On 11 February 2014 a Turkish national, of Kurdish ethnicity and Muslim religion, was granted refugee status due to his fear of political persecution for his support of the Kurdistan Workers’ Party (PKK). 

On 29 March 2021, the Commissioner General for Refugees and Stateless Persons (CGRS) received information from the State Security regarding the continued participation of the applicant in the PKK. The State Security considered that his role in the PKK in Europe jeopardised the internal and external security of Belgium, as well as the sustainability of the democratic and constitutional order. It also mentioned that, according to the Council Decision 2017/1426, the PKK appeared on the list of terrorist organisations.

On 9 December 2021, the CGRS decided to withdraw the applicant’s refugee status on the ground that he was known to be a PKK executive active in Europe and who was in contact with senior PKK officials and had an extremist influence on the Kurdish diaspora in Belgium. Consequently, the applicant was considered a danger to national security based on Article 55/3/1 of the Aliens Act of 15 December 1980.

On 30 December 2021, the applicant filed an appeal before the Council for Alien Law Litigation (CALL) and disputed the analysis carried out by the CGRS and alleged an infringement of the presumption of innocence, since there was nothing to justify an exclusion of his refugee status. He argued that the reasoning of the CGRS inadequately targeted the PKK far more than the applicant, which he considered an infringement of the independence of the asylum authorities. Finally, he claimed that he was disabled and provided the CALL with a certificate of disability.

The CGRS reiterated its decision of withdrawal by referring to the issue of national security. It also requested that the CALL raise a series of questions to the CJEU for a preliminary ruling, regarding the concept of national security.

The Council for Alien Law Litigation disagreed with the statement of reasons of the contested decision and decided to maintain the applicant’s refugee status. It considered that the information put forward by the CGRS was not sufficient to conclude that there were reasonable grounds to consider the applicant as a danger to national security.

First, the CALL examined the concept of national security as established in Article 14(4)(a) of Directive 2011/95/EU. In that regard, the CALL referenced the EUAA Judicial Analysis: Ending international protection, where it noted that Article 14(4) of the recast Qualification Directive (QD) refers to the security of the Member State but it does not elaborate further on the meaning of that expression. Thus, the CALL considered it necessary to analyse previous CJEU case law to determine what could be understood by national security.

In that regard, the CALL mentioned the judgment in HT v Land Baden-Württemberg (C-373/13, 24 June 2015) where the CJEU clarified that while the concept of ‘national security’ is not defined in the recast QD, its interpretation should be aligned with the concept of 'public security' as defined in the Directive 2004/38/EC. The court held that ‘public security’ includes both internal and external threats to a Member State, such as serious disruptions to essential institutions, military interests, or peaceful coexistence. The CJEU also mentioned that supporting or belonging to associations involved in international terrorism could fall under these grounds.

Moreover, the CALL referred to the CJEU judgment in European Commission v Poland, Hungary and the Czech Republic (C-715/17, C-718/17, and C-719/17, 2 April 2020) where the court ruled that Member States could not unilaterally define the scope of ‘national security’ and ‘public order’ when applying EU asylum law and relocation decisions, as such interpretations are subject to EU-level review. The CJEU also clarified that, under the relocation decisions, Member States may refuse relocation based on “reasonable grounds” of danger to national security or public order, which offer more discretion than the “serious grounds” required to apply exclusion clauses under the recast QD. As such, the CALL noted that the CJEU established a lower evidentiary threshold for relocation refusals than for excluding someone from refugee protection.

The CALL further assessed whether there were reasonable grounds to consider the applicant a danger to national security. In that regard, the council considered that the concept of danger to national security required a particularly high level of threat, which excluded general crimes, even particularly serious ones. Thus, the CALL found that the concept must be understood as including threats, direct or indirect, to the independence, development, integrity or constitutional order of the Member State, as well as espionage, military sabotage and terrorist activities. In the view of this, the council considered that the case did not present grounds for considering the applicant as a danger to national security.

The CALL concluded based on the information on which the contested decision was based, and the applicant’s explanations, that the CGRS did not prove that the applicant presented a profile capable of jeopardising Belgium’s national security. The fact that the applicant raised funds for the PKK, that he was in contact with party officials or that he had initiated various activities in support of the PKK in the Kurdish community did not support the conclusion that the applicant had such a profile. The council observed that the factual basis of the information relied on by the government against the applicant was not sufficiently specified or developed, with the result that it could not be concluded, in the case, that there were sufficient indications, and therefore reasonable grounds, to regard the applicant as a danger to national security.

Consequently, the contested decision was annulled, and the applicant’s refugee status was maintained.