CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 2 juin 2020

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THE NETHERLANDS (Application no. 49773/15)     JUDGMENT   Art 3 • Expulsion (Sudan) • General situation no longer entailing, in itself, a risk of ill-treatment in breach of the Convention • Personal situation • Region of origin: no reason to doubt domestic courts’ conclusion, reached with full procedural guarantees • Non-Arab ethnic origin: not entailing, in itself, a risk of persecution or serious harm in Khartoum • No involvement in opposition to current regime or other individual factors or indication of negative interest from authorities • Risk of ill-treatment not established Art 13 (+ Art 3) • Effective remedy duly offered   STRASBOURG 2 June 2020   FINAL   02/09/2020   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of S.A. v. the Netherlands, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of: Jon Fridrik Kjølbro, President, Iulia Antoanella Motoc, Branko Lubarda, Carlo Ranzoni, Stéphanie Mourou-Vikström, Georges Ravarani, Jolien Schukking, judges, and Andrea Tamietti, Section Registrar, Having regard to: the application (no.   49773/15) against the Kingdom of the Netherlands lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Sudanese national, Mr S.A. (“the applicant”), on 9 October 2015; the decision to give notice of the application to the Dutch Government (“the Government”); the decision not to have the applicant’s name disclosed (Rule 47 § 4 of the Rules of Court); the decision to indicate an interim measure to the respondent Government under Rule   39 of the Rules of Court and the fact that this interim measure has been complied with; Having deliberated in private on 21 April 2020, Delivers the following judgment, which was adopted on that date: INTRODUCTION The applicant complained under Article 3 of the Convention that, if he were removed to Sudan, he would risk being subjected to treatment in breach of that provision on account of his origins and ethnicity (non-Arab Darfuri), the risk of forced recruitment and the general humanitarian situation in Sudan as a result of the conflict in Darfur. The applicant further complained under Article 13 that he did not have an effective remedy for the alleged violation of Article 3 of the Convention. THE FACTS 1.     The applicant claims that he is a Sudanese national who was born in 1993. He is currently residing in Utrecht. He was represented before the Court by Mr G.J. Dijkman, a lawyer practising in Utrecht. 2.     The Government were represented by their Agent, Ms B. Koopman, and their Deputy Agent, Ms K. Adhin, both of the Ministry of Foreign Affairs. 3 .     On 31 August 2016, under Article 36 § 2 of the Convention and Rule   44 § 3 of the Rules of Court, the President of the Section granted the Dutch Council for Refugees ( Vereniging VluchtelingenWerk Nederland ) leave to intervene as a third party in the proceedings. On 24 May 2019 the Dutch Council for Refugees withdrew its request for intervention. 4 .     The facts of the case, as submitted by the parties, may be summarised as follows.   First set of asylum proceedings 5.     The applicant entered the Netherlands on 14 May 2010, where he lodged an asylum request. In his first interview ( eerste gehoor ) with the immigration authorities he stated that he had been born in a village in Nyala in South Darfur in 1993, that he had Sudanese nationality, and that he belonged to the Tunjur (a non-Arab ethnic group). He further stated that his mother was a Chadian national and that his father was from Darfur. A written record of this interview was drawn up, and on 3 June 2010 the applicant’s lawyer submitted written corrections and additions. 6.     A further interview ( nader gehoor ) was held on 13 September 2010 to enable the applicant to set out the reasons for his asylum application. He stated that his parents were divorced and that his father had tried to force him to join the fight of their ethnic group against the Janjaweed militia, to which his mother had objected. As she had feared that the applicant would be taken away by his father, his mother, aided by her new husband, had arranged for him to leave the country. The applicant stated that he feared that he would be killed by his father or members of his ethnic group upon his return to Sudan. A written record of this interview was drawn up, and on 1   October 2010 the applicant’s lawyer submitted written corrections and additions. 7 .     On 22 March 2011 a report was issued following a language analysis test – taken by the applicant in December 2010 – by the Office for Country Information and Language Analysis ( Bureau Land en Taal ), a specialised unit of the Netherlands Immigration and Naturalisation Service ( Immigratie- en Naturalisatiedienst , “the IND”) of what was, at that time, the Ministry of the Interior and Kingdom Relations ( Ministerie van Binnenlandse Zaken en Koninkrijksrelaties ). That report concluded that the applicant had been unequivocally identified as originating from Sudan, that it was likely that his background was in Darfur where he had spent a part of his childhood, that his Arabic showed influences of the Arabic spoken in the Khartoum region (or outside Darfur) where he must have spent a significant part of his life, and that it was plausible that he belonged to a non-Arab group. 