Commission working document - The relationship between safeguarding internal security and complying with international protection obligations and instruments
Date: 2001-12-05
Institutions: European Commission
Subjects: aid to refugees, immigration, international issue, political refugee, right of asylum

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 05.12.2001
COM(2001) 743 final

COMMISSION WORKING DOCUMENT

The relationship between safeguarding internal security
and complying with international protection obligations and instruments

   
This Working Document is the Commission response to Conclusion 29 of the Extraordinary Justice
and Home Affairs Council Meeting of 20 September 2001, in which: “The Council invites the
Commission to examine urgently the relationship between safeguarding internal security and
complying with international protection obligations and instruments”.

2

INDEX

Introduction

Chapter 1:  Mechanisms  for  excluding  those  not  deserving  protection  from  Refugee

Convention status and other forms of international protection

1.1.

Application of exclusion clauses

1.1.1

1.1.2

1.1.3

Terrorism in relation to the grounds for exclusion from Refugee Convention

Definition of terrorism

Membership of a terrorist group

1.2

Cancellation of Refugee Convention status

1.3.

1.4

1.2.1

Re-examination of refugee status granted

Crimes committed on the territory of the country of refuge

Asylum procedure

1.4.1

1.4.2.

Access to the asylum procedure

The processing of asylum requests in extradition cases

1.4.2.1

Suspension of the examination of an asylum claim

1.4.2.2 

Inadmissible asylum claims

1.4.3

Treatment within asylum procedures

1.4.3.1

1.4.3.2

Assessment  of  the  asylum  claim  in  a  regular  asylum
procedure

Assessment of the asylum claim  in an accelerated asylum
procedure

1.4.4

1.4.5

Standard of proof

Right to appeal the exclusion decision

1.5

Administrative treatment of potential article 1(F) cases

1.5.1

1.5.2

1.5.3

Special units in the asylum system for dealing with exclusion clauses

Guidelines on the use of the exclusion clauses

Information exchange mechanisms

1.6

1.7

Treatment of security risk cases

Exclusion from other forms of international protection

3

Chapter 2:

Legal follow up to the exclusion of persons from Refugee Convention status or
other forms of international protection

2.1

2.2

Prosecution or extradition

Prosecution

2.2.1

2.2.2

Universal jurisdiction

Future International Criminal Court

2.3

Extradition

2.3.1

2.3.2

Legal obstacles to extradition or removal

Legal guarantees in extradition cases

2.4

The legal position of persons excluded from protection regimes but who are non-
removable

2.4.1

2.4.2

Harmonisation  of  basic  rights  granted  to  persons  excluded  from  protection
regimes  but who are non-removable

Detention  and  alternatives  to  detention  of  of    persons  excluded  from
protection regimes but who are non-removable

Chapter 3:

Approximation  of  relevant  legislation,  regulation  and  administrative  practices
against the background of the Common European Asylum System

3.1

3.2

General framework

Legislative harmonisation, accompanying measures, administrative co-operation
and  the Open Co-ordination Method

Chapter 4: Analysis  of  “internal  security”-related  provisions  in  EC  legislation  and
(future) Commission Proposals for EC legislation in the immigration and asylum field 

4.1

4.2

General analysis

EC legislation in the field of asylum

4.2.1

4.2.2

Temporary Protection

Eurodac

4.3

Proposals for EC legislation in the field of asylum

4.3.1

4.3.2

4.3.3

Asylum procedures

Reception conditions

State determination

4

4.3.4

Qualification for international protection

4.4

Proposals for EC legislation in the field of immigration

4.4.1

4.4.2

4.4.3

Economic migration

Family reunification

Long term residency status

4.5

Future Proposals for EC legislation in the field of immigration

4.5.1 

4.5.2

Students and other third country nationals

Victims of trafficking

5

INTRODUCTION

At the Extraordinary Justice and Home Affairs Council Meeting of 20 September 2001, flowing from
the  tragic  events  of  the  11th  of  September  in  the  USA,  Conclusion  29  invited  “the  Commission  to
examine  urgently  the  relationship  between  safeguarding  internal  security  and  complying  with
international protection obligations and instruments”. This specific subject has been and will remain
a  permanent  concern  to  the  Commission,  and  may  result  in  the  mid  to  long  term  to  Proposals  for
(amended)  legislation.  In  answering  to  the  above  invitation  this  Working  Paper  however  aims  at
providing for both a rapid reaction as well as a comprehensive review of the issue.

The European Council has in the aftermath of and in response to the 11th September events decided to
develop  an  “Action  Plan  on  the  fight  against  terrorism”.  This  Plan  covers  several  policy  areas,
including  external,  economic/financial,  transportation  and  Justice  and  Home  Affairs  policy.  With
regard  to  the  latter  strand,  Justice  and  Home  Affairs,  a  separate  plan  of  action  has  been  developed,
covering more particularly the policy areas of: judicial co-operation, co-operation between police and
intelligence  services,  financing  of  terrorism,  measures  at  the  border  and  other  measures.  In  the
“measures  at  the  border”  Chapter  of  the  Conclusions  of  the  extraordinary  JAI  Council  of  20
September  2001,  in  which  Conclusion  29  is  framed,  other  specific  Conclusions  relate  to  border
control, issuing of identity documents, residence permits and visa, and the functioning of the Schengen
Information System (SIS).

These specific Conclusions are very  relevant in the fight  against terrorism,  and  more  generally  they
provide  tools  for  States  to  strengthen  national  security.    In  particular  pre-entry  screening,  including
strict visa policy and the possible use of biometric data, as well as measures to enhance co-operation
between  border  guards,  intelligence  services,  immigration  and  asylum  authorities  of  the  State
concerned, could offer real possibilities for identifying those suspected of terrorist involvement at an
early  stage.  The  functioning  of  Europol,  Eurodac  and  the  SIS  can  also  substantially  assist  in  the
identification of terrorist suspects. However, these specific Conclusions are subject of separate actions
and follow up to be taken at European and Member States level, and therefore fall outside the scope of
this Paper. With this Paper , the Commission focuses on the mandate formulated in Conclusion 29.

This  Document  takes  a  fourfold  approach.  Firstly,  the  Paper  will  analyse  the  existing  legal
mechanisms  for  excluding  those  persons  from  international  protection  who  do  not  deserve  such
protection,  focusing  in  particular  on  those  suspected  of  terrorist  acts.  Subsequently,  the  Paper  will
consider which legal steps can possibly be taken by governments who  are  confronted  with  a person
who is excluded from international protection regimes.  The Paper will then elaborate in more detail
on what actions can be initiated and taken at European level regarding the issue at stake, in the short as
well as  in  the  mid  to  long  term.  Finally,  the  Paper  will  assess  the  adequacy  of  the  internal  security
related provisions in EC legislation and  (future) Commission Proposals for Directives in the asylum
and immigration field

The  two  main  premises  on  which  this  Document  is  built  are,  firstly,  that  bona  fide  refugees  and
asylum seekers should not become victims of the recent events, and secondly that there should be no
avenue for those supporting or committing terrorist acts to secure access to the territory of the Member
States of the European Union.  It is therefore legitimate and fully understandable that Member States
are now looking at reinforced security safeguards to prevent terrorists from gaining admission to their
territory through different channels. These could include asylum channels, though in practice terrorists
are not likely to use the asylum channel much, as other, illegal, channels are more discreet and more
suitable for their criminal practices. Any security safeguard therefore needs to strike a proper balance
with the refugee protection principles at stake. In this context the Commission fully endorses the line
taken  and  expressed  by  UNHCR  that,  rather  than  through  major  changes  to  the  refugee  protection
regime, a scrupulous application of the exceptions to refugee protection available under current law, is
the appropriate approach.

6

Chapter 1:        Mechanisms  for  excluding  those  not  deserving  protection  from  the  Refugee

Convention status and others forms of international protection

1.1 

Application of the exclusion clauses

After  the  11th  September  events,  UNHCR  has  publicly  called  on  States  to  “scrupulously  and
rigorously”  apply  the  exclusion  clauses, as  contained  in  Article  1(F)  of  the  Refugee  Convention,  as
that Convention was never intended to be a “safe haven” for criminals, nor was it designed to protect
them  from  criminal  prosecution,  but  quite  the  opposite:  to  protect  the  persecuted  and  not  the
persecutors.

Article 1(F) of the Refugee Convention states that refugee status can not be granted to any person with
respect to whom “ there are serious reasons for considering that:

(a)  he  has  committed  a  crime  against  peace,  a  war  crime,  or  a  crime  against  humanity,  as
defined in the international instruments drawn up to make provision in respect of such crimes;

(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”

This  Paper  is  not  the  appropriate  framework  for  analysing  in  full  detail  the  application  of  the  three
grounds listed in Article 1(F) of the Refugee Convention. In addition to guidelines issued by Member
States,  UNHCR  has  issued  special  guidelines  on  the  application  of  this  particular  article.  The
Commission also likes to refer to other relevant documents issued by UNHCR, including background
papers  and  notes  for  the  UNHCR  Standing  Committee  and  within  the  context  of  UNHCR’s  Global
Consultations process.

1.1.1

Terrorism  in  relation  to  the  three  grounds  for  exclusion  from  Refugee
Convention

In  line  with  several  United  Nations  General  Assembly-    and  Security  Council  Resolutions,  most
recently  Resolution  1373  of  28  September  2001,  and  following  international  refugee  law
jurisprudence,  exclusion  of  persons  involved  in  terrorist  acts  from  refugee  status  may  be  based  on
either  of  the  three  grounds  listed  in  the  exclusion  clause  under  Article  1(F),  depending  on  the
circumstances of the case.

(cid:1)  Art  1F  (a):    as  it  has  been  recognised  that  terrorist  acts  may  constitute  “war  crimes”  if

committed in a war context

(cid:1)  Art.1F (b): in so far as particular cruel actions, even if committed with an allegedly political
objective,  can  be  classified  as  serious  non-political  crimes,  and  fall  within  the  realm  of
extraditable offences.

(cid:1)  Art.  1F  (c)  following  UN  General  Assembly  Resolutions  “Relating  to  measures  combating
terrorism”, which declare that  "acts,  methods  and  practices  of  terrorism  are  contrary to the
purposes and principles of the United Nations" and that "knowingly financing, planning and
inciting terrorist acts are also contrary to the purposes and principles of the United Nations".

7

1.1.2

Definition of terrorism

Rather than attempting to adopt a general definition of  what  constitutes terrorism,  States  have,  until
now,  preferred  to  declare  certain  specific  acts  as  terrorist  crimes.  They  have  identified  a  number  of
crimes  within  this  category,  such  as  those  related  to  hijacking,  hostage-taking  and  bomb  attacks.
Though within the United Nations context work is accelerated with regard to the preparations for an
international instrument on terrorism, there is no internationally agreed definition of terrorism as yet.

In this particular context it is even more relevant that the European Commission has recently adopted
the  Proposal  for  a  Council  Framework  Decision  on  combating  terrorism1  (which  includes  the
establishment of minimum rules relating to the constituent elements of criminal acts) and the Proposal
for  a  Council  Framework  Decision  on  the  European  arrest  warrant  and  the  surrender  procedures
between  the  Member  States.2  In  particular  an  EU  common  definition  of  what  constitutes  terrorists
offences, if incorporated in EU extradition treaties, may be a basis for relying on Article 1(F)(b). EU
standards  will  also  be  a  helpful  way  of  illuminating  UN  standards  of  eg  “terrorist  acts”,  and  hence
serve as an interpretative aid to application of Article 1 (F) (a) or 1(F) (c).

1.1.3

Membership of a terrorist group

Mere,  voluntary,  membership  of  a  terrorist  group  may,  in  some  cases,  amount  to  personal  and
knowing participation, or acquiescence amounting to complicity, in the crimes in question, and hence
to exclusion from refugee status. In this assessment the purpose of the group, the status and level of
the person involved, and factors such as duress and self-defence against superior orders, as well as the
availability  of a  moral  choice  should  be  taken  into  consideration.  If  it  has  been  determined  that  the
person  is  still  an  actual,  active,  present  and  willing  member,  the  fact  of  mere  membership  may  be
difficult to dissociate from the commission of terrorist crimes.

1.2

Cancellation of Refugee Convention status

Refugee  Convention’s  status  can  be  withdrawn,  for  instance  if  it  is  discovered  that  the  person  had
committed serious crimes, including terrorist acts, before having been recognised as a refugee. In such
cases refugee status may be cancelled, following the UNHCR Handbook on Procedures and Criteria
for Determining Refugee Status.

1.2.1

Re-examination of refugee statuses granted

Active  re-examination  of  “closed  files”  of  persons  granted  a  refugee  status  could  be  considered  by
Member  States.  However,  such  a  re-examination  should  only  be  undertaken  if  there  is  a  clear
inducement  for  doing  so,  for  instance  based  upon  intelligence  services  information,  identifying
security  risks.  A  review  of  cases  based  solely  on  the  grounds  of  nationality,  religion  or  political
opinion  is  not  considered  appropriate.  If  this  re-examination  would  lead  to  the  conclusion  that
someone indeed has committed crimes falling under the scope of the exclusion clauses, his/her refugee
status could be cancelled.

1.3.

Crimes committed on the territory of the country of refuge

In cases where a refugee has committed a serious crime, including terrorist acts, on the territory of the
country of refuge, protection against expulsion can be withdrawn, in conformity with Article 32 (1),
“The  Contracting  States  shall  not  expel  a  refugee  lawfully  in  their  territory  save  on  grounds  of
national  security  or  public  order”,  and  Article  33  (2)  (on  prohibition  of  expulsion  or  return  -
“refoulement”):  of  the  Refugee  Convention.  The  purpose  of  this  latter  article  is  to  safeguard  the
receiving  country  from  persons  who  present  a  danger  to  the  public  safety  or  the  security  of  the
country,  and  states  that:    “The  benefit  of  the  present  provision  may  not,  however,  be  claimed  by  a

1 Brussels, 19.9.2001 COM (2001) 521 final
2 Brussels, 19.9.2001 COM (2001)  522 final

8

                                                
refugee whom there are reasonable grounds for regarding as a danger to the security of the country in
which  he  is,  or  who,  having  been  convicted  by  a  final  judgement  of  a  particularly  serious  crime,
constitutes a danger to the community of that country”.

Article 33(2) therefore provides an exception to the principle of non-refoulement, laid down in Article
33(1).  This  means  in  essence  that  refugees  can  exceptionally  be  returned  in  case  of  threat  to  the
national security of the host country, and in case their proven criminal nature and record constitute a
danger to the community. The various elements of these extreme and exceptional circumstances need,
however,  to  be  interpreted  restrictively  and  require  a  high  standard  of  proof.  However,  any  person
within the terms of Art. 33(2) may lawfully be expelled, even if the only option is to return him or her
to the country in which persecution is feared, without prejudice to other international legal obligations
of States, in particular Article 3 of the European Convention on Human Rights.

1.4

1.4.1 

Asylum Procedure

Access to the asylum procedure

In  order  to  implement  in  good  faith,  and  “full  and  inclusively”,  the  1951  Refugee  Convention  it  is
indispensable  to  determine  who  fulfils  the  requirements  of  the  Convention.  Therefore  all  persons
requesting  for  asylum  in  the  Member  State  responsible  for  assessing  the  claim,  should  be  granted
access to a  procedure,  enabling  such assessment.  Automatic  bars  to  accessing  an  asylum  procedure,
even  of  suspected criminals, for  instance by  rejection  at the  border,  without  providing  such  persons
access  to  an  asylum  procedure,  could  result  in  “refoulement”.  In  addition  this  would  not  be  in
conformity  with  article  4  of  the  Proposal  for  a  Council  Directive  on  minimum  standards  on
procedures in Member States for granting and withdrawing refugee status3.

Channelling  all  asylum  seekers  through  an  asylum  procedure  with  a  view  to  granting  or  denying
refugee  status  is  also  necessary  from  a  practical  security  perspective.  It  effectively  provides  the
opportunity  to  identify  possible  suspects  of  crimes.    Asylum  seekers  will  be  known  and  identified,
their background thoroughly investigated in one or more interviews, and checked against all available
information  on  countries,  groups  and  events.  In  addition  they  will  be  easily  “tracked”  during  the
procedure, even if they are not detained.

1.4.2 

The handling of asylum request in extradition cases

1.4.2.1  

Suspension of the examination of an asylum claim

After access to the asylum procedure has been granted, it could however be considered to allow for the
immediate suspension, the “freezing” of the actual examination of the asylum request in the following
two situations. Firstly, in cases in which an international criminal tribunal has indicted the individual
who has claimed asylum. In such cases, the appropriate response would be to hand over the individual
concerned  to  that  tribunal  for  prosecution.  The  second  possible  ground  for  a  suspension  of  the
examination of the asylum request would be where an extradition request from a country other than
the country of origin of the asylum seeker, relating to serious crimes,  is pending.  In  both  cases the
criminal  proceedings  would  take  priority  over  the  actual  conducting  of  the  asylum  procedure.
Following  the  criminal  prosecution  of  these  cases,  and  following  the  serving  of  an  eventual
punishment, the old situation of the asylum request would be “unfrozen”. This would effectively mean
that  the  asylum  seeker  would  be  transferred  back  to  the  country  where  he  had  an  asylum  request
pending.  If  opted for this  approach the  Proposal for  a  Council  Directive  on  minimum  standards  on
procedures in Member States for granting and withdrawing refugee status4 would need to be changed
to allow for such an approach.

3 Brussels, 20.09.2000 COM(2000) 578 final
4 Id at 3

9

                                                
1.4.2.2 

Inadmissible asylum claims

An  alternative  legislative  approach  for  dealing  with  asylum  claims  in  cases  where  an  extradition
request  or  an  indictment  by  an  International  Criminal  Court  has  been  made,  could  consist  in  the
dismissal of an asylum claim as being “inadmissible”. In this option it would be necessary to add to
article 18 of the Proposal for a Council Directive on minimum standards on procedures in Member
States for granting and withdrawing refugee status5, dealing with the inadmissibility of certain claims
for  asylum,  two  new  grounds  for  inadmissibility:  namely  in  cases  where  an  extradition  request  has
been  made  by  a  country,  other  than  the  country  of  origin  of  the  asylum  seeker,  or  in  cases  of  an
indictment  by  an  International  Criminal  Court.  In  the  case  of  extradition  request,  and  if  following
criminal  prosecution  the  asylum  seeker  wants  to  re-apply  for  asylum,  the  revised  article  18  should
include a  rule to the  effect  that the  merits  of  such  a renewed  asylum  claim  is  to be  assessed by  the
Member State to whom the person has been extradited.

The  advantage  of  both  such  approaches  would  be  that  the  possibilities  for  criminal  prosecution  of
alleged criminals would not be hindered by the mere fact of the filing of an asylum request. It would
also  be  an  appropriate  response  to  the  several  UN  General  Assembly  Resolutions  on  “Measures  to
Eliminate  International  Terrorism”  which  provide  that,  before  considering  to  grant  refugee  status,
States  should  take  appropriate  measures  to  ensure  that  the  asylum-seeker  has  not  participated  in
terrorist  acts,  taking  into  due  account  any  relevant  information  as  to  whether  the  asylum-seeker  is
subject  to  investigation  for,  is  charged  with,  or  has  been  convicted  of  offences  connected  with
terrorism.

1.4.3

Treatment within asylum procedure

The procedure assessing the claim for refugee status, based on the Refugee Convention, also includes
the  examination  of  the  applicability  of  the  exclusion  clauses,  contained  in  article  1(F)  of  that
Convention. The rationale underlying these exclusion provisions is that certain acts are so grave as to
render  their  perpetrators  undeserving  of  protection  as  refugees.  However,  because  exclusion  from
refugee  status  may  have  potentially  life-threatening  consequences,  such  decisions  should  be  made
within  the  asylum  procedure,  by  the  authority  with  expertise  and  training  in  refugee  law  and  status
determination, in the context of a comprehensive consideration of the refugee claim.

1.4.3.1  

Assessment of the asylum claim in a regular asylum procedure

The standard rule for assessing claims for asylum should be that this is being done in a comprehensive,
holistic and integral manner.

This means that there should be a comprehensive examination of all relevant facts underlying a claim
for asylum. However, the possible applicability of the exclusion clauses should not be explored in all
cases, as a matter of routine. It should only be explored in cases where there are specific reasons to
believe that the person may fall under one of these clauses. Indeed facts justifying an examination of
the  applicant’s  excludability  will  normally  emerge  in  the  course  of  the  “inclusion  phase”  of  the
refugee status determination process, checking the reasons for recognising someone as a refugee, and
may then be referred to during the “exclusion phase” of the case.

1.4.3.2   

Assessment of the asylum claim in an accelerated asylum procedure

There may however be cases in which it has been prima facie established that someone falls under the
scope  of  the  exclusion  clauses.  In  such  situations  States  should  be  entitled  to  channel  such  claims
through an accelerated procedure. In such an procedure States are entitled to start with and, if found
applicable, limit themselves to the particular examination of the applicability of the exclusion clauses,
as a preliminary matter at the commencement of a hearing,  without  having  the  need to  examine  the

5 Id at 3

10

                                                
“inclusion clauses” of the Refugee Convention. “Translated” legally, such cases could be considered
to allow for a dismissal of the asylum claim as being “manifestly unfounded”, as to be then provided
for  in  a  revision  of  the  Proposal  for  a  Council  Directive  on  minimum  standards  on  procedures  in
Member  States  for  granting  and  withdrawing  refugee  status6.  If  this  option  would  be  pursued,  the
issue of whether or not an appeal against a dismissal of such a claim as manifestly unfounded should
automatically have suspensive effect, needs to be further examined.

1.4.4

Standard of proof

In  determining  the  applicable  standard  of  proof  in  exclusion  procedures,  it  has  to  be  acknowledged
that  exclusion  proceedings  do  not  amount  to  a  full  criminal  trial.  The  term  “serious  reasons  for
considering”, used in the chapeau to article 1 (F), should be interpreted as meaning that the rules on
the admissibility of evidence and the high standard of proof required in criminal proceedings do not
need to apply in this respect. There is therefore no need to prove that the person has committed the act,
which may justify the exclusion from refugee status. It is sufficient to establish that there are serious
reasons for considering that the person has committed those acts. The basis for such a conclusion must
be clearly established. Thus, an investigation should be undertaken, checking the claimant’s potential
links with or involvement with violent acts. In order to consider the possibility of exclusion of refugee
status as a result of individual liability for terrorist acts, the measure of personal involvement required
must be assessed carefully. A person whose actions contribute to the crime, through orders, incitement
or significant assistance, may be excluded from refugee status.

1.4.5 

Right to appeal the exclusion decision

The  application  of  any  exclusion  clause  must  be  individually  assessed.  The  grounds  for  exclusion
should be based solely on the personal and knowing conduct of the person concerned, and on available
evidence  and  conform  to  legal  standards  of  fairness  and  justice.  The  person  concerned  should  be
entitled to lodge a legal challenge in the Member State concerned, as also provided for and according
to  the  standards  laid  down  in  the  Proposal  for  a  Council  Directive  on  minimum  standards  on
procedures in Member States for granting and withdrawing refugee status.7

1.5 

1.5.1 

Administrative treatment of potential article 1(F) cases

Special units in the asylum system for dealing with exclusion cases

Without prejudice to paragraph 1.4.5, and the right to appeal a denial of refugee status in front of an
independent Court, Member States may have different logistical arrangements for dealing with claims
of  suspected  war  criminals  or  terrorists.  In  some  Member  States  special  Units  have  been  set  up  to
which all security risk cases and cases of suspected involvement in serious violent acts or violations of
human rights are forwarded. Other Member States are considering introducing standard “front-security
checks”, by which all claims for asylum would be checked upon potential security risks, running the
personal  data  through  the  available  and  relevant  databases.  Such  logistical  measures  are  fully
compatible  with  the  legal  international  obligations  impending  upon  Member  States  and  could
potentially prove useful.

Given the complexities involved, Member States that have no  specialised  “Exclusion/Security  Unit”
within their asylum system could consider introducing it. Referral to such a Unit could either be called
for  where  there  are  immediate  suspicions  of  involvement  in  war  or  other  serious  crimes,  such  as
terrorist involvement (for instance, where an asylum-seeker is alleged to be a member of en extremist
group practising violence), or where these suspicions emerge during the course of assessment under
the normal asylum procedure. Although it is likely that only a relatively small number of cases would
be involved, the specialised “Exclusion Unit” could pursue examination. In order to function properly

6 Id at 3
7 Id at 3

11

                                                
and effectively such a unit should possess expertise in both refugee as well as criminal law and have
an in-depth knowledge of terrorist organisations. Equally important for such a Unit would be its access
to  all  regularly  available  country  of  origin,  and  if  necessary,  classified  information,  and  efficient
working links with intelligence and criminal prosecution and enforcement bodies.

A specialised Unit would be able to undertake priority, expedited processing of cases with a potential
exclusion  element.  Its  resources  and  expertise  would  enable  it  to  undertake  a  more  thorough
assessment of any asylum claim made by someone suspected of involvement in terrorist acts. The Unit
could subsequently refer such cases to the office of the public prosecutor for criminal prosecution as
the appropriate avenue for bringing suspected terrorists to justice. Its increased specialist expertise and
clearly focused resources would enable prompt and quality decision-making.

1.5.2 

Guidelines on the use of the exclusion clauses

Some  Member  States  have  issued  special  internal  guidelines  on  the  application  of  the  exclusion
clauses of the  Refugee  Convention.  These  could  assist  in  an  identification  of  cases  with  a  potential
exclusion  element  as  early  in  the  process  as  possible.  It  could  be  considered  to  establish  such
guidelines at a European level, making use of the best practises at national level.

1.5.3 

Information exchange mechanisms

It could also be considered to set up information exchange mechanisms to help those Member States
which do not have sufficient resources to benefit from the already existing expertise on these issues in
some other Member States, in order to get information and support once they have a potential case.
Such information exchange mechanisms could involve the setting up of contact lists and explore the
usefulness of creating Intranet sites.

It  could  also  serve  to  inform  each  other  of  the  presence  of  an  exclusion  case,  in  order  to  avoid  the
person  trying  to  get  protection  in  another  Member  State.  Within  this  context  the  establishment  of  a
European list of “Refugee Convention-excluded persons” could also be considered. In the framework
of information sharing it needs to be stressed that the normal rules with regard to the confidentiality of
personal  data,  in  particular  as  regards  possible  communication  between  a  Member  State  and  the
country of origin of the person need to be respected.

1.6 

Treatment of security risk cases

Member States have at their disposal a range of measures to ensure asylum-seekers on their territory
do  not  abscond  during  the  procedure.  These  include  holding  asylum-seekers  in  reception  centres,
reporting  requirements,  regulations  on  informing  the  authorities  about  any  change  of  address,  and
detention. Which measures are appropriate will depend on individual circumstances, although where
there is evidence to show that an individual asylum-seeker has criminal affiliations likely to pose a risk
to  public  order  or  national  security,  detention  would  be  an  appropriate  tool.  It  must  however  be
acknowledged  that  in  most  systems  there  are  limits  to  the  detention  of  asylum  applicants;  also  the
legality and necessity of detention is subject to judicial review.

1.7

Exclusion from other forms of international protection

The  findings  of  this  Chapter  1  should  be  considered  equally  relevant  in  cases  where  someone  has
requested, respectively has been granted another form of international protection, such as subsidiary
protection.

12

Chapter 2:        Legal follow  up  to  the  exclusion  of  persons  from  Refugee  Convention  status  or

other forms of international protection

2.1.

Prosecution or extradition

Following a denial of an appeal against the decision to exclude a person from refugee or subsidiary
protection status, and according to the international law principle known as  aut dedere aut judicare,
the State is obliged to either surrender or prosecute the person excluded from protection regimes.  The
above  principle  provides  for  a  solution  of  the  inherent  contradiction  between  the  State's  need,  and
indeed  obligation,  to  combat  criminal  acts  such  as  terrorism,  and  the  individual's  entitlement  to
protection  against  refoulement.  This  principle  is  formulated  inter  alia  in  Article  7  of  the  European
Convention on the Suppression of Terrorism.

2.2

2.2.1 

Prosecution

Universal jurisdiction

On  the  implementation  of  the  above  principle,  the  situation  differs  from  one  Member  State  to  the
other. Some Member States attempt to actively try such a person, if they have specific criteria to have
jurisdiction on the case, or if their national criminal law provides for an universal competence. In such
a  legal system  the  State  can actively  prosecute and  punish  persons  suspected  of  crimes  of universal
jurisdiction, without having regard to the territoriality of the crime committed or the nationality of the
person  suspected.  However,  it  has  to  be  acknowledged  that  it  is  often,  de  facto,  not  possible  to
prosecute the person for a criminal offence, given the strict rules on the admissibility of evidence and
the  high  standard  of  proof  required  in  the  criminal  justice  systems  of  the  Member  States  of  the
European  Union.  These  standards  are  much  higher  than  for  refugee  exclusion  and  or  expulsion
proceedings. In particularly the availability of (reliable) witnesses has proved in practice to be a very
serious  obstacle  for  Member  States  in  pursuing  successful  criminal  prosecution  of  those  persons
excluded from the Refugee Convention.

2.2.2 

Future International Criminal Court

The  future  International  Criminal  Court  (ICC)  could  play  an  important  role  in  the  context  of
prosecution  of  persons  covered  by  the  exclusion  clauses  of  the  Refugee  Convention.  However,  the
current mandate of the Court, laid down in its Statute, does not cover terrorism as such, except if it is
associated with the other serious crimes (of concern to the international community)  regarding which
the  Court does  have  jurisdiction.  These  crimes  are  also  of  direct  relevance  to  the  interpretation  and
application of Article 1 (F) of the 1951 Convention. The future ICC could also help address problems
where  national  refugee  status  determination  procedures  may  lack  access  to  relevant  intelligence
information  and/or  resources  and  tools,  such  as  are  available  to  a  judge  or  prosecutor  investigating
such  crimes.  It  is  also  envisaged  that  co-operation  between  the  ICC  and  UN  agencies,  such  as
UNHCR,  will  be  established.  It  could  therefore  be  useful  to  consider  establishing  formal  and
confidential  co-operation  agreements  between  Member  States  and  the  ICC  in  potential  Article  1F
cases.

2.3

Extradition

If there is no possibility to bring the person to trial in the country of refuge, nor to have the  person
indicted by the International Criminal Court, then in  principle  such  a  person  needs to  be  extradited;
that is if extradition is legally and practically possible to either the country of origin, another Member
State or another third country. In connection with extradition requests made against persons accused of
having  committed  terrorist  crimes,  both  the  1977  European  Convention  on  the  Suppression  of
Terrorism and the International Convention for the Suppression of the Financing of Terrorism provide
that  States  Parties  are  not  obliged  to  accede  to  the  extradition,  if  they  have  substantial  grounds  for
believing that such request has been made for the purpose of prosecuting or punishing the person on

13

account of his/her race, religion, nationality, ethnic origin or political opinion or that compliance with
the request would cause prejudice to that person's position for any of these reasons.

2.3.1

Legal obstacles to extradition or removal

Extradition may however be impossible because of legal obstacles. The protection against refoulement
as a consequence of the prohibition of certain treatments or punishments, provided for in human rights
instruments  such  as  the  United  Nations  Convention  against  Torture,  the  International  Covenant  on
Civil and Political Rights and the European Convention on Human Rights (ECHR) is namely absolute
in nature, that is to say, admits no exceptions. The European Court of Human Rights has repeatedly
affirmed  that the  European  Convention  on  Human  Rights,  even  in  the  most  difficult  circumstances,
such  as  the  fight  against  terrorism  and  organised  crime,  prohibits,  in  absolute  terms,  torture  and
inhuman or degrading treatment or punishment. The European Court of Human Rights has emphasised
that, unlike most of the substantive clauses of that particular Convention, Article 3 makes no provision
for  exceptions  and  no  derogation  from  it  is  permissible  even  in  the  event  of  a  public  emergency
threatening the life of the nation.  Following the 11th September events, the European Court of Human
Rights may in the future again have to rule on questions relating to the interpretation of Article 3, in
particular on the question in how far there can be a “balancing act” between the protection needs of the
individual, set off against the security interests of a state.

2.3.2

Legal guarantees in extradition cases

Extradition must be considered legal when it is possible to obtain legal guarantees from the State that
is  going  to  trial  the  person,  addressing  the  concerns  connected  to  the  potential  violations  of  the
European Convention of Human Rights. Such “guarantees” by third States could for instance relate to
the non-application of capital punishment in that particular case, though the law of that State allows
for such punishment.

2.4

The legal position of persons excluded from protection regimes but who are non-
removable

The  question  that  remains  unresolved  -and  which  falls  outside  the  scope  of  refugee  /international
protection law- relates to the status that must be accorded to persons who disqualify for refugee status
or other forms of international protection, who cannot be successfully prosecuted, and yet who cannot
be  expelled  because  of  the  absolute  nature  of  the  prohibition  of  refoulement  as  laid  down  in  some
international  and  regional  human  rights  instruments.  There  are  no  international  legal  instruments,
which regulate the status and rights of persons who are excluded from any protection status but cannot
be expelled because of legal obstacles.  However, the UN Committee on Human Rights elaborated on
the  obligation  of  State  parties  to  "keep”  some  aliens  with  long  links  in  the  country,  despite  their
criminal activities.

The  current  situation  of  Member  States  having  limited  policy  options  for  dealing  adequately  with
excludable but non-removable persons is a very unsatisfactory one. The issue is therefore urgently in
need of further examination, and eventual resolution at European level. In this context it again has to
be  stressed  that,  despite  the  serious  obstacles  referred  to  earlier  on,  criminal  prosecution  by  the
international community, both at global level as well as Member States level, of those persons having
committed  crimes  against  humanity,  war  crimes  or  terrorist  attacks,  and  excluded  from  protection
regimes, is an appropriate response. In addition to their possible criminal prosecution it may also be
necessary  to  harmonise  the  basic  rights  granted  to  this  category  of  excludable  but  non-removable
persons, and to assess the different means for dealing with these persons if they pose a security risk.

14

2.4.1

Harmonisation  of  basic  rights  granted  to  persons  excluded  from  protection
regimes but who are non-removable

The 15 Member States of the European Union deal differently with the excludable but non-removable
persons. Some Member States do not grant any rights whatsoever to these persons except for the right
not to be refouled. In other Member States, persons do get access to basic human rights, such as urgent
medical health care and education for children. In again other Member States these persons are entitled
to  even  more  socio-  and  economic  rights  and  benefits.  This  difference  in  treatment  may  call  for  a
harmonised approach at European level in order to take away potential “pull factors” for persons not
deserving international protection.

2.4.2 

Detention  and  alternatives  to  detention  of  persons  excluded  from  protection
regimes but who are non-removable

Persons, who are excluded from protection regimes, yet who can not be removed, do not necessarily
and automatically pose a risk to the national security. For instance many of the war criminals, rightly
excluded from the protection regimes by Member States, are not being automatically detained by these
States. Indeed, so far an administrative unlimited detention system is not made use of in the Member
States,  and  it  may  also  be  useful  to  further  explore  alternatives  to  full  detention  measures,  such  as
“residence surveille”.

However there may be cases in which there is a need for the  public  to be  protected  against persons
rightly excluded from the protection regimes, such as terrorists, who do pose a risk to the security of
the State. In this context it is relevant to note legislation recently proposed at Member State level with
regard to the detention of foreign nationals whose presence is believed to constitute a risk to national
security  and  who  are  being  suspected  of  being  international  terrorists.  This  legislation  has  been
proposed in anticipation of situations where Article 3 of the ECHR prevents removal or deportation of
the  above  cases  to  a  place  where  there  is  risk  that  the  person  will  suffer  treatment  contrary  to  that
Article. If no alternative destination is immediately available then removal may not, for the time being,
be possible, even though the ultimate intention remains that removal, once satisfactory arrangements
have been made. Notwithstanding this continuing intention to remove a person who is being detained,
it is not possible to say that “action is being taken with a view to deportation” within the meaning of
Article 5 (1) (f) ECHR, interpreted by the European Court of Human Rights. To the extent therefore
that the envisaged detention of the above cases may be inconsistent with the obligations under Article
5(1)  ECHR  the  right  of  derogation  conferred  by  Article  15  (1)  of  the  ECHR  could  be  invoked,
provided that the strict conditions laid down in Article 15 (1) are met, and the envisaged “measures are
not inconsistent with (States) other obligations under international law”.

15

Chapter 3:        Approximation  of  relevant  legislation,  regulation  and  administrative  practices
against the background of the Common European Asylum System

3.1

General framework

Continuing  working  on  these  issues  at  the  EU  level  can  be  done  following  the  method  and  means
explained  in  the  Commission’s  Communication    “Towards  a  common  asylum  procedure  and  a
uniform  status,  valid  throughout  the  Union  for  persons  granted  asylum”  8and  followed  up  by  the
recent  “Communication  on  the  common  asylum  policy,  introducing  an  open  co-ordination  method-
First  Report  by  the  Commission  on  the  application  of  Communication  COM(2000)755  final  of  22
November 2000”9.

The  establishment  of  the  Common  European  Asylum  System  will  follow  a  2-step  approach.  The
relationship  between  safeguarding  internal  security  and  complying  with  international  protection
obligations  must  be  fed  into  both  steps.    Indeed  it  is  necessary  to  work  on  more  efficient,  well-
informed  and  common  procedures,  more  convergent  interpretation  and  application  of  exclusion
possibilities  and  on  enhancing  prosecution  and  detention  possibilities,  including  alternatives  to
detention.  It  is  also  necessary  to  ensure  that  terrorists,  against  the  background  of  international
protection,  face  a  comparable  treatment  in  all  Member  States.  If  a  terrorist  is  not  granted  an
international protection status in one Member State or if the status is withdrawn or cancelled, he/she
should expect the same treatment of his/her case in all other Member States.

3.2

Legislative harmonisation, accompanying measures, administrative co-operation
and  the Open Co-ordination Method

Quick  progress  should  be  made  on  the  negotiation  of  the  different  Commission’s  Proposals  for
Directives on the Council’s table, and appropriate attention should be given to the provisions dealing
with examination and decision making, exclusion, cancellation  of status  and  withdrawal  of  benefits.
Appropriate and quick transposition of the EC legislative instruments at the national level will also be
necessary. The Commission will prepare regular reports on the implementation of these instruments.
The  Contact  Committees  created  for  monitoring  the  implementation  will  facilitate  consultation
between  Member  States  and  the  Commission  with  a  view  to  reaching  similar  interpretations  of  the
relevant  provisions  and  comparing  national  rules  and  practices.  In  addition  caselaw  developed  by
national  and  European  courts  or  review  bodies  will  need  to  be  further  analysed.  A  meeting  with
representatives  of  determining  authorities and  review  bodies could  be  organised in  2002  in  order  to
study trends and caselaw and discuss common problems and solutions.

A  continuing  investment  on  enhancing  common  analysis  tools  is  needed.  In  this  context  National
points of contact could be nominated for developing co-operation and exchange of information. The
new  programme  ARGO,  an  Action  programme  for  co-operation  in  the  fields  of  external  borders,
visas, asylum and immigration10, could be used in order to support such administrative co-operation.

The Commission has recommended the use of the open co-ordination method. Illustration of such a
method specially designed for the asylum policy can be found in the “Communication on the common
asylum  policy,  introducing  an  open  co-ordination  method”11  Attention  is  drawn  to  the  Second
European Guideline proposed on the development of an efficient asylum system, offering protection
for  those  in  need,  based  on  the  full  and  inclusive  application  of  the  Geneva  Convention  and  in
particular  on  points  G  (“by  identifying  principles  and techniques for  improving  the  identification  of
individuals, covered by the exclusion provisions, who do not deserve international protection.”) and J
(“by  evaluating…..the  use  of  cessation  and  exclusion  clauses….”).  In  order  to  implement  this

8 Brussels, 22.11.2000 COM (2000) 755 final
9 Brussels, 28.11.2001 COM (2001) 710 final
10 Brussels, 16.10.2001 COM (2001) 567 final
11 Id at 9

16

                                                
Guideline, Member States have to identify in their national action plans means and objectives to meet
the European goal and analyse implementation of national and EC instruments. This will also facilitate
comparing  and  identifying  good  practices  and  analysing  real  impact  and  results  of  choices  made.
Finally,  appropriate  consultation  of  and  co-operation  with  the  UNHCR,  relevant  international
organisations and third countries will also be required to efficiently and comprehensively address the
issue subject of this Paper.

All  the  above  instruments  will  greatly  assist  in  the  identification  of  the  necessary  improvements,
leading  to  the  adoption  of  additional  rules  within  the  framework  of  the  second  step  of  the
harmonisation of asylum polices in the European Union.

17

Chapter 4:        Analysis of “internal security”- related provisions in EC legislation  and ( future)

Commission Proposals for EC legislation in the asylum and immigration field

4.1

General Analysis

The  current  EC legislation  or  Commission  Proposals  for  such legislation  in  the  field  of  asylum  and
immigration all contain, currently, sufficient standard provisions to allow for the exclusion of any third
country  national  who  may  be  perceived  as  a  threat  to  national/public  security  from  the  right  to
international protection, residency or access to certain benefits. However, in the framework of current
and  future  discussions  and  negotiations  of  the  different  Proposals,  these  relevant  provisions  will  be
revisited  in  the  light  of  the  new  circumstances,  without  prejudice  to  the  relevant  international
obligations  underlying  the  Proposals.  The  relevant  provisions  in  the  different  Proposals  are  shortly
analysed below, and, where appropriate, possibilities for clarifying or enhancing these provisions have
been identified.

4.2

4.2.1

EC legislation in the field of asylum

Temporary Protection

The formally adopted Council Directive on minimum standards for giving temporary protection in the
event of a mass influx of displaced persons and on measures promoting a balance of efforts between
Member States  in  receiving  such  persons  and  bearing  the  consequences  thereof12  allows  Member
States  in  its  Article  28  (1)  (b)  to  exclude  a  person  from  temporary  protection  if,  amongst  other
grounds, there are reasonable grounds for regarding him or her as a danger to the security of the host
Member State or, having been convicted by a final judgement of a particularly serious crime, he or she
is a danger to the community of the host Member State.

4.2.2

EURODAC

The formally adopted Council Regulation concerning the establishment of "Eurodac" for the
comparison of fingerprints for the effective application of the Dublin Convention13 allows for the
prompt taking of the fingerprints of all fingers of every applicant for asylum of at least 14 years of age.
For the purposes of applying the Dublin Convention, it is necessary to establish the identity of
applicants for asylum and of persons apprehended in connection with the unlawful crossing of the
external borders of the Community. However this will simultaneously assist Member States in
knowing who is entering their territory, and subsequently enhance their national security.

4.3

4.3.1

Proposals for EC legislation in the field of asylum

Asylum procedures

The  Proposal  for  a  Council  Directive  on  minimum  standards  on  procedures  in  Member  States  for
granting and withdrawing refugee status14 allows in Article 26 for “Cancellation of refugee status” on
the grounds that circumstances have come to light that indicate that this person should never have been
recognised as a refugee in the first place.  Article  33 (2)  (c)  also allows Member  States  to  derogate
from the rule of suspensive effect for appeals in cases where there are grounds of national security or
public order.

12Directive (2001/55/EC) 20.07.2001
13 Regulation (2725/2000/EC) 11.12.2000
14 Id at 3

18

                                                
As  also  referred  to  in  paragraph  1.4.2.1,  within  the  context  of  the  forthcoming  revision  of  this
particular  Proposal it could  be  considered  to  include  rules  allowing  for  a  suspension  of  the  asylum
procedure in situations where an extradition request, relating to a serious crime, for an asylum seeker
has  been  made  by  a  State,  other  than  the  country  of  origin,  or  in  cases  of  an  indictment  by  an
International Criminal Court. Alternatively, as explained earlier in paragraph 1.4.2.2, Article 18 of the
Proposal, on the  inadmissibility  of  certain claims  for asylum,  could  be  amended  to  the  effect that  it
would allow in the above cases for the dismissal of an asylum claim as being inadmissible.

As elaborated upon in paragraph 1.4.3.2, the Commission is also considering, deleting article 28 (2)
(b)  of  the  Proposal,  which  states  that  cases  where  there  are  serious  reasons  for  considering  that  the
grounds of article 1 (F) of the Refugee Convention apply can not be considered to constitute grounds
for  the  dismissal  of  applications  for  asylum  as  manifestly  unfounded.  Following  this  possible
deletion an additional ground would then need to be added to article 28 (1) allowing for the dismissal
of asylum claims as manifestly unfounded in those cases where it has been prima facie established that
the  exclusion clauses of the Refugee Convention apply.

4.3.2

Reception conditions

Following Article 22(1)(d) of the Proposal for a Council Directive laying down minimum standards
on the reception of applicants for asylum in Member States15, Member States may reduce or withdraw
reception  facilities  if  an  applicant  is  regarded  as  a  threat  to  national  security  or  there  are  serious
grounds for believing that the applicant has committed a war crime or a crime against humanity or if,
during  the  examination  of  the  asylum  application,  there  are  serious  and  manifest  reasons  for
considering that the grounds of Article 1 (F) of the Geneva Convention may apply with respect to the
applicant.

It  could  be  considered  to  add  a  new  paragraph  (4)(a)  in  Article  22,  regarding  the  reduction  or
withdrawal  of  reception  conditions,  to  the  following  extent:  “Should  the  applicant’s  involvement  in
terrorist activities be established, either by his having taken an active  part  therein  or  by  his having
aided and abetted or provided financial support to terrorist organisations as defined by the European
Union, before or after the application for asylum has been lodged, Member States must withdraw the
routine  reception  conditions  in  respect  of  the  applicant  and  enforce  the  legal  protection  measures
provided for in their respective legislation.”

It  is  also  relevant  to  mention  in  the  context  of  this  Paper  that  the  current  text  of  Article  7  of  the
Proposal allows, where appropriate, for a limitation of the freedom of movement of asylum seekers to
a specific area of the national territory of the Member States.

4.3.3

State determination

In  the  Proposal  for  a  Council  regulation  establishing  the  criteria  and  mechanisms  for
determining the Member State responsible for examining an asylum application lodged in one
of the Member States by a third-country national16 there are no specific provisions relating to
national security. However, such articles are not necessary given that the Proposal contains no
provisions relating to the granting / refusing of rights or status.

15 Brussels, 3.4.2001 COM (2001) 181 final
16 Brussels, 26 .7.2001 COM(2001) 447 final

19

                                                
4.3.4

Qualification for international protection

In  Article  14  of  the  recent  Proposal  for  a  Council  Directive  on  minimum  standards  for  the
qualification and status of third country nationals and stateless persons as refugees or as persons who
otherwise need international protection17 Member States have to ensure that an applicant who comes
within the terms of the exclusion clauses of the Refugee Convention is excluded from refugee status.
This  Proposal  equally  obliges  in  Article  17  Member  States  to  ensure  that  an  applicant  who  comes
within the terms of those exclusion clauses is also excluded from subsidiary protection status.

