Afghans and the 1F procedure

Afghans and the 1F procedure

The Afghan 1Fs and access to the Court of Justice

Several hundred Afghans in the Netherlands belong to the so-called 1F’ers. They are suspected of war crimes for allegedly working for the Afghan secret service in the 1980s and 1990s. The crimes of which these asylum seekers are suspected are set forth in Article 1F of the 1951 UN Convention relating to the Status of Refugees (hereafter, the Refugee Convention). Because of this suspicion of war crimes, the Netherlands rejects their applications for asylum. However, they often cannot return to their country of origin either. As a result, a large group of Afghans find themselves in limbo.

The granting of 1F status to these Afghan refugees is based on an official notice. This official report amounts to an allegation that all Afghan security service personnel in the 1980s and 1990s, regardless of the duties performed, would have committed war crimes. In fact, each asylum case would have to be examined separately and individually when there is an Article 1F suspicion. Moreover, such suspicion should lead to criminal prosecution. Instead, the Netherlands categorically grants 1F status to Afghans and has resulted in prosecution in only two cases (one of which was convicted of war crimes).

Because individual involvement is not investigated, a large category of Afghans end up in a legal vacuum and are excluded from some basic services. Family members, who often do have a residence permit – many of whom have now (become) Dutch citizens – are excluded from benefits (rent allowance, healthcare allowance, childcare allowance) because their partner/caregiver is undocumented. Deportation to Afghanistan is not a safe option for most and therefore prohibited under Article 3 ECHR. In short, they have nowhere to go. For some, this has been their situation for more than 15 years.

What is PILP doing?

PILP organized a brainstorming session in 2014 with lawyers who have dealt with this issue before, with PILP members and with the 1F Foundation. Attorney Eertink came up with the plan to conduct proceedings to get out to the Court of Justice on this issue. This can normally only be done through preliminary questions, asked by a national court, but the Council of State has always blocked this. This is a big problem, because Eertink believed that based on an earlier ruling on 1Fs (in a case against Germany) there could be a lot of room at the Court of Justice.

Law firm De Brauw Blackstone Westbroek has written a detailed, incisive and very comprehensive litigation opinion on the subject. The idea would be to sue the state for the State Council’s refusal to refer preliminary questions to the Court of Justice.

Based on this, PILP approached immigration rights lawyers, self-organizations and social workers to find clients for the case. Through Marieke van Eik, an immigration lawyer at Prakken D’Oliveira and with extensive experience on this file, we found a client. The summons was then prepared by lawyers at De Brauw, with the cooperation of Marieke van Eik and of PILP. In addition to the Afghan client, the NJCM is a co-plaintiff. Also read the pleading.

A unique collaboration and a complicated, but exciting case.

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