REK Decision on Asylum Case, 1997

(Unofficial translation from the Dutch original)

NOTE of Prof. Mr. B.P. VERMEULEN
on the REK DECISION of 11 Sept. 1997

(Published in Rechtspraak Vreemdelingenrecht [RV] 1997, pp. 29-34)

1. This is the end of a very longlasting procedure. In October 1988 the Filipino Communist leader Sison asked for entry as a refugee. In July 1990 a negative decision was made: according to the defendant he could not be considered for entry because of the exclusion clause of Article 1F, sub. c, Refugee Convention. Against the fictive rejection of the request for review, Sison went on appeal to the Judicial Department [of the Raad van State, Council of State], which nullified [the rejection of the Justice Ministry] on 17 December 1992 (RV 1992, nr. 12, Sison I). In a new decision of March 1993, the defendant again refused to allow Sison to enter, now on the basis of Article 1F, sub a and b, Refugee Convention. This decision was also nullified (ABRvS 21 February 1995, RV 1995, nr. 2, Sison II). Against the non-taking of a decision on time Sison went on appeal before the court, which by a ruling on 29 April 1996 declared the appeal well grounded and instructed the defendant to decide again within six weeks. Against the defendant's negative decision of 4 June 1996, Sison went on appeal. This appeal in declared not grounded in this ruling (Sison III, already published in Jurisprudentie Vreemdelingenrecht 1997,8 with the note of Boeles). In this case there are very many aspects that are stuck which are worth discussing and criticizing. In this note the following questions will be taken up: the Refugee Convention and claim on granting of rights (point 2); the Aliens Law and claim on granting of rights (point 3); refugee status and the claim on social rights/benefits in the Refugee Convention (point 4); the recent notice of the State Secretary regarding Article 1F Refugee Convention (point 5); the position of Sison's family members (point 6); Article 3 EVRM and claim on granting of rights (point 7); amendment of policy to the disadvantage of the interested person (point 8). Finally in point 9 a short sketch will be given of the recent 1F jurisprudence.

2. In this case it has been established as a fact ["stond vast"] that Sison is a refugee in the meaning of Article 1 of the Refugee Convention. An important question which the REK (Rechteeinheidskamer, Law Unity Chamber) had to answer was under which conditions does a claim ("aansprak", claim, title) to entry as a refugee flow from that. In the crucial legal consideration ("rechtsoverweging") 15, the judge first of all states that such a claim according to established jurisprudence cannot be derived from the Refugee Convention as such. This position is correct if it is thereby said that the only fact that a convention refugee finds himself in the territory of a convention state does not always bear with it an obligation for that state to allow him to enter as a refugee. So the Convention does not stand in the way that a convention refugee is not allowed entry if he elsewhere in a country of first reception, a safe third country, a Schengen country, a country of earlier stay, or whatever alternative place of refuge will be called, can secure adequate protection against refoulement.

The question is whether a convention refugee also when there is no alternative place of refuge (in which case he therefore cannot be removed) can be denied entry as a refugee. Often it is assumed that that is a question of national law, and refusal is thus allowed if this [national] law permits such [refusal]. (Cf. Mine "The land of first reception in the Dutch asylum law". Extra annex in Vreemdelingenbulletin 1995, no. 8, p. 1) But there are also arguments that can be derived from the Refugee Convention which in definite cases the obligation to [give] entry can be assumed. Pursuant to Article 31 par. 2 of the Convention, "direct" refugees - even though they were in other countries only in transit - who have registered with the authorities without delay may only be put under restrictions to their freedom "until their status in the country of refuge is arranged or up to that time when they are successful to be allowed entry in another country. The contracting States which approved the Convention shall grant to these refugees a reasonable postponement, together with the needed facilities, with the objective of getting entry in another country". Therefore there are two options: (a) either it is arranged that the convention refugee secures within a reasonable time entry elsewhere, (b) or his status must be arranged by the first receiving country. If now reception elsewhere is not possible within a reasonable time (a), only option (b) remains: arrangement of his status at this place. "Arrangement of his status" means: the granting of a permanent right to stay, see Spijkerboer/Vermeulen, Utrecht 1997 (2nd edition), p. 225. Entry as a refugee must consist in such [permanent right to stay], because presumably only the right to stay grants [the] claim to all social rights that the Refugee Convention grants to legitimately staying refugees.

It may nevertheless be clear that the Dutch legislator does not honor this view. So presented the Minister of Justice in the framework of dealing with the Aliens Law that the Convention does not provide for a right to entry (TK 1963-64, 7613. No. 9, p. 7; also the MvT. TK 1962-1963, 7163, p. 12).

The view that the question whether a convention refugee must receive a right to stay is not (also) a question of international law (Refugee Convention), but is exclusively answered by national law, is stressed once more in the amendment of the Aliens Law, where in provisions such as Article 15b par. 1 b until and incl. f Vw and Article 15c par. D and e Vw expressly keep open the possibility that a convention refugee can be denied the right to stay "entry as a refugee". In line with this the REK has accepted that a request of a convention refugee for entry as refugee on the basis of Article 15b par 1f Vw can be declared inadmissible, and it can be sufficient to grant a permit to stay when removal would be violative of Article 33 of the Convention: Rb. 's-Gravenhage (RREK) 29 May 1997, NAV 1997, p. 578 (in this direction already Rb 's-Gravenhage (REK) 11 May 1995. NAV 1995, p. 483.)

3. Starting with the standpoint of the REK that no claim to entry as refugee can be derived from the Refugee Convention, the question arises in how far the claim then does flow from the national law, the Aliens Law and the policy [of the Dutch government, presumably--LJ]. As the REK considers, the claim cannot just be derived from Article 15 and further of the Aliens Law. Pursuant to Article 15 par 2 Vw, the entry as refugee to aliens who fear for persecution in their land of origin (Article 15, par. 1 Vw) cannot be denied except for weighty reasons derived from the general interest, if the alien would be impelled by the refusal to go back to that country. Elsewhere it has already been lengthily argued that Article 15 par 2 Vw, if this provision should have meaning, must be so viewed that therein the obligation is formulated in order that the alien who fears for persecution in his land of origin, except for weighty reasons derived from the general interest, be allowed entry as refugee if his removal because of the absence of a safe other country would result in return to that country (so already Swart, The entry and expulsion of aliens, Deventer 1978, p. 135, and recently Spijkerboer/Vermeulen, earlier cited work, pp. 216-217). If I see it well, the REK in legal consideration 10 also chooses this interpretation ("uitleg"). Subsequently, the question comes up whether the defendant could invoke the weighty reasons as meant in Article 15 par 2 Vw for [justifying] exception to the obligation to grant entry. The lawyer of the plaintiff had argued that there is an obligation to allow entry when the prohibition on refoulement of Article 33 par 1 Refugee Convention opposes the removal of the alien. In other words, an alien who falls under the description of Article 1A (2) of the Convention and is thus a refugee in the meaning of Article 15, must in principle, on the basis of Article 15 par. 2 Vw when there is no alternative place of refuge, be allowed entry as refugee. This allows an exception only in the case of the applicability of Article 1F or Article 33 par 2 of the Convention: then and only then can entry on the basis of weighty reasons derived from general interest be denied (so already Spijkerboer/Vermeulen, earlier cited work, pp. 301-303. In this view, the weighty reasons of Article 15 par 2 Vw and the applicability of Article 1F and 33 par 2 of the Convention fall into one (that applicability of these articles produce weighty reasons in the meaning of Article 15, par 2 Vw is generally accepted: see, for example, ABRvS 7 November 1995, RV 1995, 5 concerning Article 1F, and REK 11 September 1997, Jurisprudentie Vreemdelingenrecht 1997, 7 concerning Article 33 par 2).

