CASE OF R.B.A.B. AND OTHERS v. THE NETHERLANDS
No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Sudan)
Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova
5. The applicants are a married couple, Mrs R.B.A.B. and Mr H.S., their two daughters, X and Y, and their son Z. The children were born in 1991, 1993 and 1996, respectively. The applicants have been in the Netherlands since 2001. 6. On 28 April 2001 the applicants entered the Netherlands, where the first and second applicants filed separate asylum applications, and Mrs R.B.A.B. also filed applications on behalf of the other three applicants (the children, who were all minors). The immigration authorities conducted interviews with the first and second applicants on 8 May 2001 (eerste gehoor) and 9 August 2001 (nader gehoor). An additional interview (aanvullend gehoor) was conducted with the second applicant on 2 November 2001. 7. The first and second applicants stated that they had previously lived in Dilling in Sudan’s South Kordofan province and that they had fled Sudan after Mr H.S. had attracted the attention of the Sudanese authorities on account of his activities for the opposition movement M. 8. On 7 December 2001 the Deputy Minister of Justice (Staatssecretaris van Justitie, the “Deputy Minister”) notified the first and second applicants of her intention (voornemen) to reject their asylum requests. In the light of various contradictions in the statements given by the first and second applicants, their inability to answer basic questions about the respective tribes they claimed to belong to, and the second applicant’s inability to provide simple topographic details of the city and the surroundings of the place where he claimed he had grown up and/or to provide any details about the M. opposition movement (goal, members, structure, leader) for which he claimed to have been active, the Deputy Minister concluded that no credence could be attached to the applicants’ asylum statement. 9. In two separate decisions of 17 January 2002, after the applicants’ lawyer had filed written comments (zienswijze) concerning the intended refusals, the Deputy Minister rejected the first and second applicants’ asylum requests, finding that the written comments had not dispelled her doubts concerning the credibility of their asylum statement. 10. The first and second applicants’ appeal against this decision were declared inadmissible on procedural grounds by the Regional Court (rechtbank) of The Hague sitting in Zwolle in a joint ruling, the first and second applicants having failed to submit the requisite grounds for their appeals, even though they had been given extra time to remedy this shortcoming. The applicants’ objection (verzet) was dismissed on 10 September 2002 by the Regional Court. No further appeal lies against this ruling. 11. On 12 April 2003 the first and second applicants – and Mrs R.B.A.B. also on behalf of the other applicants – filed a second asylum request, which was based on essentially the same grounds as their initial request. They submitted various documents in support of their declaration. On 13 April 2003, the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie) notified the first and second applicants of her intention to reject their fresh asylum request, holding that their repeat requests were not based on newly emerged facts or altered circumstances as required by section 4:6 of the General Administrative Law Act (Algemene Wet Bestuursrecht). The new documents submitted by the first and second applicants only served to increase the already existing doubts as to the credibility of their asylum statement. In two separate decisions of 14 April 2003, having received the applicants’ written comments on the intended decision, the Minister rejected the applicants’ second asylum request on the grounds given in his notice of intention. The first and second applicants did not lodge an appeal against this decision before the Regional Court of The Hague even though it would have been possible to do so. 12. On 14 June 2005 the first and second applicants, and Mrs R.B.A.B. also on behalf of the other applicants, filed a third asylum request based on the claim that, if they were to be sent back to Sudan, their daughters X and Y would be subjected to female genital mutilation (“FGM”), contrary to Article 3 of the Convention, due to tribal and social pressure. In interviews with the immigration authorities held on 16 June 2005, the first and second applicants stated that they opposed FGM but would be unable to protect their daughters against it. They further submitted a document issued by the Sudanese Embassy in the Netherlands on 26 April 2005 stating that the applicants “are all Sudanese citizens although they do not possess the requisite documents to enable them to obtain a Sudanese laissez-passer”. 13. On 17 June 2005, the Minister for Immigration and Integration notified the first and second applicants separately of her intention to reject their third asylum request. The Minister doubted the sincerity of the applicants’ purported fear that their daughter would be subjected to FGM because they had not raised this argument in their previous asylum requests. The Minister also took into consideration the order amending the Aliens Act 2000 Implementation Guidelines 2004/36 (Wijzigingsbesluit Vreemdelingencirculaire 2000, “WBV 2004/36”), which was based on an official report on Sudan drawn up by the Ministry of Foreign Affairs (Ministerie van Buitenlandse Zaken) on 3 February 2004 (DPV/AM823666), according to which women who had had the benefit of a higher education (namely a university or higher professional level education) and who were living in the larger cities in Sudan did not experience any social stigma for not subjecting their daughters to FGM, whereas women in the rural areas who had received little or no schooling had little choice but to subject their daughters to this practice. As the first and second applicants had still not substantiated their personal identities or given a credible statement concerning their place of residence in Sudan, the Minister considered that they had not established that they did not belong to the group of more highly educated people able to reject the practice of female circumcision. The Minister also considered that the second applicant constituted a danger to public order, having accepted a negotiated penalty (transactieaanbod) in order to settle out of court a criminal charge for shoplifting. 14. On 20 June 2005 the applicants filed their written comments concerning the intended refusal of their third asylum request. They argued that the Minister had failed to present a proper reasoning for her finding that it had not been demonstrated that the first applicant did not belong to the group of highly educated women who would be able to resist the social pressure to circumcise their daughters, especially as the first applicant had stated in her first request for asylum that she had only had a primary school level education. The first applicant therefore offered to take an IQ test to prove her level of education. 15. In two separate decisions of 20 June 2005 the Minister rejected the first and second applicants’ asylum request on the grounds detailed in her notice of intention. The Minister added that it was not for her to examine the first applicant’s level of education through an IQ test but rather for the applicants to prove their identities and background in their asylum application. 16. In a joint ruling given on 12 June 2005 the provisional-measures judge (voorzieningenrechter) of the Regional Court of The Hague sitting in Zwolle granted the first and second applicants’ appeals, quashed the impugned decisions and remitted the case to the Minister for a fresh decision. The provisional-measures judge held: “The judge notes that it is no longer in dispute that the petitioners are Sudanese nationals. Nor is it in dispute that both daughters of the petitioners, currently 14 and 11 years old, have not been circumcised. According to the policy guidelines set out in C1/4.3.3 Vc 2000, a girl can – if return would entail a real risk of genital mutilation – qualify for an asylum-based residence permit ... The following conditions apply: there exists a risk of genital mutilation; the authorities of the country of origin are unwilling or unable to provide protection to persons exposed to an imminent risk of genital mutilation; and no internal relocation possibility is deemed to exist in the country of origin. According to chapter A8 Vc 2000 “Country-specific part, the asylum policy in respect of Sudan” under 5.5 Vc, genital mutilation is widespread in Sudan. Although there is a Health Act forbidding genital mutilation, the Sudanese authorities hardly ensure compliance with that act. The parental freedom of choice (as the court understands, whether or not to have their daughters circumcised) is connected to the cultural attitudes of the family and surroundings. Women with a higher education in larger towns will generally not have their daughters circumcised. This will generally not give rise to problems from their social environment. The term ‘women with a higher education’ is to be understood to mean women who have had an academic or higher vocational education. According to the official report of 3 February 2004, women with a low level of education living in rural areas have little choice. According to the same chapter it cannot be deduced from the official report whether it is possible to avoid circumcision by settling elsewhere in Sudan, meaning that for the assessment of the question whether there is an internal relocation alternative, each individual’s declaration is of decisive importance. The defendant’s refusal to grant the requested residence permit is based to a large extent on the fact that the identity and origin of, in particular, [the first applicant] has not been demonstrated, but also because in the proceedings concerning the first asylum request, it was found that statements lacking credence had been given. For that reason, it is not possible to assess whether the conditions set out in the policy guidelines are met. The refusal thus reasoned cannot be upheld. The policy guidelines are aimed at protecting girls and women against circumcision, an act which according to the policy is to be seen as a violation of Article 3 [of the Convention]. ... The assertion that [the first applicant] based her first asylum request on an asylum statement subsequently found to be implausible is correct. However, it is unclear what the relevance of that conclusion is in the context of the present [asylum] application, which is concerned with the protection of the daughters and not of [the parents].” 