F.A.K. v. THE NETHERLANDS
Inadmissible
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria
1. The applicant, Mr F.A.K., is a Libyan national whose date of birth is stated as 1961. The President of the Section decided of his own motion to grant the applicant anonymity (Rule 47 § 3 of the Rules of Court) and confidentiality of the case file documents (Rule 33 of the Rules of Court). He is resident in the Netherlands. His profession is given on the application form as imam. He was represented before the Court by Mr P.J. Schüller, a lawyer practising in Amsterdam. The Netherlands Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, and Deputy Agent, Ms L. Egmond, of the Netherlands Ministry for Foreign Affairs. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. The applicant applied for asylum in March 1994. He was questioned about the reasons for his asylum request on 31 March 1994 and gave the following account: The applicant gave his name as A.A., born in 1957. He had travelled on a forged passport in the name of N.A.A. He had been a soldier from 1979 until 1993. He had been trained for three years at a military academy whose name he refused to divulge, such information being a military secret, passing out with the rank of corporal. In 1986 he had been promoted to second lieutenant. He claimed to have been recruited as a member of Jabha-al-Wattaniyya Libiya Li-l-Ingad (Libyan National Liberation Front) after his promotion to commissioned rank, by a colleague from his military academy days; in this capacity he had distributed pamphlets in barracks. In October 1993, following a failed coup attempt against the Gaddafi regime, he had gone into hiding; during this time his house had been raided and searched by armed men who had taken all official documents with them. He had had no trouble leaving Libya because his brother was a member of the Libyan border police. He had flown to Amsterdam via Tunis and Italy. He had met a Moroccan man in an Amsterdam train station who had given him shelter and lodging until the end of the Ramadan holiday, after which he had gone to Rotterdam and applied for asylum. It had been this Moroccan who had advised the applicant to lodge an asylum request, it being impossible to obtain a regular residence permit. According to the report of the interview, the applicant was able more or less to describe the functioning of a Kalashnikov rifle but did not know its calibre, and he was quite unable to describe any service pistol. 4. On 26 April 1994 the Deputy Minister of Justice (Staatssecretaris van Justitie) gave a decision declaring the applicant’s asylum request inadmissible on formal grounds. The applicant had produced no valid border-crossing document, having travelled on a forged passport; and he had failed to report “without delay” after entering the country, having awaited the end of Ramadan. A residence permit on humanitarian grounds was likewise refused. 5. The applicant lodged an administrative objection (bezwaarschrift) on 29 April 1994. Since the objection did not have suspensive effect, he also submitted a request to the competent tribunal for a provisional measure (voorlopige voorziening) aimed at securing a stay of expulsion. 6. On 8 December 1994 the Deputy Minister lodged a written statement in reply. It was stated that the applicant had not told the truth: a Benelux visa in the name of N.A.A. had been requested at the Netherlands embassy in Tripoli by a man who had submitted a passport photograph remarkably similar to that contained in the passport the applicant had travelled on. Likewise, the applicant had stated that he had sought asylum on the advice of the Moroccan man who had told him that he would not succeed in getting a job and a regular residence permit. Moreover, it was admitted that the applicant’s wife had sought a Benelux visa, and travelled, under her own name. The airline ticket which the applicant had submitted did not correspond to the journey which he had allegedly made from Libya, and the applicant had not been able to offer proof of his military career. It was unlikely that the applicant had been involved in the coup attempt, since it had been betrayed and all the plotters were known to have been arrested. 7. A hearing was held before the Regional Court (arrondissementsrechtbank) of The Hague, sitting in ‘s-Hertogenbosch, on 16 December 1994. The applicant was allowed two weeks to prove that he was A.A., as he claimed, not N.A.A. 8. The Regional Court gave judgment on 13 January 1995 refusing to order the suspension of the applicant’s expulsion. It found that the applicant had not submitted the required proof of his identity. At all events, he had admitted that he had taken the advice of the Moroccan man to seek asylum rather than a regular residence permit. 9. The applicant submitted to the Deputy Minister a letter from the Dutch Council for Refugees (Vluchtelingenwerk) dated 18 May 1995. This letter gives the applicant’s name as F.B., F.A.B. or F.A.K., depending on the transcription from Arabic. It was admitted that the applicant had used an alias. It was stated that he had done so for fear that other speakers of Arabic would betray him to the Libyan secret service. He had neglected to tell his lawyer this, which he now acknowledged had been a mistake. 