The REK apparently does not honor this view (there is a case of weighty reasons only when Article 1F or 33 par 2 Refugee Convention can be invoked). The considerations that it uses are unfortunately rather unclear. First the REK establishes in legal consideration no. 15: "Also Articles 15 and further of the Aliens Law do not just simply grant that claim". In itself that is correct. Article 15 par 2 Vw does not oppose refusal of entry of an Article 1A refugee if there is a safe alternative place of refuge, or if there are weighty reasons in the meaning of this provision. But this provision does oppose refusal of the entry if the two exceptions are not present: in that case, the Aliens Law indeed does grant that claim [aanspraak = claim, title]. Remarkably enough, the REK continues as follows: "It is however the policy of the defendant, if there is a situation that there is a well-grounded fear for persecution in the meaning of Article 1A of the Refugee Convention and there is no other country that wants to allow entry to the asylum seeker, to allow the alien entry as refugee. The defendant has in principle the power ["bevoegdheid = power, competence] to make an exception to this." In this manner, the REK makes it appear as if the question of allowing or not allowing entry of a 1A refugee without an alternative place of refuge is a question of policy. But it is not: it is a question of the correct interpretation ["uitleg" = explanation, interpretation] of the concept ["begrip" = idea, notion, concept] "weighty reasons" in Article 15 par 2 Vw. If there are no such reasons, then the Aliens Law requires that entry be allowed.

I take it that here there is a serious "slip of the pen". The continuation of legal consideration no. 15 does indicate this, since the REK argues that there are "weighty reasons" to be found in the "integrity and credibility of the Netherlands as a sovereign state:. I presume that the REK means "weighty reasons" in Article 15 par 2 Vw. Starting from that, it is clear that the REK rejects the standpoint that there are such reasons only in case Article 1F or 33 par 2 Refugee Convention are applicable: also maintaining good diplomatic relations with the Philippines falls thereunder.

4. A disadvantage of this view: entry as refugee can be refused in specific cases even if there is no case of Article 1F or 33 par 2 of the Refugee Convention, is that in the case of a convention refugee who has no safe third country to go to and thus may not be removed, it is made extraordinarily difficult to make a claim on social rights/benefits which are granted by the Convention on Refugees. It is true, the REK states that the consequences on the legal position of the refusal to allow entry to Sison are not yet determined and can be put before the judgment of the judge when decisions are taken on the matter (legal consideration 20). But the REK naturally also knows that aliens in general only make a claim on rights/benefits (social security, accommodation, study financing) when they have a right to stay, which requirement will be further sharpened by the Koppelingswet (Connecting Law). Moreover the appeal against decisions connected with these rights/benefits are not decided by the aliens judge, but by the "ordinary" administrative judge or the College of appeal study financing, which are not equipped for establishing if the concerned is a refugee and presumably shall reject the appeal for the social rights that the Convention grants because the concerned has not been allowed [entry] as a refugee (so, for example, ARRvS [Raad van State] 27 May 1992, AB 1992, 585). Or does the REK think that these rights are not valid for a not- allowed-entry refugee like Sison because he must be considered as not staying legitimately in Dutch territory? Most of the provisions after all require legitimate ("rechtmatig") stay, see among others Articles 21, 23 and 24 Refugee Convention (accommodation, welfare, social security; for access to study and study financing this requirement is not in effect (Article 22 Refugee Convention). But is it correct to say of a convention refugee who has no alternative place of refuge and that notwithstanding is not allowed entry on the basis of considerations of international diplomacy that he is staying here not legitimately? And if that is not correct, is it then right that in order to secure his rights according to the Convention that this possibility is made dependent on the competence and readiness of judges other than the aliens court?

5. It may be clear that I find the ruling of the REK rather careless ("onzorgvuldig", careless, negligent). The carelessness is especially regrettable considering the explanation which the State Secretary has given of specific considerations in a recent letter to the Tweede Kamer wherein she has laid down her Article 1F-policy (letter of 28 November 1997 to the Tweede Kamer, TK 1997-1998, 19637, no. 2951). So the State Secretary concludes from this ruling - in my opinion, by the way, incorrectly, see about this in point 3, - that the REK is of the judgment that from the Aliens Law no claim [or right] to entry can be derived.

