Netherlands - Court of The Hague, 3 December 2015, AWB 15/1712

Country of Decision:
Country of Applicant:
Date of Decision:
03-12-2015
Citation:
AWB 15/1712
Additional Citation:
ECLI:NL:RBDHA:2015:14081
Court Name:
Court of The Hague
Relevant Legislative Provisions:
International Law > 1951 Refugee Convention > Art 1F > Art 1F(a)
International Law > 1951 Refugee Convention > Art 1F > Art 1F(b)
International Law > 1951 Refugee Convention > Art 1F > Art 1F(c)
National / Other Legislative Provisions:
Netherlands - Vreemdelingenwet 2000 (Foreigners Act): Articles 31(1)
32(2)(k)
66a(4)
66a(7)
Netherlands - Vreemdelingenbesluit 2000 (Decisions regarding Foreigners ): Article 6.5a(5)(c)
Netherlands - Vreemdelingencirculaire 2000 (Aliens Circular): paragraph C2/6.2.8
Netherlands - Article 3:46 General Administrative Law
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Headnote: 

This case is concerned with whether the decision to deny the asylum application and the subsequently imposed entry ban were justified based on articles 1F(a)-(c). Under these provisions the Secretary of State can raise national security as a ‘serious ground’ for his decision if an element of ‘personal participation’ can be proven.

Facts: 

This case concerns a man of Syrian origin who made an application for asylum on the 3rd of May 2014. Accordingly this application was denied by the Secretary of State for Justice and Security. The application was rejected as a consequence of the applicant’s actions in the uprising from March 2011 till 2012. During this uprising the applicant would be picked up (from his home) by the security service in order to provide interpreting service in the process of interrogating political prisoners. Moreover, an entry ban of 10 years was imposed.

Decision & Reasoning: 

The Secretary of State argues that the decision in dispute is based on the ‘serious grounds’ for believing any of the offences under articles 1F(a)-(b) took place in the form of the applicant’s interpretation during interrogations of political prisoners. To succeed in the line of argument  of ‘serious grounds’ the element of ‘personal participation’ has to be proved (aside from (‘knowing participation’ which is admitted by both parties). Hence, the court considers whether the applicant has ‘substantially contributed’ to the offences. The operative criteria applied are:

(a) causing an effect on the commission of the offence; and

(b) the effect on the undertakings.

The applicant, however, argues his contribution was performed under undue influence/duress. This is not considered or contested further in determining ‘personal participation’.

The last issue, therefore, is whether the applicant’s actions with regards to the aforementioned offences amounted to facilitation. The applicant places the timing of his actions outside of the objectionable behaviour and raises that he endeavoured to thwart the interrogations by misinterpreting. The court clarifies their position on such facts where the timing is considered irrelevant and the applicant’s endeavours are judged to be clear proof of the applicant’s function as a ‘link’ in the chain.

The Rome Statute is raised in consideration of the accountability for contributions to the specific offences. Accordingly, the court clarifies the position regarding ‘intent’ and concludes on the facts that there has been neither substantial contribution nor intent in the applicant’s actions.

Outcome: 

The appeal was granted and subsequently the previous decision was quashed and a new decision is outstanding. The Secretary of state was ordered to pay damages for the amount of €980 worth of court fees and legal costs.

Observations/Comments: 

The court made 2 comments relating to this dispute:

  1. The importance of this case is based on the necessary reevalutation of the refusal of the asylum application with regards to the entry ban. Due to the current status of the entry ban, this measure needs to be reviewed first before examining the (reasoning for) the application refusal.
  2. The applicable law in this case is set out according to the timeline of the original decision in dispute. Accordingly, the Asylum Procedures and Reception Conditions Directives are excluded (except for article 83a).

In addition, the court did not deliver judgment on the possibility of the applicant to escape the security service’s influence.

This case summary was written by Laura Robyn, an LPC student at BPP University. 

This case summary was proof read by Joanna Oomen, a BPTC student at BPP University. 

Other sources cited: 

Rome Statute - Articles 23(3) and 30(1)

“Background Note on the Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees” paragraphs 21, 25, 50, 51, 64

Ambtsbericht (Situation Report) DCM/AT-424/09/43705

Case Law Cited: 

Netherlands: ABRvS, 18 February 2014, 201308529/1/V1

Netherlands: ABRvS, 18 February 2014, 201304257/1/V1

Netherlands: ABRvS, 16 January 2013, 201201158/1/R1