8.     During an additional interview ( aanvullend gehoor ) held on 9 June 2011 it was pointed out to the applicant that, from still photographs taken from the security cameras at Schiphol Airport, it appeared that a person who looked like him had entered the airport on 14 May 2010. This person had arrived from Istanbul and had travelled on a Chadian passport found to be authentic. The applicant had reported to the immigration authorities and submitted an asylum request on that very same day, without holding any kind of documentation. The Royal Military Constabulary (Koninklijke Marechaussee ) had concluded that the person in the stills was the applicant. In the additional interview, the applicant confirmed that he was indeed the person who could be seen in the stills. He stated that the person who had arranged and facilitated his travel had only handed him the passport – which the applicant said bore his picture, but the personal details of a different person – at checkpoints. He had therefore returned the passport to this person. A written record of this interview was drawn up, and on 1 July 2011 the applicant’s lawyer submitted written corrections and additions. 9.     On 27 July 2011 the Minister for Immigration, Integration and Asylum Policy ( Minister voor Immigratie, Integratie en Asiel ) notified the applicant of his intention ( voornemen ) to reject his asylum application. On 26   August 2011 the applicant’s lawyer submitted written comments ( zienswijze ) on that intended refusal. 10.     On 11 October 2011 the minister rejected the applicant’s asylum application. It was held that the applicant’s failure to demonstrate his identity or nationality detracted from the credibility of his asylum statement. As it was found that he had entered the Netherlands holding an authentic Chadian passport, his claim that he was a Sudanese national was disbelieved. Consequently, no assessment of the merits of his application for asylum was carried out. 11.     An appeal and subsequent further appeal by the applicant were rejected by the Regional Court ( rechtbank ) of The Hague and the Administrative Jurisdiction Division ( Afdeling Bestuursrechtspraak ) of the Council of State ( Raad van State ) on 7 June 2013 and 7 August 2013 respectively.   Second set of asylum proceedings 12 .     On 24 October 2014, after having been arrested on 23 October 2014 on suspicion of having committed assault, the applicant lodged a second asylum request. Pursuant to section 4:6 of the General Administrative Law Act ( Algemene Wet Bestuursrecht ), a repeat asylum request can only be examined if it is based on newly emerged facts and/or altered circumstances warranting a revision of the initial negative decision. The applicant was interviewed in relation to that request. He stated that he was a Sudanese national from Darfur and that the passport which he had used to enter the Netherlands was not his own, and that he still feared a return to Sudan, as he would be forced to fight either with the military against his ethnic group or with his ethnic group against the military. The applicant submitted two documents: a declaration of residence ( domicilieverklaring ) issued by authorities in Sudan, and a statement of origin. Upon receiving the first document, the applicant had gone to the Sudanese embassy in the Netherlands, which had issued him with a statement confirming that he was from Sudan. The applicant had also gone to the Chadian embassy in Belgium in order to obtain a document confirming that he did not have Chadian nationality, but his request in that regard had been refused. A written record of this interview was drawn up, and on 7 November 2014, one day after the expiry of the time-limit fixed for this purpose, the applicant’s lawyer submitted written corrections and additions. 13.     On 7 November 2014 the Deputy Minister for Security and Justice ( Staatssecretaris van Veiligheid en Justitie , the successor to the Minister for Immigration, Integration and Asylum Policy; “the Deputy Minister”) notified the applicant of his intention to reject his second asylum request, as the applicant had failed to submit new facts or circumstances. On 8   November 2014 the applicant’s lawyer submitted written comments on that intended refusal. 14.     By a decision of 9 November 2014 the Deputy Minister rejected the second asylum application. The applicant lodged an appeal with the Regional Court of The Hague. 15.     In its decision of 9 December 2014, the Regional Court considered that the Deputy Minister had erroneously held that there were no new facts or changed circumstances, and had wrongly failed to examine the applicant’s asylum statement. It therefore upheld the applicant’s appeal and ordered the Deputy Minister to decide the case anew. 16.     On 16 December 2014 the Deputy Minister lodged a further appeal with the Administrative Jurisdiction Division of the Council of State. 17 .     