In  the  framework  of  the  future  discussion  on  this  particular  Proposal  an  additional  paragraph  (2)  to
article  19,  relating  to  “Protection  from  refoulement  and  expulsion”  could  be  considered.  This
additional  paragraph,  in  accordance  with  article  33(2)  of  the  Refugee  Convention,  holds  that  the
benefit of that provision (the non-refoulement obligation), “may not be claimed by a persons enjoying
international protection whom there are reasonable grounds for regarding as a danger to the security
of  the  Member  State  in  which  he  is,  or  who,  having  been  convicted  by  a  final  judgement  of  a
particularly serious crime, constitutes a danger to the community of that Member State”.

The provisions in the above mentioned articles 14, 17 and the possibly to be proposed new provision
to Article 19, are all without prejudice to Member States other international obligations, in particular
those deriving from article 3 of the European Convention on Human Rights and Fundamental
Freedoms.

4.4

Proposals for EC legislation in the field of immigration

In the field of legal immigration, all three Commission Proposals for Council Directives submitted so
far  on  the  right  to  family  reunification,  the  status  of  third-country  nationals  who  are  long-term
residents, and the conditions of entry and residence of third-country nationals for the purpose of paid
employment  and  self-employed  economic  activities  already  contain  “public  order”  clauses.  These
clauses  allow  Member  States  to  refuse  admission  of  third  country  nationals  for  reasons  of  public
policy  or  domestic  security.  It  appears  that  a  scrupulous  application  of  these  clauses  is  a  more
appropriate way of enhancing security than to substantially change the different Proposals at stake.

Invocation of these grounds must  be  based  exclusively  on  the  personal conduct of the third  country
national  concerned.  In  practice this  means  that  current  or past  membership  to  a  certain  –  terrorist  –
association might be interpreted to be linked to the “personal conduct” of a person and might therefore
justify  the  use  of  this  “public  order”  clause.  Within  the  scope  of  the  Directives,  any  discrimination
based  on  race,  ethnic  origin,  religion  or  beliefs,  political  opinions  or  membership  of  a  national
minority is explicitly excluded. The mere ethnic origin or nationality of a person could never justify
use of the “public order” clause, also, as this would be contrary to the principle of non-discrimination
enshrined in Article 21 of the Charter of Fundamental Rights of the European Union.

4.4.1  

Economic migration

Following Article 27 of the Proposal for a Council Directive on the conditions of entry and residence
of  third-country  nationals  for  the  purpose  of  paid  employment  and  self-employed  economic
activities18: “Member States may refuse to grant or to renew or revoke permits in accordance with this
Directive on grounds of public policy, public security or public health. The grounds of public policy or
public  security  must  be  based  exclusively  on  the  personal  conduct  of  the  third  country  national
concerned.”

This provision gives Member States a large degree of discretion. The current drafting of Article 27 of
the  Proposal  can  therefore  be  considered  as  sufficient  and  it  is  not  deemed  necessary  to  envisage  a
modification.

17 Brussels, 12.9.2001 COM (2001) 510 final
18 Brussels, 11.7.2001 COM (2001) 386 final

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4.4.2

Family reunification

The Proposal for a Council directive on the right of family reunification19 contains in its article 8  a
provision on  public  order  allowing  Member  States  to  refuse:  “the  entry  and  residence  of  family
members on grounds of public policy, domestic security or public health. The grounds of public policy
or  domestic  security  must  be  based  exclusively  on  the  personal  conduct  of  the  family  member
concerned.”

The  same  logic  as  set  out  in  4.4.1  applies  equally  in  the  context  of  this  particular  Proposal,  and
amendment of the text is therefore not considered necessary.

4.4.3

Long term residency status

The Proposal for a Council Directive concerning the status of third country nationals who are long
term resident20 contains several national  security  related  provisions. The  Commission is considering
amending these provisions in the following manner:

Following  Article  7  on  Public  policy  and  domestic  security  Member  States  may  refuse  to  grant
long-term  resident  status  where  the  personal conduct  of  the  person  concerned  constitutes  an  actual
threat to public order or domestic security. It is considered to delete in paragraph 1 the word actual. It
is  also  proposed  to  delete  in  paragraph  2  of  Article  7  the  reference  to  the  fact  that  “Criminal
convictions shall not in themselves automatically warrant the refusal referred to in paragraph 1”. The
same applies to Article 19, regarding the right to settle in another Member State.

With  regard  to  Article  13  Protection  against  expulsion  the  Commission  is  considering  deleting
paragraph 7 in which emergency expulsion procedures are prohibited against long term residents. This
provision  applies  once  the  third  country  national  has  obtained  the  long-term  resident  status,  he/she
should  therefore  benefit  from  a  higher  level  of  protection.  Nevertheless,  emergency  expulsion
procedures can be justified in case of a terrorism threat.

Finally, in  Article 25 on the Withdrawal of residence permit it is stated that: (1) “During a five-year
transitional period, the second Member State may take a decision to expel a long-term resident and/or
family  members:  on  grounds  of  public  policy  or  domestic  security  as  defined  in  Article  19;  (2)
Expulsion decisions may not be accompanied by a permanent ban on residence”.  In such cases, the
second  Member  State  shall  expel  the  long-term  resident  only  to  the  Member  State  that  has  granted
him/her the status. In cases of serious threat, as defined in art. 13 (1), the second Member State should
expel  the  long-term  resident  directly  to  his/her  country  of  origin  or  to  another  country  outside  the
European  Union. The  Commission  is  considering  adding  an  article 2  bis: “In case of  an  actual  and
sufficiently serious threat the procedure of article 13 may apply”.

4.5

4.5.1

Future Proposals for EC legislation in the field of immigration

Students and other third-country nationals

The objectives of the future Proposal for a Directive on the conditions of entry and residence of third-
country nationals for the purpose of study and self-employed economic activities are considered to be
best  achieved  by  guaranteeing  simultaneously  the  possibility  for  Member  States  to  cater  for  their
domestic security concerns. The Proposal will therefore include a clause allowing Member States to
refuse  admission  of  a  third-country  national,  the  renewal  of  a  residence  permit  or  to  revoke  such  a
permit on grounds of public policy, public security or public health based exclusively on the personal
conduct of the third-country national concerned. This drafting seems sufficiently large to give Member
States  the  necessary  margin  of  maneuver  to  refuse  admission  or  put  an  end  to  the  stay  of  a  third-

19 Brussels, 10.10.2000 COM (2000) 624 final
20 Brussels, 13.3.2001 COM (2001) 127 final

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country  national  if  objectively  needed.  Same  provisions  will  be  included  in  the  Proposal  for  a
Directive on the conditions of entry and residence of third-country nationals for other purposes.

4.5.2 Victims of trafficking

The Commission services are currently preparing a Proposal for a Directive on short-term  permit  to
stay for the victims of trafficking. There is no right to this permit to stay as such, its issuing is subject
to  a  set  of  conditions  being  met.  One  of  the  conditions  for  the  delivery  is  that  “ no  considerations
regarding public order or national security oppose this delivery”. The same applies to the renewal and
consequently the withdrawal of the permit. This wording seems wide enough to enable Member States
to protect their public order and national security.

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