CASE OF M.R.A. AND OTHERS v. THE NETHERLANDS
No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Afghanistan);No violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Expulsion)
Branko Lubarda;George Nicolaou;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova
5. The first and second applicants are a married couple who were born in 1959 and 1966. The third, fourth and fifth applicants are their children, a daughter and two sons who were born in 1991, 1996 and 2007. 6. The first four applicants entered the Netherlands on 7 April 1999 and applied for asylum. In the course of the proceedings on this asylum application, the first and second applicants were both interviewed by the Netherlands immigration authorities on, inter alia, their reasons for seeking asylum. 7. The first applicant gave the following account to the immigration authorities. He had become a member of the communist People’s Democratic Party of Afghanistan (“the PDPA”) in 1978. During his studies he had volunteered for guard duties at the PDPA headquarters in Kabul’s fifth district. He had been charged with guarding homes against possible mujahideen attacks and checking traffic at intersections for illegal weapons. 8. In order to avoid being sent to the front during his compulsory military service the first applicant had, upon graduating as a construction engineer from the University of Kabul, voluntarily reported for duty in 1982 to the security battalion of the Council of Ministers in Shar-e-Now, a neighbourhood in Kabul. After working there for three days, the first applicant had requested a transfer to Kabul’s Pol-e-Charki prison, where working conditions were better as they were indoors. The first applicant had been stationed in block 3, where political prisoners were detained. With fifteen other colleagues he had been responsible for guarding the block. He had had no contact with the 150 to 200 prisoners for whom he had been responsible. His tasks had comprised cell patrol and occasional transport to hospital of prisoners who had fallen ill. He had never witnessed any illtreatment or torture by the Afghan authorities of prisoners in that period. He had only once witnessed the ill-treatment of a prisoner, by a “bashi” (leader). 9. After six months the first applicant had applied for a transfer, which had been granted by the deputy head of the Afghan security service Khadimat-e Atal’at-e Dowlati/Wezarat-e Amniyat-e Dowlati (“KhAD/WAD”). At the end of July 1982 the first applicant had started as a construction engineer within the ranks of KhAD, which position he had held until April 1992, when the mujahideen ended the PDPA’s communist regime in Afghanistan. The first applicant had been employed in the buildings department of the Logistics Directorate of KHAD, which had been renamed Buildings Directorate in 1986. For this department/Directorate the first applicant and his team of 100-200 construction workers had constructed five buildings for KhAD, including an office building for KhAD’s Directorate 1. He had also been responsible for the construction of twenty ammunition depots. 10. The first applicant had initially declared to the Netherlands authorities that the highest military rank he had attained was that of lieutenant-colonel, which he later changed to major. He further stated that he had been decorated three times for his achievements. 11. The first applicant had also been involved in the distribution of party propaganda, delivered to him by the Political Affairs Department of his Directorate, with which he also had meetings twice a week. In addition, he had organised courses for illiterate labourers. 12. After the fall of the PDPA regime in April 1992 the applicants had fled to Mazar-e-Sharif, where the first applicant had continued to work as a construction engineer for the municipality until 1998. On 10 August 1998 – one day after the Taliban had taken control of Mazar-e-Sharif – the applicants’ home had been raided and searched by eight armed Taliban fighters, who had found, inter alia, the first applicant’s PDPA identity card, some of his medals, and a bayonet. On the suspicion that the applicants had been keeping weapons in their home, the Taliban had arrested the first applicant and his brother. 13. The first applicant had been incarcerated for about seven months and had been questioned several times, during which he had disclosed in detail his past career in the KhAD/WAD. A nephew or cousin of the first applicant had bribed the Taliban commander concerned in order to obtain the applicant’s release, which had been successful but on condition that the first applicant left Afghanistan immediately. On the evening of his release, he was supposed to be executed. A number of his fellow detainees had indeed been executed, and according to the records, so was he – it was only because of the deal that had been struck with the commander that he had been secretly led away. 14. The first applicant further told the immigration authorities that he had heard from one of his relatives in Canada that another nephew or cousin, who had also been a member of the PDPA, had been killed in Kabul in 2005 by soldiers of the Ministry of the Interior who were mujahideen or Taliban. 