On 12 February 2015 the Administrative Jurisdiction Division accepted the further appeal of the Deputy Minister, quashed the impugned judgment of 9 December 2014 and rejected the applicant’s appeal against the decision of the Deputy Minister of 9 November 2014. The Administrative Jurisdiction Division held that neither the documents submitted by the applicant in his second set of asylum proceedings nor the fact that the Deputy Minister had accepted that the applicant had Sudanese nationality in another set of proceedings relating to his placement in immigration detention was capable of affecting the finding made in the proceedings relating to his first asylum application that he had Chadian nationality. The applicant had not demonstrated that he did not have this nationality. The Administrative Jurisdiction Division found that the applicant had not adduced any new facts or circumstances, and that no special circumstances pertained to justify examining his repeat asylum request on its merits. In connection with this last consideration, reference was made to the Court’s judgment in Bahaddar v. the Netherlands (19   February 1998, § 45, Reports of Judgments and Decisions 1998-I). 18.     On 12 August 2015, following an application filed by the applicant on 9 June 2015 on the initiative of the Repatriation and Departure Service ( Dienst Terugkeer en Vertrek ) of the Ministry of Security and Justice, the Sudanese embassy in the Netherlands issued a laissez-passer to the applicant which was valid for two months, that is, until 12 October 2015.   Proceedings concerning the applicant’s removal to Sudan 19.     On 9 October 2015 the applicant was informed by the Netherlands immigration authorities that he would be removed to Sudan on 10 October 2015. On that same day he filed an objection ( bezwaar ) with the Deputy Minister against his effective removal. As such an objection did not have automatic suspensive effect, the applicant also sought a provisional measure from the Regional Court in order to stay his removal pending a decision on his objection. He argued that his removal to Sudan would lead to a violation of Article 3 of the Convention, as he was from Darfur and of a non-Arab ethnicity, and he would therefore attract the negative attention of the authorities immediately upon his arrival at the airport in Khartoum. He further argued that it had not been assessed whether there was a real risk of his removal exposing him to treatment in breach of Article 3 of the Convention, and that this was contrary to Articles 3 and 13 of the Convention. Moreover, as he had an arguable claim of a violation of Article   3, he should have had access to an effective remedy with automatic suspensive effect. 20.     In proceedings before the provisional-measures judge of the Regional Court, the Deputy Minister argued that the applicant’s arguments were neither new nor relevant to the legitimacy of his removal. 21.     The provisional-measures judge referred to the considerations of the Administrative Jurisdiction Division in its decision of 12 February 2015 (see paragraph 17 above), and to the arguments put forward by the Deputy Minister. It was concluded that no assessment of the question of whether the applicant’s expulsion to Sudan would be contrary to Article 3 of the Convention was needed, as he had failed to establish his identity and nationality. The application for the provisional measure was rejected by a decision of 9 October 2015. 22 .     On the same day the present application was lodged and the accompanying request for an interim measure within the meaning of Rule   39 of the Rules of Court, in the form of a stay of the applicant’s removal to Sudan, was granted until further notice.   Third set of asylum proceedings 23.     On 15 January 2016 the applicant lodged a third asylum application, and on the same day he was interviewed in relation to that new asylum application and notified of the Deputy Minister’s intention to reject it. After being provided with the opportunity to submit written comments on the intended refusal, of which the applicant availed himself on 18 January 2016, the Deputy Minister rejected the new application on 19 January 2016. He considered that, in so far as it was to be assumed that the applicant also held Sudanese nationality, it remained the case that the applicant had given only vague and summary statements about his origin and stay in Sudan, whilst these statements were contradicted by what had been found to have been established through the language analysis (see paragraph 7 above). Accordingly, no credence was given to the applicant’s alleged origin and problems encountered in his region of origin. No appeal was filed against that decision. 24.     The applicant left the Netherlands on an unspecified date, and on 7   April 2016 he applied for asylum in France. He returned to the Netherlands after the Netherlands authorities had accepted, on 19   April 2016, the French authorities’ request that they take responsibility for the applicant’s asylum application under the Dublin Regulation. 25.     On 6 September 2016 the Deputy Minister informed the applicant that he had decided to withdraw his decision of 19 January 2016 and that a fresh decision would be taken after an additional interview with the applicant. 26.     On 12 September 2016 an additional interview with the applicant was held in which, inter alia , his participation in a demonstration held by the Sudanese opposition in The Hague in January 2016 was discussed. A written record of this interview was drawn up, and on 26 September 2016 the applicant’s lawyer submitted written corrections and additions. 27 .     On 17 October 2016 the Deputy Minister notified the applicant of a fresh intended refusal. He held that the applicant had still not demonstrated that he did not hold Chadian nationality. He had entered the Netherlands on a genuine Chadian passport and his claim that he had obtained this passport through bribery had remained unsubstantiated. Moreover, he had stated that his mother was Chadian and he had a command of a Chadian (tribal) language. In so far as it was to be assumed that the applicant also held Sudanese nationality, it was relevant that he had given only vague, summary and demonstrably incorrect statements as regards his Sudanese origins. He had indicated during his first interview of 15 May 2010 that he hailed from Darfur, where he claimed to have lived for the first seventeen years of his life. He had further stated that Darfur was an independent region, and that he did not know where Darfur was or to which country it belonged. Furthermore, he was barely able to provide information about Nyala, where he had allegedly lived during the three years preceding his arrival in the Netherlands. The Deputy Minister further considered that, although it appeared from the language analysis (see paragraph 7 above) that the applicant could be identified as originating from Sudan, the findings of this analysis contradicted the course of the applicant’s life as described by him. He was unable to give the names of any places in the vicinity of Nyala, and could provide little information about this town where he had allegedly lived. Furthermore, although the applicant’s speech contained authentic elements from the Arabic language of Darfur, his speech also showed a strong influence of the Arabic language as spoken in the region of Khartoum. It was also striking that his vocabulary was unusually large for someone who claimed to be uneducated. The conclusion of the language analysis was that, although it was likely that the applicant had a Darfuri background and belonged to the non-Arab population group of that region, he must have spent a significant part of his life outside Darfur. Accordingly, the Deputy Minister found that the applicant had not established that Darfur should be considered his region of origin, as he had given summary and incorrect statements about that region and there were strong indications that prior to his arrival in the Netherlands he had lived for a lengthy period outside the Darfur region, and consequently no credence could be given to his alleged region of origin and the problems he had allegedly encountered there. Furthermore, the Deputy Minister did not find it established that the applicant, if removed to Sudan, would be exposed to a risk of treatment in breach of Article 3 on account of having participated in a demonstration by the Sudanese opposition held in The Hague on 28 January 2016, or that he would risk forced conscription into the Sudanese army. 28.     On 13 December 2016, having noted the applicant’s written comments on the intended refusal, the Deputy Minister rejected the applicant’s third asylum application. He maintained that no credence could be given to the risks to which the applicant would allegedly be exposed if removed to Sudan. The applicant filed an appeal with the Regional Court of The Hague. 29.     In its interlocutory ruling ( tussenuitspraak ) of 18 July 2017 following a hearing held on 15 June 2017, noting both the outcome of the language analysis and the fact that the applicant’s claim that he was a Sudanese national had been found to be credible, the Regional Court of The Hague sitting in Utrecht considered that the Deputy Minister had given insufficient reasons as to why it was accepted that the applicant was a Sudanese national but not, as he claimed, of Darfuri origin. The court further noted that, under section 8:51a(1) of the General Administrative Law Act, it could enable an administrative authority to repair or have repaired a flaw in an impugned decision, and in such a situation it would hand down an interlocutory ruling in accordance with section 8:80a of the General Administrative Law Act. In the case at hand, repair of such a flaw was considered possible in the form of additional reasons being provided or a fresh decision being taken, together with the withdrawal of the impugned decision. 30.     On 3 August 2017 the Deputy Minister notified the Regional Court and the applicant that he would avail himself of the opportunity to repair the flaw found by the Regional Court by giving additional reasons. The Deputy Minister did so on 25 August 2017, by providing more elaborate reasoning for his finding that the applicant had not demonstrated that he originated from the Sudanese part of Darfur. On 25 September 2017 the applicant submitted his written reaction to that additional reasoning. On 18   October 2017 the Regional Court requested that the Deputy Minister submit a further explanation as to why, given the findings of the language analysis (see paragraph 7 above), he had held that the outcome of the language analysis did still allow for the possibility that the applicant had grown up in Chad. 31 .     The Deputy Minister submitted that explanation on 1 November 2017, together with additional remarks on the language analysis report of 22   March 2011. Those additional comments were set out in a report of 31   October 2017 by the Research and Expertise Country Information and Language Analysis Team ( Team Onderzoek en Expertise Land en Taal , “the TOELT”; previously called ‘ Bureau Land en Taal ’, see paragraph 7 above) of the IND of the Ministry of Justice and Security, and stated that because of his Arabic speech, the applicant had been unequivocally identified as originating from ( eenduidig te herleiden tot ) the Khartoum region in Sudan, and it was plausible that he had spent most of his life or his entire life in this region. This report further stated that it was plausible that the applicant had a background in Darfur (Sudan) or Chad, and that it was possible that he had spent his early childhood in Darfur or in Chad, but because of his Arabic speech, this was rather unlikely. As regards the applicant’s alleged Tunjur origin, the report stated that, as the Tunjur did not have their own language, in practice, it was not possible to verify a person’s alleged Tunjur origin, and in the opinion of the TOELT, the applicant had submitted nothing warranting the assumption that he actually belonged to the Tunjur. During the language analysis carried out in December 2010, the applicant had demonstrated a command of Gorane, better known as Tubu or Tedaga, a language spoken in Chad, Niger and Nigeria. He had stated that he had learned it from his mother. The applicant submitted written comments on this report on 16 November 2017. 32 .     On 20 December 2017, following proceedings in which the applicant was assisted by a lawyer, the single-judge chamber ( enkelvoudige kamer ) of the Regional Court of The Hague sitting in Utrecht accepted the applicant’s appeal against the decision of 13 December 2016 and quashed that decision, but also held that its legal consequences should still stand. It found that, having regard to the additional submissions of the Deputy Minister, the Deputy Minister had sufficiently reasoned why he did not assume that the applicant hailed from Darfur and why it had not been excluded that he originated from Chad. Referring to the TOELT-report of 31 October 2017, it further accepted that it was plausible that the applicant had resided in the region of Khartoum for most of his life or his entire life. The Deputy Minister had thus correctly found that Khartoum should be considered the applicant’s region of origin and that the applicant had not established that he would be exposed to a real risk of being subjected to treatment in breach of Article 3 of the Convention there. On the basis of the flaw found in the interlocutory ruling, the Regional Court allowed the appeal, but as this flaw had been repaired by the Deputy Minister, the Regional Court decided that its legal consequences should still stand. 33.     On 15 January 2018 the applicant’s lawyer filed a further appeal on the applicant’s behalf with the Administrative Jurisdiction Division of the Council of State, which was rejected on 28 September 2018 by the single ‑ judge chamber of the Administrative Jurisdiction Division. The further appeal was found not to provide grounds for quashing the impugned ruling ( kan niet tot vernietiging van de aangevallen uitspraak leiden ). Having regard to section 91(2) of the Aliens Act 2000 ( Vreemdelingenwet 2000 ), no further reasoning was called for, as the arguments submitted did not raise any questions requiring a determination in the interest of legal unity, legal development or legal protection in the general sense. No further appeal lay against that ruling.   Relevant subsequent developments 34.     On 11 April 2019, after several months of street protests against his rule, the Sudanese President Omar Al-Bashir was ousted by the army of Sudan. The next day Lieutenant-General Abdel Fattah Al-Burhan was sworn in as chairman of the Transitional Military Council (“the TMC”). In his first public address, Lieutenant-General Al-Burhan stated that the military were committed to civilian rule. He further ordered the release of protesters jailed under emergency laws. 35.     On 16 April 2019 the African Union warned Sudan’s military that Sudan had fifteen days to install a civilian government or risk suspension from the African Union. In a statement issued on 30 April 2019, the African Union stated that it noted with deep regret that the military in Sudan had not stepped aside and handed over power to civilians within the fifteen-day period it had set. It granted the TMC of Sudan another sixty days to hand over power to a civilian authority or face suspension from the African Union. 36 .     On 4 August 2019 the TMC and the Forces of Freedom and Change, a broad alliance of political and social organisations, signed the Draft Constitutional Declaration, which defined the transfer of power from the TMC to the Sovereignty Council of Sudan and other transitional State bodies. The Sovereignty Council started its thirty-nine-month mandate on 20   August 2019. On 11 February 2020 a member of the Sovereignty Council announced that all those who were subject to arrest warrants by the International Criminal Court (ICC) for allegedly committing war crimes, crimes against humanity and genocide in the Darfur conflict, including former President Omar Al-Bashir, must be surrendered to the International Criminal Court. RELEVANT LEGAL FRAMEWORK AND PRACTICE   DOMESTIC LAW AND PRACTICE 37.     