CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 16 mai 2017

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sAADB120E { margin-top:6pt; margin-left:28.35pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .s5F897A7E { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt } .s7E985A65 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; font-size:1pt } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .s1B50D646 { width:185.6pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } .s76CF415B { page-break-before:always; clear:both } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s75A32C27 { border-collapse:collapse } .s3695F815 { border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .sEECE831 { font-family:Arial; font-weight:bold; color:#474747 } .sE8934522 { border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .s6B505E72 { margin:0pt; padding-left:0pt } .s8F670191 { font-family:Arial; font-size:12pt; list-style-position:inside } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 }     THIRD SECTION DECISION Application no. 15993/09 M.M. against the Netherlands and 3 other applications (see list appended) The European Court of Human Rights (Third Section), sitting on 16   May   2017 as a Chamber composed of:   Helena Jäderblom, President,   Branko Lubarda,   Luis López Guerra,   Helen Keller,   Pere Pastor Vilanova,   Alena Poláčková,   Jolien Schukking, judges, and Stephen Phillips, Section Registrar, Having regard to the above applications lodged on the various dates indicated in the appended table, Having regard to the interim measures indicated to the respondent Government under Rule 39 of the Rules of Court and the fact that these interim measures have been complied with, Having regard to the parties’ submissions, Having deliberated, decides as follows: THE FACTS 1.     A list of the applicants is set out in the appendix. The President decided that the applicants’ identities were not to be disclosed to the public (Rule 47 § 4 of the Rules of Court). The Government of the Netherlands were represented by their Agent, Mr R.A.A. Böcker, of the Ministry of Foreign Affairs. A.     The circumstances of the cases 2.     The facts of the case, as submitted by the parties and in so far as relevant, may be summarised as follows. 1.     Application no. 15993/09 3.     The applicant is an Afghan national who was born in 1950. He has been residing in the Netherlands since 1997. He was represented before the Court by Mr P. Schüller, a lawyer practising in Amsterdam. 4.     On 24 June 1997 the applicant entered the Netherlands and applied for asylum, claiming to fear persecution within the meaning of the 1951 Geneva Convention Relating to the Status of Refugees (“the 1951 Refugee Convention”). On the same day the immigration authorities held a first interview ( eerste gehoor ) with the applicant about his identity, nationality and travel itinerary. A written record of this interview report was drawn up and the applicant was given an opportunity to submit corrections and additions. 5.     On 21 August 1997 the immigration authorities held a further interview ( nader gehoor ) with the applicant about his reasons for seeking asylum. A written record of this interview was drawn up and on 8   September 1997 a lawyer submitted corrections and additions on the applicant’s behalf. 6.     In his asylum statement, the applicant stated that he was from Kabul. After he had graduated from the Kabul military academy in 1974, he had worked as teacher at a Kabul aviation academy until 1985 when he had been transferred – he then held the rank of major after periodic promotions – to the Afghan security service, the KhAD/WAD [1] , where he had worked until 1992 as chief financial officer of the logistics directorate. His last held rank had been that of colonel. He further stated that he had been a member of the communist People’s Democratic Party of Afghanistan (the PDPA) since 26   May 1987. 7.     After having lived in hiding from 16 August 1992 to 5 January 1995, he had been arrested by Jamiat-e Islami militia forces operating in Burhanuddin Rabbani. He had been held captive until 27 September 1996 when he had been able to escape after the mujahideen had fled from the approaching Taliban. After first having hidden in the home of a friend, he had left Afghanistan for Pakistan. At the end of September or the beginning of October 1996, he had heard from a maternal aunt that the Taliban had been searching for him. Having not found him at home, the Taliban had taken captive his brother, who had been executed by the Taliban five days before the applicant’s flight to Pakistan. After having stayed for several months in Pakistan, he had travelled by air – via Moscow – to the Netherlands. His wife and their six children, the latter born between 1982 and 1992, had remained in Afghanistan and were living with his wife’s parents. 8.     By a decision of 31 October 1997, the applicant was granted asylum in the Netherlands. Having been granted a provisional residence visa ( machtiging tot voorlopig verblijf ) for the Netherlands, his wife and six children joined him about a year later and they were all granted an asylum ‑ derived residence permit (see paragraph 91 below). 9.     On 3 December 2002 a special 1F unit of the Immigration and Naturalisation Service (see A.A.Q. v. the Netherlands ((dec.), no. 42331/05, §   47, 30 June 2015) asked to be provided with the applicant’s case file in view of a possible application of Article 1F of the 1951 Refugee Convention. The applicant was informed accordingly on 9 December 2002 and on 17 February 2003 a supplementary interview ( aanvullend gehoor ) was held with him. 10.     On 28 October 2003 the Minister for Immigration and Integration ( Minister voor Vreemdelingenzaken en Integratie ) notified the applicant of her intention ( voornemen ) to revoke his asylum-based residence permit under Article 1F of the 1951 Refugee Convention. Noting that the applicant had worked between 1985 and 1992 as an officer of the KhAD/WAD, his asylum statement had been considered in the light of an official report ( ambtsbericht ) drawn up on 29 February 2000 by the Netherlands Ministry of Foreign Affairs ( Ministerie van Buitenlandse Zaken ) on “Security Services in Communist Afghanistan (1978-92), AGSA, KAM, KhAD and WAD” ( Veiligheidsdiensten in communistisch Afghanistan (1978-1992), AGSA, KAM, KhAD en WAD ). On the basis of this report, the Netherlands immigration authorities had adopted the position that Article 1F of the 1951 Refugee Convention could be applied in respect of virtually every Afghan asylum-seeker who had worked during the communist regime for the KhAD or its successor the WAD and held the rank of third lieutenant or higher. 11.     The Minister then proceeded to an elaborate analysis of the applicant’s individual responsibility under Article 1F of the 1951 Refugee Convention, based on the prescribed and so-called “knowing and personal participation” test. Noting, inter alia , the applicant’s steady career path in the KhAD/WAD, the Minister excluded the possibility of the applicant not having known or not having been involved in human-rights violations committed by the KhAD/WAD. Relying on the official report of 29   February 2000, the Minister underlined the widely known cruel practices of the KhAD/WAD, its lawless methods, the grave crimes it had committed such as torture and other human-rights violations as well as the climate of terror which it had spread throughout the whole of Afghan society. The Minister lastly emphasised that the applicant had done nothing to shirk from his duties for the KhAD/WAD. 12.     On 8 December 2003 and 5 March 2004, the applicant submitted written comments ( zienswijze ) on the Minister’s intended decision and, on 20   February 2004, he was once more heard before an official board of enquiry ( ambtelijke commissie ). 13.     On 28 April 2004, the Minister revoked the applicant’s residence permit. The notice of intent of 28 October 2003 was added to the decision and formed part of it. The Minister did not deviate, in the relevant part, from her earlier conclusions in the notice of intent and went on to confirm them on all points, dismissing the applicant’s rebuttals. However, as regards Article   3 of the Convention, the Minister accepted that it was possible that the applicant would in the then circumstances run a real risk of being subjected to treatment prohibited by this provision if expelled to Afghanistan and that, for this reason, he would not be expelled for the time being. The Minister added that, should the situation in Afghanistan change, a fresh decision on the applicant’s removal would be taken and that that decision could be appealed against. 14.     The applicant lodged an appeal to the Regional Court ( rechtbank ) of The Hague. In its judgment of 20 April 2005, the Regional Court allowed the appeal and annulled the impugned decision. Noting that the Minister had acknowledged that in Afghanistan the applicant would be exposed to a risk of treatment proscribed by Article 3 of the Convention, it held the Minister should also have examined whether Article 3 of the Convention constituted a sustained obstacle to his expulsion to Afghanistan. Consequently, as the Minister’s examination had been incomplete, it returned the case to the Minister for a fresh decision. 15.     On 7 June 2005 a supplementary further interview ( aanvullend nader gehoor ) was held with the applicant on the subject of his fear of being subjected to treatment prohibited under Article 3 if returned to Afghanistan. A written record of this interview was drawn up and on 23 June 2005 the applicant’s lawyer submitted written corrections and additions on the applicant’s behalf. 16.     On 7 July 2006 the Minister notified the applicant of her renewed intention to revoke his asylum-based residence permit under Article 1F of the 1951 Refugee Convention. She further notified him of her intention to also impose an exclusion order ( ongewenstverklaring ) on him. The applicant submitted written comments on this intended decision on 17   August, 9 October and 7 November 2006. On 13 December 2006 the applicant was heard before an official board of enquiry. 17.     By a decision of 22 February 2007, the Minister of Justice ( Minister van Justitie ) revoked anew the applicant’s asylum-based residence permit, under Article 1F of the 1951 Refugee Convention. In addition, the Minister imposed an exclusion order. As regards Article 3 of the Convention, the Minister held that it could not be concluded from the applicant’s account – viewed against the background of the then political and social situation in Afghanistan – that there existed a real and foreseeable risk that the applicant, if returned to Afghanistan, would be subjected to treatment in breach of Article 3 of the Convention. As he had only been able to state the possible problems he feared he would experience in Afghanistan in general terms without any specific evidence, the Minister concluded that the applicant had not demonstrated the alleged Article 3 risk which was found to be based on assumptions by the applicant and not on anything concrete. 18.     On 26 February 2007 the applicant lodged an objection ( bezwaar ) with the Minister to the decision to impose an exclusion order, and on the same day applied to the Regional Court of The Hague to have issued a provisional measure ( voorlopige voorziening ) allowing the applicant to remain in the Netherlands pending the determination of his objection. In addition, also on 26 February 2007, the applicant lodged an appeal and an accompanying application for a provisional measure with the Regional Court of The Hague against the decision to revoke his asylum ‑ based residence permit under Article 1F. 19.     On 30 October 2007 the Regional Court of The Hague, sitting in   ’s ‑ Hertogenbosch, declared inadmissible the applicant’s appeal against the revocation of his residence permit. It held that, as long as an exclusion order was imposed on him, the applicant had no legal interest in a determination of the merits of his appeal. It took into account that, in the proceedings on the imposed exclusion order, the applicant’s arguments based on Articles   3 and 8 of the Convention could be entertained. Although possible, the applicant did not lodge a further appeal with the Administrative Jurisdiction Division ( Afdeling Bestuursrechtspraak ) of the Council of State ( Raad van State ). 20.     Also on 30 October 2007 a provisional-measures judge ( voorzieningenrechter ) of the Regional Court of The Hague, sitting in ‘s ‑ Hertogenbosch, rejected the applicant’s application for a provisional measure which had accompanied his appeal and, in a separate decision, his application for a provisional measure which had accompanied his objection. In the latter decision, the judge noted that the applicant had admitted that he had worked as an officer of the KhAD/WAD and held that the Minister had correctly applied Article 1F in the applicant’s case. As regards Article 3, the judge found that the applicant had not established that he would be exposed to a real risk of being subjected to treatment proscribed by this provision, either on account of the general situation in Afghanistan or his individual circumstances. 21.     On 27 November 2007 the applicant’s objection of 26 February 2007 was rejected by the Deputy Minister of Justice ( Staatssecretaris van Justitie ). On 30 November 2007 the applicant lodged an appeal with the Regional Court of The Hague. He submitted his written grounds of appeal on 7   December 2007 and additional grounds of appeal on 4 January 2008. 22.     By a judgment of 9 September 2008, following a hearing held on 14   April 2008, the Regional Court of The Hague, sitting in Dordrecht, dismissed the applicant’s appeal against the decision of 27 November 2007. In so far as the applicant had relied on Article 3, it decided – as the arguments based on this provision had not been raised in the applicant’s written grounds of appeal itself but only for the first time during the hearing of 14 April 2008 – not to take them into account. 23.     The applicant’s further appeal to the Administrative Jurisdiction Division was declared inadmissible on 19 November 2008 as, despite having been provided with an opportunity to repair this failure, the applicant had failed to pay the statutorily prescribed court fees ( griffierecht ) within the time-limit fixed for this purpose. 24.     On 9 December 2008 the applicant was placed in immigration detention, which he unsuccessfully challenged. On 3 March 2009 he was informed that his removal to Afghanistan had been scheduled for 30 March 2009. On 2 March 2009, after having been informed that arrangements for an escorted removal were being made, the applicant lodged an objection to an action aimed at his effective removal ( daadwerkelijke uitzettingshandeling ). Under the terms of section 72(3) of the Aliens Act   2000 ( Vreemdelingenwet 2000 ), such an action can be equated with a formal decision within the meaning of the General Administrative Law Act which can be challenged in administrative-law appeal proceedings. The applicant further lodged an application with the Regional Court of The Hague for a provisional measure (stay of removal pending the determination of his objection). 25.     On 24 March 2009 a provisional-measures judge of the Regional Court of The Hague, sitting in Amsterdam, rejected the application. The judge found, in so far as the applicant had invoked Article 3 of the Convention, that it had not been demonstrated that he would risk treatment contrary to this provision in Afghanistan. 26.     On 26 March 2009 the President of the Section to which the case had been allocated decided to apply Rule 39 of the Rules of Court, indicating to the Government that the applicant should not be expelled to Afghanistan for the duration of the proceedings before the Court. 27.     The applicant’s objection of 2 March 2009 was declared inadmissible. An appeal by the applicant against that decision was rejected by the Regional Court of The Hague on 20 December 2010. It declared the appeal unfounded as the applicant did not risk removal to Afghanistan for as long as the Rule 39 interim measure was in force. No information has been submitted as to whether the applicant has lodged a further appeal with the Administrative Jurisdiction Division. 2.     Application no. 26268/09 28.     The applicant is an Afghan national who was born in 1955. He has been residing in the Netherlands since 1997. He was represented before the Court by Ms M. de Boer, a lawyer practising in Lelystad. 29.     On 22 November 1997 the applicant, his spouse and their five children (born between 1984 and 1996) applied for asylum in the Netherlands, claiming to fear persecution within the meaning of the 1951 Refugee Convention. In his interviews with the Netherlands immigration authorities, the applicant stated that he had been a member of the PDPA from 1980 to 1992 and that he had worked for the KhAD/WAD from 1981 to 26 April 1992; one day after Mr Yaqubi – who had headed the KhAD/WAD – had been killed. The applicant had simply not returned to work, where he had held the rank of lieutenant-colonel. In July 1992, while searching for the applicant, who had been living there at the time and who had been absent at that moment, mujahideen forces had searched the house of his aunt. He had then left Kabul and gone into hiding in a village near Jalalabad. He had learned on 12 October 1997 that his brother had been arrested by the Taliban in Jalalabad. The Taliban had arrived in Jalalabad on 24-25 September 1996. They had searched for the applicant but had taken his brother prisoner instead; thus the applicant had managed to flee to Peshawar, Pakistan on 22 October 1997. After his arrival there, he learned that his brother had been killed. In the period from 1992 to 1997, the applicant himself had not been bothered by any of the groups who had been looking for him because he had been living in hiding. The applicant also stated that he had learned that the KhAD/WAD had been responsible for having tortured people but he had never seen or done this himself. 30.     On 25 March 1998 the Deputy Minister of Justice rejected the applicant’s asylum claim for being manifestly unfounded ( kennelijke ongegrondheid ). The applicant challenged that decision in administrative appeal proceedings in which the final – for the applicant negative – decision was taken on 20 July 2000 by the Regional Court of The Hague, sitting in Amsterdam. 31.     However, the Deputy Minister of Justice did grant the applicant and his family on 25 March 1998 a conditional residence permit ( voorwaardelijke vergunning tot verblijf ) which was valid for one year from 22 November 1997 on the basis of a temporary categorical protection policy ( categoriaal beschermingsbeleid ) in respect of Afghanistan. 32.     On 22 November 2000, the situation in Afghanistan not having sufficiently improved, the applicant’s conditional residence permit was converted into an unrestricted residence permit ( vergunning tot verblijf zonder beperkingen ). Subsequently, with the entry into force of the Aliens Act 2000 on 1 April 2001, the permit held by the applicant was transformed into an indefinite residence permit for the purpose of asylum (v erblijfsvergunning asiel voor onbepaalde tijd ). 33.     On 21 February 2003 the applicant was informed that a special 1F   unit of the Immigration and Naturalisation Service had reviewed his case, that it had been decided to undertake a further investigation and that a supplementary interview would be held with him. Supplementary interviews were held with the applicant on 4 and 16 April 2003. A written record of these interviews was drawn up and on 28 May 2003 a lawyer submitted corrections and additions on the applicant’s behalf. 34.     On 6 November 2003 the Minister for Immigration and Integration notified the applicant of her intention to revoke his asylum-based residence permit under Article 1F of the 1951 Refugee Convention.   Noting that the applicant had worked between 1981 and 1992 as an officer for the KhAD/WAD, his asylum statement had been considered in the light of an official report, drawn up on 29 February 2000 by the Netherlands Ministry of Foreign Affairs on the security services in communist Afghanistan   (see paragraph   10 above). 35.     The Minister then proceeded to an elaborate analysis of the applicant’s individual responsibility under Article 1F of the 1951 Refugee Convention based on the prescribed and so-called “knowing and personal participation” test. The Minister noted inter alia that – on his lawyer’s advice – the applicant had decided to give no statement during the supplementary interviews about his activities for the KhAD/WAD. However the applicant did belong to a group of persons in respect of whom Article 1F was generally applied and he had not demonstrated that in his case a significant exception should be made. The Minister concluded that Article 1F was to be applied in the applicant’s case. The Minister took into account the applicant’s promotions in the KhAD/WAD and found that the applicant had known or should have known that the KhAD/WAD had been involved in the systematic commission on a large scale of serious crimes referred to in Article 1F. On 25 April 2004 the applicant submitted written comments on the Minister’s intended decision. 36.     On 19 April 2005 the Minister notified the applicant of her supplementary intention ( aanvullend voornemen ) to revoke his residence permit under Article 1F. The applicant submitted written comments on the Minister’s supplementary intended decision on 23 May and 15 June 2005. 37.     On 30 March 2006 the Minister further notified the applicant of her intention also to impose an exclusion order on him. The applicant submitted written comments on this intended decision on 19 April 2006. 38.     On 11 May 2006 the Minister revoked the applicant’s residence permit and, in addition, imposed an exclusion order. On 12 May 2006 the applicant lodged an appeal against the revocation of his residence permit and an accompanying application for a provisional measure with the Regional Court of The Hague. On 6 June 2006, the applicant lodged an objection with the Minister to the decision to impose an exclusion order. 39.     On 3 October 2006 the Regional Court of The Hague, sitting in Dordrecht, declared inadmissible the applicant’s appeal against the revocation of his residence permit. It held that, as long as an exclusion order was imposed on him, the applicant had no legal interest in a determination of the merits of his appeal. It took into account that, in the proceedings on the imposed exclusion order, the applicant’s arguments based on Article 3 of the Convention could be entertained. Although possible, the applicant apparently did not lodge a further appeal with the Administrative Jurisdiction Division against the ruling of 3 October 2006. Also on 3   October 2006, a provisional-measures judge of the Regional Court of The Hague, sitting in Dordrecht, declared inadmissible the applicant’s application for a provisional measure. 40.     The applicant’s objection to the decision to impose an exclusion order was dismissed by the Minister on 29 January 2007. The applicant’s appeal to the Regional Court was withdrawn on 7 May 2007 after he had been informed that the impugned decision had been withdrawn and that a fresh decision would be taken. 41.     In a fresh decision taken on 10 December 2007, after the applicant had been heard on his objection before an official board of enquiry, the Deputy Minister of Justice rejected the applicant’s objection to the decision to impose an exclusion order. In so far as the applicant had invoked Article 3 of the Convention, the Deputy Minister held that the applicant had failed to demonstrate that he would be exposed to a real and personal risk of being subjected to treatment contrary to Article 3 of the Convention if expelled to Afghanistan. According to an official report of the Ministry of Foreign Affairs of 31 January 2007 (DPV/AM-424/06/902099) not all former members of the PDPA and people who had worked for the KhAD/WAD ran such a risk. Many of them were working for the present Government of Afghanistan, including the security service. The applicant had failed to establish that specific groups, such as the Taliban or mujahideen, had been looking for him, or that he would be exposed to an Article 3 risk on account of him being of Tajik ethnicity. 42.     As regards Article 8 of the Convention, the Deputy Minister noted that the applicant was living in the Netherlands together with his spouse and their five children who in the meantime had obtained Netherlands nationality. Consequently, there was “family life” within the meaning of Article 8. However, taking into account the criteria formulated in the cases of Boultif v. Switzerland (no. 54273/00, ECHR 2001 ‑ IX) and Üner v.   the   Netherlands ([GC], no. 46410/99, ECHR 2006 ‑ XII), the Deputy Minister found that public interest considerations (public order, national security, prevention of crime and protection of the rights and freedoms of others) outweighed the applicant’s personal interests in enjoying family life in the Netherlands. On this point, the Deputy Minister considered that it was unlikely that the applicant’s spouse had not known about the applicant’s work for the KhAD/WAD whose brutal working methods were known to large parts of the Afghan population. The Deputy Minister also found no objective obstacles to them exercising their right to family life in Afghanistan, taking into account that the applicant’s wife and children had not been admitted to the Netherlands as refugees fearing persecution on the basis of their individual circumstances but entered instead under a temporary categorical protection policy. Furthermore, like the applicant, the applicant’s spouse came from Afghanistan, spoke the local language and was familiar with Afghan society. The Deputy Minister found no reason why she could not follow the applicant to Afghanistan or why their family life could not be carried on in a third country. 43.     On 12 December 2007 the applicant lodged an appeal and an accompanying application for a provisional measure with the Regional Court of The Hague. On 26 September 2008, following a hearing held on 29   August 2008, the provisional-measures judge of the Regional Court of The Hague, sitting in Dordrecht, rejected the applicant’s application for a provisional measure. 44.     On an unspecified date the applicant was placed in immigration detention and his removal to Afghanistan was scheduled for 25 May 2009. 45.     On 22 May 2009 the President of the Section to which the case had been allocated decided to apply Rule 39 of the Rules of Court, indicating to the Government that the applicant should not be expelled to Afghanistan for the duration of the proceedings before the Court. 46.     In its judgment of 27 April 2010, following a hearing held on 9   February 2010, the Regional Court of The Hague, sitting in Dordrecht, allowed the applicant’s appeal, annulled the impugned decision of 10   December 2007 and returned the case to the Deputy Minister for a fresh decision on the applicant’s objection. On 25 May 2010, both the Deputy Minister and the applicant lodged further appeals with the Administrative Jurisdiction Division. 47.     In its ruling of 8 November 2010, the Administrative Jurisdiction Division rejected the applicant’s further appeal on summary grounds, holding: “What has been raised in the [applicant’s] grievances ... does not provide grounds for annulling the impugned ruling. Under section 91(2) of the Aliens Act 2000, no further reasoning is called for, since the arguments submitted do not raise questions which require determination in the interest of case-law consistency, legal development or legal protection in the general sense.” 48.     The Administrative Jurisdiction Division allowed the further appeal lodged by the Deputy Minister, quashed the judgment of 27 April 2010 and rejected for being unfounded the applicant’s appeal of 12 December 2007. It stated, in particular, that it agreed with the reasoning given by the Deputy Minister for rejecting the applicant’s arguments under Article 8. 49.     No further appeal lay against that decision. 3.     Application no. 33314/09 50.     The applicant is an Afghan national, who was born in 1954. He has been residing in the Netherlands since 1999. He was represented before the Court by Mr H. Teunissen, a lawyer practising in Venlo. 51.     On 11 November 1999 the applicant applied for asylum in the Netherlands, claiming to fear persecution within the meaning of the 1951 Refugee Convention. His spouse and their three children (born in 1989, 1991 and 1993) had already arrived in the Netherlands and applied for asylum on 3 November 1999. On 14 March 2003, the applicant’s spouse and their three children were granted a residence permit under the then section 29(1)(c) of the Aliens Act 2000, on the basis of a special protection policy for a specific category of asylum-seekers from Afghanistan. 52.     In his interviews with the Netherlands immigration authorities, the applicant claimed to fear persecution within the meaning of the 1951 Refugee Convention from the side of the Taliban, who had detained him for about one year and about whose crimes he had written a book. He further feared persecution on account of his communist past. He stated that he had been a member of the PDPA since 1976 or 1977 and joined the Parcham faction, that – after having done his military service – he had studied from 1974 to 1980 at the Leningrad Polytechnic Institute in the former Soviet Union, that he had worked successively as secretary of the provincial committee of B. province, as deputy head of the central council of the Association of Agrarians in Kabul, and as Deputy District Governor of one of the districts in B. province. Between 1987 and mid-1994, he had worked in the private sector as – being a supporter of Babrak Karmal – he had preferred not to work for President Najibullah. From 1994 until September or October 1998 he had been commander of a militia brigade of about 2,000-3,000 troops under the command of the Mazar-e Sharif garrison. He had been captured by the Taliban during a surprise attack in September 1998. He had remained in Taliban detention until 20 October 1999 when he had been released after the intervention of an influential uncle. On 26   October 1999, he had left Mazar-e Sharif for Turkmenistan from where he had travelled by air – via the United Arab Emirates – to the Netherlands. 53.     On 14 March 2003 the Minister for Immigration and Integration notified the applicant of his intention to deny the applicant asylum under Article 1F of the 1951 Refugee Convention. Noting that the applicant’s career path had included the important posts of secretary of the provincial committee of B. province and Deputy District Governor of a district in the same province, his asylum statement had been considered in the light of an official report on Afghanistan issued on 16 September 1999 by the Netherlands Minister of Foreign Affairs (DPC/AM 63314) as well as a person-specific official report ( individueel ambtsbericht ) (DPC/AM 663248) not concerning the applicant but containing information about the provincial committees and secretaries to these committees. According to this information, provincial secretaries were of an equal rank to a governor and were the most important party functionaries of the PDPA at provincial level. They were responsible for all party decisions in a province, including recruiting members, propaganda, intelligence activities within and outside the party, recruiting members for paramilitary activities and contacts with the KhAD/WAD. In the period of 1978-92, provincial party secretaries played an active role in suppressing freedom of expression and in detecting and arresting political opponents and having them tortured and executed. Furthermore, according to another person-specific official report (DPC/AM 669362) not concerning the applicant himself, deputy governors had to lend support in the detection of political and military opponents of the communist regime, such as by supplying information to the KhAD/WAD. 54.     Following a lengthy analysis of the applicant’s individual responsibility under Article 1F of the 1951 Refugee Convention, based on the prescribed “knowing and personal participation” test, the Minister concluded that Article 1F was to be applied in the applicant’s case. On 11   April 2003 the applicant’s lawyer submitted written comments on the Minister’s intended decision. 55.     In his decision of 12 May 2003 the Minister denied the applicant asylum under Article 1F. The Minister did not deviate, in the relevant part, from his conclusions in the notice of intent of 14 March 2003 and maintained them on all points. The applicant’s comments were dismissed as not warranting another finding. However, as regards Article 3 of the Convention the Minister accepted that it could not be excluded – in view of the positions the applicant had held during the communist regime – that if expelled to Afghanistan, he would be exposed to a real risk of being subjected to treatment prohibited by Article 3 of the Convention. For this reason, he would not be expelled for the time being. The applicant was, nevertheless, because Article 1F had been held against him, not eligible for a residence permit. 56.     On 9 June 2003 the applicant lodged an appeal against that decision with the Regional Court of The Hague. In its judgment of 24   November 2004, the Regional Court of the Hague, sitting in Maastricht, allowed the appeal and annulled the impugned decision. Although it agreed with the Minister’s decision to hold Article 1F of the 1951 Refugee Convention against the applicant, it also held – referring to a ruling given on 2   June 2004 by the Administrative Jurisdiction Division and noting that the Minister had acknowledged the existence of an Article 3 risk for the applicant in Afghanistan – that the Minister should also have examined whether the applicant had established that Article 3 of the Convention constituted a sustained obstacle to his expulsion to Afghanistan. Consequently, the Minister’s examination had been incomplete. 57.     The applicant’s further appeal to the Administrative Jurisdiction Division, which mainly concerned his denial of having been a Deputy District Governor, was rejected on 6 June 2005. The Division upheld the impugned judgment of 24 November 2004, ruling that a fresh decision had to be taken on the applicant’s asylum claim. 58.     On 8 September 2005 the applicant’s spouse and their three children were granted Netherlands nationality. 59.     