17. On 19 July 2005 the Minister filed a further appeal against this judgment with the Administrative Jurisdiction Division (Afdeling bestuursrechtspraak) of the Council of State. 18. On 25 August 2005, the Administrative Jurisdiction Division granted the Minister’s further appeal, quashed the judgment of the Regional Court and rejected the first and second applicants’ appeal against the Minister’s decision of 20 June 2005. It considered that, pursuant to section 31 § 1 of the Aliens Act 2000 (Vreemdelingenwet 2000), it was for the applicants to demonstrate as plausible those facts and circumstances which could lead to the conclusion that they were eligible for admission pursuant to the policy in force, and not for the Minister to demonstrate the opposite. As not only the applicants’ statements about their identity and origin but also their asylum statement had been found to lack credibility in a decision of 17 January 2002 which had obtained the force of res iudicata, the Minister could reasonably have found that the applicants had not made out a persuasive case to show that they complied with the conditions for admission under the policy concerned, that the authorities could not provide them with protection, and that there was no internal relocation alternative for them. No further appeal lay against this ruling. 19. The third applicant, Ms X., gave birth to a daughter on 11 June 2011 and to a son on 15 March 2013. On 1 September 2015 Ms X. was granted a Netherlands residence permit for the purpose of remaining with her partner. On 15 September 2015 she informed the Court that she did not wish to maintain the application in so far as it concerned her. 20. In the meantime, on 7 November 2012, the Minister for Immigration, Integration and Asylum Policy (Minister voor Vreemdelingenzaken en Integratie) rejected a request for a residence permit filed by the fourth applicant, Ms Y., who had come of age in the meantime. On the same day Ms Y. filed an objection (bezwaar) against this refusal and, on 30 November 2015, she attended a hearing on that objection before an official commission during which she stated that in 2012, as a volunteer for two non-governmental organisations, she had disseminated information about FGM, for which purpose she had attended a training course. 21. On 29 December 2015 the Minister rejected the fourth applicant’s objection. In so far as the fourth applicant would allegedly be exposed to the risk of being subjected to circumcision in Sudan, the Minister noted that her parents opposed this practice and therefore found it likely that they would not force Ms Y. to be circumcised. As regards pressure from the social environment, the Minister noted that Ms Y had still not submitted any documents substantiating her identity or alleged Dilling origin. In this situation, the Minister found that it was not necessary to address the question of whether internal relocation would be a possibility. No further information about these proceedings has been submitted. 22. On 11 April 2013 the fifth applicant, Mr Z., applied for a residence permit under the Transitional Regulation on Children Residing Long-Term in the Netherlands (overgangsregeling langdurig in Nederland verblijvende kinderen), which provided that minors without a residence permit who had been residing in the Netherlands for over five years could obtain a residence permit if they met certain criteria. These criteria included that the minor in question must have applied for asylum at least five years before reaching the age of 18 and must not have evaded monitoring by the Netherlands authorities for more than three months. The close family members of such minors could also qualify for accompanying family-member residence permits for close relatives (that is to say parents and siblings). The fifth applicant also sought accompanying family-member residence permits for his parents, his sisters Y. and X., and for the latter’s two children, who are minors. 23. On 30 July 2013 this request was rejected by the Deputy Minister of Security and Justice (Staatssecretaris van Veiligheid en Justitie), who held that the applicants had not been in touch with the designated immigration authorities for over three months. On 1 September 2015, after remittal of the case by the Administrative Jurisdiction Division on 22 July 2015, the petitioners’ objection was again rejected by the Deputy Minister. No further information about these proceedings has been submitted. 24. In a letter of 24 September 2014, the Deputy Minister informed the Mayor of Amsterdam that he would not avail himself of his discretionary powers to admit the applicants to the Netherlands. The applicants’ objection was declared inadmissible by the Deputy Minister, who held that the content of the letter of 24 September 2014 was not a decision within the meaning of section 1:3 of the General Administrative Law Act which could be challenged in administrative appeal proceedings. Although the applicants’ appeal against this decision was granted on 1 September 2015 by the Regional Court of The Hague sitting in Amsterdam, it nevertheless held that the legal effects of the impugned decision were to remain intact. No further information about these proceedings has been submitted.