Y.A. v. THE NETHERLANDS
Inadmissible
Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra;Nona Tsotsoria
1. The applicant, Mr Y.A., is an Afghan national, who was born in 1953 and lives in the Netherlands in Dordrecht. The President granted the applicant’s request for his identity not to be disclosed to the public (Rule 47 § 3). He was represented before the Court by Mr J.M. Walls, a lawyer practising in Prinsenbeek. 2. The Dutch Government (“the Government”) were represented by their their Agent, Mr R.A.A. Böcker, and Deputy Agent, Ms L. Egmond, both of the Ministry for Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 28 December 1997, the applicant applied for asylum in the Netherlands. He stated inter alia that he had been a professional military officer and that he had worked for the KhAD/WAD (Khadimat-e Atal-at-e Dowlati/Wezarat-e Amniyat-e Dowlati). He further stated that he had been a member of the communist party (People’s Democratic Party of Afghanistan; PDPA). He had fled Afghanistan on 10 December 1997 as the Taliban had been searching for him. He was granted asylum on 27 July 1999. On an unspecified date in 2001, his spouse was given permission to join him in the Netherlands. This permission was equally given to their four children who were born in 1989, 1990, 1994 and 1996, respectively. His wife and the two youngest children have since obtained Dutch nationality; the two oldest children hold residence permits for asylum purposes. 5. On 24 February 2006, the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie) decided to withdraw the applicant’s asylum based residence permit with retroactive effect, Article 1F of the 1951 Geneva Convention relating to the Status of Refugees being held against the applicant. The Minister based this decision on the applicant’s statements about his career from 1983 to 1992 as an officer in the KhAD/WAD in which he had last held the rank of lieutenant colonel, and on a general official report (algemeen ambtsbericht), drawn up on 29 February 2000 by the Netherlands Ministry of Foreign Affairs (Ministerie van Buitenlandse Zaken) on “Security Services in Communist Afghanistan (1978-1992). AGSA, KAM, KhAD and WAD” (“Veiligheidsdiensten in communistisch Afghanistan (1978-1992), AGSA, KAM, KhAD en WAD”) On the basis of this report, the Netherlands immigration authorities adopted the position that Article 1F of the 1951 Refugee Convention could be held against virtually every Afghan asylum seeker who, holding the rank of third lieutenant or higher, had worked during the communist regime for the KhAD/WAD. 6. In a separate decision taken on 3 April 2006, the Minister further imposed an exclusion order (ongewenstverklaring) on the applicant. The applicant’s objection (bezwaar) against this decision was rejected by the Minister on 27 August 2007. 7. As under Dutch law it is not possible to have lawful residence in the Netherlands as long as an exclusion order is in place, the applicant’s appeal against the withdrawal of his asylum based residence permit was declared inadmissible on 25 November 2008 by the Regional Court of The Hague sitting in Zutphen. 8. In a separate decision taken on the same day, the Regional Court of The Hague sitting in Zutphen rejected the applicant’s appeal against the decision to impose an exclusion order. On 21 December 2008, the applicant filed a further appeal with the Administrative Jurisdiction Division Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State). 9. On 25 March 2009, at the request of the applicant, the President of the Chamber decided to indicate to the Government of the Netherlands that it was desirable in the interests of the parties and the proper conduct of the proceedings before the Court not to remove the applicant to Afghanistan (Rule 39 of the Rules of Court) until further notice. 10. On 20 May 2008 the Chamber prolonged the measure under Rule 39 of the Rules of Court until further notice. 11. On 26 March 2009, the applicant requested the Deputy Minister of Justice (Staatssecretaris van Justitie; “the Deputy Minister”; the successor to the Minister for Immigration and Integration) to lift (temporarily) the exclusion order imposed on him (“verzoek om het (tijdelijk) opheffen van de ongewenstverklaring”). 12. On 16 September 2009, the Administrative Jurisdiction Division rejected the applicant’s further appeal concerning the decision to impose an exclusion order on him. 13. On 24 December 2009, the Deputy Minister withdrew the decision of 27 August 2007, in which the applicant’s objection to the decision to impose an exclusion order on him had been rejected. 14. On 27 April 2010, the Government informed the Court that, in the context of the proceedings concerning the applicant’s exclusion order and his request have this order lifted, the Deputy Minister had concluded on 7 April 2010 that the applicant would, if returned to Afghanistan in the current circumstances, run a risk of treatment as referred to in Article 3 of the Convention. The Government stated that, therefore, the applicant would not be expelled to Afghanistan as long as Article 3 would constitute grounds for not doing so. The Government requested the Court to consider striking the application out of the list of pending cases. 15. On 14 May 2010, the applicant informed the Court that he did not wish to withdraw the application as he had not only alleged a violation of his rights under Article 3 but also under Article 8 of the Convention. 16. On 14 September 2010, the Court decided against striking the case out. It decided to adjourn its proceedings pending the outcome of the still pending domestic proceedings on the imposition of an exclusion order on the applicant. It further decided to prolong the Rule 39 indication for the duration of the proceedings before the Court. 17. On 11 August 2011, the Regional Court of The Hague sitting in Rotterdam determined the applicant’s appeal against the Minister’s decision of 7 April 2010 concerning the imposition of the exclusion order. It remitted the case to the Minister. In a separate judgment given on the same day, the Regional Court rejected the applicant’s appeal against the Minister’s refusal to lift the exclusion order. 18. In a fresh decision taken on 30 November 2011 concerning the imposition of the exclusion order, the Minister for Immigration, Integration and Asylum Policy (Minister voor Immigratie, Integratie en Asiel; the successor to the Deputy Minister of Justice) again accepted that the applicant, if returned to Afghanistan, would run a risk of treatment proscribed by Article 3 of the Convention but rejected the applicant’s other arguments based on Articles 3 and 8 of the Convention. The applicant filed an appeal with the Regional Court of The Hague, which is presumably still pending. 19. On 4 March 2012, the applicant informed the Court of the state of proceedings at the domestic level, namely that the proceedings concerning the imposition of the exclusion order were pending before the Regional Court of The Hague sitting in Dordrecht and that the proceedings on his request to lift the exclusion order were pending before the Administrative Jurisdiction Division. He further informed the Court of the consequences of the implementation as from 1 January 2012 of Directive 2008/115/EC of 16 December 2008 (on common standards and procedures in Member States for returning illegally staying third-country nationals) for persons who – like the applicant – are not a national of one of the European Union Member States and on whom an exclusion order has been imposed. According the applicant, the Government intended to lift exclusion orders imposed in the past under their simultaneously replacement by an entry ban within the meaning of Article 11 of the Directive. 20. The Court requested the Government on 12 March 2012 to comment on the information supplied by the applicant, which they did on 7 May 2012. The Government informed the Court, inter alia, that the Minister was seeing no reason to lift the applicant’s exclusion order and impose an entry ban on him 21. The relevant domestic law and practice as regards asylum proceedings, exclusion orders and enforcement of removals are set out in K. v. the Netherlands ((dec.), no. 33403/11, §§ 16-32, 25 September 2012).