On 12 March 2008, after a supplementary interview had been held with the applicant on 6 December 2005, the Deputy Minister of Justice notified the applicant of her renewed intention – having explained why she did not believe the applicant’s new submissions to the effect that he had never been a Deputy District Governor – to deny him asylum under Article   1F of the 1951 Refugee Convention. As regards Article 3, the Deputy Minister found – having taken into account a paragraph about ex ‑ communists in an official country assessment report on Afghanistan released on 31 January 2007 by the Ministry of Foreign Affairs (DPV/AM ‑ 424/06/902099) – that the applicant had not demonstrated the existence of a risk of treatment in violation of Article 3 in case of his return to Afghanistan from the side of two particular mujahideen commanders who had confiscated houses and land belonging to the applicant, or from the side of mujahideen groups or the Taliban. The Deputy Minister concluded that there was no longer an Article 3 obstacle to the applicant’s removal to Afghanistan. In so far as the applicant had relied on Article 8 of the Convention on the basis of his family life with his spouse in the Netherlands, the Deputy Minister held that as asylum proceedings offered no scope for such arguments these arguments could not be entertained in the present asylum proceedings. 60.     On 10 and 11 April 2008 the applicant’s lawyer submitted written comments on the Deputy Minister’s intended decision. 61.     On 13 June 2008 the Deputy Minister denied the applicant asylum under Article 1F. The Deputy Minister maintained her findings on all points and – reiterating, inter alia , that this had been found established in the Regional Court’s judgment of 24 November 2004 which had become final when the Administrative Jurisdiction Division had upheld that ruling on 6   June 2005 – rejected the applicant’s claim that he had never been a Deputy District Governor. As to the applicant’s reliance on Article 3, the Deputy Minister held that, although the general human-rights situation remained a matter of concern, it was not such that any removal there would necessarily breach Article 3 of the Convention. The Deputy Minister further found that the applicant had not demonstrated that, on the basis of his personal circumstances, he would risk treatment proscribed by Article 3 in Afghanistan. The Deputy Minister also held that the applicant should raise his arguments based on Article 8 of the Convention in an application for a residence permit based on his family life with his spouse and his children. 62. The applicant’s appeal against that decision was rejected on 13   November 2008 by the Regional Court of The Hague, sitting in Roermond. It upheld the impugned decision. 63.     The applicant’s further appeal was rejected on 27 May 2009 by the Administrative Jurisdiction Division on summary grounds. No further appeal lay against that ruling. 64.     On an unspecified date the applicant was placed in immigration detention and his removal to Afghanistan was scheduled for 27 June 2009. 65.     On 24 June 2009 the President of the Section to which the case had been allocated decided to apply Rule 39 of the Rules of Court, indicating to the Government that the applicant should not be expelled to Afghanistan pending the proceedings before the Court. 66.     On 21 February 2014 the Deputy Minister of Justice notified the applicant of his intention to also impose an entry ban ( inreisverbod – see K. v.   the Netherlands (dec.), no. 33403/11, § 24, 25 September 2012) on the applicant. On 10 June 2014, following a hearing held on 23 April 2014, the Deputy Minister imposed an entry ban on the applicant. An appeal by the applicant against that decision was rejected on 29 January 2015 by the Regional Court of The Hague. Although possible, the applicant did not lodge a further appeal against this judgment with the Administrative Jurisdiction Division. 4.     Application no. 53926/09 67.     The applicant is an Afghan national who was born in 1969. He has been residing in the Netherlands since 1998. He was represented before the Court by Mr J. Walls, a lawyer practising in Breda. 68.     On 13 March 1998 the applicant as well as his spouse and their two daughters (born in 1992 and 1993) applied for asylum in the Netherlands. The applicant claimed to fear persecution within the meaning of the 1951 Refugee Convention. 69.     In his interviews with the Netherlands immigration authorities, the applicant stated that he had worked from 1987 to 1992 for the State-security directorate of the KhAD/WAD in Kabul. He had been regularly promoted and his final rank had been 1st lieutenant. His task had been the detection of drugs and weapons trafficking. He had transmitted information to higher officers who had taken further measures. He had also been responsible for combatting the smuggling of explosives. He had taken arrested smugglers to the directorate. He did not know what happened subsequently to these people. 70.   In June 1992 he had moved to Mazar-e Sharif where he had worked in the administration of the same police department where his brother was already working at that time. After the arrival of the Taliban in the area in May 1997, his brother had disappeared and had been replaced by a member of the Taliban. The applicant had gone into hiding in Mazar-e Sharif until he had left on 6 February 1998. Whilst he had been in hiding, armed men had entered the home of his wife and their two children and enquired about the applicant’s whereabouts. Via Jalalabad, Pakistan and Peshawar, the applicant and his family had fled to Karachi, Pakistan from where they had travelled by air to the Netherlands. The applicant stated that he had fled because he had feared for his life on account of his work and that of his brother. 71.     