On 22 June 2022, the Dutch Administrative Jurisdiction Division of the Council of State (Council of State) referred preliminary questions to the Court of Justice EU (CJEU) about the conditions for refusing a refugee status to a person who has committed a ‘particular serious crime’ and constitutes a ‘ danger to the community’ of the host state (CJEU Case C-402/22). The Council of State asks the CJEU to interpret the term ‘particular serious crime’ and wants to know whether a conviction of a ‘particularly serious crime’ is sufficient to consider a person a ‘danger to the community’.

The Migration Law Clinic wrote an expert opinion in the context of these preliminary questions. The opinion analyses the terms ‘particularly serious crime’ and ‘danger to the community’. Moreover it provides an overview of Member State practice in the context of Article 14(4)(b) QD.

The opinion argues that a literal and structural interpretation of the term ‘particularly serious crime’ indicates that the severity of the crime must be elevated above the standard. Article 14(4)(b) QD also requires a higher threshold than Article 17 QD, which uses the term ‘serious crime’ in the context of the right to subsidiary protection. Moreover, the history of the Qualification Directive and of Article 33 of the Refugee Convention shows that the term ‘particularly serious crime’ entails a high threshold and refers to crimes such as murder, rape, armed robbery and arson.

The expert opinion also contends that the criteria provided in the CJEU’s judgment in Ahmed for the assessment whether a person in need of subsidiary protection has committed a ‘serious crime’ are equally relevant when examining whether a refugee has committed a ‘particular serious crime’. Nevertheless, it must be stressed again in this context, that Article 14(4)(b) QD requires a higher threshold than Article 17 QD. A final conviction of a ‘particularly serious crime’ is not sufficient in itself to determine whether an individual is a ‘danger to the community’.

Finally, the expert opinion shows on the basis of a Member State comparison that the Netherlands appears to have an exceptionally low threshold for applying Article 14(4)(b) QD (a final conviction to a prison sentence of ten months or more). Other Member States States, which use sentence duration to determine what constitutes a ‘particularly serious crime’, almost all employ a three-year minimum sentence.

You can read the expert opinion here: