I. v the Netherlands - 24147/11 [2011] ECHR 1862 (18 October 2011)

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The European Court of Human Rights (Third Section), sitting on 18 October 2011 as a Chamber composed of:

Josep Casadevall, President,
Alvina Gyulumyan,
Egbert Myjer,
Ján Šikuta,
Ineta Ziemele,
Nona Tsotsoria,
Kristina Pardalos, judges,
and Santiago Quesada, Section Registrar,

1. The applicant, Mr I., is an Afghan national who was born in 1963 and lives in Heerhugowaard. He is represented before the Court by Ms H.E. Visscher, a lawyer practising in Dordrecht.

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

3. On 25 September 1999, the applicant together with his spouse and their three children, the latter born between 1986 and 1995, applied for asylum in the Netherlands. On unspecified dates, the applicant’s spouse and children were granted asylum in the Netherlands. On 3 July 2001, a fourth child was born to the applicant and his wife.

4. On 26 September 2003 the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie), rejected the applicant’s request by holding Article 1F of the 1951 Geneva Convention relating to the Status of Refugees (“the 1951 Refugee Convention”) against him. The Minister based this decision on the applicant’s statements about his career from 1981 to 1992 as an officer in the Khadimat-e Atal’at-e Dowlati/Wezarat-e Amniyat-e Dowlati (“KhAD/WAD”) – the intelligence service during the former communist regime in Afghanistan – in which he had last held the rank of colonel, the applicant’s statements about his activities between 1992 and 1997, initially as a colonel and later as general, for the intelligence service of the Junbish-e-Milli militia under the command of general Rashid Dostam, a general official country assessment report (algemeen ambtsbericht) on Afghanistan, drawn up on 29 February 2000 by the Netherlands Ministry of Foreign Affairs, as well as five individual official reports (individuele ambtsberichten) made anonymous – drawn up between 15 September 1999 and 21 November 2000 – not concerning the applicant but containing information about the Junbish-e-Milli militia and their activities. According to the official report of 29 February 2000, 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. According to the individual official reports, the Junbish-e-Milli militia had on an extraordinary large scale committed war crimes and human rights violations. The Minister further decided, although the decision entailed that the applicant was no longer lawfully staying in the Netherlands and obliged to leave the country, that for the time being the applicant would not be expelled to Afghanistan as it could not be excluded that, if returned to Afghanistan, he would run a real risk of being subjected to treatment contrary to Article 3 of the Convention.

5. On 17 October 2003 the applicant filed an appeal against this decision with the Regional Court (rechtbank) of The Hague. In its judgment of 4 February 2005, the Regional Court of The Hague sitting in Leeuwarden accepted the appeal, quashed the Minister’s decision of 26 September 2003 and ordered the Minister to take a fresh decision. Although it agreed with the Minister’s decision and pertaining reasoning to hold Article 1F of the 1951 Refugee Convention against the applicant, it also found – on the basis of rulings given on 2 June 2004 and 9 July 2004 by the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State) and noting that the Minister had acknowledged that in Afghanistan the applicant would be exposed to a risk of treatment proscribed by Article 3 of the Convention – that the Minister should also have examined whether the applicant had established that there was a sustained obstacle based on Article 3 of the Convention for his expulsion to Afghanistan. Consequently, the Minister’s examination had been incomplete.

6. The applicant’s subsequent appeal to the Administrative Jurisdiction Division was rejected on 20 May 2005. It upheld the impugned judgment of 4 February 2005. No further appeal lay against this ruling.

7. On 5 April 2006, the applicant’s spouse and their children were granted Netherlands citizenship.

8. On 5 February 2008, the Deputy Minister of Justice (Staatssecretaris van Justitie) – the successor to the Minister for Immigration and Integration – took a fresh decision on the applicant’s asylum request. The Deputy Minister again decided to hold Article 1F of the 1951 Refugee Convention against the applicant. As regards Article 3 of the Convention, the Deputy Minister accepted that the applicant would run a real risk of being subjected to treatment prohibited in that provision if, given the current situation there, he were to be removed to Afghanistan. However, this did not automatically imply that, on this basis, the applicant should be granted a residence title as this would be contrary to article 3.107 of the Aliens Decree 2000 (Vreemdelingenbesluit 2000). This meant in the applicant’s case that he was not eligible for admission to the Netherlands whilst no recourse would be had to the power to remove him to Afghanistan. As regards the question whether the Article 3 obstacle for his removal was of a sustained nature, the Deputy Minister held that the term “sustained” was to be interpreted as entailing a situation in which the alien concerned could not for many years be removed for reasons based on Article 3 without there being any prospects of a change in that situation within a not too long delay. If that were the case, and if resettlement in a third country – despite sufficient efforts to comply with the obligation to leave the Netherlands – was not possible and, in addition, the alien found him/herself in an exceptional situation in the Netherlands, there would be reason for the Deputy Minister to consider whether a continued withholding of a residence title was disproportionate. Noting that, at least until that moment, the applicant had been allowed to stay in the Netherlands, the Deputy Minister concluded that the applicant not yet found himself in a situation in which, for a great number of years, he could not be removed from the Netherlands for reasons based on Article 3. In addition, the Deputy Minister decided to impose an exclusion order (ongewenstverklaring) on the applicant. As to the applicant’s reliance on his right to respect for his family life within the meaning of Article 8 of the Convention in the Netherlands with his spouse and their four children, the Deputy Minister found that the exclusion order entailed an interference with the applicant’s rights under this provision but that the general interest outweighed the applicant’s personal interests. In this context the Deputy Minister considered, inter alia, that there was an objective obstacle standing in the way of family life being enjoyed in Afghanistan, but that no objective obstacles had appeared for the enjoyment of the applicant’s family life in a third country and that this was not altered by the fact that the applicant’s spouse and children had become Netherlands nationals.

9. On 12 February 2008, the applicant filed an objection (bezwaar) with the Deputy Minister against the decision to impose an exclusion order. As this order is immediately enforceable and the objection not having suspensive effect, the applicant also filed a request with the Regional Court of The Hague for the issuance of a provisional measure, i.e. an injunction on his expulsion pending the objection proceedings. On the same date, the applicant also filed an appeal with the Regional Court of The Hague against the decision to reject his asylum request.

10. On 27 May 2008, the provisional-measures judge (voorzieningenrechter) of the Regional Court of The Hague sitting in Dordrecht granted the applicant’s request for an injunction on his expulsion pending the proceedings on his objection to the decision to impose an exclusion order on him.

11. On 14 November 2008 the Deputy Minister rejected the applicant’s objection of 12 February 2008. The Deputy Minister noted that, on the basis of the rulings of 4 February 2005 and 20 May 2005, the decision to hold Article 1F of the 1951 Refugee Convention against the applicant had become final and that for that reason an exclusion order could be imposed. In this connection, the Deputy Minister pointed out that the Netherlands State attached great importance to the premise that the Netherlands does not become a safe haven for persons in respect of whom there are strong suspicions that they have committed crimes referred to in Article 1F of the 1951 Refugee Convention and that, in order to accomplish this, an exclusion order was imposed on persons against whom this provision has been held. As regards the question whether the Article 3 obstacle opposing the applicant’s removal to Afghanistan was of a sustained nature, the Deputy Minister held that the applicant did not find himself in a situation in which, for a great number of years, he could not be removed from the Netherlands for reasons based on Article 3 and, in this respect referred to a letter sent on 9 June 2008 by the Minister and Deputy Minister of Justice to the Lower House (Tweede Kamer) of Parliament on the application of Article 1F, stating inter alia that the notion of “a great number of years” meant in principle a period of at least ten years. The Deputy Minister further considered that it had not been established that there were no prospects of change in the situation where Article 3 opposed the applicant’s removal to Afghanistan, which country was undergoing a period of transition, comprising a complex reconciliation process which had the active support of the international community. The Deputy Minister lastly rejected the applicant’s arguments based on his rights under Article 8 of the Convention. As regards the question whether the applicant’s family life could only be enjoyed in the Netherlands, the Deputy Minister accepted that, in the current circumstances, the applicant could not return to Afghanistan but did not find it established that this family life could not be enjoyed in a third country. The Deputy Minister concluded that the interests of the applicant and those of his family were of insufficient weight to tip the balance in their favour.

12. On 1 December 2008, the applicant filed an appeal against this decision with the Regional Court of The Hague. By judgment of 20 April 2010, that court, sitting in Dordrecht, rejected the appeal. It held that, barring newly emerged facts or changed circumstances, the decision to hold Article 1F of the 1951 Refugee Convention against the applicant had become final with the ruling given on 20 May 2005 by the Administrative Jurisdiction Division. Referring to the Division’s case-law, it reiterated that under “newly emerged facts or changed circumstances” was to be understood facts or circumstances having occurred after the initial decision, i.c. after 26 September 2003, and which could not and therefore should not have been submitted before that decision was taken and that, even if that condition was fulfilled, such facts or circumstances nevertheless did not warrant a revision of the judicial assessment if it was excluded from the outset that such new submissions or arguments could alter the initial decision. The Regional Court did not find such newly emerged facts or changed circumstances in the applicant’s submissions. It further noted that it was not in dispute that Article 3 of the Convention had, as from the date of the applicant’s asylum request and until the date of the impugned decision, uninterruptedly opposed the applicant’s expulsion to Afghanistan. It further accepted that the Deputy Minister, since ten years had not yet elapsed between the filing of the asylum request and the taking of the impugned decision, did not have to determine the question whether the continued withholding of a residence title to the applicant was disproportionate. It agreed that more than ten years had now elapsed, but considered that its scope for review was limited to the impugned decision and held that, if the applicant wished to obtain an examination of the proportionality of the continued withholding of a residence title, he should file a request for a regular residence permit together with a request to lift the exclusion order. As regards the applicant’s arguments under Article 8 of the Convention, the Regional Court held:

“The appellant correctly points out that the existence of serious reasons for considering that he has committed offences as referred to in Article 1F of the 1951 Refugee Convention does not offer the same degree of certitude about his culpability as a criminal conviction of such crimes. This does not alter the fact that the Deputy Minister’s assumption, as accepted by the Regional Court, is founded on the [contents of the] official country assessment report which, in the opinion of the Administrative Jurisdiction Division, is carried by the underlying materials. As a general, the appellant has further exercised an important function under Dostam. In these circumstances, there exists a rather high degree of certainty that the appellant has committed the acts held against him which belong to the most serious crimes imaginable. In its ruling of 31 October 2008 (Landelijk Jurisprudentie Nummer [National Jurisprudence Number – “LJN”] BG3842), the Administrative Jurisdiction Division considered that a person against whom Article 1F has been held by the international community is regarded as a danger to (international) public order and public safety. In the ruling cited the Administrative Jurisdiction Division found that the Deputy Minister, when considering that the aim of the exclusion order is to prevent that an alien against whom Article 1F has been held can obtain protection in the Netherlands – thereby rendering the Netherlands a host state for persons who have committed serious crimes – and to counter residence of that alien in the entire Schengen territory, has on good grounds and with sufficient reasoning adopted the position that interference in the alien’s family life is justified in the interest of public safety and security. The Regional Court concludes that the fact that the appellant has not been criminally convicted does not mean that the Article 1F objection gives insufficient cause for interference in his right to family life.

When taking the impugned decision, the Deputy Minister proceeded on the basis of the existence of objective obstacles to family life being exercised in Afghanistan. The Regional Court sees no ground for holding that the Deputy Minister has incorrectly considered the interest of the appellant and his family to be of less weight than the interests served by the imposition of the exclusion order or that on this point the impugned decision lacks adequate reasoning. The appellant is indeed already for a long time involved in [residency] proceedings during which he has been allowed to stay in the Netherlands, but he has never held any residence title enabling him to exercise family life in the Netherlands. When the impugned decision was taken, his oldest child had come of age, whereas no special relationship of dependency between the appellant and this child has appeared. At that time, the other three children were, respectively, seventeen, thirteen and seven years old. It has not appeared that, if need be, these children could not appeal to their mother and the oldest child for aid and assistance. Moreover, it cannot be ignored that, for as long as the Deputy Minister considers that the appellant’s expulsion to Afghanistan is in breach of Article 3 of the Convention and the appellant takes no concrete steps to meet the obligation placed on him – irrespective of the exclusion order – to leave the Netherlands by actively attempting to obtain admission to another country, the appellant will in fact remain with his wife and children. [His claim] that not a single other country is willing to admit the appellant does not, without more, have to be accepted by the Deputy Minister, the less so as the appellant’s lawyer has stated during the hearing held on 16 February 2010 that persons holding a higher rank than the applicant have been admitted to Germany and that the appellant is examining the possibilities of admission to that country. The Regional Court concludes that the impugned decision does not violate Article 8 of the Convention.”

