THIRD SECTION

DECISION

Application no . 16177/14 J.W . against the Netherlands

The European Court of Human Rights (Third Section), sitting on 27 June 2017 as a Committee composed of:

Luis López Guerra, President, Dmitry Dedov , Jolien Schukking , judges, and Fatoş Aracı, Deputy Section Registrar ,

Having regard to the above application lodged on 17 March 2014,

Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court and the fact that this interim measure has been complied with,

Having regard to the factual information submitted by the respondent Government and the written comments in reply submitted by the applicant,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

1. The applicant, Mr J.W., who claims that he is a Somali national, was born in 1984 and lives in the Netherlands. The President decided not to disclose the applicant ’ s identity to the public (Rule 47 § 4). The applicant was represented before the Court by Mr N. Blomjous , a lawyer practising in Amsterdam.

2. The Dutch Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker , of the Ministry of Foreign Affairs .

3. The facts of the case, as submitted by the parties, may be summarised as follows.

A. Background

4. The applicant was born in Saudi Arabia to Somali parents. They moved to Canada in 1988 and the applicant was granted permanent resident status as a dependent of his mother on 4 March 1992.

5. As a result of several criminal convictions the Canadian authorities issued the applicant with an order of deportation on the basis of “serious criminality” as provided for in the Canadian Immigration and Refugee Protection Act 2001.

6. On 21 July 2010 the applicant was notified that he would be deported to the city of Bossasso in the Puntland autonomous region of Somalia.

7. On 26 July 2010, the applicant submitted a communication (no. 1959/2010) to the United Nations Human Rights Committee under the Protocol to the 1966 International Covenant on Civil and Political Rights in order to halt his removal from Canada. On 21 July 2011 the Human Rights Committee expressed the view that the applicant ’ s deportation to Somalia, if implemented, would be in breach of various articles of the International Covenant on Civil and Political Rights including the right to life and prohibition of torture.

8. On 19 February 2012 the applicant was nevertheless deported from Canada with the intention to remove him via Amsterdam and Nairobi to Mogadishu in Somalia.

B. Proceedings in the Netherlands

9. During the stopover in the Netherlands the applicant lodged an asylum request.

10. On 17 March 2012 , the Minister for Immigration, Integration and Asylum Policy ( Minister voor Immigratie , Integratie en Asiel ; “the Minister”) notified the applicant of his intention ( voornemen ) to reject the asylum application. The applicant ’ s failure to submit any documents capable of establishing his identity and alleged Somali nationality or origin was held to detract from the credibility of his account.

11. On 4 April 2012 the Minister rejected the asylum request. He held, inter alia , that the applicant had not submitted concrete facts and circumstances, relating to his individual case, on the basis of which it should be assumed that Canada would not abide by the principle of non- refoulement or would otherwise not comply with its obligations flowing from the 1951 Refugee Convention.

12. On 5 April 2012 the applicant lodged an appeal against this decision together with a request for a provisional measure ( voorlopige voorziening ) in order to stay his removal.

13. On 4 May 2012 the provisional-measures judge of the Regional Court of The Hague sitting in Amsterdam issued the requested provisional measure stating that it could not be excluded that the Canadian authorities would once more wish to expel the applicant to Mogadishu, where, according to the Minister ’ s policy in force, the security situation was such that the exceptional situation within the meaning of article 15(c) of the Qualification Directive [1] pertained. On 7 September 2012 the Regional Court upheld the applicant ’ s appeal, quashed the Minister ’ s decision of 4 April 2012 and ordered him to take a fresh decision, stating that the immigration authorities had not made use of a certified interpreter during the second interview held with the applicant.

14. The Deputy Minister of Security and Justice ( Staatssecretaris van Veiligheid en Justitie , the successor to the Minister regarding immigration matters; hereafter “the Deputy Minister”) took a fresh decision on 23 April 2013 in which the applicant ’ s request for asylum was once more rejected on the same grounds as in the previous refusal. The applicant lodged an appeal against this decision.

