CJEU judgment: person excluded on the basis of 1F Refugee Convention does not automatically pose a threat to public order

On 2 May 2018 the Court of Justice of the European Union (CJEU) ruled in joined cases C‑331/16 and C‑366/16 concerning the right to free movement of persons, who have been excluded form refugee status on the basis of Article 1F of the Refugee Convention. The Migration Law Clinic published an expert opinion on this issue in July 2016.

The judgment concerns persons, with regard to which there are serious indications that they committed serious human rights violations or crimes. The CJEU ruled in line with the Migration Law Clinic’s expert opinion that the fact that a person has been refused a refugee status on the basis of Article 1F does not automatically mean that the mere presence of that person on the territory constitutes a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, capable of justifying the adoption of measures taken on grounds of public policy or public security. This means that the right of free movement may not be limited only on the basis of the exclusion from refugee status. The CJEU held that the Member State has to assess on a case- by- case basis whether a person poses a threat to public policy or security. In this assessment it has to take into consideration ‘the findings of fact in the decision to exclude that individual from refugee status and the factors on which that decision is based, particularly the nature and gravity of the crimes or acts that he is alleged to have committed, the degree of his individual involvement in them, whether there are any grounds for excluding criminal liability, and whether or not he has been convicted’. Moreover, the time that has elapsed since the date when the crimes or acts were allegedly committed and the subsequent conduct of that individual must be taken into account. According to the CJEU it is particularly relevant whether ‘that conduct reveals the persistence in him of a disposition hostile to the fundamental values enshrined in Articles 2 and 3 TEU, capable of disturbing the peace of mind and physical security of the population’. Finally, the limitation of freedom of movement should be proportionate.

On the basis of this judgment the Dutch authorities will need to change their current policy, according to which it is assumed that the exclusion under Article 1(F) conveys in itself a presumption of the individual constituting a direct threat to the Dutch public order and security,