The admission, residence and expulsion of aliens are regulated by the Aliens Act 2000. Further rules are laid down in the Aliens Decree 2000 ( Vreemdelingenbesluit 2000 ), the Regulation on Aliens 2000 ( Voorschrift Vreemdelingen 2000 ) and the Aliens Act 2000 Implementation Guidelines ( Vreemdelingencirculaire 2000 ). The General Administrative Law Act applies to proceedings under the Aliens Act 2000, unless otherwise indicated in the latter Act. 38.     Section 13 of the Aliens Act 2000 provides that an application for a residence permit shall be granted only if:         international obligations require this;         the presence of the alien would serve a genuine interest of the Netherlands, or         urgent reasons of a humanitarian nature require this. 39.     A general overview of the relevant domestic law and practice as regards asylum proceedings has been set out in X v. the Netherlands (no.   14319/17, §§ 34-40, 10 July 2018), and the domestic policy in respect of Sudanese asylum-seekers as of 13 June 2018 has been set out in A.S. v.   the Netherlands ((dec.), no. 20102/13, 20 November 2018). 40 .     The official country report ( ambtsbericht ) on Sudan released on 7   October 2019 by the Netherlands Ministry of Foreign Affairs states, in so far as relevant, as follows: “The presidential elections in Sudan were scheduled for 2020. President Bashir began his last term of office in 2015. In 2018 the governing party National Congress Party (NCP) and party leader Bashir themselves took steps to re-elect him. A proposal for constitutional changes that were necessary for this was submitted to Parliament for approval. In April 2019 Bashir was deposed and a Transitional Military Council (TMC) came to power. ... On 1 January 2019 22 civilian groups and opposition parties, led by the Sudanese Professionals Association (SPA), signed the Declaration for Freedom and Change. In the declaration, the parties asked Bashir to resign. ... The signatories to the Declaration for Freedom and Change came to be known later that year as the Forces for Freedom and Change (FFC). The FFC is a broad alliance of political and social organisations including the Sudan Call Alliance, National Consensus Forces, the Unionist Association and the SPA. ... The SPA, a collection of unions of doctors, lawyers and teachers, took on the organisation of the demonstrations and encouraged citizens to continue the demonstrations ... From December 2018 to July 2019 the SPA and the FFC encouraged citizens to participate in protests against Bashir, and later against the TMC. In response to the protests, [in December 2018 and February 2019] the security forces arrested various members of the opposition, including party leaders from the Sudanese Congress Party and the Sudanese Communist Party. ... As of mid-April the TMC and the members of the FFC held weeks of talks about a possible transfer of power to a civilian-led transitional government. Among other things, the FFC demanded the appointment of a civilian government and security services reforms. Negotiations stalled because no agreement could be reached on the precise distribution of power between the military and the civilian opposition in a transitional body. ... The seizure of power by the TMC and the absence of an agreement on a civilian government led to a new stimulus among protesters. ... Despite the intervention of the security services, demonstrations continued throughout the country under the leadership of the SPA, but also led by neighbourhood (resistance) committees. ... Also as a result of mediation by the African Union (AU) and Ethiopia, the FFC and the TMC signed a political agreement on 17 July 2019 on the division of power in a transitional government. On 17 August 2019 both parties signed a constitutional declaration. Over a period of three years and three months the transitional government will prepare elections that will lead to a civilian government. The agreement stipulates that a sovereignty council will play the role of head of State and will consist of five civilian and five military members [and one civilian ‘selected by agreement’ between the FFC and the TMC]. ... According to a source, around one million Darfuris are living in Khartoum and the surrounding area. Most Darfuris live in poor neighbourhoods of Khartoum where other non-Arab Sudanese are also living, such as the Nuba and other tribes from the Two Areas [South Kordofan and Blue Nile]. Darfuris and people from the Two Areas who can afford it live in better neighbourhoods of the city, including the city centre. Despite systematic discrimination, Darfuris and people from the Two Areas were reasonably able to manage by themselves in everyday life in Khartoum in 2017 and 2018. For example, students from Darfur continued to study at university in Khartoum, despite regular arrests of Darfurian students during protests and public rallies. Darfur people are not really discriminated against by other citizens, but by the NISS [National Intelligence and Security Service], the public order police who extort them, and some other authorities. It is unclear how the situation of people from Darfur in Khartoum has developed in 2019 since the TMC has taken over power and the presence of RSF [Rapid Support Forces] in Khartoum has increased.” As regards returnees, this official country report states: “3.4.3     At-risk groups Various sources reported that a returnee stands out to the security services if he/she falls into different categories to which the security services pay more attention. This could include