13. On 16 May 2010, the applicant filed an appeal against this judgment with the Administrative Jurisdiction Division.

14. In a separate judgment, also given on 20 April 2010, the Regional Court of The Hague sitting in Dordrecht declared inadmissible the applicant’s appeal against the Deputy Minister’s decision of 12 February 2008 to reject his asylum request. Referring to a ruling handed down by the Administrative Jurisdiction Division on 6 July 2006 (Jurisprudentie Vreemdelingenrecht [Immigration Law Reports – “JV”] 2006/347), the Regional Court held that the applicant did not have an interest in a determination of that appeal for as long as the exclusion order imposed on him had not been definitely lifted as this order rendered him ineligible for any residence title. Although a further appeal with the Administrative Jurisdiction Division lay against this judgment, there is no indication in the case file that the applicant has lodged such an appeal.

15. On 12 October 2010, the Administrative Jurisdiction Division rejected the applicant’s appeal of 16 May 2010 and confirmed the judgment of the Regional Court of The Hague relating to the imposition of the exclusion order. No further appeal lay against this ruling

16. Until 1 April 2001, the admission, residence and expulsion of aliens were regulated by the Aliens Act 1965 (Vreemdelingenwet). Further rules were laid down in the Aliens Decree (Vreemdelingenbesluit), the Regulation on Aliens (Voorschrift Vreemdelingen) and the Aliens Act Implementation Guidelines 1994 (Vreemdelingencirculaire). On 1 April 2001, the Aliens Act 1965 was replaced by the Aliens Act 2000. On the same date, the Aliens Decree, the Regulation on Aliens and the Aliens Act Implementation Guidelines were replaced by new versions based on the Aliens Act 2000. The General Administrative Law Act (Algemene Wet Bestuursrecht) applies to proceedings under the Aliens Act 2000, unless indicated otherwise in this Act.

17. Under article 29 of the Aliens Act 2000, an alien is eligible for a residence permit for the purpose of asylum if, inter alia,

- he or she has established that he or she has well-founded reasons to assume that he or she will run a real risk of being subjected to torture or other cruel or degrading treatment or punishment if expelled to the country of origin.

18. If the exclusion clause under Article 1 F of the 1951 Refugee Convention is held against an asylum seeker, the alien concerned loses any protection which would have been available under this Convention and, consequently, becomes ineligible for a residence permit for asylum under article 29 of the Aliens Act 2000 (article 3.107 of the Aliens Decree 2000 and Chapter C1/4.6.4 of the Aliens Act Implementation Guidelines 2000).

19. Under the Aliens Act 2000, judicial review by the Regional Court and the Administrative Jurisdiction Division in administrative law appeal proceedings only addresses whether the executive authority concerned has exercised its administrative powers in a reasonable manner and, in the light of the interests at stake, could reasonably have taken the impugned decision (marginale toetsing). Both before the Regional Court and the Administrative Jurisdiction Division it is possible to apply for a provisional measure (voorlopige voorziening) pending the outcome of the appeal proceedings.

20. Article 67 of the Aliens Act 2000 provides that a foreign national may be declared an undesirable alien, entailing the imposition of an exclusion order, on the ground, inter alia, that he or she poses a danger to public safety or national security. An exclusion order entails a ban on residing in or visiting the Netherlands.

21. An exclusion order, which is immediately enforceable, can be challenged in administrative law appeal proceedings under the terms of the General Administrative Law Act. Such appeal proceedings do not have automatic suspensive effect.

22. Article 197 of the Criminal Code (Wetboek van Strafrecht) provides that an alien who stays in the Netherlands while he or she knows that an exclusion order has been imposed on him or her commits a criminal offence punishable by up to six months’ imprisonment or a fine of up to 4,500 euros. In accordance with the discretionary powers held by the public prosecution service (opportuniteitsbeginsel), it remains for that service to decide in each individual case whether to prosecute or not.