The notice contains still a number of other incorrect standpoints. I must concentrate on one single point: the relations sketched in the letter of Article 1 Refugee Convention to Article 15 Aliens Law. Up to now the prevalent view was that the definition of Article 1A(2) Refugee Convention and the description in Article 15 Vw comprise the same category of persons (Fernhout, Recognition and entry as refugee in the Netherlands, Deventer 1990, pp. 53-55; Spijkerboer/Vermeulen, earlier cited work, pp. 46-48). This view implies that one can be a refugee in the meaning of Article 1A(2) Refugee Convention and Article 15 Vw while one is not on the basis of Article 1 of the Convention excluded because of the applicability of one of the cessation of the exclusion clauses. Pointing at Article 1F of the Convention that means that the refusal to a 1A-refugee on the basis of 1F of the Convention must be due to the weighty reasons of Article 15 par 2 Vw. The State Secretary also puts herself on the standpoint that the definitions of Article 1 Refugee Convention and Article 15 Aliens Law are identical: "From the above-stated it follows that entry as refugee in the Netherlands is possible only for those who are refugees on the basis of Article 1 of the Refugee Convention. Now then persons who fulfill the description of (among others) Article 1F Refugee Convention cannot be refugees on the basis of the Convention, because they are excluded from its protection, they cannot also as such be recognized on the basis of Article 15, 1st par, Aliens Law. And application of Article 15, par. 2, Aliens Law is therefore irrelevant, and in fact incorrect" (earlier cited work, p. 6). To substantiate this, a passage out of the history of law mentioned and reference is made to the jurisprudence of the Department [Raad van State]. The pertinent passage reads: "Different from the Belgian provisions, which connects to the Convention of Geneva, the proposed Dutch (Articles 6, par 2 and 15 and 22, par 2) also applicable to aliens who ask for asylum in connection with events which happened after 1 January 1951. The effective field of the Dutch provisions is thereby much broader" (TK 1963-1964, 7163, no. 6, p. 8). It is rather farfetched to base oneself on the view presented by the State Secretary. Definitely incorrect is the invoking made of the jurisprudence of the Department [Raad van State]. The ruling mentioned in the letter (ARRvS 16 October 1980, RV 1981, no. 1) appears indeed to confirm that view. In more recent jurisprudence, the Department has however expressly - with reference to RV 1981, 1! equated the notion refugee in Article 15 Vw not to Article 1 Refugee Convention but to Article 1A (2) Refugee Convention. So deliberated the judicial Department, just as it already did earlier, among others, in the ruling of 16 October 1980 (RV 1981, no. 1), that the Articles 1 (A) under 2 of the Convention and Article 15 of the Aliens Law refer to the same category of persons" (ARRvs 12 November 1992, GV (old), D12-223, MR 1993, 53). Just recently the Administrative Department [Raad van State] that it can stay in the middle whether the appellant must be considered as refugee in the meaning of Article 15 par 1 of the Aliens Law. After all, also if one should start from the point that the appellant must be considered as such, the defendant could still deny entry on the basis of Article 15 par 2 of the Aliens Law that refers to the applicability of Article 1(F) of the Convention (ABRvS 20 December 1996, RO2.92.2322). Moreover, the Aliens Chamber as well as the REK proceed from the one and the same standpoint as the Department [Raad van State]: in the long run in declared decisions, the notion "refugee" in Article 15 Vw is equated with Article 1A(2) of the Convention.

One so selective use of jurisprudence as has taken place in this letter is incorrect from a purely scientific and legal perspective. It is also unacceptable, considering the consequences for other than 1F-cases. Pursuant to Department [Raad van State] jurisprudence, the Convention is indeed not applicable, on the basis of Article 1D, to Palestinians who withdraw themselves from the protection of UNRWA by going outside the protection territory, but they can invoke Article 15 Vw if they fall within the terms of Article 1A(2) of the Convention (ARRvS 6 August 1987, RV 1987, no. 5: see for other locations Spijkerboer/Vermeulen, earlier cited work, p. 42). In the view of the State Secretary Article 15 Vw = Article 1 Refugee Convention this category of person however fall outside the protection of Article 15 Vw. This is not so.

