K. L., a third country national who crossed the border between Belarus and Lithuania on 17 February 2022, applied for asylum in Lithuania. He claimed that he was illegally convicted three times in his country of origin, because of his political opposition activity and that he had left his country when the law enforcement authorities began questioning other individuals as he was convinced that they were preparing a new criminal case against him for having organised demonstrations and disseminating political information.

The Migration Department considered that the applicant was eligible for refugee status in Lithuania, as the public criticism of the authorities in his country of origin constituted a possible reason for persecution and he would most likely be arrested and criminally prosecuted because of his social media posts. Considering the criminal proceedings and penalties imposed on the applicant, the Migration Department also considered that he had committed acts which should be classified as a ‘serious common law crime’, within the meaning of Article 88(2)(3) of the Law on the legal status of foreigners.

By decision of 16 January 2023, the Migration Department rejected his application for asylum and issued him a temporary residence permit, as it considered that the applicant could not be returned to his country of origin, as he was likely to be persecuted because of his political opinions.

The Regional Administrative Court of Vilnius dismissed the applicant’s appeal against that decision by judgment of 30 March 2023.

Before the Supreme Administrative Court, the referring court, K. L. argued that the exclusion clause from refugee status provided in Article 12(2)(b) of the recast Qualification Directive was no longer applicable, as he already served the criminal sentence for the crime for which the Migration Department refused to grant him refugee status. The applicant relied on publications of the United Nations High Commissioner for Refugees (UNHCR).

Also before the Supreme Court, the Migration Department argued that since no clear definition was provided by the recast QD for the concept of ‘serious common law crime’, nor in national law, it had relied on the EU Agency for Asylum (EUAA, former European Asylum Support Office (EASO)) guide, ‘EASO Practical Guide on Exclusion for Serious (Common Law) Crimes’ (October 2021), to classify one of the offences committed by the applicant as a ‘serious common law crime’. In addition, the Migration Department relied on EUAA’s on Practical Guide: Exclusion’ from January 2017, to conclude that where the applicant for international protection served the sentence, the competent authority has a discretionary power as to the application of Article 12(2)(b) of the recast QD.

The Supreme Administrative Court decided to stay the proceedings and to refer a question to the CJEU for a preliminary ruling.

The CJEU analysed ‘whether Article 12(2)(b) of Directive 2011/95, read in the light of Article 18 of the Charter, must be interpreted as meaning that, when examining whether the acts committed by an applicant for international protection who otherwise meets the criteria for obtaining refugee status fall within the ground for exclusion from that status provided for in Article 12(2)(b), the authorities and, where appropriate, the competent courts of the Member State concerned must take into account the fact that that applicant has served the sentence to which he was sentenced in respect of the acts he committed.’

The CJEU recalled that, under Article 12(2)(b) of the recast QD, any third-country national or stateless person is excluded from refugee status where there are serious reasons to believe that the person committed a serious non-political crime outside the country of refuge before being admitted as a refugee. The court further noted that since Article 12(2)(b) does not contain any express reference to the law of the Member States for the purpose of determining its meaning and scope, it must be given an autonomous and uniform interpretation throughout the European Union. The court further added that since Article 12(2)(b) and no other provision from the recast QD defines ‘serious crime’, the term must be interpreted in accordance with its meaning in everyday language, while taking into account the context in which it is used and the objectives pursued by the rules of which it forms part.

With reference to its previous judgment in Germany v B and D (C-57/09 and C-101/09, 9 November 2010), the CJEU highlighted that the ground for exclusion set out in Article 12(2)(b) of the recast QD is intended to punish acts committed in the past. It also added that considering the usual meaning of the terms "crime", which refers to factual circumstances from the time when the crime was committed, and "serious", which may change in time, the court considered that it cannot be ruled out that the assessment of the seriousness of an offence may be different at the time it was committed and at the time of the examination of an application for international protection.

Regarding the contextual interpretation, the CJEU noted that the recast QD must be interpreted in light of the Geneva Convention, the cornerstone of international protection of refugees. In this sense, the CJEU highlighted the importance of considering the documents issued by UNHCR in view of the role entrusted to the UNHCR by the Geneva Convention.

The court referred to UNHCR’s ‘Guide to the procedures and criteria for determining refugee status and guidelines on international protection under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees’ (HCR/1P/4/FRE/REV.4 of February 2019) which states that ‘[t]he fact that the individual convicted of a serious non-political crime has already served his sentence or has been pardoned or has benefited from an amnesty must also be taken into account’.

The court then highlighted the purpose of Article 12(2)(b) of the recast QD, which is to exclude from refugee status persons deemed unworthy of protection and in preventing that such protection would enable perpetrators of certain serious crimes to escape criminal responsibility, as the court had already highlighted in its previous judgment in K. v Staatssecretaris van Veiligheid en Justitie (C‑331/16) and H.F. v Belgische Staat (C‑366/16) (Joined Cases C‑331/16 and C‑366/16, 2 May 2018).

Concerning applicants who served their sentence, the CJEU noted that the exclusion of such a person cannot be justified by the objective of preventing the person from escaping criminal responsibility for that crime and at the same time, the commission of serious acts at a certain point in a person's life cannot permanently render the person unworthy of international protection as that would ignore a possible rehabilitation.

The CJEU further added that a decision to exclude an applicant from refugee status cannot be taken automatically and that under Article 12(2)(b) of the recast QD the competent authority must carry out an individual assessment of the facts and circumstances to determine whether there are serious reasons to believe that the acts committed by the applicant fall within that ground for exclusion.

The CJEU further highlighted that exclusion from refugee status under Article 12(2)(b) of the recast QD ‘is not subject to the fact that the person concerned represents a current danger to the host Member State’, ‘nor to an examination of proportionality involving again an assessment of the level of gravity of the acts committed’ and it does not preclude taking into account the fact that the person served their sentence when establishing whether or not the person falls within that ground for exclusion.

Thus, the court concluded that the fact that the applicant for international protection has served the sentence constitutes an element which must necessarily be taken into account by the competent authority of the Member State when examining all the circumstances specific to the individual case concerned, while this does not in itself preclude the application of the exclusion clause under Article 12(2)(b) of the recast QD. The court added that the serving of the sentence is merely one circumstance among others, which must be taken into consideration to determine whether that exclusion clause must be applied to the applicant.

The court added that in order to assess the seriousness of the offence, the competent authority must examine in particular the type of act, the sentence incurred and imposed, the period which has elapsed since the criminal conduct, the conduct of the person concerned during that period and the remorse expressed.

The court also noted that the exclusion of a person from refugee status under Article 12(2) of the recast QD is separate from the decision whether that person may be returned to the country of origin.

Thus, the CJEU ruled that Article 12(2)(b) of the recast QD, read in the light of Article 18 of the Charter, ‘must be interpreted as meaning that, when examining whether the acts committed by an applicant for international protection who otherwise meets the criteria for refugee status fall within the ground for exclusion from that status provided for in Article 12(2)(b), the authorities and, where appropriate, the competent courts of the Member State concerned must take into account the fact that that applicant has served the sentence to which he was sentenced in respect of the acts he committed, without, however, that circumstance in itself preventing that applicant from being excluded from refugee status under that provision.’