Academic journal article Boston College International and Comparative Law Review

PRIORITIZING NATIONAL SECURITY AT THE EXPENSE OF REFUGEE RIGHTS: THE EFFECTS OF H.T. V. LAND BADEN-WÜRTTENBERG

Academic journal article Boston College International and Comparative Law Review

PRIORITIZING NATIONAL SECURITY AT THE EXPENSE OF REFUGEE RIGHTS: THE EFFECTS OF H.T. V. LAND BADEN-WÜRTTENBERG

Article excerpt

Introduction

Global forced displacement surpassed sixty million people in 2015 and a record 1.3 million migrants applied for asylum in European Union (EU) countries throughout the year.1 Many of these asylum seekers qualify as refugees who are entitled to special protections under international law, including protection from refoulement-the expulsion to a state where they may be in danger.2 This unprecedented increase in asylum seekers comes amidst a process that began after September 11, 2001 (9/11), in which countries have imposed anti-terrorism policies that diminish and threaten the rights of refugees.3 Since that time, and increasingly during the current refugee crisis, the competing interests of protecting refugees' rights and meeting the demands of fearful citizens have led to high tension in EU member states.4

In June 2015, the European Court of Justice (ECJ) ruled in H. T. v Land Baden-Württemberg that a nation may revoke a refugee's residence permit, even though refugees are afforded protection and benefits.5 The court also ruled that revocation requires a case-by-case analysis to determine whether the refugee supports a terrorist group.6 By trying to balance the competing interests of safety and protecting refugee rights, the court in H. T. took another step toward weakening refugee rights in the name of prioritizing national security.7

Part I of this comment provides the factual background and procedural history of H.T v. Land Baden-Württemberg. Part II discusses the holding and legal context of the case. Part III highlights the significance of the case in the context of the greater refugee crisis and the continuing trend toward less secure rights for refugees. Part III also argues that while the court established safeguards to protect refugees, this decision is a further blow to their rights.

I. Background

A.Mr. T's Refugee Status and Indefinite Residence Permit

Mr. T, the plaintiff in H.T. v Land Baden-Württemberg, is a Turkish national born in 1956.8 He moved to Germany in 1989 and resided in the country with his wife and eight children, five of whom are German nationals, until the time of this case.9 During the 1990s, Mr. T. engaged in political activities in support of the Kurdistan Worker's Party (PKK), a Kurdish group that has been engaged in an armed conflict with the Turkish Government since the 1970s.10 Due to the threat of political persecution in the event that he returned to Turkey, on June 24, 1993 Mr. T gained refugee status as defined under the Geneva Convention Relating to the Status of Refugees (Geneva Convention).11 In addition to his refugee status, Mr. T. received an indefinite residence permit in Germany on October 7, 1993.12

On August 21, 2006, Mr. T lost his refugee status when German authorities determined he was no longer under threat because of changed political circumstances in Turkey.13 Mr. T appealed the revocation of his refugee status to the Verwaltungsgericht Karlsruhe (Administrative Court of Karlsruhe), which overruled that decision and reinstated Mr. T's refugee status on November 30, 2007.14 Mr. T remained a refugee within the meaning of the Geneva Convention until the time of the decision in H.T. v Land Baden-Württemberg on June 24, 2015.15

B.Mr. T's Terrorist Activity and Criminal Sanction

On November 22, 1993, the Federal Ministry of the interior prohibited engagement in activities on behalf of the PKK and organizations connected to the PKK under the Vereinsgesetz (Associations Act).16 Thereafter, a search of Mr. T's home produced documents revealing that he collected donations and disseminated a PKK publication on behalf of the group.17 As a result, German authorities charged Mr. T. under the Associations Act and the Landgericht Karlsruhe (Regional Court of Karlsruhe) ordered Mr. T. to pay €3000 for his illegal association and activity.18 Mr. T. unsuccessfully appealed that decision to the Bundesgerichtshof (Federal Court of Justice), and the Regional Court of Karlsruhe's decision became final on April 8, 2009. …

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