The Lounani case: when can a member of a terrorist group be excluded

from refugee status?

A person applying for protection under the 1951 Refugee Convention can be excluded from
its provisions under certain circumstances.

As the Court of Justice of the European Union explained in B and D in 2010, these
circumstances include those guilty of committing terrorist attacks.

The background facts

Mr Lounani left Morocco in 1991. He travelled to Germany where he submitted an

application for asylum which was rejected. He then travelled to Belgium. He has resided
illegally there since 1997.

The legal framework

The first port of call is the Refugee Convention itself. Article 1F states that:
The provisions of this Convention shall not apply to any person with respect to
whom there are serious reasons for considering that:
. (b). he has committed a serious non-political crime outside the country of refuge
prior to his admission to that country as a refugee;
 (c). he has been guilty of acts contrary to the purposes and principles of the United
Nations.

The questions before the Court

How, then, to treat Mr Lounanis criminal offences and membership of MICG in relation to
the exclusion clauses? The Court addressed three questions.

The first: must Article 12(2)(c) be interpreted so that exclusion under that provision of an
applicant for international protection can only follow that applicants conviction for an
article 1(1) Framework Decision offence(s)?

The Courts judgment

The Court of Justice considered the exclusion clauses in light of the Geneva Convention and
a number of UN Security Council resolutions. The Court also described the Geneva
Convention as the cornerstone of the international legal regime for the protection of
refugees.
There is no textual reference made to the Framework Decision in the Qualification Directive,
even though the former predates the latter.

Factors for individual assessment

The Court went on to agree with AG Sharpston that individual assessment is required in
each case. The Court outlined a number of factors to be taken into consideration when
performing such an assessment.

The Court observed that the terrorist group of which Mr Lounani was a member of the
leadership operated internationally. The MICG was also registered on a United Nations list
which identifies persons and entities that are subject to sanctions.

How does Lounani sit with English law?

The Supreme Court considered the application of exclusion clauses in R (on the application
of JS (Sri Lanka)) v Secretary of State for the Home Department [2010] UKSC 15.
Looking ahead

It is clear that Lounani has expanded the scope of the exclusion clauses in EU law. Those
who help terrorist organisations in ways beyond participation or planning of terrorist
attacks can now clearly be excluded from international protection.

The references in the judgment to UNSC Resolutions are also important. It may be that a
decision-maker seeking to exclude an applicant for international protection is now entitled
to rely on the similarity between that applicants conduct and measures that the UNSC
recommends that states combat.

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