15. In support of her request for asylum, the second applicant submitted the following account. She had studied educational theory in Kabul, after which she had been employed as a teacher at a high school in Kabul from 1989 to 1991. She had joined the women’s organisation of the PDPA at the same time as taking up her duties as a teacher. She had stopped working when her first child was born. Out of fear of the mujahideen she had refrained from seeking employment during the time the family lived in Mazar-e-Sharif. She had once been beaten on the street for wearing a burka that was judged too short. This had occurred at the time her husband was incarcerated by the Taliban. According to the second applicant, her husband had been ill-treated and subjected to forced labour during his incarceration. 16. After the first applicant had been interviewed on his asylum application, on 12 April and 25 November 1999 and 26 September 2000, the Deputy Minister of Justice (Staatssecretaris van Justitie) issued on 9 October 2001 a notice of her intention (voornemen) to reject the first applicant’s asylum application and to hold Article 1F of the 1951 Refugee Convention against him. The applicant’s asylum claim had been considered in the light of, inter alia, an official report (ambtsbericht), drawn up on 29 February 2000 by the Netherlands Ministry of Foreign Affairs on “Security Services in Communist Afghanistan (1978-1992), AGSA, KAM, KhAD and WAD” (“Veiligheidsdiensten in communistisch Afghanistan (1978-1992), AGSA, KAM, KhAD en WAD”; DPC/AM 663896) and concerning in particular the question whether, and if so which, former employees of those services should be regarded as implicated in human rights violations. On the basis of this report, the Netherlands immigration authorities had adopted the position that Article 1F of the 1951 Refugee Convention could be held against virtually every Afghan asylum seeker who, with the rank of third lieutenant or higher, had worked during the communist regime for the KhAD or its successor the WAD. In the notice of intent, the Deputy Minister analysed, on the basis of elaborate argumentation based on various international materials, the nature of the acts imputed to the first applicant in the framework of Article 1F of the 1951 Refugee Convention as well as his individual responsibility under that Convention. 17. Having regard to the official country report of 29 February 2000 as well as documentation from public international sources such as the United Nations, Amnesty International and Human Rights Watch, the Deputy Minister emphasised the widely known cruel character of the KhAD/WAD, its lawless methods, the grave crimes it had committed such as torture and other human rights violations, and the “climate of terror” which it had spread throughout the whole of Afghan society. The Deputy Minister considered that this “climate of terror” was also felt within the KhAD/WAD itself. Staff members needed to prove their loyalty to the organisation on an almost daily basis, and a failure to do so put them at risk of being removed from the KhAD/WAD; often this entailed death for the person concerned. 18. The Deputy Minister was of the opinion that the first applicant must have known of the criminal nature of the methods employed by the organisation where he had made a career. Furthermore, relying on the official report of 29 February 2000, the Deputy Minister excluded the possibility that the first applicant had remained ignorant of the cruel working methods of the KhAD/WAD. She also did not attach credence to the first applicant’s statement that he had not known of any atrocities committed in Pol-e-Charki Prison, where he had performed guard duty for six months. On this point, the Deputy Minister referred to a 1979 report from Amnesty International as well as to reports drawn up by the United States Department of State on this prison, from which it was obvious that Pol-e-Charki was widely associated with heinous crimes. 19. The Deputy Minister noted in this respect that the first applicant had initially declared that he had witnessed the ill-treatment of a prisoner by an assistant interrogator. No value was attached to the fact that the first applicant had subsequently corrected this initial statement and had submitted that this had concerned an incident amongst detainees. The Deputy Minister considered that the first applicant had had every reason to change his statements into more favourable ones once he learned of the investigation against him to assess whether Article 1F of the Refugee Convention applied to him. The Deputy Minister also noted that the first applicant’s initial statements had been very detailed. 20. The Deputy Minister further noted that the first applicant had been granted permission, after six months of working as a guard in Pol-e-Charki Prison, to be transferred to a department more suited to his professional profile. According to the Deputy Minister, this meant that the first applicant’s loyalty must have been found proven beyond any doubt, considering that he had been given his position with the KhAD after only a relatively short time in Pol-e-Charki, that the new position opened up opportunities to be promoted to (senior) officer, and that it enabled the first applicant to enter and study several if not many of the KhAD’s buildings. The Deputy Minister concluded that there were serious reasons for considering that the first applicant had committed human rights violations, at least during his time in Pol-e-Charki Prison. 21. Taking into account, inter alia, an anonymised official report drawn up by the Ministry of Foreign Affairs on 15 September 1999 (DPC/AM 648554), the Deputy Minister further found it highly implausible that during his ten years of experience as a construction engineer for the KhAD/WAD the first applicant would not have become aware of certain uses for which KhAD/WAD’s buildings had been designed, or at least of to what use they had de facto been put. As torture was systemic in KhAD/WAD interrogation centres, it should be considered impossible that persons belonging to the higher management of the KhAD/WAD had not been involved in this or would have been unaware of it. By reaching the rank of lieutenant-colonel the first applicant had entered the higher echelons of the KhAD/WAD. Further taking into account that the first applicant had been decorated for his achievements and that he had continued performing his duties until the fall of the communist regime, the Deputy Minister reached the conclusion that the first applicant’s competence and loyalty must have been beyond doubt. Furthermore, due to the applicant’s involvement with the Political Affairs Department, the Deputy Minister concluded that the first applicant must have been aware of human rights violations being committed. With reference to anonymised official reports of 15 December 2000 (DPC/AM 635082) and 20 February 2001 (DPC/AM 699244) drawn up by the Ministry of Foreign Affairs, the Deputy Minister considered as regards the political affairs departments that, in the relevant part, their main task had been to guarantee continued loyalty to the Afghan communist regime by means of the reporting of dubious behaviour of individuals to the KhAD/WAD. Political affairs departments cooperated closely with the KhAD/WAD in providing them with information. 22. These considerations led the Deputy Minister to conclude that the first applicant’s personal participation in the human rights violations attributed to KhAD was an established fact. Considering the reputation of Pol-e-Charki Prison and the first applicant’s denial of any human rights violations, the Deputy Minister could not attach any credence to the first applicant’s statements. She found that the first applicant had failed in making plausible (aannemelijk maken) – on the basis of objective sources or any other means – his stated ignorance of human rights violations by the KhAD/WAD. In terms of the first applicant’s activities for the KhAD/WAD, the Deputy Minister considered that the first applicant had, for a long time, been of service, albeit in an accessory capacity, to the KhAD/WAD, and that it would thus not have been able to perform its tasks without the first applicant’s efforts. The Deputy Minister also found that the first applicant had supported the activities of the Political Affairs Department; although this department had not committed any atrocities itself, it had been an important element in the State apparatus. 23. The first applicant submitted written comments (zienswijze) on the notice of intent on 7 and 20 November 2001. 24. On 20 February 2002, the Deputy Minister rejected the first applicant’s asylum application, confirming the reasoning as set out in her notice of intention of 9 October 2001 and rebutting the first applicant’s written comments. Disagreeing with the first applicant, she considered that the official report of 29 February 2000 (see paragraph 17 above) which to a great extent lay at the basis of her decision, could not be seen as an isolated document, but rather as the product of thorough research based on objective sources. The Deputy Minister attached more credence to the report than the first applicant’s unfounded rebuttals. 25. The Deputy Minister further dismissed the first applicant’s argument that he had been too remotely connected to the human rights violations attributed to specific departments of the KhAD/WAD during his time as an engineer in that organisation. Relying on UNHCR’s “The Exclusion Clauses: Guidelines on their Application” of December 1996 (see paragraph 71 below) and the official report of 29 February 2000, it was held in this respect that merely supporting an organisation like the KhAD/WAD may in itself suffice to render applicable Article 1F of the Refugee Convention. 26. The first applicant’s appeal to the Regional Court (rechtbank) of The Hague sitting in Alkmaar was rejected on 26 February 2004. The Regional Court analysed the first applicant’s accountability for the impugned human rights violations on the basis of the prescribed and so-called “personal and knowing participation” test. 27. As regards the “knowing” element, the Regional Court held that the Deputy Minister had not erred in imputing knowledge of the human rights violations committed by KhAD/WAD to the first applicant in the way she had. In this context the Regional Court found that the official reports issued by the Ministry of Foreign Affairs, which lay to a great extent at the basis of the Minister’s decision, had been drafted in an unbiased manner, were accurate and objective, and provided the required insight in the relevant information, and therefore that the Minister had been entitled to rely on them. It further found that the first applicant had failed to furnish adequate evidence in support of his allegation that the official report of 29 February 2000 was inaccurate and that it could not be assumed that he had knowledge of the human rights violations committed in Pol-e-Charki Prison. 28. As regards the first applicant’s personal participation in human rights violations attributed to the KhAD/WAD, the Regional Court reiterated that according to codified policy – the Aliens Act Implementation Guidelines (Vreemdelingencirculaire 2000) – this notion included, besides personal commission of the impugned human rights violations by the person concerned, the facilitation of the said crimes. Facilitation was defined as a substantial positive effect by means of the person’s conduct on how these crimes had been committed, or a lack of such conduct in preventing these crimes from being committed. The Regional Court found that the first applicant had facilitated the human rights violations committed by the KhAD/WAD by having voluntarily chosen to work as a guard in PoleCharki Prison and his subsequent request – also made voluntarily – to start working for the KhAD/WAD. In these circumstances the Regional Court concluded that the first applicant had facilitated – and thus personally participated in – the human rights violations attributed to the KhAD/WAD, despite his having been stationed in Pol-e-Charki Prison as a conscript rather than as a professional soldier. 29. Considering that Article 3 of the Convention did not guarantee a right of residence, the Regional Court also dismissed the first applicant’s argument that the Deputy Minister had erred by not examining his asylum account under that provision. 30. The first applicant lodged a further appeal with the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State), which quashed the Regional Court’s judgment on 26 July 2004. As regards the Regional Court’s finding in relation to Article 3 of the Convention, the Administrative Jurisdiction Division held that the Deputy Minister should, wherever possible, avoid creating a situation in which an asylum seeker is refused a residence permit but cannot be expelled to his/her country of origin for reasons based on Article 3. For that reason, the decision should demonstrate that the Deputy Minister had examined whether Article 3 would lastingly (duurzaam) stand in the way of expulsion to the country of origin and of the possible consequences for the residence situation of the person concerned. This, the Division found, the Deputy Minister had failed to do in the present case, for which reason it quashed the Regional Court’s judgment and remitted the case to the Deputy Minister’s successor, the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie) for a fresh decision. 31. The first applicant was once more interviewed by the immigration authorities on 10 March 2005, after which, on 3 August 2005, the Minister issued the first applicant with a notice of her intention to reject his asylum application. The Minister reached the same conclusions, based in the relevant part on the same grounds, as the Deputy Minister had reached in her notice of intent of 9 October 2001 and subsequent decision of 20 February 2002 in relation to the first applicant’s knowing and personal participation in human rights violations attributed to his former employer – the KhAD/WAD – and consequent application of Article 1F of the Refugee Convention against him. The Minister to a large extent used as a basis for her notice a book by a Professor Dr. M. Osman Rostar entitled “The Pulicharki Prison. A Communist Inferno in Afghanistan”. Prof. Rostar had been detained in Pol-e-Charki Prison for a considerable time during the period between 1981 and 1986-87. 32. As to Article 3 of the Convention, the Minister considered, in so far as relevant, that the first applicant had not furnished the required substantial grounds in support of a stated real risk of treatment contrary to Article 3 in case of his expulsion to Afghanistan. The first applicant’s fear of the mujahideen, the Taliban and/or other armed groups not belonging to the Government persecuting the intellectual classes in Afghanistan, based on the first applicant’s background as a former PDPA member and former employee of the KhAD/WAD, was dismissed by the Minister as based on mere suspicions. The Minister noted in this regard that the first applicant had declared, during the interview held with him on 10 March 2005, that he did not know of anyone specifically looking for him. It was further held that the killing of the first applicant’s nephew or cousin by Afghan State agents because of his past support of the communist regime did not constitute an individual fact or circumstance relevant to the first applicant’s claim under Article 3 and that, furthermore, the source of the said information – a relative of the first applicant residing in Canada – was unreliable. 33. The Minister made reference to an official report drawn up by the Ministry of Foreign Affairs in January 2005, according to which former Afghan communists and those associated with the communist regime, including former KhAD/WAD personnel, possibly ran a risk of human rights violations in Afghanistan. She stressed, however, that this did not mean that every person meeting these criteria would run a risk of treatment contrary to Article 3 of the Convention upon his/her return to Afghanistan. The Minister underlined in this regard the fact that until 1998 the first applicant had not experienced any problems caused by his membership of the PDPA, his past activities for the KhAD/WAD, or his political convictions after the fall of the communist regime in 1992. The first applicant’s argument that he would run a greater risk of kidnappings and robberies due to his fellow countrymen’s perception of him as a rich person upon his return to Afghanistan was dismissed as unfounded. 34. The first applicant submitted written comments on the notice of intent on 26 August 2005. By a decision of 2 December 2005, the Minister once more rejected his asylum application. The Minister fully endorsed the reasons for the rejection as set out in the notice of intent and, in addition thereto dismissing the first applicant’s written comments held, in the relevant part, the following. 35. The first applicant had, inter alia, argued that block 3 of PoleCharki Prison, where he had worked, had not fallen under the responsibility of the KhAD/WAD and had been located in a separate building, hence away from the human rights violations allegedly committed in blocks 1 and 2. The first applicant had relied on an Amnesty International report in this regard. The Minister held that no support for such a distinction between blocks 1 and 2 on the one hand and block 3 on the other in terms of the commission of human rights violations could be found in the literature and reports written about Pol-e-Charki Prison. The first applicant also, unsuccessfully, advanced a number of inconsistencies in the book by Prof. Rostar. 36. With reference to the Ministry of Foreign Affairs official report of 29 February 2000, the Minister dismissed the first applicant’s claim that he had not been involved in human rights violations committed by the KhAD/WAD, having regard to his position as a construction engineer in the said organisation. It was found that all officers of the KhAD/WAD had been involved in its more sinister departments and hence were responsible for the interrogation, torture and execution of suspects. The Minister further considered that, pursuant to the case-law of the Administrative Jurisdiction Division, she was entitled to rely on the official report as accurate and complete, and that this was not altered by the fact that other reports did not confirm certain findings reached in the official report. 37. As regards Article 3 of the Convention, the first applicant had argued that when the Minister had held that the applicants had not experienced any problems in Afghanistan between 1992 and 1998, she had failed to acknowledge that the applicants had been living in Mazar-e-Sharif, which had been a safe haven for former communists during that particular period of time. According to the first applicant, the Minister had also failed to acknowledge that he had experienced problems in 1998. He had further submitted that his brother had held a high position during the communist regime. The Minister, however, considered that none of these arguments constituted concrete and individual circumstances justifying the acceptance of the existence of a real risk of treatment contrary to Article 3 upon the first applicant’s return to Afghanistan. 38. The first applicant’s appeal was rejected by the Regional Court of The Hague sitting in ‘s-Hertogenbosch by judgment of 19 October 2006. Limiting itself to an analysis of the matter under Article 3 of the Convention, the Regional Court held that the first applicant had not sufficiently established that as a result of his membership of the PDPA and past activities for KhAD/WAD he would run a real and serious risk of treatment contrary to the said provision upon his return to Afghanistan. The court underlined that the first applicant had declared, in an interview held with the immigration authorities on 10 March 2005, that nobody in Afghanistan was specifically looking for him. Although the first applicant claimed that he had been detained by the Taliban in the past, it had not been established that the Taliban would still be looking for him or that he had remained an object of the Taliban’s negative attention. The Regional Court emphasised in this regard that the first applicant’s detention had taken place during a different political situation. 39. While the Regional Court accepted that, as set out in an official report of the Ministry of Foreign Affairs of January 2005, individuals associated with the former Afghan communist regime, including the KhAD/WAD, ran a possible risk of being subjected to treatment contrary to Article 3 of the Convention upon their return to that country, it held that this did not mean that everyone associated with the former regime ran a real and serious risk of that nature. The Regional Court noted that the first applicant’s former position in KhAD/WAD could not be regarded as one of the high posts mentioned in this official report. The killing of the first applicant’s nephew or cousin and that the second applicant would have had a western lifestyle did not alter the Regional Court’s finding either. 40. The applicant’s further appeal was rejected on 27 April 2007 by the Administrative Jurisdiction Division on summary reasoning. It found that the further appeal did not provide grounds for quashing the impugned ruling and that having regard to section 91 § 2 of the Aliens Act 2000 (Vreemdelingenwet 2000), no further reasoning was called for, as the arguments submitted did not raise any questions requiring determination in the interest of legal unity, legal development or legal protection in the general sense. No further appeal lay against this ruling. 41. On 27 August 2007 the Deputy Minister of Justice issued a notice of intention to declare the first applicant an undesirable alien entailing the imposition of an exclusion order (ongewenstverklaring) in accordance with article 67 § 1 (e) of the Aliens Act 2000, following the decision to hold Article 1F of the 1951 Convention against him in the asylum procedure. This intention was not followed by an actual decision to impose an exclusion order. 42. The second applicant was interviewed by the immigration authorities on 12 April and 25 November 1999. On 10 October 2001 the Deputy Minister issued a notice of her intention to reject the second, third and fourth applicant’s asylum application. The latter two applicants, being minors, were included in the second applicant’s application for asylum throughout the proceedings. In so far as relevant, it was held that the second applicant’s motives for asylum were to a large extent dependent on the first applicant’s motives. The first applicant’s application having been rejected, the Deputy Minister considered that the second applicant’s asylum claims were to be assessed on their own merits. 