15 . On 24 October 2013 the Regional Court of The Hague sitting in Arnhem dismissed the applicant ’ s appeal.

16. The applicant ’ s further appeal against the Regional Court ’ s ruling was rejected, with summary reasoning, as being manifestly ill-founded by the Administrative Jurisdiction Division of the Council of State ( Afdeling Bestuursrechtspraak van de Raad van State ) on 20 January 2014 .

17. On 21 February 2014 the applicant was informed by the Netherlands immigration authorities that he would be removed to Canada on 23 February 2014. That same day he filed an objection with the Deputy Minister against his effective removal ( bezwaar tegen feitelijke uitzettingshandeling ) on the basis of section 72 § 3 of the Aliens Act 2000 ( Vreemdelingenwet 2000 ). As this objection did not enjoy suspensive effect, the applicant also sought a provisional measure from the Regional Court of The Hague in order to stay his removal pending a decision on his objection.

18. On 22 February 2014 the provisional-measures judge of the Regional Court of The Hague sitting in ‘ s -Hertogenbosch refused to stay the applicant ’ s expulsion. It was held that, even though the Canadian authorities had, in spite of the Human Rights Committee ’ s Views, adjudged that the applicant could be expelled, this did not alter the fact that it had not been argued, and neither had it appeared, that it would be impossible for the applicant to institute legal remedies against a renewed expulsion to Somalia by the Canadian authorities. According to the provisional-measures judge, it could not be derived from the facts and circumstances of the case that Canada would not comply with its international obligations and that the applicant would not obtain the protection in Canada to which international law entitled him.

19. The applicant ’ s scheduled expulsion to Canada did not go ahead. On 4 April 2014 the Deputy Minister declared the applicant ’ s objection of 21 February 2014 manifestly ill-founded as his effective removal had not taken place. No further appeal proceedings were initiated against this decision.

20. A new date for the applicant ’ s expulsion to Canada was set for 4 June 2014.

C. Developments subsequent to the lodging of the application

21. On 2 June 2014 the Acting President of the Section to which the case was allocated decided, at the request of the applicant, to indicate to the Government that it was desirable in the interests of the parties and the proper conduct of the proceedings before the Court not to expel the applicant to Canada (Rule 39 of the Rules of Court). At the same time a request for certain factual information was put to the parties (Rule 54 § 2 (a) of the Rules of Court).

22. On 1 December 2015 the Government informed the Court that they would not expel the applicant to Canada without having obtained prior guarantees from the Canadian authorities that they would not remove him to Somalia.

23. On 14 February 2017 the Government informed the Court that they had been unsuccessful in obtaining such guarantees from the Canadian authorities. The Government submitted that the applicant would therefore not be removed to Canada or Somalia. They requested the Court to strike the case out of its list of pending cases.

24. On 2 March 2017 the applicant ’ s representative informed the Court that, in his view, the case had not been resolved since it concerned not only the question of the prevention of his removal. It also concerned the separate question as to whether the previous decisions by the Netherlands authorities had been in breach of Article 3 and it aimed to address the lack of an effective remedy and the authorities ’ failure to conduct a rigorous assessment of his asylum claim. He further added that a decision to strike the case out would lead to the discontinuation of basic services (such as housing and health care) that he was being provided with as a result of the continued indication of Rule 39. He claimed that this would force him to live on the streets, without a right to work, which situation would deprive him of any prospects.

25. On 24 March 2017 the Government submitted, inter alia , that in the absence of any realistic prospect for his expulsion, the applicant could not claim to be a victim within the meaning of Article 34 of the Convention as regards his complaint that his return to Canada or Somalia would be in breach of Article 3 of the Convention.

COMPLAINTS

26. The applicant submitted that he feared that, if returned to Canada, the authorities there would proceed to his refoulement to Somalia, where he would run a real and personal risk of being subjected to treatment contrary to Article 3 of the Convention.

