to exonerate his or her criminal liability.
A lack of risk that the individual in question will reoffend in the host member state and the fact that a considerable period of time has passed since the alleged crimes were committed do not in themselves mean that it cannot be concluded that the individual is a threat to society.
Furthermore, the Advocate General considers that any restriction on the freedom of movement and residence of an EU citizen or a member of his or her family must comply with the principle of proportionality and respect the right to privacy and family life of that individual.
The host member state must also take account of the following factors set out in the directive (2004/38) on the freedom of movement: the amount of time the person in question has resided there, his or her age, state of health, family and economic status, social and cultural integration and the intensity of his or her links to his or her country of origin. (Original version in French by Mathieu Bion)