23. An exclusion order may be revoked, upon request, if the alien concerned has been residing outside the Netherlands for a period of ten years (article 68 of the Aliens Act 2000). Such revocation entitles the alien to seek readmission to Netherlands territory subject to the conditions that are applicable to every alien.

24. Pursuant to article 45 of the Aliens Act 2000, a decision rejecting an alien’s request for admission to the Netherlands automatically has, amongst others, the following legal consequences:

- officials entrusted with the supervision of aliens are authorised – if the alien has not voluntarily left the Netherlands within the delay fixed for this purpose – to proceed with his/her effective removal from the Netherlands.

25. Under the preceding Aliens Act 1965, a separate decision was given in respect of each of these legal consequences which could each be challenged in distinct proceedings. This is no longer possible under the Aliens Act 2000 and a negative decision on an admission request is therefore known as a so called “multi-purpose decision” (meeromvattende beschikking).

26. Pursuant to the provisions of the Benefit Entitlement (Residence Status) Act (Koppelingswet), in force as from 1 July 1998, and article 10 of the Aliens Act 2000 an alien who does not have lawful residence in the Netherlands is not entitled to any benefits in kind, facilities and social security benefits issued by decision of an administrative authority. Derogation is possible if the entitlement relates to education, the provision of care that is medically necessary, the prevention of situations that would jeopardise public health or the provision of legal assistance to the alien.

27. In a ruling of 3 December 2008 (LJN BG5955), the Administrative Jurisdiction Division considered that the decision to proceed with effective removal does not constitute an independent partial decision within the multi-purpose decision on a request for a residence permit, that the competence to proceed with effective removal is a legal effect ipso iure (rechtsgevolg van rechtswege) of the refusal of such a request, and that this competence is not of a discretionary nature. Although reiterating that in principle no further remedy lies against a multi-purpose decision as the lawfulness of its consequences has already been judicially determined in the administrative appeal proceedings challenging a refusal to admit the alien concerned, the Administrative Jurisdiction Division also accepted that in certain exceptional circumstances, such as a relevant change of circumstances having occurred during the delay between the refusal of the admission request and an act aimed at effective removal (daadwerkelijke uitzettingshandeling), an objection (bezwaar) and subsequent appeal (beroep) may be filed against an act aimed at effective removal. Under the terms of article 72 § 3 of the Aliens Act 2000, such an act can be equated with a formal decision within the meaning of the General Administrative Law Act which can be challenged in separate administrative appeal proceedings.

28. A refusal on the basis of Article 1 F of the 1951 Refugee Convention to grant an asylum-related residence permit does not necessarily imply that the alien concerned will be effectively removed to his or her country of origin if that would be in breach of Article 3 of the Convention.

29. In two rulings handed down on, respectively, 2 and 9 June 2004 (nos. 200308871/1 and 200308511/1), the Administrative Jurisdiction Division of the Council of State noted that, according to article 45 § 1 of the Aliens Act 2000, a refusal to grant asylum entailed that the person concerned should leave the Netherlands voluntarily, failing which he or she could be expelled. It accepted that an alien – who was denied entry pursuant to Article 1 F of the 1951 Convention but who could not be expelled to his or her country of origin on the basis of a risk of being subjected to treatment in breach of Article 3 – can be denied a residence permit. However, in order to limit the size of this group as much as possible, it should be examined first whether a person qualifies for asylum under Article 29 § 1 of the Aliens Act 2000 before determining the question whether the exclusion clause of Article 1 F of the 1951 Convention applies. Where an asylum seeker is able to demonstrate that Article 3 of the Convention constitutes a sustained obstacle to his or her expulsion to the country of origin, it is for the immigration authorities to assess whether or not a permanent denial of a residence title would be disproportionate in the particular circumstances of the case. In the two cases at issue, the immigration authorities had not dealt with the question whether the expulsion of the persons concerned would be in breach of Article 3, as they had first examined whether and concluded that the exclusion clause of Article 1 F applied. The Administrative Jurisdiction Division concluded that, therefore, the immigration authorities’ examination of these cases had been incomplete.

30. These rulings resulted in an amendment to the relevant rules. Where it has been established that a person, for reasons based on Article 3 of the Convention, cannot be expelled to his or her country of origin but, pursuant to Article 1 F of the 1951 Convention, is ineligible for any kind of residence permit, no expulsion order will be issued, at least for as long as these reasons exist. However, no residence title will be issued to the alien concerned who remains under the obligation to leave the Netherlands at his or her own motion. It further remains possible to issue an order for his or her expulsion as soon as his or her effective removal will no longer entail a risk of treatment contrary to Article 3 in the country of origin or to issue an order for removal to a third State willing to accept the person concerned.

Eligibility for an eventual residence permit may arise when the obstacle based on Article 3 for the alien’s return to his/her country of origin is of a sustained nature. In practice, such a situation may arise after a period of unlawful residence in the Netherlands of the alien concerned for at least ten years whilst Article 3 continues to stand in the way of removal to his/her country of origin and without any prospect of change in that situation in the foreseeable future, and where the alien concerned has demonstrated that despite his/her best efforts there is no possibility for him/her to relocate to a third country, and where the continued withholding of a residence permit would be disproportional.

31. Article 1F of the 1951 Geneva Convention Relating to the Status of Refugees, as amended by the New York Protocol of 31 January 1967 provides as follows:

“The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

32. The applicant complains that his expulsion to Afghanistan would be in breach of Article 3 of the Convention.

33. The applicant further complains that, as an exclusion order has been imposed on him, his presence in the Netherlands is liable to punishment and, in consequence of the “linkage principle” (koppelingsbeginsel) as set out in the Benefit Entitlement (Residence Status) Act, his family is being reproached for housing an illegal alien by denial of various fiscal facilities (allowances to meet the costs for medical insurance, rent, child care) and limited social security benefits. It is expected from him that he leaves independently to a third country as he cannot return to Afghanistan for reasons based on Article 3. However, there is no third country that will admit him; the application of Article 1F excludes all States that are a party to the 1951 Refugee Convention whereas all High Contracting Parties to the Convention are also a party to the 1951 Refugee Convention. Consequently, he finds himself in a permanent stalemate in which he is not admitted, not expelled and unable to leave which, he argues, is in breach of Article 3 of the Convention.

34. Relying on Article 13 taken together with Articles 3 and 8 of the Convention, the applicant further complains that, in respect of the decision to hold Article 1F of the 1951 Refugee Convention against him on the basis of the official country assessment report of 29 February 2000, he did not have an effective remedy within the meaning of Article 13.

35. The applicant lastly complains that the Netherlands authorities, by denying him admission to the Netherlands, interfere without justification with his right to respect for his family life within the meaning of Article 8 of the Convention.

36. The applicant complained that his expulsion to Afghanistan would be in violation of Article 3 of the Convention, and that the situation in which he currently finds himself as a consequence of the exclusion order imposed on him must be regarded as incompatible with Article 3.

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

37. The Court reiterates that Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations, to control the entry, residence and expulsion of aliens, and that the Convention does not guarantee, as such, any right to enter, reside or remain in a State of which one is not a national (see Javeed v. the Netherlands (dec.), no. 47390/99, 3 July 2001). Moreover, neither Article 3 of the Convention nor any other provision of the Convention or its Protocols guarantees the right of political asylum. However, expulsion by a Contracting Party may give rise to an issue under Article 3 and thus engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person in question, if expelled, would face a real risk of being subjected to treatment contrary to Article 3 in the receiving country. In these circumstances, Article 3 implies the obligation not to expel the person in question to that country (see, inter alia, Chahal v. United Kingdom, judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V, p. 1853, §§ 73-74; and A. v. the Netherlands, no. 4900/06, § 141, 20 July 2010).

38. Turning to the facts of the present case, the Court notes that for reasons based on Article 3 of the Convention the Netherlands authorities do not, at least not for the time being, intend to proceed effectively with the applicant’s removal to Afghanistan and that it appears that, should such steps be taken, the applicant can challenge this (see § 27 above).

39. In these circumstances, the Court considers that, in the absence of any realistic prospects for his expulsion to Afghanistan, the applicant cannot claim to be a victim within the meaning of Article 34 of the Convention as regards his complaint that his return to Afghanistan will be in violation of his rights under Article 3 of the Convention. To the extent that the applicant also complains that he is denied a residence permit for as long as he is not removed from the Netherlands, the Court considers that this complaint must be rejected for being incompatible ratione materiae as neither Article 3 nor any other provision of the Convention and its Protocols guarantees, as such, a right to a residence permit (see Bonger v. the Netherlands (dec.), no. 10154/04, 15 September 2005). It follows that this part of the application must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

40. In so far as the applicant also complains that the situation in which he currently finds himself in the Netherlands must be regarded as being incompatible with Article 3 of the Convention, the Court reiterates that it has not excluded “the possibility that the responsibility of the State may be engaged [under Article 3] in respect of treatment where an applicant, who was wholly dependent on State support, found herself faced with official indifference in a situation of serious deprivation or want incompatible with human dignity” (see M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 253 with further reference, 21 January 2011).

41. The Court notes that the applicant’s claim that his wife and their children are confronted with negative financial consequences where it concerns their entitlement to fiscal advantages and social security benefits for housing him as an illegal alien has remained fully unsubstantiated. It has further found no indication in the case file that the applicant’s living conditions in the Netherlands would be comparable to the living conditions in Greece of the applicant in the case of M.S.S. (cited above) or that the applicant’s current living conditions in the Netherlands and/or future prospects, either from a material, physical or psychological perspective, would be of such harrowing hardship that the applicant’s situation must be regarded as having attained a minimum level of severity required for treatment to fall within the scope of Article 3 of the Convention (see, inter alia, Ireland v. the United Kingdom, 18 January 1978, § 162, Series A no. 25; Jalloh v. Germany [GC], no. 54810/00, § 67, ECHR 2006 IX; Haidn v. Germany, no. 6587/04, § 105, 13 January 2011; and M.S.S, cited above, § 219).

It follows that this part of the application must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

42. Invoking Article 13 taken together with Articles 3 and 8 of the Convention, the applicant further complains that, in respect of the decision to hold Article 1F of the 1951 Refugee Convention against him on the basis of the official country assessment report of 29 February 2000, he did not have an effective remedy within the meaning of Article 13 taken together with Articles 3 and 8 of the Convention.

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

2. 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 ..., 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.”

43. The Court reiterates that the right of political asylum and the right to a residence permit are not, as such, guaranteed by the Convention and, under the terms of Article 19 of the Convention, the Court cannot review whether the provisions of the 1951 Refugee Convention have been correctly applied by the Netherlands authorities. The Court further recalls that the word “remedy” within the meaning of Article 13 does not mean a remedy bound to succeed, but simply an accessible remedy before an authority competent to examine the merits of a Convention grievance (see Ivakhnenko v. Russia (dec.), no. 12622/04, 21 October 2008).

44. The Court notes that the applicant could and did avail himself of the possibility to challenge the refusal to grant him asylum and the imposition of the exclusion order on the basis of information set out in the general official country assessment report before the Regional Court of The Hague and the Administrative Jurisdiction Division in accordance with the provisions of the Aliens Act 2000 and the General Administrative Law Act and that these judicial bodies did examine and determine the applicant’s arguments based on Articles 3 and 8 of the Convention. The Court further notes that it has not been argued and finds that it has not appeared that, in the eventuality of a future act of the Netherlands authorities aimed at the applicant’s effective removal from the Netherlands, it would be impossible for the applicant to bring administrative appeal proceedings in accordance with article 72 § 3 of the Aliens Act 2000 in order to obtain a determination of the question whether that act would be compatible with his rights under the Convention.

45. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

46. The applicant lastly complains that the Netherlands authorities, by denying him admission to the Netherlands, interfere without justification with his right to respect for his family life within the meaning of Article 8 of the Convention.

47. The Court considers that this part of the application must be brought to the notice of the respondent Government in accordance with Rule 54 § 3 (b) of the Court’s Rules of Procedure and the Government be invited to submit their written observations on the admissibility and merits of this complaint.

Decides to adjourn the examination of the applicant’s complaint concerning his right to respect for his private and family life within the meaning of Article 8 of the Convention;

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You are here: BAILII >> Databases >> European Court of Human Rights >> I. v the Netherlands - 24147/11 [2011] ECHR 1862 (18 October 2011) URL: http://www.bailii.org/eu/cases/ECHR/2011/1862.html Cite as: [2011] ECHR 1862