Last Thursday, August 24, 2017, the hearing on the Afghan 1F case took place at a court in The Hague. Plaintiffs in the case are an Afghan 1F asylum applicant and the Netherlands Committee of Jurists for Human Rights.

The case is unique for the Netherlands because the Council of State refuses to refer the cases to the European Court of Justice (ECJ). The Council of State, the highest court in the Netherlands that decides on immigration law, has violated EU law by not conducting an individual investigation into the 1F applications and refusing to ask the ECJ any prejudicial questions. Based on EU law, this amounts to an unlawful act on behalf of the Kingdom of the Netherlands.

The 1F'ers

Several hundreds Afghans in the Netherlands belong to the so-called 1F group. They are suspects of war crimes because they served in the Afghan secret service in the 1980s and 90s. The crimes the asylum applicants allegedly committed are laid out in Article 1F of the 1951 Refugee Convention relating to the Status of Refugees.

Because of these suspicions, the Dutch states has denied their asylum applications. However, people in such a situation often are not allowed to return to their home countries, as is the case with the Afghan 1F'ers in the Netherlands. As a result, they are caught in a state of legal limbo.

The granting of a 1F status to these Afghan refugees is based on an official country statement. The statement explains that all employees of the Afghan secret service in the 80s and 90s, whatever their executed tasks, have committed war crimes.

In reality, every Afghan asylum case should be individually and separately researched to assess whether an Article 1F suspicion is applicable. Moreover, such a suspicion should lead to criminal prosecution. Instead, the Netherlands grants the 1F status to Afghans categorically and has only prosecuted two individuals (of which one has been convicted of war crimes).

Denied critical benefits

Because individual involvement is not assessed, a large group of Afghans end up in a legal vacuum and are preventing from accessing several basic services. The family members, who often do have a residency permit - many of whom have become Dutch citizens in the meantime - are excluded from certain subsidies (rent allowance, health care allowance, child care allowance), because their partner/parent is undocumented.

Deportation to Afghanistan is for the majority no longer a safe option and therefore prohibited under Article 3 of the ECHR. In short, they have nowhere to go. For some of them, this situation has been going on for over 15 years.

The judgment will be delivered on October 11, 2017. You can read the court summary here.