43. Referring to a Ministry of Foreign Affairs official report of 16 September 1999, the Deputy Minister held that there was no general rule for assessing the risk which family members of individuals sought by the Taliban might run in Afghanistan. As a rule of thumb, it could be assumed that such family members would only risk being detained by the Taliban as a means of forcing the person concerned to report to the authorities if that person was present in Afghanistan, or was at least suspected to be. Even if it was to be assumed that the first applicant was being sought by the Taliban, he had not been in Afghanistan since March 1999 and, by his own admission, was even believed by the Taliban to have been executed. It was unlikely, therefore, that the second applicant would attract the Taliban’s attention on account of her husband’s activities. 44. As regards the second applicant’s claim that she had been threatened by the Taliban during the search of the family house in Mazar-e-Sharif, the Deputy Minister considered that any threats uttered had rather been directed at the two men – the first applicant and his brother – than at the women present. While it was regrettable that the second applicant had been subjected to ill-treatment after her burka had been judged to be of insufficient length, the Deputy Minister noted that this had been a single occurrence and that there were no indications that the Taliban continued to have an interest in her. 45. As regards Article 3 of the Convention the Deputy Minister considered that the second applicant had not advanced the required substantial grounds for believing that she would run a foreseeable, real and personal risk of treatment contrary to said provision. The single incident about the burka was insufficient for the second applicant to be able to rely on Article 3 successfully. In this respect the Deputy Minister also had regard to the fact that the second applicant had lived under Taliban rule for a relatively long period of time, but other than the aforementioned incident she had not reported any further occurrences relevant in terms of Article 3 of the Convention. 46. The Deputy Minister, furthermore, considered that the second applicant was to be excluded from the so-called “policy of protection for certain categories” (categoriaal beschermingsbeleid), in force for Afghan nationals at that time. The Deputy Minister considered in this regard that the rejection of the asylum application of the second applicant’s husband on the basis of Article 1F of the Refugee Convention gave rise to a contraindication against the issuing of residence permits to his relatives, since the admittance of the second applicant and the applicants’ children would in all likelihood bring about a protracted de facto stay in the Netherlands of the second applicant’s husband. 47. The second applicant submitted written comments on the Deputy Minister’s notice of intent on 7 November 2001. She was once more interviewed by the immigration authorities on 13 December 2002. 48. On 28 February 2003 the Minister for Immigration and Integration, the successor to the Deputy Minister, issued a fresh notice of his intention to reject the second applicant’s asylum application, due to a relevant change of circumstances in Afghanistan. 49. While endorsing the Deputy Minister’s finding as to the existence of a contraindication against the second applicant, the Minister went on to consider that, pursuant to a Ministry of Foreign Affairs official report of 19 August 2002, the general situation in Afghanistan no longer required the keeping in place of a categorial protection policy. Moreover, after the fall of the Taliban regime, the second applicant no longer had a reason to fear persecution at their hands, and – as also appeared from the official report of 19 August 2002 – the position of women in Afghan society had greatly improved. In this latter context, the Minister considered that gender in itself was not a conclusive factor in an assessment of the risk of persecution in Afghanistan. It was for the second applicant to make a plausible case for believing that she had a well-founded fear of persecution on the basis of her personal circumstances, seen against the background of the general situation in Afghanistan. It was found that she had failed to do so. In this context, the Minister held that the second applicant had always lived in major cities in Afghanistan, where the situation for women had improved, as opposed to the situation in the countryside. The Minister saw no reason to assume that the second applicant, if expelled to Afghanistan, would not again settle in a major city. 50. The Minister further considered that the second applicant’s membership of the women’s organisation of the PDPA, her husband’s membership of the PDPA, or his past activities for KhAD/WAD were not reason enough in themselves to grant the second applicant asylum, since according to the aforementioned official report there were no indications that people had to fear persecution in Afghanistan for the sole reason that they had previously had ties to the communist regime. 51. After receiving the second applicant’s comments on this notice of intent, the Minister rejected the asylum application on 3 March 2004, adding that as the second applicant had not demonstrated that she was or had ever been the object of negative attention from the side of either the mujahideen or the Taliban, she had failed to establish that she would run a real risk of being subjected to treatment contrary to Article 3 of the Convention in Afghanistan. 52. The second applicant’s appeal was rejected on 17 October 2006 by the Regional Court of the Hague sitting in ‘s-Hertogenbosch. It agreed with the Minister that the second applicant had failed to establish a real risk of being subjected to treatment contrary to Article 3 of the Convention if she was returned to Afghanistan. Her further appeal to the Administrative Jurisdiction Division was rejected on 27 April 2007 on summary reasoning. No further appeal lay against this ruling. 53. On 26 July 2007 the fifth applicant was born in the Netherlands to the first and second applicant. 54. On 24 April 2009, the first applicant submitted a fresh application for asylum and was interviewed on this new request on the same day. Following a notice of intention notified on 28 October 2009, this application was rejected by the Deputy Minister of Justice, again holding Article 1F of the 1951 Refugee Convention against the first applicant. This decision became final after the Regional Court of The Hague had rejected the first applicant’s appeal on 4 March 2011, entailing that the first applicant was under an obligation to leave the Netherlands. 55. On 26 November 2012, the Deputy Minister for Security and Justice, noting that the first applicant had not left the Netherlands and cancelling the intention of 27 August 2007 (see paragraph 41 above), issued a notice of intention to impose an entry ban (inreisverbod) for ten years on the first applicant. No information has been submitted whether this intention has been followed by an actual decision to impose an entry ban. 56. On 3 July 2009, also the second applicant had made a fresh asylum application, also on behalf of her minor children, namely the fourth and fifth applicants. Following a successful appeal to the Regional Court of The Hague against the initial refusal of this request and on the basis of a new policy having entered into force on 3 May 2011 (WBV 2011/5; see paragraph 64 below), the Minister for Immigration, Integration and Asylum Policy (Minister voor Immigratie en Asiel) granted on 30 September 2011 the second, fourth and fifth applicant temporary residence permit for asylum purposes (verblijfsvergunning asiel voor bepaalde tijd), valid from 3 May 2011 until 3 May 2016. In the letter of 30 September 2011 notifying this decision, the Minister stated in respect of the adult son (the third applicant) that, in so far as he wished to apply for asylum in reliance on the new policy (WBV 2011/5) that there existed a contraindication, namely his criminal record in the Netherlands, which would be taken into account in the examination of a possible future application. 57. Also on 3 July 2009, the third applicant, who had come of age, had made an asylum application on his own behalf which was rejected on 16 December 2009 by the Minister, who found that, given that he had been convicted twice in the Netherlands of acts of public violence, the third applicant presented a danger to public order. The Minister rejected the third applicant’s argument that, being a westernised young man and given the deteriorated general security situation in Afghanistan, he would be exposed to a risk of being subjected to treatment contrary to Article 3 of the Convention if removed to Afghanistan. In so far as the third applicant relied on Article 8 of the Convention, the Minister considered that it was open for the third applicant to apply for a residence permit on that basis. The third applicant’s appeal against this decision was rejected on 4 March 2011 by the Regional Court of The Hague sitting in ‘s-Hertogenbosch. No information has been submitted as to whether he has sought to challenge the judgment of 4 March 2011 by lodging a further appeal with the Administrative Jurisdiction Division. 58. On 5 December 2011, the third applicant made another asylum application, which was rejected by the Minister on 19 December 2011. The third applicant’s appeal and accompanying request for a provisional measure were rejected on 9 January 2012 by the provisional-measures judge (voorzieningenrechter) of the Regional Court of The Hague sitting in Zutphen. To the extent that it was accepted that the fresh application was based on relevant newly emerged facts and circumstances (“nova”) warranting reconsideration of the initial rejection as required by section 4:6 of the General Administrative Law Act (Algemene Wet Bestuursrecht), the provisional-measures judge did not find that the third applicant qualified for asylum on the basis of the alleged deterioration in the general security situation in Afghanistan or that, for this reason, he would be exposed to a real risk of treatment prohibited by Article 3 if he were removed to Afghanistan. The provisional-measures judge also accepted the Minister’s decision, given the third applicant’s criminal record, not to grant him a temporary residence permit for asylum purposes on the basis of the Minister’s decision of 30 September 2011 to grant such a permit to the second, fourth and fifth applicant under the new policy which had entered into force on 3 May 2011. In so far as the applicant relied on Article 8 of the Convention the judge considered that given the strict separation in the system under the Aliens Act 2000 between an asylum-based application for a residence permit and a regular application (reguliere aanvraag) for a residence permit, it was considered that, if the applicant wished to reside in the Netherlands on the basis of his family life within the meaning of Article 8 of the Convention, he should make a regular application for a residence permit based on his rights under Article 8. The provisionalmeasures judge lastly noted that, in the event that the Netherlands authorities proceeded with the third applicant’s removal from the Netherlands, he could avail himself of legal remedies to challenge this. There is no indication in the case file that the third applicant availed himself of the opportunity to lodge a further appeal against this judgment with the Administrative Jurisdiction Division. 