On 14 May, the Court of Justice of the European Union (CJEU) ruled in the joint cases of M v. Ministry of Interior, Czech Republic (C-391/16) and X and X v. Commissioner General for Refugees and Stateless Persons, Belgium (C-77/17 and C/78/17).

The first case, M (C-391/16), concerned an applicant of Chechen origin whose right to asylum was revoked on the grounds that he had been convicted of a serious crime and that he was a threat to national security. The second case, X (C-77/17), concerns an Ivorian national, who applied for asylum after being convicted for serious crimes, and whose application was refused due to these crimes. In the third case, X (C-78/17), the applicant was a recognised refugee whose status was revoked and his removal from the State was ordered because of the serious nature of the crimes he committed.

The referring courts are, in essence, seeking to ascertain whether Article 14 (4) to (6) of Directive 2011/95/EU, disregard the Geneva Convention relating to the Status of Refugeesare therefore invalid in light of Article 18 of the Charter on Fundamental Rights of the European Union (Charter) and Article 78(1) Treaty on the Functioning of the European Union (TFEU), which state that the common asylum policy must comply with that Convention.  

In its assessment of the cases, the Court recognized the need to adhere to the general principle of interpretation, under which an EU measure must be interpreted in such a way as to not to affect its validity and in conformity with primary law and, in particular, with the Charter. The Court recognised that while Directive 2011/95/EC is particular to the EU, the Directive seeks to ensure that the Geneva Convention is complied with in full. The Court reaffirmed that refugee status is declaratory, but stated that there was a difference between ‘refugee’ and ‘refugee status’. Indeed, it stated that being a ‘refugee’, as defined under Article 2(d) of the Directive and Article 1(A) of the Geneva Convention, is not dependent on the formal recognition of that fact through the granting of ‘refugee status’, as defined under Article 2 (e) of the Directive, read in conjunction with Article 13.

The Court noted that the circumstances, referred to in Article 14(4) and (5) of Directive 2011/95, in which Member States may revoke or refuse to grant refugee status, correspond, in essence, to those in which Member States may refoule a refugee under Article 21(2) of that Directive and Article 33(2) of the Geneva Convention. However, while refoulement in such circumstances is permitted under Article 33 (2) of the Geneva Convention, Article 21 (2) of the Directive must be interpreted and applied in such a way that conforms with the Charter, in particular Articles 4 and 19(2), which prohibit exposure to torture and inhuman or degrading punishment or treatment. For a situation in which the refoulement of a refugee would expose them to a risk of violating these fundamental rights, the EU Member State cannot derogate from the principle of non-refoulement. The Court recognised that EU law thus provides more extensive international protection for the refugees concerned than that guaranteed by the Convention.

The Court found that while the status of refugee can be revoked, under Article 14 (6), those persons are still entitled to a number of rights laid down in the Geneva Convention which, as highlighted in the Advocate General Opinion, confirms that they are, or continue to be, refugees for the purposes of, inter alia, Article 1(A) of that Convention, in spite of that revocation or refusal.

The Court emphasized that despite being denied the residence permit attached to refugee status under Directive 2011/95/EC, a refugee covered by one of the scenarios referred to in Article 14(4) and (5) thereof may be authorised, on another legal basis, to stay lawfully in the territory of the Member State concerned. The Court further states that in such a situation, Article 14(6) of the Directive in no way prevents that Member State from guaranteeing that the person concerned is entitled to all the rights which the Geneva Convention attaches to ‘being a refugee’, particularly provided for in Articles 3, 4, 13, 16, 20, 22, 25, 27, 29 and 31 – 33 of the Convention.

The Court, therefore, concluded that the examination of Article 14(4) to (6) of Directive 2011/95 has not revealed any factor capable of affecting its validity.