A Palestinian from Gaza, registered with UNRWA, requested international protection, claiming to have been persecuted by Hamas. He travelled irregularly to Belgium, where he was arrested and later convicted of migrant smuggling with aggravating circumstances. The Brussels Court of Appeal found that he had played a central role in organising the illegal movement of a woman and her three minor children from the UAE through Turkey and Greece to Belgium for financial gain, including by arranging transport, receiving money, and retaining passports. He was sentenced to 40 months' imprisonment and a EUR 32,000 fine. The Commissioner General for Refugees and Stateless Persons (CGRS) concluded that these acts constituted a serious non-political crime under Article 1F(b) of the Refugee Convention and excluded the applicant from both refugee status and subsidiary protection. The applicant appealed before the CALL, claiming, inter alia, that he had acted for humanitarian reasons, that he was merely an intermediary rather than a smuggler, and that he had already served his sentence and no longer posed a risk to society.

The CALL confirmed the applicant's exclusion from refugee status and subsidiary protection, finding that there were serious reasons for considering that he had committed serious non-political offences outside Belgian territory. Relying on the Brussels Court of Appeal judgment of 16 October 2018 and the Criminal Court judgment of 24 April 2018, the CALL held that the applicant had played a central role in migrant smuggling activities carried out in Turkey and Greece between 15 March and 20 July 2017. The CGRS had therefore rightly concluded that the acts fell within the territorial and temporal scope of Article 1F(b) of the Refugee Convention.

On the concept of a “serious non-political crime”, the CALL cited the CJEU judgment in  Shajin Ahmed v Immigration and Asylum Office (HU, Bevándorlási És Állampolgársági Hivatal) (C-369/17, 13 September 2018), which recalled that Member States must carry out, in each individual case, an assessment of the specific facts brought to their attention in order to determine whether there are serious reasons for considering that the acts committed by the person concerned fall within that ground for exclusion. The CJEU also referred to the EASO Judicial Analysis on Exclusion: Articles 12 and 17 Qualification Directive (1 February 2020), which recommends assessing the seriousness of the crime on the basis of several criteria, including the nature of the act committed, the actual harm caused, the criminal procedure applied, the nature and severity of the penalty imposed, and whether most courts would also regard the act as a serious crime. In addition to this, the CALL affirmed that the specific facts of the individual case must be taken into account. The CALL referenced the EASO Practical Guide on exclusion for Serious (Non-Political) Crimes (22 December 2021), according to which specific factors that can be taken into account as part of this individualised analysis of the seriousness of a crime relate to: the act itself, such as the profitability of the crime; the applicant personally, including factors linked to their role and conduct; and the victims, including their vulnerability. The CALL also referenced the CJEU judgment in Germany v B and D (C-57/09 and C-101/09, 9 November 2010), which clarified that individual responsibility must be established on the basis of both objective criteria, namely the conduct itself, and subjective criteria, namely knowledge and intent. The same judgment also established that, once Article 12(2) applies, no additional proportionality assessment is required if that would entail reassessing the seriousness of the acts. The CJEU further held that a person may be excluded from refugee status under Article 12(2)(b) or (c) of the Qualification Directive even where they do not constitute a present danger to the receiving Member State.

In the present case, the CALL noted that a combined reading of the Court of Appeal judgment and the Criminal Court judgment showed that, between 1 April and 20 July 2017, the applicant had played a central role in the unlawful smuggling into the EU of an adult woman and her three minor children. In addition to the fact that three of the victims were minors, both the Criminal Court and the Court of Appeal found that the applicant had abused the victims' vulnerable position, resulting from their unlawful and precarious administrative situation, leaving them with no genuine alternative but to submit to the exploitation. The applicant disputed that the offences he committed should be regarded as sufficiently serious. However, the CALL emphasised that international and European standards demonstrate a broad consensus among States that migrant smuggling constitutes a serious crime that must be combated. It recalled that the UN Smuggling Protocol notes the serious harm caused to States and the risks posed to migrants' lives and safety, while EU law addresses migrant smuggling through Framework Decision 2002/946/JHA and Directive 2002/90/EC, implemented in Belgium through Articles 77bis et seq. of the Aliens Act.

On an individualised assessment, the CALL reiterated that the case file showed that the applicant's proven acts were serious and grave, demonstrating a dangerous disposition, a lack of moral values, and a lack of respect for the physical and psychological integrity of persons, including minors, who were fleeing and were exploited without scruple. The CALL pointed out that, even if the applicant was not the sole organiser or controller of the smuggling operation, this did not mean that his role was insignificant. It recalled that inciting or otherwise participating in the crimes or acts referred to in Article 1F of the Geneva Convention may in itself be sufficient. The CALL held that the applicant therefore could not credibly maintain that he was “not an active figure” in the smuggling operation. Having regard to the findings of the Criminal Court and the Court of Appeal, as well as the body of evidence and factual information contained in the criminal file and submitted by the applicant, the CALL concluded that there were serious reasons for considering that the applicant had been actively involved in migrant smuggling and that his involvement had not been limited to a single isolated incident.

Considering the nature of the acts committed, which consisted of exploiting persons on the move; the actual harm caused, which extended beyond the victims themselves and had a broader impact on States and the public interest; the vulnerability of the victims owing to their minority and the applicant's lack of respect for them; the assessment of the conduct by both criminal courts; and the severity of the sentence imposed, the CALL concluded that the offences committed by the applicant constituted a serious crime within the meaning of Article 1F(b) of the Refugee Convention. The applicant's individual responsibility for these acts, which were rightly characterised in the contested decision as exclusionary acts within the meaning of Article 1F(b), could not be disputed. Finally, the CALL found that there were no elements capable of diminishing the seriousness of the offences committed, nor any exculpatory circumstances that could absolve the applicant of his individual responsibility. The fact that the applicant had served his sentence did not in any way diminish either the seriousness or the non-political nature of the offence, particularly since the Criminal Court had noted that he showed no insight into his wrongdoing, considered himself to have been wrongly convicted.

The CALL clarified that, once the seriousness of the crime and the applicant's individual responsibility had been established, there was no scope for balancing the seriousness of the offence against the consequences of exclusion. Nor did the application of the exclusion clause depend on the existence of a present danger to the host Member State, or on whether the person concerned could be removed to his country of origin. In light of the foregoing, the CALL concluded that there were serious reasons for considering that the applicant had committed a serious non-political crime before being admitted to the country as a refugee, and that he bore individual responsibility for it. Accordingly, pursuant to Article 55/2 of the Aliens Act in conjunction with Article 1F(b) of the Refugee Convention, the applicant had to be excluded from refugee status.