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The difficulty of refusing protection to an EU national

Immigration: – The difficulty of refusing protection to an EU national even in the wake of the exclusion clause at Article 1(f) (a) of the Geneva Convention on the Status of Refugees 1951.
K v Staatssecretaris van Veiligheid en Justitie and HF v Belgische Staat (joined cases C- 331/16 and C – 366/16), CJEC (Advocate General’s Opinion) 14th December 2017

1. Article 27 ( 2) of the Directive 2004/38/EC was interpreted as meaning that, although the exclusion ( in the past), of a Union citizen or a member of his family from refugee status under article 1(f)(a) of the Geneva Convention relating to the Status pf Refugees 1951, could not , in itself establish a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, it may be taken into account to that end in so far as the circumstances that led to the application of that provision disclosed the existence of personal conduct constituting such a threat.1. Article 27 ( 2) of the Directive 2004/38/EC was interpreted as meaning that, although the exclusion ( in the past), of a Union citizen or a member of his family from refugee status under article 1(f)(a) of the Geneva Convention relating to the Status pf Refugees 1951, could not , in itself establish a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, it may be taken into account to that end in so far as the circumstances that led to the application of that provision disclosed the existence of personal conduct constituting such a threat.

2. Article 27(2) of the Directive 2004/38, read in conjunction with Article 7 of the Charter of Fundamental Rights of the European Union, was interpreted as meaning that any restriction imposed by a member state on the freedoms of movement and residence of a Union citizen, or a member of his family must comply with the principles of proportionality and respect that person’s right to a private and family life. In that regard, the member state must weigh the protection of the Fundamental interests relied on in support of such a restriction against the interests of the person concerned, relating to the exercise of those freedoms and his private and family life. The member state must take into account inter alia, the factors mentioned in Article 28(1) of that directive in so far as they were relevant in the individual situation at issue.

3. Article 28(3)(a) of the Directive 2004/38 was interpreted as meaning that the period of 10 years’ residence in the host Member State, entitling a person to the protection against expulsion established by that provision, did not include periods during which a Union citizen had, before the accession to the European Union of his Member State of nationality, resided in the host Member State without having leave to do so, under the national law of that Member State.

Comment

The case reinforces the difficulty in refusing protection in the host member State to an EU national in circumstances when a non-EU national faced with the same facts may be at considerable disadvantage, and furthermore the significance attached to private and family life and the exercise of proportionally in a civilised society notwithstanding the past conduct of the EU national.The case reinforces the difficulty in refusing protection in the host member State to an EU national in circumstances when a non-EU national faced with the same facts may be at considerable disadvantage, and furthermore the significance attached to private and family life and the exercise of proportionally in a civilised society notwithstanding the past conduct of the EU national.

This is not the final decision of the CJEU, and although the Advocate General’s opinion is not binding on the Court, it is hugely persuasive and is more likely than not to be endorsed by the final decision of the Court in due course.

Dr. Bernard Andonian
Consultant Solicitor
Head of professional development
Gulbenkian Andonian Solicitors