J. v the Netherlands - 33342/11 [2005] ECHR 1865 (22 December 2005)

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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 J., is an Afghan national who was born in 1965 and lives in Eindhoven.

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

2. The applicant fled his native Afghanistan in 1998 and applied for asylum in the Netherlands. Under the provisions of the Aliens Act 1965 (Vreemdelingenwet 1965), he was issued a provisional residence permit (voorwaardelijke vergunning tot verblijf) on 26 May 1999 which was valid from 31 December 1998 until 31 December 1999. Its validity was later prolonged until 31 December 2001.

3. On 1 April 2001, pursuant to the terms and the transitory arrangements under the Aliens Act 2000, which entered into force on that date and replaced the Aliens Act 1965, the applicant’s provisional residence permit was automatically transformed into a temporary residence permit for asylum purposes (verblijfsvergunning asiel voor bepaalde tijd).

4. On 31 October 2001, the applicant filed a request for a residence permit for asylum purposes for an indefinite period (verblijfsvergunning asiel voor onbepaalde tijd).

5. On 2 June 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 Convention”) against him. The Minister based this decision on the applicant’s statements about his career 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 – and the general official country assessment report (algemeen ambtsbericht) on Afghanistan, drawn up on 29 February 2000 by the Netherlands Ministry of Foreign Affairs.

6. On 30 June 2003 the applicant filed an appeal against this decision with the Regional Court (rechtbank) of The Hague. In its judgment of 22 December 2005, that Regional Court, sitting in Haarlem, accepted the appeal and quashed the impugned decision. Referring to a ruling given on 2 June 2004 by the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State), the Regional Court held that the Minister should also have examined whether Article 3 of the Convention constituted a sustained obstacle to the applicant’s expulsion to Afghanistan and whether or not a permanent denial of a residence title would be disproportionate in the particular circumstances of the case. Consequently, the Minister’s examination had been incomplete.

7. On 21 January 2010, 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 request, retroactively withdrawing the applicant’s residence title as from 31 December 1998 and holding, inter alia, that while Article 3 of the Convention opposed the applicant’s return to Afghanistan, it had not appeared that Article 3 constituted a sustained obstacle for his removal from the Netherlands as the applicant had not demonstrated that a departure to a country other than Afghanistan, such as for instance Pakistan where he had stayed for a year in 1992-1993, was impossible.

8. The applicant’s appeal against this decision was rejected on 9 November 2010 by the Regional Court of The Hague sitting in Roermond. It noted at the outset that, since no appeal had been filed against the judgment of 22 December 2005, the decision to hold Article 1F of the 1951 Convention had obtained the force of res iudicata. It further noted that it was not in dispute that the applicant – if expelled to Afghanistan – would be exposed to a real risk of being subjected to treatment proscribed by Article 3 of the Convention and that, for that reason and for the time being, he was not going to be expelled to Afghanistan. It agreed with the Minister that the applicant had not demonstrated that it would be impossible for him to go to Pakistan and found that the applicant did not find himself in a situation in which Article 3 opposed his expulsion from the Netherlands in a sustained manner and, furthermore, that to deny the applicant a residence title was not disproportionate in the circumstances of the case.

9. In so far as the applicant invoked his right to respect for his family life within the meaning of Article 8 of the Convention with his spouse and with his brother and the latter’s spouse and children, the Regional Court held that – given the strict separation between asylum-based and regular residence permits – asylum proceedings offered no scope for these arguments to be entertained by the court. The Regional Court further rejected the applicant’s arguments based on his right to respect for his private life guaranteed by Article 8 of the Convention in that, during his eleven-year stay in the Netherlands in the course of which he had worked for six years, he had established social ties with colleagues and neighbours. On this point, the Regional Court held that the circumstances relied on by the applicant were outweighed by the Minister’s general interest considerations. It noted that the duration of the applicant’s (legal) stay in the Netherlands was considerably shorter than the duration of the aliens in the cases of Slivenko v. Latvia ([GC], no. 48321/99, ECHR 2003 X) and Sisojeva and Others v. Latvia ([GC], no. 60654/00, ECHR 2007 I) and held that the Minister could attach great weight to the fact that the applicant should be regarded as responsible for very serious offences.

10. On 2 December 2010, the applicant filed an appeal against this judgment with the Administrative Jurisdiction Division. This appeal comprised two grievances, namely that the Regional Court had incorrectly held that it had not been established that a departure to Pakistan was not possible for the applicant, and that it had incorrectly held that the applicant did not find himself in a situation in which Article 3 opposed his expulsion from the Netherlands in a sustained manner and, furthermore, that to deny the applicant a residence title was not disproportionate in the circumstances of the case. At the time of the introduction of the application, these appeal proceedings were still pending.

11. In its ruling of 7 September 2011, the Administrative Jurisdiction Division upheld the impugned judgment, finding that the appeal did not provide grounds for quashing the impugned ruling (kan niet tot vernietiging van de aangevallen uitspraak leiden) and that, having regard to article 91 § 2 of the Aliens Act 2000, no further reasoning was called for as the arguments submitted did not raise questions requiring determination in the interest of legal unity, legal development or legal protection in the general sense. No further appeal lay against this decision.

12. The applicant complained under Article 8 of the Convention of a violation of his right to respect for his private life as he cannot leave the Netherlands and will not be admitted to a third country.

13. Reiterating the principles concerning the application of the rule of exhaustion of domestic remedies as required by Article 35 § 1 of the Convention (see, inter alia, Akdivar and Others v. Turkey, 16 September 1996, § 66 69, Reports of Judgments and Decisions 1996 IV; Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V), the Court notes that the applicant’s appeal of 2 December 2010 did not contain a complaint – either in form or substance – that, in its judgment of 9 November 2010, the Regional Court had violated the applicant’s right to respect for his private life within the meaning of Article 8 of the Convention. In these circumstances, the Court finds that the applicant has failed to exhaust the remedies provided for by Dutch law (see Osman v. Denmark, no. 38058/09, §§ 37-41, 14 June 2011).

14. It follows that the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

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You are here: BAILII >> Databases >> European Court of Human Rights >> J. v the Netherlands - 33342/11 [2005] ECHR 1865 (22 December 2005) URL: http://www.bailii.org/eu/cases/ECHR/2011/1865.html Cite as: [2005] ECHR 1865