The Council referred the case to CJEU for prelimenary ruling on exclusion from refugee protection
MA..B ... asked the National Court of Asylum to annul the decision of 13 May 2014 of the French Office for the Protection of Refugees and Stateless Persons (OFPRA) which rejected its request for reconsideration of his asylum application and to recognize him as a refugee or failing to grant him the benefit of subsidiary protection. By a decision n ° 14021373 of December 20, 2016, the National Court of the right of asylum rejected its request.
By a summary appeal and a supplementary memorandum, registered on 17 July and 17 October 2017 at the litigation secretariat of the Conseil d'Etat MB .. asked the Conseil d'Etat:
1 °) to annul this decision;
2 °) settling the case on the merits, to recognize him as a refugee or failing to grant him the benefit of subsidiary protection;
3 °) to charge the State a sum of 2 400 euros to pay his lawyer, SCP Zribi and Texier under Article L. 761-1 code administrative justice and Article 37 of the law of 10 July 1991.
Considering the following:
1. Article L. 723-6 of the Code of Entry and Residence of Aliens and the Right of Asylum states: "The Office shall convene the applicant for a personal interview [...] The applicant shall present to the interview and responds personally to the questions put to him by the officer of the office and is heard in the language of his choice, unless there is another language of which he has sufficient knowledge ". Pursuant to Article L. 733-5 of the same Code, it is for the National Court of Asylum to annul the decision of the French Office for the Protection of Refugees and Stateless Persons (OFPRA) and the referral of the examination of the application for asylum if it considers that the applicant was unable to be understood during this interview,
2. It is apparent from the documents in the file submitted to the trial court that Mr B. ... was heard on 26 January 2015 and that following that hearing, the OFPRA objected to the request for reconsideration of his asylum. While in support of his appeal against that decision, Mr B. ... alleged that he did not have a Chechen interpretation in that interview and was therefore placed in the impossibility to be understood, it appears from the words of the contested decision that the court failed to answer that plea. It follows from the foregoing that, without it being necessary to examine the other grounds of appeal, Mr B. is justified in seeking the annulment of the decision he is challenging.
3. In the circumstances of this case, the French Office for the Protection of Refugees and Stateless Persons should be ordered to pay a sum of € 2,400 under Articles L. 761-1. of the code of administrative justice and 37 of the law of July 10, 1991, to be paid to the SCP Zribi and Texier, lawyer MB .., provided that this company renounces to collect the sum corresponding to the contributory part of the State.
Article 1: The decision of the National Court of the right of asylum of December 20, 2016 is canceled.
Article 2: The case is referred to the National Court of Asylum.
Article 3: The French Office for the Protection of Refugees and Stateless Persons shall pay to SCP Zribi and Texier lawyer of MB .., a sum of 2 400 euros under Articles L. 761-1 code administrative justice and 37 of the Law of 10 July 1991, provided that this company waives the payment of the sum corresponding to the contributory share of the State.
Article 4: This decision shall be notified to Mr. A. B ... and to the French Office for the Protection of Refugees and Stateless Persons.
In Joined Cases C‑331/16 and C‑366/16,
TWO REQUESTS for a preliminary ruling under Article 267 TFEU, from the Rechtbank Den Haag, zittingsplaats Middelburg (District Court of the Hague, sitting at Middelburg, Netherlands) (C‑331/16), and from the Raad voor Vreemdelingenbetwistingen (Council for asylum and immigration proceedings, Belgium) (C‑366/16), made by decisions of 9 June 2016 and 27 June 2016, received at the Court on 13 June 2016 and 5 July 2016 respectively, in the proceedings.
These requests for a preliminary ruling concern the interpretation of the second subparagraph of Article 27(2), Article 28(1) and Article 28(3)(a) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77).
The requests were made in two proceedings where the opposing parties are (i) K. and the Staatssecretaris van Veiligheid en Justitie (Secretary of State for Security and Justice, the Netherlands) (‘the Secretary of State’) concerning a decision declaring K. to be an undesirable immigrant to the Netherlands (Case C‑331/16), and (ii) H. F. and the Belgische Staat (Belgian State) concerning a decision refusing to H. F. a right of residence of more than three months in Belgium (Case C‑366/16).
The Court (Grand Chamber) ruled that
1. Article 27(2) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, must be interpreted as meaning that the fact that a European Union citizen or a third-country national family member of such a citizen, who applies for a right of residence in the territory of a Member State, has been the subject, in the past, of a decision excluding him from refugee status under Article 1F of the Convention Relating to the Status of Refugees, signed in Geneva on 28 July 1951 and supplemented by the Protocol Relating to the Status of Refugees, concluded in New York on 31 January 1967, or Article 12(2) of Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted, does not enable the competent authorities of that Member State to consider automatically that the mere presence of that individual in its territory constitutes, whether or not there is any risk of re-offending, a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, capable of justifying the adoption of measures on grounds of public policy or public security.
The finding that there is such a threat must be based on an assessment, by the competent authorities of the host Member State, of the personal conduct of the individual concerned, taking into consideration the findings of fact in the decision to exclude that individual from refugee status and the factors on which that decision is based, particularly the nature and gravity of the crimes or acts that he is alleged to have committed, the degree of his individual involvement in them, whether there are any grounds for excluding criminal liability, and whether or not he has been convicted. That overall assessment must also take account of the time that has elapsed since the date when the crimes or acts were allegedly committed and the subsequent conduct of that individual, particularly in relation to whether that conduct reveals the persistence in him of a disposition hostile to the fundamental values enshrined in Articles 2 and 3 TEU, capable of disturbing the peace of mind and physical security of the population. The mere fact that the past conduct of that individual took place in a specific historical and social context in his country of origin, which is not liable to recur in the host Member State, does not preclude such a finding.
In accordance with the principle of proportionality, the competent authorities of the host Member State must, in addition, weigh the protection of the fundamental interest of society at issue, on the one hand, against the interests of the person concerned in the exercise of his right to freedom of movement and residence as a Union citizen and in his right to respect for private and family life.
2. Article 28(1) of Directive 2004/38 must be interpreted as meaning that, where the measures envisaged entail the expulsion of the individual concerned from the host Member State, that State must take account of, inter alia, the nature and gravity of the alleged conduct of the individual concerned, the duration and, when appropriate, the legality of his residence in that Member State, the period of time that has elapsed since that conduct, the individual’s behaviour during that period, the extent to which he currently poses a danger to society, and the solidity of social, cultural and family links with that Member State.
Article 28(3)(a) of Directive 2004/38 must be interpreted as meaning that it is not applicable to a European Union citizen who does not have a right of permanent residence in the host Member State, within the meaning of Article 16 and Article 28(2) of that directive.