Netherlands - District Court Amsterdam, 7 August 2009, AWB 08/8710

Country of Decision:
Country of Applicant:
Date of Decision:
07-08-2009
Citation:
AWB 08/8710
Court Name:
District Court Amsterdam
Relevant Legislative Provisions:
International Law > 1951 Refugee Convention > Art 1F
European Union Law > EN - Asylum Procedures Directive, Council Directive 2005/85/EC of 1 December 2005 > Art 2
European Union Law > EN - Asylum Procedures Directive, Council Directive 2005/85/EC of 1 December 2005 > Art 2 > Art 2 (k)
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 3
European Union Law > EN - Asylum Procedures Directive, Council Directive 2005/85/EC of 1 December 2005 > Art 7 > Art 7.1
European Union Law > EN - Asylum Procedures Directive, Council Directive 2005/85/EC of 1 December 2005 > Art 7
European Union Law > EN - Asylum Procedures Directive, Council Directive 2005/85/EC of 1 December 2005 > Art 39 > Art 39.3 (b)
European Union Law > EN - Asylum Procedures Directive, Council Directive 2005/85/EC of 1 December 2005 > Art 39
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 13
European Union Law > EN - Reception Conditions Directive, Directive 2003/9/EC of 27 January 2003 > Article 2
European Union Law > EN - Reception Conditions Directive, Directive 2003/9/EC of 27 January 2003 > Article 2 > (c)
European Union Law > EN - Reception Conditions Directive, Directive 2003/9/EC of 27 January 2003 > Article 3
European Union Law > EN - Reception Conditions Directive, Directive 2003/9/EC of 27 January 2003 > Article 3 > 1.
European Union Law > EN - Reception Conditions Directive, Directive 2003/9/EC of 27 January 2003 > Article 13
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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.

Case Law Cited: 

ECtHR - Conka v Belgium (Application no. 51564/99)

ECtHR - Sultani v France (Application no. 45223/05) - (UP)