THIRD SECTION

Application no . 20507/12 Said Ashraf HASHIMI against the Netherlands lodged on 7 April 2012

STATEMENT OF FACTS

THE FACTS

The applicant, Mr . Hashimi , is a citizen of Afghanistan . He was born in 19 64 and is currently staying in the Netherlands . He is represented before the Court by Mr . T. Volckmann , a lawyer practising in Zwolle .

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

In 1998 the applicant, together with his wife, arrived in the Netherlands . The applicant and his wife lodged an asyl um application on 21 April 1998. In 1999 their first child was born. The applicant ’ s application was rejected on 25 March 2002. Article 1F of the 1951 Refugee Convention was held against the applicant on account of his work for the KhAD . According to a February 2000 country of origin report compiled by the Netherlands Ministry of Foreign Affairs, the KhAD in the period that the applicant was working there, were assumed to have been involved in crimes against humanity. Considering the final rank of the applicant and his swift promotions through the ranks, Article 1F was held against him. The applicant appealed this decision.

In 2002 the applicant ’ s second child was born. On 9 May 2003 the applicant ’ s wife and his two children were granted an asylum permit on individual grounds for indefinite leave as of 21 April 2001.

On 14 September 2004 the Regional Court of The Hague granted the applicant ’ s appeal and quashed the decision of 25 March 2002. It held that Article 1F wa s applicable but that the Minister had failed to take into account whether Article 3 of the Convention would be violated upon return to Afghanistan . It ordered the Minister to take a fresh decision.

On 31 August 2006 the Minister rejected the application again and by the same decision declared the applicant an undesired alien and imposed an exclusion order.

The applicant filed an objection against the exclusion order and appealed the asylum decision. On 25 June 2008 the Minister rejected the objection. The applicant appealed this decision.

On 28 April 2009 the Regional Court of The Hague granted the applicant ’ s appeal against the exclusion order and quashed the decision of 25 June 2008. It ordered the Minister to take a fresh decision. It held that the applicant had failed to establish a real and personal risk of a treatment contrary to Article 3 but that the expulsion of the applicant could amount to a violation of Article 8 of the Convention.

On 7 December 2009 the Minister rejected the objection. The applicant appealed this decision.

On 28 April 2010 the Regional Court of The Hague granted the applicant ’ s appeal, quashed the decision of 7 December 2009 and ordered the Minister to take a fresh decision. The Minister appealed this judgment.

On 2 July 2010 the Regional Court of The Hague declared the appeal against the asylum decision inadmissible as an exclusion order had been imposed on the applicant.

On 10 October 2011 the Administrative Jurisdiction Di vision of the Council of State granted the Minister ’ s appeal and quashed the judgment of 28 April 2010. No further appeal is possible.

On unspecified dates the applicant ’ s wife and their two children have obtained the Dutch nationality.

COMPLAINT

The applicant complains under Article 8 that his expulsion from the Netherlands would be contrary to his rights under this provision.

Q UESTIONS TO THE PARTIES

1. In the light of the specific circumstances of the case, in particular in the absence of any concrete steps taken by the Netherlands authorities aimed at the applicant ’ s effective removal from the Netherlands , can the applicant ’ s complaint about a violation of his rights under Article 8 be regarded as being premature?

2. Have any attempts been made, either by the applicant or the Netherlands authorities, to explore the possibilities of the applicant resettling with or without his family in a third country? What were the results of any such attempts?

3. Does the exclusion order imposed on the applicant either entail an interference with or breach of a positive obligation of the Netherlands as regards the applicant ’ s right to respect for his family life within the meaning of Article 8 § 1 of the Convention?

If it entailed an interference, was that interference justified at the time it was imposed and does it continue to be justified in terms of Article 8 § 2, in particular taking into consideration that the applicant has been living in the Netherlands since April 1998, the prospects of resettlement in a third country and the objective obstacles to the applicant ’ s famil y life being exercised in Afghanistan ?