(CN) – When assessing a suspected war criminal’s application for asylum, the EU’s highest court ruled Wednesday that member states must make case-by-case threat determinations.
The case before the European Court of Justice arose from the travels of immigrants from Bosnia and from Afghanistan whose identities are redacted in the court record.
K, the immigrant from Bosnia, submitted his first asylum application in 2001 after settling there with his wife and a minor son.
The ruling calls it undisputed that K had been a member of a Bosnian army unit when the Bosnian war broke out in 1992, but it is also undisputed that K deserted said army in February 1994. He has never been prosecuted or convicted for any of the acts that the Netherlands weighted against him in denying his application for asylum.
After the Bosnian War ended in 2005, the CIA estimated that all sides had committed crimes against humanity during the conflict, but that Serbian forces were responsible for 90 percent of them. A United Nations report that substantiated these estimates said Croatian forces were responsible for 6 percent of war crimes, and Bosniak forces 4 percent.
K and his wife lived continuously in the Netherlands meanwhile, welcoming a second child there in 2006 only to have the Netherlands respond to his second asylum application with a 10-year ban.
Just months after the Council of State confirmed this ban in 2014, however, Croatia was admitted into the European Union in 2014.
K, who has both Croatian and Bosnian nationality, submitted a new application that year to have the ban against him withdrawn. Though the secretary of state accepted K’s application in 2015, the official also declared K “to be an undesirable immigrant.”
Wednesday’s ruling explains that only third-country nationals can be subjected to 10-year bans, but that the undesirable-immigrant designation is a comparable and indefinite measure that may be imposed on EU citizens.
Challenging this finding in a separate action, K claimed that the secretary of state relied on generalizations to find that he presented a risk to public policy.
Uncertain of how to handle K’s case, the District Court of the Hague, sitting at Middelburg, Netherlands, asked the European Court of Justice to weigh in.
The Grand Chamber’s ruling Wednesday consolidated K’s case with the challenge by an Afghan national known only as H.F.
Like K, H.F. had first been turned away and banned by the Netherlands, but H.F. and his daughter sought relief thereafter in Belgium.
Between 2012 and 2015, the representative for secretary of state in Belgium rejected four applications by H.F. for a residence permit. Three of those refusals contained orders for H.F. him to leave the country, but the Council for Asylum and Immigration Proceedings in Belgium asked the Court of Justice to weigh in when H.F. fought to have the last order annulled.
Sorting out both cases Wednesday, the court in Luxembourg agreed that member states have the authority to deny entry on the basis of public.
What authorities cannot do, the court found, is automatically conclude “that the mere presence of [a] person in the territory of the host member state constitutes a genuine, present and sufficiently serious threat,” just because the person had been the subject, in the past, of a decision excluding him from refugee status.
“Measures justified on grounds of public policy or public security may be taken only if, following a case-by-case assessment by the competent national authorities, it is shown that the personal conduct of the individual concerned currently constitutes a genuine and sufficiently serious threat to a fundamental interest of society,” the ruling states.
When assessing an applicant’s threat level, the ruling says authorities must evaluate “in particular the nature and gravity of the crimes or acts that that individual is alleged to have committed, the degree of his individual involvement in them and the possible existence of grounds for excluding criminal liability such as duress or self-defense.”
“Such an examination is all the more necessary in a situation where, as in the main proceedings, the person concerned has not been convicted of the crimes or acts that were relied on to justify the rejection, in the past, of his asylum application,” the ruling concludes.
The court called it relevant that many decades have passed since K’s time in the Bosnian army.
“However, the possible exceptional gravity of the acts in question may be such as to require, even after a relatively long period of time, that the genuine, present and sufficiently serious threat affecting one of the fundamental interests of society be classified as persistent,” the ruling continues.
As to H.F., the court said it is not enough to focus on how likely the crimes of which he has been accused would recur in Belgium.
“However improbable it may appear that such crimes or acts may recur outside their specific historical and social context, conduct of the individual concerned that shows the persistence in him of a disposition hostile to … human dignity and human rights, as revealed by those crimes or those acts, is, for its part, capable of constituting a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society,” the ruling states.