European Union (EU) Member States may not automatically deny right of residence to European citizens suspected of having committed war crimes in the past or to their family members, the Court of Justice of the European Union (CJEU) says. The need to restrict the freedom of movement and residence of such persons must be assessed on a case-by-case basis, the CJEU said in a judgement issued on Wednesday.
“That assessment entails that the threat that the personal conduct of the person concerned represents to the fundamental interests of the host society, on the one hand, must be weighed against the protection of the rights [of] Union citizens and their family members,” the Court ruled.
The Court’s decision came in reaction to two cases concerning men suspected of war crimes who were refused the right to reside in the Netherlands and Belgium.
In one case, an Afghan citizen whose daughter had obtained Dutch nationality attempted to benefit from a right to residence in Belgium. In refusing his application, the Belgian authorities based their decision solely on information contained in an unsuccessful asylum application the man had lodged previously in the Netherlands. That dossier showed that he had participated in war crimes or crimes against humanity or that, within the exercise of his functions, he had given the order for such crimes to be committed.
According to the Court, the fact that he had had his application for refugee status turned down cannot automatically lead to the assessment that his mere presence in the host country represented a real, current and severe enough threat to the fundamental interest of society.
The Court stated that such applications must be assessed on a case-by-case basis and must consider the nature and gravity of the presumed crime, the time that has elapsed since it was committed, and the conduct of the applicant since then.