Universal-MigrationHRlaw-PG-no-6-Publications-PractitionersGuide-2014-eng

MIGRATION AND INTERNATIONAL HUMAN RIGHTS LAW | 111
The restriction to the refugee law principle of non-refoulement focuses,
therefore, on the refugee representing a “danger” to the security
or to the community of the country. This is a higher threshold than
that of Article 1F for exclusion from refugee status, as in this case it is
limited only to future threats coming from the person and not to past
activities.
The first restriction—the danger to national security—must concern a
danger in the future and not be only based on past conduct. It must be
a danger to the country of refuge. While the authorities have a certain
discretionary latitude in identifying the danger, they must conduct an
individual assessment on whether there are “reasonable grounds” for
considering the refugee a danger to national security, based on the principles
of necessity and proportionality. In this regard, the authorities
will have to consider: the seriousness of the danger for national security;
the likelihood of the realisation of the danger and its imminence;
whether the danger to the security would be diminished significantly or
eliminated by the removal of the individual; the nature and seriousness
of the risks to the individual from refoulement; and whether other avenues
may be found whether in the country of refuge or in a third safe
country. 304
The second restriction refers to a danger to the “community”, which is
to be considered as the safety and well-being of the population in general,
unlike national security which refers to the interests of the State. 305
The requirement of “having been convicted by a final judgement of a
particularly serious crime” must be read consistently with the exclusion
clause in Article 1F(b) which applies to those having committed a
serious non-political crime outside the country of refuge prior to their
admission in the country as a refugee. It follows that, in order not to
repeat the provision of exclusion, Article 33.2 necessarily refers only to
particularly serious crimes committed subsequent to the admission as
a refugee.
Contrary to the Geneva Refugee Convention, EU Directive 2011/95/EC
(Qualification Directive) conflates the restriction grounds of the refugee
law principle of non-refoulement with the exclusion clauses for refugee
status, by including among the grounds for revocation, ending or
refusal to grant or renew refugee status 306 and among the exclusion
clauses for subsidiary protection 307 persons constituting a danger to the
community or the security of the State of refuge or of protection. This
difference suggests a rather extensive interpretation of these grounds
304 See, Lauterpacht/Bethlehem, op. cit., fn. 302, pp. 137–138, para. 178.
305 See, ibid., p. 140, para. 192.
306 Article 14.4–5, EU Qualification Directive, op. cit., fn. 98.
307 Article 17.1(d), ibid.