QUESTIONNAIRE FOR THE NATIONAL REPORT ON THE IMPLEMENTATION OF THE DIRECTIVE : QUALIFICATION OF 29 APRIL 2004 (HEREINAFTER: QD)

Transcription

1 QUESTIONNAIRE FOR THE NATIONAL REPORT ON THE IMPLEMENTATION OF THE DIRECTIVE : QUALIFICATION OF 29 APRIL 2004 (HEREINAFTER: QD) IN: THE NETHERLANDS by Dr. H. Battjes (University Lecturer) h.battjes@rechten.vu.nl B. Van Melle (research assistant) e.vanmelle@rechten.vu.nl Dr. K. Zwaan (researcher) k.zwaan@jur.ru.nl 15th of May 2007 The person in the team of thematic coordination in charge of this directive that you can contact if you have a question or need help when completing this questionnaire is: Questions relating to Articles 1-19 Bram van Melle Tel: e.vanmelle@rechten.vu.nl Questions relating to Articles Jesper Lindholm Tel: jl@jura.au.dk Questions relating to other elements of the questionnaire can be replied to by either of the above mentioned persons FIRST PART 1. NORMS OF TRANSPOSITION AND JURISPRUDENCE Q.1.A. Identify the MAIN (because of its content) norm(s) of transposition and indicate its legal nature This question includes even norms adopted before the adoption of the directive but ensuring its transposition (what is called a pre-existing norm in the table of correspondence). Quote the norm of transposition and not only the norm modified by it (the same is true in case of existence of a code of aliens law) About legal nature in the table below: legislative refers to a norm adopted in principle by the Parliament; regulation refers to a norm complementing the law and adopted in principle by the executive power; circular or instructions refer to practical rules about implementation of laws and regulations and adopted in principle by the administrative authorities Please duplicate the table below if there is more than one MAIN norm of transposition This table is about: a text already adopted x a text which is still a project to be 1621

2 adopted TITLE: Amendment of the Aliens Act 2000 to implement Council Directive 2004/83/EG of 29 April 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 ( Wijziging van de Vreemdelingenwet 2000 ter implementatie van Richtlijn 2004/83/EG van de Raad van 29 April 2004 betreffende mininmumnormen voor de erkenning en de status van onderdanen van derde landen en staatlozen als vluchteling of als persoon die anderszins internationale bescherming behoeft, en de inhoud van de verleende bescherming ) DATE: (date of publication) NUMBER: Parliamentary Records ( Tweede Kamerstukken ) , , nr. 2 DATE OF ENTRY INTO FORCE: Yet to be established by Royal Decree PROVISIONS CONCERNED: The proposition of law is entirely devoted to implement the Council Directive 2004/83/EG REFERENCES OF PUBLICATION IN THE OFFICIAL JOURNAL: LEGAL NATURE (indicate a cross in the correct box): x LEGISLATIVE: REGULATION: CIRCULAR or INSTRUCTIONS: Q.1.B. List the others norms of transposition by order of importance of their legal nature (first laws, secondly regulations; thirdly circulars or instructions): This question includes even norms adopted before the adoption of the directive but ensuring its transposition (what is called a pre-existing norm in the table of correspondence). Quote the norm of transposition and not only the norm modified by it (the same is true in case of existence of a code of aliens law) Please use one table per norm and duplicate as much as necessary TITLE: Regulation of ( ) to amend the Aliens Decree 2000 and the Implementing Order for the Law on Child Welfare in order to implement Council Directive 2004/83/EG of 29 April 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 ( Besluit van ( ) tot wijziging van het Vreemdelingenbesluit 2000 en het Uitvoeringsbesluit Wet op de jeugdzorg ter implementatie van richtlijn 2004/83/EG van de Raad van 29 April 2004 betreffende minimumnormen voor de erkenning en de status van onderdanen van derde landen en staatlozen als vluchteling of als persoon die anderszins internationale bescherming behoeft, en de inhoud van de verleende bescherming ) DATE: - NUMBER:- DATE OF ENTRY INTO FORCE: To be established by the same Royal decree that governs the date of entry into force of the Amendment to the Aliens Act 2000 mentioned in Q.1.A. 1622