On 22 August 2000 the Deputy Minister of Justice rejected the applicant’s asylum claim under Article 1F of the 1951 Refugee Convention. After having examined the applicant’s asylum statement in the light of an official report, drawn up on 29 February 2000 by the Netherlands Ministry of Foreign Affairs, on “Security Services in Communist Afghanistan (1978 ‑ 92), AGSA, KAM, KhAD and WAD” (see paragraph 10 above), the Deputy Minister proceeded to an elaborate analysis of the applicant’s individual responsibility under Article 1F of the 1951 Refugee Convention, based on the prescribed “knowing and personal participation” test, and concluded that Article 1F was to be applied in the applicant’s case. In reaching this conclusion, the Deputy Minister took into account, inter alia , the applicant’s voluntary choice to join the KhAD/WAD, his career in this service and the nature of his work. The Deputy Minister considered that the systematic and large-scale commission of serious human-rights violations by the KhAD/WAD had been common knowledge well before the applicant had joined this service and that therefore he could not have been ignorant of those acts as had been averred by him. The Deputy Minister further rejected the applicant’s arguments under Article 3 of the Convention. 72.     On 4 October 2000 the applicant lodged an objection to that decision. On 9 January 2003 he was heard on his objection before an official board of enquiry. On 17 June 2003 the Minister for Immigration and Integration rejected the objection, having found nothing in the applicant’s submissions warranting another conclusion than the one set out in the impugned decision. However, as it could not be ruled out that the applicant, given his work in Afghanistan, would run a real risk of treatment contrary to Article   3 of the Convention if he were expelled to Afghanistan, the Deputy Minister further indicated that for the time being the applicant would not be removed to that State. However, this did not render him eligible for a non ‑ asylum ‑ based residence permit, including a residence permit on account of the duration of the proceedings on his asylum claim ( tijdsverloop in de asielprocedure ) as the application of Article 1F constituted a contraindication. 73.     By a decision of 23 June 2003 the applicant’s spouse was granted an asylum-based residence permit and their four daughters (two of whom had been born after the applicant’s arrival in the Netherlands, in 1999 and 2002) were granted dependent residence permits. No information has been submitted as to whether that decision was based on the individual asylum statement of the applicant’s spouse or under a particular protection policy. 74.     On 9 July 2003 the applicant lodged an appeal with the Regional Court of The Hague against the decision concerning his asylum claim and an objection with the Minister against the decision that he was not eligible for a non-asylum-based residence permit. On 19 January 2004 the Minister rejected the objection. On 13 February 2004 the applicant also lodged an appeal against the latter decision with the Regional Court of The Hague. 75.     In its judgment of 23 May 2005, the Regional Court of The Hague, sitting in Alkmaar, allowed the appeals and annulled the two impugned decisions. Although it agreed with the Minister’s decision and pertaining reasoning to apply Article 1F of the 1951 Refugee Convention in the applicant’s case, it also held – referring to two rulings given on 2 June 2004 by the Administrative Jurisdiction Division (nos. 20030887/1 and 200308845/1) and noting that the Minister had acknowledged the existence of an Article 3 risk for the applicant in Afghanistan – that the Minister should also have examined whether the applicant had established that Article 3 of the Convention constituted a sustained obstacle to his expulsion to Afghanistan. It further found that the Minister had unjustly based the decision concerning the non-asylum-based residence permit on section   3.77 of the Aliens Decree 2000 ( Vreemdelingenbesluit 2000 ). Consequently, the Minister’s examination had been incomplete. Accordingly it annulled the decisions of 17 June 2003 and 19 January 2004 and ordered the Minister to take fresh decisions within six weeks. 76.     In a fresh decision taken on 30 August 2005 the Minister rejected the applicant’s objections of 4 October 2000 and 9 July 2003. Referring to the reasons given in the judgment of 23 May 2005, the Minister again rejected the applicant’s asylum claim regarding Article 1F. As regards Article 3 of the Convention, the Minister found that that it could not be concluded from the applicant’s asylum statement – viewed against the background of the current political and social situation in Afghanistan – that there existed a real and foreseeable risk that if returned to Afghanistan the applicant would be subjected to treatment in breach of Article 3 of the Convention. The Minister considered, inter alia , that the applicant had not encountered any tangible problems in Kabul or Mazar-e Sharif during the reign of the mujahideen. The Minister further considered that while the problems which had caused the applicant to flee Afghanistan had only begun after the arrival of the Taliban in Mazar-e Sharif, the Taliban were no longer in a position of power in Afghanistan. The Minister further found that, on the basis of the decision to apply Article 1F to his case, the applicant was not eligible for a non-asylum-based residence permit on the basis of the so-called three-year policy ( driejarenbeleid ) set out in paragraphs C2/9.3 and B1/2.24 of the Aliens Act Implementation Guidelines 2000 ( Vreemdelingencirculaire 2000 ). Under this three-year policy a residence permit could be granted if an application for such a permit had not been determined within a period of three years for reasons not imputable to the petitioner and provided that there were no contraindications such as, for instance, the application of Article   1F. 77.     On 27 September 2005 the