6. On the same date, the REK also made a ruling in the case of the appeals filed by the wife and 15-year-old son of Sison (AWB 97/4706 and AWB 97/4752). The appeal of the wife against the refusal to allow entry to her as a refugee is rejected, because she filed her application for it only six years after her arrival. The Communist Party to which she is connected is no longer illegal and another son stays in the Philippines without problems. The refusal to grant her a permit to stay is nullified in view of the three-year policy. Correctly, the REK sees in the circumstance that allowing her stay would mean that her husband in fact will stay for a longer time in this country, this does not constitute a contra-indication, since such must be connected with personal behavior or characteristics of the concerned person.

The appeal for refugee status for Sison's son is rejected with a reference to the fact that a brother lives in the Philippines without problems. The appeal against the refusal for a permit to stay is successful, since the appeal of the mother in the case of the refusal of her permit to stay has been declared valid and it brings with itself that her application must be judged again. The defendant shall in his judgment take into consideration the family unification policy and Article 8 EVRM.

Moreover, the State Secretary announces in his aforementioned letter of 28 November 1997 to the Tweede Kamer (TK 1997-1998, 19637, no. 295, p. 9) that she shall sharpen her policy with regards to family members of "1-F-ers", in the sense that these shall not be considered for a (v)vtv [(temporary) permit to stay]. Thereby shall the Aliens circular, which does not see the possibility to set a contra-indication which does not go with personal behavior/characteristics of the alien, be amended.

7. In this case, it is established that the expulsion of Sison to the Philippines is a violation of Article 3 EVRM. The REK had to decide if from this flows that at least a right in the form of a permit to stay must be granted to Sison. Correctly the REK answers this question negatively, referring to the jurisprudence of the Department [Raad van State] and the European Court for Human Rights. The reference to the ECHR is indeed problematic in so far that the European Court until today has never expressed itself in the sense that refusal of the right to stay is not a violation of Article 3 EVRM in situations wherein expulsion would mean violations of Article 3 EVRM, but there is no expulsion: up to now in this jurisprudence (RV 1989, no. 94; RV 1991, nos. 18 and 19; RV 1996, nos. 20 and 21) only the expulsion as such has been taken up and not (also) the refusal of a right to stay. On the other hand, there is no indication that the Court will be prepared to conclude that from Article 3 EVRM under circumstances there is a claim (right) to a right to stay. I point out that the Court has always stressed that the EVRM does not contain the right to "political asylum".

Moreover, the REK refers correctly to ABRvS 20 December 1996 R02.92.2322, wherein the Department considers, "as she has done several times, that the absolute character of Article 3 EVRM does not stand in the way of a refusal of a permit to stay, since from what appears in the pieces, expulsion to Somalia at the time of the fictive contested decision was not under discussion [not planned, not intended]. This is after all a rather remarkable consideration. Apparently the Department thinks that when the defendant is not planning to expel - such as in this case, wherein it was admitted that Sison would not be expelled -- an Article 3 risk that would occur with an expulsion, does not create a claim to a right to stay. When, on the contrary, the defendant is planning to expel such a risk apparently will create such a claim. I do not understand this last point. If the judge establishes that the planned expulsion is in violation of Article 3 EVRM that shall indeed have as a consequence (in any case, I assume that out of hand) that the defendant will refrain from expulsion? Why is the defendant then nevertheless still also not obliged to grant a permit to stay?

It is positive that the REK is of the opinion that the refusal of a permit to stay in the case that expulsion would be in violation of Article 3 EVRM in general is undesirable and must be limited to exceptions (legal consideration 20). See for this also the note in no. 10 of this bundle.