political activists, human rights defenders, citizens who participate in demonstrations, students and citizens belonging to tribes associated with the conflict areas. ... According to Amnesty International, expelled Sudanese citizens who were accused or suspected of activities for the opposition were at risk of becoming victims of serious human rights violations. Citizens hailing from conflict areas such as Darfur, Blue Nile, South Kordofan and the Nuba Mountains were also at increased risk, according to Amnesty, even if they had lived in Khartoum or other conflict-free areas for a long time.... Sudanese citizens who returned to Sudan and travelled with a laissez-passer or were forcibly returned were interviewed for longer than other travellers upon their arrival in Khartoum. The security services checked whether the person actually had Sudanese nationality. According to Amnesty International, persons travelling with temporary travel documents or with an escort were more quickly considered to be rejected asylum seekers and/or persons with a political profile. According to Amnesty International, these Sudanese citizens were therefore more at risk upon their return. While answering questions in [the Netherlands] Parliament in February 2019, the Ministry of Justice and Security indicated that there was no reason to follow the recommendations of Amnesty International and alter the procedure for removal to Sudan.” 41.     In an amendment (WBV 2020/1) of the Aliens Act 2000 Implementation Guidelines of 12 January 2020, the asylum policy in respect of Sudan was changed. Under the new policy, only the following persons are considered as belonging to an “at-risk” group (as regards this category, see A.S.N. and Others v. the Netherlands , nos. 68377/17 and 530/18, §   57, 25   February 2020 (not final)):          those who have been active in the field of human rights;          those who are (alleged) supporters of an armed opposition group. A person is in any event regarded as an (alleged) supporter of an armed opposition group if he/she belongs to: -                       a non-Arab population group, hails from Darfur and had normal residence there before arriving in the Netherlands; or -                       a non-Arab population group from the Nuba mountains and had normal residence there before arriving in the Netherlands. 42.     Under the new policy, there is no longer considered to be an exceptional situation as referred to in Article 29(1)(b) of the Aliens Act 2000 in Sudan. Under the former policy, and in respect of persons hailing from Darfur and from South Kordofan (including Abyei) and Blue Nile, the general situation in those areas was considered such that removal was to be regarded as entailing a real risk of suffering serious harm, that is, the situation referred to in Article 29(1)(b) of the Aliens Act 2000.   OTHER MATERIALS 43.     On 4 March 2009 the ICC issued an arrest warrant for Sudan’s then President Omar Al-Bashir on charges of war crimes and crimes against humanity in Darfur. On 12 July 2010 the ICC issued a second arrest warrant against Omar Al-Bashir for genocide committed against the Massalit, Fur and Zaghawa ethnic groups. 44 .     In August 2016 a joint report entitled “ Situation of Persons from Darfur, Southern Kordofan and Blue Nile in Khartoum ” was released by the Danish Immigration Service and United Kingdom Home Office following a joint fact-finding mission to Khartoum, Kampala and Nairobi conducted in March 2016. The report focuses on the situation of persons from Darfur and the Two Areas (South Kordofan and the Blue Nile State) in Khartoum, including the treatment of such persons upon their arrival at Khartoum International Airport, their treatment by the authorities in Khartoum, the prevalence of societal discrimination, and living conditions in Khartoum. Its executive summary reads: “Sizeable populations from Darfur and the Two Areas reside in Khartoum. There are two main drivers behind the immigration of persons from these areas to Khartoum: the security situation in Khartoum and the socio-economic factors. Persons with a political profile returning to Sudan may be questioned and/or arrested upon arrival at Khartoum International Airport (KIA) depending on the person’s profile. Seeking asylum abroad would not in itself cause persons from Darfur and the Two Areas problems with the authorities upon return except returnees from Israel. Neither would returnees face severe difficulties with the authorities because of staying abroad for a longer period or travelling with emergency papers. A person’s ethnicity would not generally affect the treatment, he or she would receive on arrival at KIA. The National Intelligence and Security Service (NISS) acts with impunity. Persons from Darfur and the Two Areas with a political profile are at risk of being targeted by the NISS and its affiliated militias in Khartoum, particularly student activists and persons with an affiliation to rebel groups. The Darfuri and Two Areas communities in Khartoum are monitored by the NISS, principally to identify those with a political profile. Activists at most risk are likely to be those from the Darfuri African tribes of Fur, Masalit and Zaghawa, and persons from the Nuba Mountains. Persons from Darfur and the Two Areas have access to documents, housing, education and healthcare in Khartoum. However, the