10. On 15 June 1995 the applicant again applied to the Regional Court for a suspension of his expulsion. He now gave his name as F.A.B.; the interrogating official was to blame for the mistaken mention of the name A.A. in the report of the interview on 31 March 1994. He also submitted various identity documents in the name, variously, of F.A.B. and F.A.K. As translated, these included a card with a passport photograph naming F.A.B. as a deserter with effect from 15 September 1993; an identity card in the name of F.A.K. giving his profession as “manual labourer”; an identity card naming F.A.B. as “a staff officer and a soldier”; an undated official report of the loss of a driving license in the name of F.A.K.; and a marriage certificate recording the marriage of F.A.K. with L.A.H. on 9 May 1990 and the birth of their child on 14 April 1992. 11. On 22 June 1995 the Deputy Minister dismissed the applicant’s objection on the grounds stated in the statement of defence of 8 May 1994. The applicant lodged an appeal with the Regional Court of The Hague. 12. On 21 March 1996 the Regional Court declared the appeal well-founded. It noted the absence, in the decision appealed against, of any reference to the letter of 18 May 1995 (paragraph 9 above), and took the view that the applicant’s account of the circumstances of his flight from Libya was not prima facie lacking in credibility. 13. The Deputy Minister remitted the applicant’s case to the Advisory Board on Matters Concerning Aliens (Adviescommissie voor vreemdelingenzaken), which heard the applicant and his wife on 11 December 1996. The applicant’s wife stated that the applicant had always been an army officer, not a manual labourer. She and her husband had fled to Tunis the day after their home had been raided by the authorities. The papers recently submitted had been forwarded by her father-in-law. The applicant stated that his name had been taken down wrong by the interviewing official, in the absence of an interpreter; the official had told him that it was no longer possible to correct it and that he, the applicant, would be in trouble if an attempt were made to do so. As regards the raid on his home, the applicant had driven past as it was in progress; suspecting that the authorities were waiting to arrest him, he had driven on and gone into hiding. The Advisory Board decided to adjourn its hearing in order for the applicant’s identity to be established. 14. On 19 December 1996 experts of the Royal Military Constabulary (Koninklijke Marechaussee – the police force entrusted with guarding the borders) reported that the passport the applicant had submitted was a forgery, the photograph having been replaced. 15. A letter dated 5 January 1998 states that the applicant was involved in the Werfalah Coup Attempt of October 1992. The letter is signed “Libyan National Party”. It bears an illegible signature without a name. 16. On 18 January 1999 the Advisory Board on Matters Concerning Aliens resumed its hearing in sub-committee. The applicant gave his name as F.A.B. The passport had belonged to the applicant’s cousin A., who looked like the applicant, and who had also applied for the visa. Confronted with the inconsistency of his having allegedly seen the raid on his home while having previously stated that he had been in hiding at the time (paragraph 3 above), the applicant replied that he had driven on in a panic. After the raid he had spent the night in his home from time to time, he did not remember precisely. The applicant’s wife became unwell during the hearing and was unable to give pertinent answers to any questions. 17. On 20 April 1999 the applicant’s wife was granted a residence permit on humanitarian grounds. 18. On 16 May 2000 the applicant was granted asylum in accordance with the so-called “three years policy” (driejarenbeleid), as in effect at the time, pursuant to which a residence title could be granted if a request for a residence permit had not been decided within a period of three years for reasons not imputable to the petitioner and provided that there were no contra-indications. 19. In March 2003 the entire family applied for Netherlands citizenship. 20. On 20 January 2006 the General Intelligence and Security Service (Algemene Inlichtingen- en Veiligheidsdienst; “AIVD”) produced a report specifically on the applicant. It had emerged that he had been appointed imam of a particular mosque, from where he preached jihad (Islamic holy war) and martyrdom and called upon the faithful to resist Western oppression. The autochthonous population of the Netherlands he described as pigs and dogs to be slaughtered. He was stated to show jihadist videos to young Muslims. “Unbelievers (i.e. non-Muslims), the autochthonous population and women” were to be shunned. He refused to speak the Dutch language and opposed integration. He had links to Al Jamaah al-Islamiyah al-Muqatilah, or Libyan Islamic Fighting Group, and jihadists based in the Netherlands including A. (the applicant in the case of A. v. the Netherlands, no. 4900/06, judgment of 20 July 2010). 21. On 3 February 2006 the Minister for Immigration and Integration (Minister voor Immigratie en Integratie – who at this time had taken the place and responsibilities of the Deputy Minister of Justice in matters concerning aliens) announced her intention (voornemen) to impose an exclusion order (ongewenstverklaring) on the applicant. Mention was made of the AIVD report and of inconsistencies found in the applicant’s various statements made in the course of the asylum proceedings. 22. In the meantime, the Labour Inspectorate (Arbeidsinspectie) had identified the applicant as a suspect of running a temporary employment agency that provided work to foreign nationals who did not possess the necessary work permit (tewerkstellingsvergunning) from a telephone shop and internet café. An official police record dated 21 April 2006 mentions forged identity documents but it seems that no further evidence of such dealings was found. However, known fundamentalists had been observed near the applicant’s internet café. 23. The same report contains a record of an interrogation of the applicant on 21 April 2006 on suspicion of being a member of an organisation aiming to commit crimes for terrorist ends and recruiting persons for armed hostilities without royal permission. The applicant reportedly denied these charges: he stated that he had received religious training in Libya and espoused a tolerant form of Islam. Jihad, for him, was spiritual struggle against oneself. Accordingly, rather than inciting to violence, he had warned his congregation not to become involved with radical Islamists whose religious views he condemned. The AIVD information was therefore incorrect; it probably emanated from Islamic militants who had implicated him in order to deflect the unwanted attention of the authorities from themselves. He no longer ran the temporary employment agency, which had been unprofitable. 24. On 3 May 2006 a board of officials of the Ministry for Immigration and Integration held a hearing in the matter of the applicant’s application for Netherlands citizenship. The applicant did not turn up. Later a letter was found in which the applicant waived his right to be heard. 25. On 31 July 2006 the Minister gave a decision withdrawing the applicant’s asylum. She found that the applicant had not put forward any convincing evidence of a nature to contradict the AIVD report. As to whether the applicant’s expulsion to his home country would violate Article 3 of the Convention, the applicant’s failure to turn up for the hearing on 3 May 2006 was mentioned; moreover, the applicant had provided little evidence of the fate which he said awaited him in Libya, the story which he had spun at the time of his arrival in the Netherlands hardly being credible either. 26. The following day, 1 August 2006, the Minister announced her intention to deny the applicant Netherlands citizenship. The reasoning was derived primarily from the AIVD report. In the alternative, it was stated that the applicant had not done enough to integrate into Netherlands society; thus, an interpreter had been needed for a police interview on 14 February 2006 (no record of which has been submitted to the Court), which showed a lack of Dutch language skills. Similarly, he had described the autochthonous population as “pigs” and “dogs” who would be “slaughtered”. It was also held against him that he had not bothered to turn up for the official hearing on 3 May 2006; in so doing he had deprived himself of the opportunity to clarify matters. 27. The same day the Minister issued an exclusion order based on the same grounds. In so far as it related to Article 8 of the Convention, its reasoning included the following: “In deciding whether or not the person concerned (betrokkene, i.e. the applicant) constitutes a danger to national security it has also been considered whether the exclusion order constitutes a violation of Article 8 of the [Convention]. Article 8 § 1 of the Convention provides that everyone has the right to respect for his private and family life, his home and his correspondence. Pursuant to Article 8 § 2 of the Convention there shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. It is considered that in view of what is set out above the exclusion order does not constitute a violation of the right to respect for family life as referred to in Article 8. Given that the applicant’s exclusion is ordered, he is denied the possibility to visit his family for a short time in the Netherlands (...). That being so, there is – as far as the exclusion order is concerned – an interference with the right referred to above. The interference is, however, justified in the interest of the protection of national security, an interest mentioned in [Article 8 § 2]. After all, the person concerned constitutes – in view of the individual [AIVD] report of 20 January 2006 referred to above – a danger to national security. In so finding, the following is taken into account. The applicant states in his statement of points of view (zienswijze) that he has a wife and five children, family members who have been legally resident in the country since 1999. That being so, there is family life between the person concerned, his partner and his children within the framework of Article 8. Neither his wife nor his children have Netherlands nationality. If the interests at issue are weighed in the balance, it will be found in the instant case that it is reasonable to give greater weight to the general interest, which is served by the order excluding the person concerned, than to the personal interest of the person concerned which is served by the ability to exercise private or family life in this country with his wife and his five children. In so doing, the so-called ‘guiding principles’ [English in the original] taken from [Boultif v. Switzerland, no. 54273/00, ECHR 2001IX] have been taken into consideration. These ‘guiding principles’ have to be observed in considering whether a decision interfering with the right to family life is necessary in a democratic society. Observing these principles, the Minister has reached the conclusion that the interference is justified and does not contravene Article 8 of the Convention. In this connection, the following is considered relevant. As is apparent from the above-mentioned individual official report by the AIVD of 20 January 2006, it has appeared that the person concerned constitutes a danger to national security. Thus, it is stated – briefly summarised – in this report (among other things) that it has become known to the AIVD from trustworthy sources that the person concerned has, in his sermons, called for resistance against the Western oppressors; that Netherlands nationals are described by him as ‘pigs and dogs’; that he has made pronouncements such as ‘we will slaughter the Dutch’; that he has, in a private setting (in huiselijke kring), shown jihadist videos to young Muslims; that he has encouraged jihad in his sermons; that he has praised martyrdom; and that he is in contact with, and maintains links with, (international) terrorist networks and organisations. What is stated about the person concerned in the said AIVD report is so serious that the interest of national security must outweigh the interest of the person concerned in maintaining private or family life without interference. Prompted by the said individual report by the AIVD, the Minister has concluded that the personal behaviour of the person concerned constitutes a present, actual and sufficiently serious threat (een actuele, werkelijke en voldoende ernstige bedreiging), owing to which the person concerned should be denied residence in the Netherlands. There is no appearance of special circumstances of such a nature that the balancing exercise should lead to a different result in the present case. In this connection, the following is considered relevant. The Minister’s refusal to allow the person concerned residence in the Netherlands does, however, prevent the continuation of family life (familie- of gezinsleven) between the person concerned, his wife and their five children as it currently exists in this country. However, although the person concerned and his wife currently have an indefinite residence permit on an asylum basis (vergunning tot verblijf asiel), they have never held a residence permit delivered on the basis of genuine (daadwerkelijk) refugee status in the sense of the [1951 United Nations Convention relating to the Status of Refugees, ‘the 1951 Convention’] and they have never had the status of refugee within the meaning of [the 1951] Convention. Even so, the advisory opinion of the Advisory Board on Matters Concerning Aliens of 18 January 1999 [containing the advice] not to admit the applicant and his wife to the Netherlands as refugees but to award him [sic] a residence permit in connection with the so-called three years policy has led to the delivery of unrestricted residence permits to the applicant and his wife. The residence permit ... was eventually transformed into an indefinite residence permit. Since the lapse of time had arisen in the asylum procedure, it was merely administered by us as an indefinite ‘asylum’ residence permit. The applicant and his wife have – in view of the above – never entered into or been in the possession of a residence permit because they were refugees. It is true, however, ... that an indefinite asylum residence permit may constitute an objective impediment. The person concerned and his wife are thereby prevented from obtaining a Netherlands travel document which would allow them to travel to Libya (their country of origin). Nonetheless, the person concerned, his wife and his (minor) children may – in view of the above findings on refugee status – turn to the authorities of Libya (their country of origin) for a travel document. There is no appearance of any impediment in this respect. ...” 28. The applicant submitted his statement of points of view against the intention to deny him Netherlands citizenship on 14 August 2006. On 31 August 2006 he also lodged an appeal against the withdrawal of asylum, at the same time applying for a stay of expulsion. On 18 September 2006 he lodged an objection against the exclusion order. 29. The applicant submitted the grounds underlying his objection against the exclusion order on 18 or 19 October 2006. He appended some sermons which he had given in 2005, giving his exegesis of the concept of jihad. 30. On 18 October 2006 the applicant submitted the grounds for his appeal against the withdrawal of asylum and his application for a stay of expulsion. These were largely identical to those submitted in response to the exclusion order. 31. On 20 October 2006 the Minister dismissed the applicant’s objection against the refusal of Netherlands citizenship. The main reason was that since the applicant’s asylum status had been withdrawn, and since an exclusion order was in force, he was no longer lawfully resident in the Netherlands. For the remainder, she relied essentially on the AIVD report. 32. On 24 November 2006 counsel for the State (Landsadvocaat) wrote to the Regional Court informing it that the Minister had decided not to expel the applicant pending the outcome of the appeal against the exclusion order. He added that the applicant was not suspected of oppositional activities against the Libyan leadership. 33. Also on 24 November 2006 a hearing before officials of the Ministry for Immigration and Integration took place in the matter of the applicant’s objection against the exclusion order. The applicant continued to insist that he preached a peaceful message, although perhaps some of his sermons might have been misinterpreted. He also claimed to have been filmed taking part in a demonstration in Brussels protesting against a visit by the Libyan leader Colonel Muammer Gaddafi. 34. On 1 December 2006 the applicant lodged an objection against the refusal to grant his entire family citizenship. 