ECtHR - Inadmissibility decisions: exclusion from international protection due to involvement with former communist regime in Afghanistan

Thursday, August 3, 2017

On 3 August 2017, the ECtHR notified in writing its decisions in cases E.P. v. the Netherlands and A.R. v. the NetherlandsE.K. v. the NetherlandsG.R.S. v. the NetherlandsSoleimankheel and others v. the Netherlands, and S.M.A. v. the Netherlands – all of which related to decisions by the Dutch authorities to apply the exclusion clauses (Article 1F of the 1951 Refugee Convention), refusing the asylum application of Afghan nationals who had held different positions related to the former communist regime in Afghanistan.
While the facts of the cases vary, most applicants complained under Article 3 ECHR that, if removed to Afghanistan, they would risk being subjected to treatment contrary to Article 3 by various opposition groups (Taliban and the mujahedeen) and under Article 8 ECHR with respect to their family life with their respective spouses and children after years living in the Netherlands.
In its decisions, the Court paid special regard to the fact that the applicants had lived in Afghanistan for some time after the communist regime was defeated, that they did not attract negative attention from any public bodies or private individuals since their departure, and that UNHCR does not include those related to the former communist regime in its potential risk profiles in respect of Afghanistan. The Court also reiterated its position that the general situation in Afghanistan is not as violent as to imply a real risk of ill-treatment simply by virtue of return. Thus, it found the complaints under Article 3 ECHR manifestly ill-founded.
With regard to Article 8 ECHR, the Court confirmed its position that, taking into account the seriousness of the acts referred to in Article 1F of the 1951 Refugee Convention, the public interest justifies an interference with family life. The Court noted that the applicant’s residence status was never stable, and that the spouses were aware of their husbands’ work for the communist regime, which indicates that the continuation of their family life in the Netherlands has always been precarious. Moreover, it had not been established that the family could not settle in a third country and exercise their family life there. Therefore, the Court also declared the complaints under Article 8 manifestly ill-founded.

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Exclusion from protection
Family unity (right to)
Inhuman or degrading treatment or punishment