(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.