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CJEU: Rejection as asylum seeker for participation in the activities of a terrorist network

In 2006, Mr Mostafa Lounani, a Moroccan national, was convicted in Belgium by the Brussels Criminal Court and sentenced to six years imprisonment, with respect to his participation in the activities of a terrorist group - namely the Belgian cell of the ‘Moroccan Islamic Combatant Group’ (‘the MICG’) – as a member of its leadership, criminal conspiracy, use of forged documents, and illegal residence. That court found in particular that Mr Lounani was guilty of ‘active participation in the organisation of a network for sending volunteers to Iraq’. In particular, the fraudulent transfer of passports was described as ‘an act of participation in the activities of a cell providing logistical support to a terrorist movement’.

In 2010, Mr Lounani applied to the Belgian authorities for refugee status. He claimed that he feared persecution in the event of his being returned to Morocco because of the likelihood that he would be regarded by the Moroccan authorities as a radical Islamist and jihadist, following his conviction in Belgium. That application for asylum was rejected.

An action against that decision having been brought before it, the Belgian Council for asylum and immigration proceedings (‘the CCE’) held in 2011 that Mr Lounani should be granted refugee status. The CCE confirmed its decision in 2012 after its initial decision was set aside by the Belgian Conseil d’État. The CCE took the view that the acts of which Mr Lounani was specifically convicted did not constitute terrorist offences as such, since the Brussels Criminal Court had found Mr Lounani to be guilty of belonging to a terrorist group, but had not convicted him of committing or participating in a terrorist act. No specific act by the MICG, even in inchoate form, falling within the scope of that type of offence had been established, nor had the fact of personal conduct on the part of Mr Lounani, giving rise to his individual liability for the performance of such an act, been established. According to the CCE, nothing in the conduct in respect of which Mr Lounani had been convicted reached the required degree of gravity to be categorised as ‘acts contrary to the purposes and principles of the United Nations’ within the meaning of the directive on refugee status, and accordingly Mr Lounani could not be excluded on that ground from refugee status.

An appeal on a point of law having been brought before it, the Conseil d’État decided to refer questions for a preliminary ruling to the Court of Justice. The Conseil d’État seeks in particular to ascertain under what circumstances an applicant for asylum can be excluded from refugee status for ‘acts contrary to the purposes and principles of the United Nations’ where he has been convicted in a criminal court of participation in the activities of a terrorist group but has not himself committed a terrorist act.

The Court notes, first, that it is clear from the file that Mr Lounani did not personally commit terrorist acts, or instigate such acts, or participate in their commission. 

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