According to Article 14(4)(b) of the Qualification Directive, a refugee may be deprived of protection status if “he or she, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community”. This open wording prompted Member States to set widely divergent requirements for the revocation of refugee status, resulting in the initiation of preliminary ruling procedures from Belgian, Austrian, and Dutch courts. On 6 July 2023, the European Court of Justice, in Joined Cases C-8/22, C-663/21 and C-402/22, specified the conditions for the revocation of refugee status and clarified in particular that it cannot be concluded from a final conviction alone that the convicted person constitutes a danger to the community. Rather, both conditions had to be fulfilled independently.

Firstly, the conviction must relate to “a crime which, in view of its specific features, is exceptionally serious, in so far as it is one of the crimes which most seriously undermine the legal order of the community concerned”. In this context, account must be taken, i.a., of the penalty provided for and the penalty imposed for that crime, the nature of that crime, any aggravating or mitigating circumstances and whether or not that crime was intentional. According to the ECJ, several less serious offences may not be cumulated into an offence of the required degree of seriousness; rather, there must be at least one crime which, as such, weighs particularly seriously. Secondly, the refugee must “constitute a genuine, present and sufficiently serious threat affecting one of the fundamental interests of the society of the Member State in which he or she is present”. In this respect, the competent authorities must assess all the circumstances underlying the individual case. However, even if these two conditions are fulfilled, a revocation of refugee status is not necessarily lawful. Rather, the measure must be proportionate to the particular seriousness of the crime and the danger the refugee constitutes for a fundamental interest of the society.

The preliminary questions were referred to the European Court of Justice by the Raad van State (Dutch Administrative Jurisdiction Division of the Council of State). The Migration Law Clinic has supported the responsible lawyer, R.C. van den Berg, with an expert opinion which thoroughly interpreted Article 14(4)(b) and provided an overview of corresponding Member State practice. 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. Moreover, the history of the Qualification Directive and of Article 33 of the Refugee Convention demonstrates that the term entails a high threshold and initially referred to crimes such as murder, rape, armed robbery, and arson. The expert opinion also contends that a final conviction of a “particularly serious crime” is not sufficient in itself to determine whether an individual constitutes a “danger to the community”. The latter must rather be determined separately, based on the refugee’s conduct after serving the sentence and the principle of proportionality. The expert opinion can be found here.