The Dutch Council of State violated EU law: the PILP challenges it in court with an Afghan 1F’er

An Afghan 1F’er and the Dutch Section of the International Commission of Jurists (NJCM) (PILP-NJCM) have filed a lawsuit against the Dutch State for a violation of EU law. The Council of State, the highest authority in the Netherlands regarding immigration affairs, violated EU legislation by not conducting an individual investigation into the personal situation of the 1F’er, and by neglecting to submit a reference for a preliminary ruling to the Court of Justice of the European Union (CJEU) in Luxembourg. Based on EU law, this constitutes a wrongful act. The parties ask the District Court of The Hague to confirm this in a verdict.

Article 1F of the Convention Relating to the Status of Refugees of 1951 (hereinafter: the Refugee Convention) is used against asylum seekers where there is a strong presumption they have violated human rights. If this is the case, they are labelled with 1F-status. 1F-ers are barred from obtaining a residence permit, which then prevents them from claiming social rights or working in the Netherlands. As a result, family members that may be legally residing with them are also ineligible for housing allowances, medical care, and child benefits. It remains unsafe or impossible for these refugees to return to their own country or travel to another State. Therefore, hundreds of Afghan refugees are stuck in the Netherlands, some for up to fifteen years.

This issue results from an official notice from the Dutch government, claiming that Afghan secret service employees in the 1980’s and 1990’s, regardless of function or duties, are suspected of having violated human rights. The burden of proof lies with the asylum seeker who then has to disprove the allegation.

However, this notice is in violation of the State’s duty to conduct an individualised investigation into whether such a suspicion is in fact justified under EU law. It was held by the CJEU in B. and D. v. Germany (November 9, 2010) that the government must always conduct an individual investigation, and that only on the basis of serious reasons could a person be assigned 1F-status. The asylum seeker is to be presumed innocent until proven guilty and must not bear the burden of proof.

Eventually, CJEU will have to determine whether the Dutch policy is in violation of EU law. Because ordinary citizens do not have direct access to this Court, it is for the highest national judge, in this case the Council of State, to present the case regarding the uncertainty of the legality of the Dutch notice. The Council of State has so far neglected to do so.

The result of this neglect is that Afghan 1F’ers living in the Netherlands have no access to justice despite their treatment being in violation of EU law. Due to their failure to comply with EU law, the Dutch State is committing a wrongful act. For this reason, the PILP and the Afghan 1F’er in question have gone to court.

The case was initiated by the PILP-NJCM with legal representation by Martijn Snoep of De Brauw Blackstone Westbroek, Marieke van Eik of Prakken D’Oliveira and Jelle Klaas, Coordinator of the PILP.

Read the summons here.

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