On 2 May 2018, the CJEU ruled in Joined Cases C-331/16 and C-366/16. In this ruling, the CJEU found that the fact that a person has been the subject, in the past, of a decision excluding him from refugee status cannot automatically permit the finding that the mere presence of that person in the territory of the host Member State constitutes a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.

A case-by-case assessment is necessary before a measure based on grounds of public policy or public security is adopted. This assessment must be based on the personal conduct of the individual concerned, taking into consideration the findings of fact in the decision to exclude that individual from refugee status, 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. It must also take account of the time that has elapsed since the date when the crimes or acts were allegedly committed and the individual’s subsequent conduct, particularly in relation to whether that conduct reveals the persistence in him of a disposition hostile to the fundamental values of the EU, capable of disturbing the peace of mind and physical security of the population. This finding is not precluded by the mere fact that the past conduct of that individual took place in a specific historical and social context in his country of origin, which is not liable to recur in the host Member State. The authorities must additionally weigh the protection of the fundamental interest of society at issue, on the one hand, against the interests of the person concerned in the exercise of his right to freedom of movement and residence as a Union citizen and in his right to respect for private and family life.

Finally, the CJEU ruled that, in order to adopt an expulsion decision with due regard to the principle of proportionality, account must be taken of, inter alia, the nature and gravity of the alleged conduct of the individual concerned, the duration and, when appropriate, the legality of his residence in the host Member State, the period of time that has elapsed since that conduct, the individual’s behaviour during that period, the extent to which he currently poses a danger to society, and the solidity of social, cultural and family links with the host Member State.


ELENA Weekly Legal Update, 11 May 2018, available here.

Click here to subscribe to the ELENA Weekly Legal Update.