Netherlands - District Court Amsterdam, 7 August 2009, AWB 08/8710
| Country of Decision: | Netherlands |
| Country of applicant: | Afghanistan |
| Court name: | District Court Amsterdam |
| Date of decision: | 07-08-2009 |
| Citation: | AWB 08/8710 |
Keywords:
| Keywords |
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Effective remedy (right to)
Description
A general principle of EU law now set out in Article 47 of the Charter of Fundamental Rights: "Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.” “[It] is based on Article 13 of the ECHR: ‘Everyone whose rights and freedoms as set forth in this 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.’ However, in Community law the protection is more extensive since it guarantees the right to an effective remedy before a court. The Court of Justice enshrined the principle in its judgment of 15 May 1986 (Case 222/84 Johnston [1986] ECR 1651; see also judgment of 15 October 1987, Case 222/86 Heylens [1987] ECR 4097 and judgment of 3 December 1992, Case C-97/91 Borelli [1992] ECR I-6313. According to the Court, this principle also applies to the Member States when they are implementing Community law. The inclusion of this precedent in the Charter is not intended to change the appeal system laid down by the Treaties, and particularly the rules relating to admissibility. This principle is therefore to be implemented according to the procedures laid down in the Treaties. It applies to the institutions of the Union and of Member States when they are implementing Union law and does so for all rights guaranteed by Union law.” |
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Serious harm
Description
In order to be eligible for subsidiary protection, a third country national or stateless person must demonstrate that if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, s/he would face a real risk of serious harm as defined in QD Art. 15 and that s/he is unable, or owing to such risk, unwilling to avail her/himself of the protection of that country. Per Art.15:"(a) death penalty or execution; or (b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or (c) serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict." “Risks to which a population of a country or a section of the population is generally exposed do normally not create in themselves an individual threat which would qualify as serious harm.” |
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Subsidiary Protection
Description
The protection given to a third-country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15 of 2004/83/EC, and to whom Article 17(1) and (2) of 2004/83/EC do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country.” “Note: The UK has opted into the Qualification Directive (2004/83/EC) but does not (legally) use the term Subsidiary Protection. It is believed that the inclusion of Humanitarian Protection within the UK Immigration rules fully transposes the Subsidiary Protection provisions of the Qualification Directive into UK law. |
Headnote:
It is in violation of Art 13 of the ECHR (Right to an Effective Remedy) in conjunction with Art 3 of the ECHR (Prohibition of Torture) that the applicant may not await the court’s decision on his request for a temporary injunction against his expulsion in the Netherlands, even though he has an arguable claim under Art 3 of the ECHR. Further that Art 39 of the Procedures Directive is not correctly implemented in Dutch law.
Facts:
The Respondent had rejected the applicant’s subsequent asylum application. At the same time, the Secretary of State for Justice had declared the applicant’s persona nog grata (“an unwelcome person”), because of his past as a senior officer in Afghanistan during the communist regime and his cooperation with the Khadamat-e Etela'at-e Dawlati (Government Intelligence Service) (KhAD) and the military (Art 1F of the 1951 Refugee Convention).
It was also decided that the applicant may not reside in the Netherlands, because the national law provides that an alien who is declared persona non grata cannot lawfully reside in the Netherlands (Art 67 (3) of the Aliens Act 2000). Dutch policy provides that an asylum seeker whose subsequent asylum application is rejected (because no new relevant facts or changed circumstances were put forward) and who requests a temporary injunction against his expulsion may not await the court’s decision on this request in the Netherlands. Also, an asylum seeker may not await the Court’s decision in the Netherlands if reasons of public order (such as being declared persona non grata, red.) or national security dictate otherwise. The respondent did not dispute that the applicant had an arguable claim under Art 3 of the ECHR.
Decision & reasoning:
The court found that the parties do not dispute the fact that no final decision on the asylum application had been made. The rejection of the asylum application in connection with the applicant’s legal status of persona non grata is therefore not yet established in law. The fact that the applicant may not await the court’s decision on his request for a temporary injunction against his expulsion in the Netherlands, even though he has an arguable claim under Art 3 of the ECHR, is in violation of Art 13 of the ECHR (in conjunction with Art 3 of the ECHR). Therefore, the court decided that Art 67 of the Aliens Act 2000 does not comply with the right to an effective remedy as provided in Art 39 (3)(b) of the Procedures Directive. It followed that Art 39 of the Procedures Directive is not correctly implemented in Dutch law.
Outcome:
The appeal was successful.
Subsequent proceedings:
The Secretary of State for Justice appealed against this decision. The higher appeal was upheld, and the decision of the District Court of Amsterdam was quashed. The Council of State ruled that Art 39 (3)(b) of the Procedures Directive was correctly implemented in national law. The Council of State continued by stating that if an alien, who is declared a persona non grata and who has an arguable claim under Art 3 of the ECHR if he is to return to his country of origin, wants to await the court’s decision on this request for a temporary injunction against his expulsion in the Netherlands, he may, in the absence of an appeal with suspensive effect, request a temporary injunction if urgency requires (Art 6:16 in conjunction with Art 8:18 of the General Administrative Law Act). When this temporary injunction is sustained, the alien who is declared persona non grata may await the outcome of his appeal in the Netherlands. Please note: the Council of State did not pursue the situation in which the asylum seeker/alien is still awaiting the court’s decision on his request for a temporary injunction.
Observations/comments:
If an applicant’s asylum application was rejected and the Secretary of State for Justice simultaneously declared him a persona non grata, the applicant may not appeal directly against the rejection of his asylum application. This is because he does not lawfully reside in the Netherlands, which is a prerequisite to qualify for an asylum permit. In order to qualify for an asylum permit, the asylum seeker must first get the persona non grata declaration to be overruled or annulled. In his appeal against this declaration of persona non grata, the applicant is allowed to put forward his objections against the rejection of his asylum application to substantiate his claim that he should not have been declared a persona non grata. He may also invoke article 3 of the ECHR.
Relevant International and European Legislation:
Cited Cases:
| Cited Cases |
| ECtHR - Conka v Belgium (Application no. 51564/99) |
| ECtHR - Sultani v France (Application no. 45223/05) - (UP) |