quality of these services is low in the poor neighbourhoods surrounding Khartoum where a majority of these persons live. The main factor regarding access to housing and services is the person’s financial resources. There is in practice limited humanitarian assistance provided in Khartoum to those displaced by violence elsewhere in Sudan. Most Darfuris and persons from the Two Areas work in the informal sector as their access to employment in a number of sectors, particularly the public sector, is limited due to discrimination as well as the general adverse economic conditions in Sudan. Those working illegally, for example women selling tea without a licence, are at risk of arrest and prosecution under Public Order laws as well as harassment and extortion by the police. Persons from Darfur and the Two Areas, and in particular those of African descent, may experience societal discrimination in Khartoum. It is possible to travel by road and air between Khartoum and Darfur as well as Khartoum and the Two Areas. A person has to go through checkpoints controlled by different actors (the government, rebel groups and local armed groups). Access to certain parts of the Two Areas is restricted. In general, Khartoum is a safe place for persons fleeing from a private conflict in their local areas. However, the level of security depends on individual circumstances, particularly whether the other party in the conflict has connections with the authorities.” 45.     According to the Swedish Migration Board Country Information Service’s (Lifos) report of 6 December 2016 on the security situation in Darfur and the situation for internally displaced persons in Khartoum, a person’s cultural affiliation and skin colour are of importance in Sudanese society. Reports from several sources state that people are discriminated against in society because of their ethnicity. The ethnic group to which a person belongs affects the understanding of that person’s political affiliation. Human rights activists, political opponents to the regime, leaders in civil society, students, lawyers and journalists risk intimidation by the authorities. They can be arrested and detained by the National Intelligence and Security Service (NISS) without charge or trial. People from some non ‑ Arab groups can be perceived as being affiliated with rebels, and people from Darfur with a political profile can also be at risk in Khartoum. 46 .     The United Kingdom Home Office Country Policy and Information Note “ Sudan: Non-Arab Darfuris ”, released in August 2017, states, inter alia , as follows: “3.1.1     The security, human rights and humanitarian situation in Darfur continues to be poor. Non-Arab Darfuris in the Darfur region are likely to face human rights violations which amount to serious harm or persecution. 3.1.2     Existing case law has found that non-Arab Darfuris as an ethnic group are at risk of persecution in Darfur and cannot reasonably be expected to relocate elsewhere in Sudan, including to Khartoum. 3.1.3     The Home Office view is, however, that there is cogent evidence indicating that non-Arab Darfuris are not generally at risk of persecution or serious harm solely on the grounds of their ethnicity in Khartoum. This evidence provides strong grounds to depart from the existing case law of AA and MM. 3.1.4     Rather, a person’s non-Arab Darfuri ethnicity is likely to be a factor which may bring them to the attention of the state and, depending on other aspects of their profile and activities, may lead to a risk of serious harm or persecution in Khartoum. 3.1.5     Darfuris in Khartoum face discrimination in accessing public services, education and employment, experience forced eviction, societal harassment from other Sudanese, and do not have access to humanitarian assistance. However in general such treatment is not so severe that it is likely to amount to persecution but each case will need to be considered on its individual facts. 3.1.6     All returns are to Khartoum. It will generally be reasonable for a person, including those not previously resident in Khartoum, to return to that city but each case will need to be considered on its individual facts. If the person is able to demonstrate a risk of persecution or serious harm from the state in Khartoum, internal relocation to another part of Sudan will not be reasonable. ... 7.1.6     The UK-DIS FFM [the UK Home Office-Danish Immigration Service fact-finding missions to Kenya, Uganda and Sudan] report, based on a range of sources, noted: ‘A number of sources stated that they had no information to indicate that failed asylum seekers / returnees from Darfur or the Two Areas would generally experience difficulties on return to Khartoum International Airport (KIA), or they did not consider that claiming asylum overseas would put such a person at risk per se. Western Embassy (C) noted that they had monitored the forced return of two persons from Europe in 2015 and had no reason to believe that they experienced any difficulties or mistreatment, although the source acknowledged that they were not present throughout the arrival procedure. The diplomatic source mentioned that they had experience of a very few rejected asylum seekers being deported from Switzerland and Norway. According to the source it was unclear whether these returnees could get support upon return to Sudan