Registered under case C-402/22

The Council of State referred questions for preliminary ruling before the CJEU for the interpretation of the Qualification Directive with regard to the possibility to refuse or withdraw an asylum permit because of a 'particularly serious crime'.

The case concerned a Libyan man who has applied for asylum in the Netherlands because he is bisexual and therefore, he claimed to be at risk in Libya. Although the State Secretary considered the statements of the applicant as credible and considered that he has a well-founded fear of persecution in Libya because of his bisexual orientation, the State Secretary decided not to grant the applicant an asylum permit and assessed that the man presented a danger to society, because he has been sentenced to two years in prison in 2018 for an 'extremely serious crime'. The State Secretary took into account that the foreign national was irrevocably sentenced to 24 months in prison for committing actual indecent assault three times on the same evening and once for an attempt to do so. In addition, the foreign national has been convicted of theft of a mobile phone belonging to one of his victims. 

By decision of 13 July 2020, the Court of the Hague considered that the State Secretary has provided inadequate reasons that the acts committed by the applicant, the actual gravity, the nature and the degree of violence are of such a seriousness and scope to justify the exclusion from refugee status. The Court of the Hague mentioned also the CJEU judgment of 13 September 2018, Ahmed. The Court of the Hague stated that the State Secretary has not checked, by consulting relevant case law, whether the third country national has committed a particularly serious crime. In addition, the same court mentioned that the term 'danger to society' means that the State Secretary must assess whether the applicant poses a real, current and sufficiently serious threat to a fundamental interest of society but found that the State Secretary has inadequately reasoned the decision. The Secretary of State has appealed against this decision and argued that the special seriousness of the committed acts is apparent from the fact that the foreign national tried to seize the genitals of his victims and to feel their bodies. In doing so, the foreign national has seriously infringed the physical integrity of his victims and caused the four victims a great deal of damage. The State Secretary has argued that the nature of the crime, a sexual offence, caused feelings of fear and insecurity in society. 

On the interpretation of the term 'danger to society' from Article 14, fourth paragraph, preamble and under b, of the Qualification Directive, the State Secretary has claimed that the danger to society is in principle given with the determination that the applicant has been definitively convicted of a 'particularly serious crime' and that the burden of proof lies with the applicant  to demonstrate that he does not pose a danger to society and not for the State Secretary to assess whether the third country national poses a real, current and sufficiently serious threat to a fundamental interest of society.

The Council of State made a thorough analysis of the Qualification Directive and national legislation, and has consulted two other cases where national courts have referred questions for preliminary ruling by the CJEU, namely referral ruling in case C-663/21 and C-8/22.

The Council of State decided to stay the proceedings and to address the following questions to the CJEU:

Question 1a

When is a crime so 'particularly serious' within the meaning of Article 14(4), opening words and (b) of the recast QD that a Member State may refuse refugee status to a person in need of international protection?

Question 1b

Are the criteria that apply to the 'serious crime' from Article 17, first paragraph, preamble and under b, of Directive 2011/95/EU, as referred to under point 56 of the CJEU judgment of 13 September 2018, Ahmed, relevant in assessing whether there is a 'particularly serious crime'? If so, are there any additional criteria that make a crime 'special' serious?

Question 2

Must Article 14(4), preamble and (b) of the recast QD be interpreted as meaning that the fact that a person who has obtained refugee status and has been convicted of a particularly serious crime already demonstrates that he or she is a threat to the society, or that the final conviction for a particularly serious crime alone is not sufficient to demonstrate that there is a threat to society?

Question 3

If the final conviction for a particularly serious crime as such is not sufficient to demonstrate that there is a threat to society, should Article 14(4), opening words and under b, of recast QD be read as follows: interpreted that the Member State must demonstrate that the applicant continues to pose a threat to society since his conviction? Must the Member State determine that this threat is real and current or is a potential threat sufficient? Should Article 14(4), preamble and under b, of recast QD, considered separately or read in conjunction with the principle of proportionality,

Question 4

If the Member State is not required to demonstrate that the applicant continues to pose a threat to society since his conviction and that this threat is real, current and sufficiently serious to justify withdrawal of refugee status, must Article 14(4), preamble and (b) of recast QD then be interpreted as meaning that the threat to society is, in principle, demonstrated by the fact that the beneficiary of refugee status has been definitively convicted of a particularly serious crime, but that the person concerned can demonstrate that he does not or no longer poses a threat?