59. On 15 February 2012, the third applicant made a regular application for a residence permit on the basis of his family life with his parents and siblings in the Netherlands. This application was rejected by the Minister on 28 September 2012. The Minister noted at the outset that the applicant did not hold the required provisional residence visa (machtiging tot voorlopig verblijf). Such a visa entitles the holder to enter the Netherlands in order to apply for a residence permit for a stay exceeding three months. The Minister further noted that the third applicant did not fall within one of the defined categories of persons who are exempted from the obligation to hold a provisional residence visa. As to the third applicant’s reliance on Article 8 of the Convention, the Minister noted that his mother and two younger siblings held a temporary residence permit for asylum purposes and that his father held no residence permit. Although the Minister accepted that there was family life between the third applicant and each of his parents and his siblings, and that there were objective obstacles to the exercise of family life between the third applicant and his mother and siblings outside the Netherlands, the Minister did not find that there was a positive obligation under Article 8 to grant the third applicant a residence permit on that basis. In reaching this finding, the Minister considered that a balance had to be struck between, on the one hand, the applicant’s personal interests and, on the other, public interest considerations. The presence of an objective obstacle was a weighty but not necessarily a decisive factor in this balancing exercise, which also includes other factors such as the way in which family life was conducted in the country of origin, whether the minimum income requirements under the applicable immigration rules were met, public order considerations, and the situation in the country of origin. Noting that his father had been refused asylum because Article 1F of the 1951 Refugee Convention had been held against him, and that no obstacle based on Article 3 for his removal to Afghanistan had been found in the asylum proceedings, that the third applicant had been denied asylum on account of his criminal convictions in the Netherlands, that the third applicant was an adult, and that his submissions did not disclose that there would be “more than normal emotional ties” between his and his mother and siblings, that his mother and siblings lived separately from his father, and that the third applicant himself lived a wandering existence, staying occasionally with his mother and often with friends, and that also his ties with his father did not go beyond the normal ties between a parent and an adult son, the Minister concluded, in particular having regard to the third applicant’s criminal record in the Netherlands, that public interest considerations outweighed the third applicant’s personal interests. This decision also constituted a return decision (terugkeerbesluit). The third applicant was informed that he was now under the obligation to leave the Netherlands within twenty-four hours, failing which he would be eligible for removal, and that the submission of an objection (bezwaar) to the decision would not have any suspensive effect. 60. The third applicant submitted an objection to this decision to the Minister and requested the Regional Court of The Hague to issue a provisional measure allowing him to await the outcome of the objection proceedings in the Netherlands. 61. On 4 February 2012, the provisional-measures judge of the Regional Court of The Hague sitting in Utrecht granted the third applicant’s request for a provisional measure, finding that it did not appear that, in his assessment, the Minister had taken into account - given the “guiding principles” formulated in the judgments of the European Court of Human Rights of 2 August 2001 in the case of Boultif and 18 October 2006 in the case of Üner - the duration of the third applicant’s stay in the Netherlands, the nature and seriousness of the criminal offences of which the third applicant had been convicted, the time that had elapsed since these offences were committed and the third applicant’s behaviour in that period, the social ties established by the third applicant in the Netherlands, and the possibility of return to Afghanistan. Considering that the Minister had attached decisive weight to the third applicant’s criminal record without looking into the nature and seriousness of the offences concerned and without indicating what weight had been given to the other relevant circumstances on the basis of the ‘guiding principles”, the provisional-measures judge concluded that it could not be said that the objection would not have a reasonable chance of success. Consequently, the provisional-measures judge granted the provisional measure and suspended the Minister’s decision of 28 September 2012 pending the outcome of the objection proceedings. 62. No further information about these proceedings has been submitted.