8. The REK states that the policy of the defendant is, if there is a situation wherein there is well-grounded fear for persecution in the meaning of 1A Refugee Convention and there is no other country that will allow entry to the asylum seeker, to allow entry to the alien as a refugee. It is also of the judgment that the defendant is allowed to make an exception to this [policy], and that in this case such an exception is made in a reasonable way (legal consideration no. 15). That this is a matter concerning policy is in my opinion incorrectly formulated, see point no. 3 above. But even if this indeed would be a question of policy the question arises whether the defendant has the power ("bevoegdheid") to deviate from it to the disadvantage of the alien. Or does the REK mean here not policy in the technical meaning of a consistent -- mostly administrative practice established policy rules to which the defendant in principle is bound (compare now Article 4:84 AwB), but purely a steady way of acting from which is not binding for the administration? ("een bestendige handelswijze waaruit geen binding voor het bestuur voortvloeit?") On this question, I will go further into in my note on this ruling in the AB.

9. It lies in the line of expectations that the relevance of Article 1F Refugee Convention for the practice in decisions will increase. Apparent in the aforementioned notice on this (TK 1997-1998, 19637, no. 295) the State Secretary takes upon herself, if there are indications for it, to systematically investigate whether Article 1F can be applied. I presume, moreover, that now the application of this provision earlier than before will remain as a legal matter. In earlier Raad van State jurisprudence (ABRvS 17 January 1995, RV 1995 no. 1 and ABRvS 21 February 1995, RV 1995, no. 2 (Sison II) the burden of proof set on the State Secretary on this matter was very heavy, in my opinion too heavy. In the earlier mentioned ruling ABRvS 20 December 1996, R02.92.23.22 a lighter standard was accepted (see my note in RV 1996, no. 2 under point 4). In addition, the UNHCR has taken the standpoint in the document "The exclusion clauses: guidelines on their application" (December 1996) that the application of Article 1F of the Convention is justified if the concerned fulfilled a function in a criminal regime at a level in which formal co-responsibility for and knowledge of serious human rights violations -- except if the concerned presents counter-evidence --may be supposed (see for a plea in this direction already made earlier: R. Bruin, Zijn en schijn is twee. Over vluchtelingschap en uitsluitingsgronden [To be and appear to be are two different things. On being a refugee and exclusion grounds], NAV 1995, pp. 332-333). In an important ruling (Rb. Haarlem 17 October 1997, AWB 97/1495) the UNHCR guidelines were accepted in the case of an Afghan asylum seeker who fulfilled important functions for a long time with the Khad, the infamous security service under Najibullah; an earlier ruling already went in this direction (Rb Haarlem 20 June 1997, AWB 96/8216). Also the State Secretary starts out from this division of the burden of proof in her policy (TK 1997-1998, 19637, no. 295, p. 8). Finally, it is of importance that the Amsterdam Aliens Chamber in a case of a Khad-functionary officially considered that in such cases, in the investigation on the question whether the plaintiff actually can be allowed entry as a refugee, attention to the possible applicability of Article 1F of the Refugee Convention cannot be set aside. (Rb. Amsterdam 4 June 1997, AWB 96/10380). Apparently, the judge thinks that the State Secretary in such "dubious cases" is obliged to investigate whether Article 1F of the Convention can be applied. The preceding [statements] do not however mean that the application of Article 1F now can very easily be allowed. In order to arrive at the described division of the burden of proof and the reversal of the burden of proof, {the Ministry of} Justice must be able to specify which position the concerned has taken in the organisation and must be able to make acceptable (or assumable) that from it in principle flows a co-responsibility for the human rights violation committed by the organisation. (Rb. Haarlem 20 June 1997, AWB 96/8216)

Also in a different way, the judge appears to leave intact a restrictive interpretation of Article 1F of the Convention. So he [the judge] did not accept that this provision be applied on a 15-year-old (with force integrated) child soldier, although this [child] committed actions in the meaning of Article 1F(a) (Rb. Zwolle 2 April 1997, AwB 96/10536).

10. See concerning the material on the points treated here also the note of Terlouw in no. 70 of this bundle.