35. On 19 December 2006, following a hearing on 5 December, the Provisional Measures Judge (voorzieningenrechter) of the Regional Court of The Hague, sitting in Utrecht, decided to order the suspension of the exclusion order given that the applicant’s expulsion was not imminent but the applicant nonetheless committed a criminal act by remaining in the country. 36. The very next day the Minister gave a decision dismissing the applicant’s objection against the exclusion order. This decision was largely based on the AIVD report, whose credibility the applicant had not managed to undermine. Absent proof of the applicant’s participation in the demonstration in Brussels, there was no evidence to suggest that the applicant was wanted by the Libyan authorities, and hence no relevant risk for purposes of Article 3 of the Convention; moreover, although it was true that the applicant had been convicted of no crime, he remained a danger to society in the Netherlands and could be required to return to Libya, exercising his right to respect for his family life in that country. 37. On 27 January 2007 the Regional Court of The Hague, sitting in Utrecht, dismissed the applicant’s appeal against the withdrawal of asylum. It found that the appeal had become devoid of purpose, the exclusion order implying that it was not possible for the applicant to be lawfully resident in the Netherlands anyway. 38. The applicant lodged a further appeal with the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State), arguing that the Regional Court had failed to go into his complaints under Articles 3 and 8 of the Convention. 39. The Administrative Jurisdiction Division gave its decision on 9 May 2007. It agreed that the Regional Court had failed to rule on the applicant’s Convention complaints. However, these could be addressed in the proceedings concerning the exclusion order; there was therefore no reason to allow the appeal, which was dismissed as ill-founded. 40. The Regional Court of The Hague, sitting in Utrecht, held a hearing in the matter of the exclusion order on 5 July 2007. It delivered its decision on 22 February 2008, dismissing the applicant’s appeal. Having studied the documents on which the AIVD report was based, the Regional Court found the report credible and dismissed the suggestion that the applicant was at risk in the event of his return to Libya; there was thus no issue under Article 3 of the Convention. As to the applicant’s right to respect for his family life, in so far as it was guaranteed by Article 8, national security carried greater weight. 41. The applicant lodged a further appeal with the Administrative Jurisdiction Division, arguing not only that his removal to Libya would constitute violations of Articles 3 and 8 but also that the failure of the Minister to take cognisance of the information on which the AIVD report was based, and the failure to allow him access to that material, violated Article 13 taken together with Articles 3 and 8 respectively. 42. The Administrative Jurisdiction Division gave its decision on 14 April 2009. It dismissed the applicant’ suggestion that the Minister ought to have taken cognisance of the raw data used by the AIVD to prepare its report, finding it sufficient that the Regional Court had done so, and that it had done so itself. It then found it established in previous judicial decisions that the applicant’s account of his military career and flight from Libya lacked credibility and that moreover the applicant’s brother-in-law appeared able to travel to and from that country with no apparent difficulty. Letters and testimonials purportedly emanating from Libyan opposition organisations gave no specific information as to either the applicant’s actions, nor as to whether the applicant had attracted the active interest of the Libyan authorities. As regards Article 8, the Administrative Jurisdiction Division referred to the AIVD report and the information on which it was based; taking these into account, it found no reason to overturn the decision of the Regional Court. It went on to hold that the Minister had ruled, not without good cause, that the interference with the applicant’s rights was justified. 43. The regime of Colonel Muammer Gaddafi was overthrown in August 2011. On 20 October 2011 Colonel Gaddafi himself was captured and killed. The National Transitional Council, the internationally recognised interim authority, declared the country liberated three days later. Parliamentary elections were held in July 2012. 44. The Government have submitted photocopies of travel documents in the name of the applicant’s wife, Ms L.A.H. All three documents state Ms L.A.H.’s name, her place of birth (a town in Libya) and her date of birth and bear her likeness. 45. The first is a Netherlands travel document in passport form issued under the 1951 Convention on 15 July 2009. It is valid for all countries but one, the sole exception being Libya. The photocopy submitted shows three Brussels Airport passport control stamps: an exit stamp dated 15 October 2011, an entry stamp dated 30 October 2011, and another exit stamp dated 24 December 2011. 46. The second is a Netherlands identity card showing that Ms L.A.H. has been granted indefinite asylum. 47. The third is a Libyan passport, issued on 27 October 2011 in Ms L.A.H.’s place of birth. It is valid until 26 October 2015. It bears stamps in Arabic script dated 29 October 2011, 24 December 2011 and 10 January 2012, at least two of which the Court identifies as Libyan border control stamps. 48. The photographs used for the Netherlands travel document and the Libyan passport appear identical. 49. The domestic and international law and practice relevant to the case are set out in A. v. the Netherlands, cited above, §§ 67-110.