27. The applicant also complained under Article 3 that his claim of a real and personal risk had not received rigorous scrutiny in the proceedings on his asylum request. Moreover, under Article 13 in conjunction with Article 3, he complained that the proceedings before the provisional-measures judge who dealt with his request for a stay of expulsion pending his objection against removal, did not constitute an effective remedy as this judge had not had the complete case file, the applicant had not been present, the proceedings had been primarily conducted by telephone, and – even though the risks of an expulsion to Canada had been considered – the assessment of the refoulement risk had led to incorrect conclusions. Moreover, neither the objection proceedings nor the request for a stay of expulsion had enjoyed suspensive effect.

THE LAW

28. Article 37 § 1 of the Convention provides:

“The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that

(a) the applicant does not intend to pursue his application; or

(b) the matter has been resolved; or

(c) for any other reason established by the Court, it is no longer justified to continue the examination of the application.

However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”

29. The Court considers that, pursuant to the information received from the Government, the applicant no longer faces a risk of expulsion to either Canada or Somalia. It thus follows that the threat of a substantive violation of Article 3 in respect of an expulsion to either of those countries no longer exists. That is not contested by the applicant.

30. In order to decide whether the application should be struck out of the list in application of Article 37 § 1 (b) or (c), the Court must consider whether the circumstances lead it to conclude that “the matter has been resolved” or that “for any other reason ... it is no longer justified to continue the examination of the application”.

31. In this regard, the Court notes that it has found on many occasions that a matter had been resolved or that it was no longer justified to continue the examination of an application when it appeared that an applicant would not be expelled, either because a residence permit had been granted (see, for instance, O.G.O. v. the United Kingdom ( dec. ), no. 13950/12, § 25, 18 February 2014, and Abraham Lunguli v. Sweden ( dec. ), no. 33692/02, 1 July 2003), because a fresh determination by the domestic authorities of the applicant ’ s particular circumstances was pending (see, for instance, Sharifi v. Switzerland ( dec. ), no. 69486/11 , 4 December 2012, and F.I. and Others v. the United Kingdom ( dec. ), no. 8655/10, 15 March 2011), or because it was not possible to remove the applicant to his or her country of origin (see I.A. v. the Netherlands ( dec. ), no.76660/12, § 20, 27 May 2014, and Isman v. Switzerland ( dec. ), no. 23604/11, § 24, 21 January 2014 ) .

33. Finally, the Court sees no reason to entertain the applicant ’ s submission that if his application were to be struck out, he would end up in a situation without prospects, with no right to work, to housing or of access to healthcare. The Court reiterates that there is no right to social assistance as such under the Convention and to the extent that Article 3 requires States to take action in situations of the most extreme poverty – also when it concerns irregular migrants – it has previously had cause to remark that the Netherlands authorities have already addressed this in practical terms (see Hunde v. the Netherlands ( dec. ), no. 17931/16, § 59, 2 May 2016) .

34. In the light of the foregoing, and in the absence of any special circumstances regarding respect for the rights guaranteed by the Convention or its Protocols, the Court, in accordance with Article 37 § 1 (c) of the Convention, considers that it is no longer justified to continue the examination of the application. Furthermore, in accordance with Article 37 § 1 in fine , the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case.

35. The Court would additionally observe that , should any practical steps aimed at the applicant ’ s effective removal to either Canada or Somalia nevertheless be taken in the future, not only may domestic law enable the applicant to challenge such a decision in the Netherlands, he may also, pursuant to Article 37 § 2, seek to have h is application to the Court restored should no domestic remedies capable of staying such a removal be available to h im .

36. Accordingly, it is appropriate to strike the case out of the list and to discontinue the application of Rule 39.

For these reasons, the Court, unanimously,

Decides to strike the application out of its list of cases.

Done in English and notified in writing on 20 July 2017 .

FatoÅŸ Aracı Luis López Guerra              Deputy Registrar President

[1] . Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted