CJEU: Advocate General Opinion in Case C‑373/13 T

Monday, September 22, 2014

Facts of the case: After being granted refugee status and a permanent residence status in Germany in 2006, Mr H.T, a Turkish national with Kuridsh origin, was later issued with an order for his expulsion by virtue of his alleged support in a terrorist organisation, the PKK, in 2012. Given Mr H.T’s status as a refugee with a permanent right of residence and his family ties in Germany, the enforcement of the order was suspended. Hearing the appeal of Mr. H.T, the Verwaltungsgerichtshof Baden-Württemberg referred a question to the CJEU concerning the interpretation of Articles 21 and 24 of the Qualification Directive.

Consideration of questions referred

Under what circumstances can a Member State revoke a residence permit once already granted?

Faced with the question whether Member States are able to revoke a residence permit either under Article 21(2) and (3) or under Article 24(1), or whether a residence permit can be revoked only under Article 21(3) if the refugee is no longer protected against refoulement [52], Advocate General Sharpston recommends that the CJEU opt for the former [67]. Reasoning for this conclusion, according to the AG, is fivefold.  Firstly, despite submissions by Mr H.T who states that Article 24(1) does not concern revocation but the conditions applying to issuing (or refusal to issue) a residence permit, the AG conversely finds that nowhere in Article 24(1) does it explicitly exclude the use of revocation. Secondly, Article 24(1) allows for a residence permit to be withheld, thus, revocation is in consistency with the purpose of the provision. Thirdly, the AG contends that it is coherent with the scheme of the Directive for Article 24(1) to be read as allowing revocation. Fourthly, the travaux preparatoires of the Directive are congruent with the possibility to revoke a residence permit in Article 24(1) circumstances.  Finally, to come to an opposite conclusion would lead to anomalies, notably an over emphasis on the timing of information relating to an individual [68].

However, the AG also notes that “whilst it is possible to revoke a refugee’s residence permit where the Article 24(1) exception applies, it is not permissible to also withdraw or reduce the minimum level of guarantees provided for by Chapter VII of the Qualification Directive” [106]. This would not only be against the principle of proportionality but would also have the effect of leaving the individual in a “legal limbo,” depriving him of the substantive benefits that flow from his refugee status [112]. 

What is meant by “compelling reasons of national security” in Article 24(1) of the Qualification Directive?

The AG initially considers whether there is an overlap between the wording of Article 21(2) and Article 24(1). Noting that the wording of Article 21(2) is more specific and thus narrower than Article 24(1) the AG considers that “compelling reasons of national security” should be interpreted as having a wider remit than the former Article. This is principally because the consequences of revoking a residence permit under Article 21(2), notably loss of protection against refoulement are far wider than the consequences of Article 24(1) [85]. Surmising that “compelling reasons…” comprise of both subjective and objective elements [86], the AG concludes that the Member States when faced with understanding this phrase should take note of the refugee’s precise actions, the actions of the organisation with which the individual has supposedly participated in, and any further circumstances which “create an enhanced likelihood of a threat to national security or public order” [102]. In the present circumstances of Mr. H.T, the AG concludes that attending lawful meetings does not constitute a terrorist activity in itself, “more would be needed to conclude that a person was a terrorist and/or that he was actively affiliated to a proscribed organisation and that the conditions of the Article 24(1) exception were accordingly met” [103].

Read the AG Opinion.

19 September 2014

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Procedural guarantees
Revocation of protection status