3 PROVISIONS CONCERNED : The proposition for the Regulation is entirely devoted to implement the Council Directive 2004/83/EG. REFERENCES OF PUBLICATION IN THE OFFICIAL JOURNAL: LEGAL NATURE (indicate a cross in the right box): LEGISLATIVE x REGULATION CIRCULAR OR INSTRUCTIONS Q.2. THIS QUESTION IS IN PRINCIPLE ONLY FOR FEDERAL OR ASSIMILATED MEMBER STATES LIKE AUSTRIA, BELGIUM, GERMANY, ITALY, SPAIN Q.2.A. Explain which level of government is competent to adopt the norms of transposition. Please include your answer in the tables below LEGISLATIVE RULES COMPETENCES OF THE FEDERAL/CENTRAL LEVEL: COMPETENCES OF THE COMPONENTS: EXPLANATIONS IF NECESSARY: REGULATIONS COMPETENCES OF THE FEDERAL/CENTRAL LEVEL: COMPETENCES OF THE COMPONENTS: EXPLANATIONS IF NECESSARY: CIRCULAR OR INSTRUCTIONS COMPETENCES OF THE FEDERAL/CENTRAL LEVEL: COMPETENCES OF THE COMPONENTS: EXPLANATIONS IF NECESSARY: Q.2.B. In case, explain if the federal structure and the distribution of competences between the different levels pose any problem or difficulty regarding the transposition and/or the implementation of the directive. Q.3. Explain which authorities are competent for the practical implementation of the norm of transposition by taking the decisions in individual cases. Please use one table per competence concerned and duplicate it if necessary 1623

4 COMPETENCE CONCERNED: CENTRAL MINISTRY OF: DIRECTION OR SERVICE WITHIN THE ABOVE MINISTRY: OTHER LEVEL OF ADMINISTRATION: IF NECESSARY, COMMENT ABOUT THE NATURE OF THE AUTHORITY (for instance if it is independent of the competent minister) Issuing of residence permits: State Secretary of Justice Justice Dutch Immigration and Naturalisation Service ( Immigratie- en Naturalisatiedient, or IND ) - Decisions on asylum or subsidiary status are taken by the IND under the responsibility of the State Secretary of Justice. Q.4. A. Has the main regulation foreseen explicitly by the main norm of transposition already been adopted or not: YES x NO Q.4.B. If the main norm(s) of transposition foresees the adoption of one or several regulations, indicate if they have all been adopted: YES x NO If NO, please indicate the missing text(s) in the table below Please use one line per missing text and duplicate it if necessary MISSING TEXTS INDICATE HERE THE MISSING TEXTS Circulars and Instructions will also be amended, and at a late stage in the research they were sent to us although they are not public yet-, so we have implemented these draft Instructions in our report and ToC, but they are not mentioned in the boxes above, since only the text was sent to us, which provides no further information. 1624

5 SECOND PART I. DEFINITIONS Q.5 Article 2(c). Article 2(c) QD defines the term refugee for the purposes of the QD. The manner it relates to the definition of refugees in Article 1 of the 1951 Geneva Convention begs questions. 5.A Has the definition of the term refugee in national legislation been changed in connection with the transposition of the QD? 5.B If the answer to question 2A is no, is the definition of the term refugee in domestic legislation identical to the definition stated in Article 1 (NOT: Article 1A(2)) of the 1951 Geneva Convention (Refugee Convention)? 5.C If the answer to question 5.B is no, please translate the definition of refugee in your national legislation: - 5.D If the answer to question 5.A is yes, is the definition of the term refugee in your national legislation transposed literally from Article 2(c)? Yes No 5.E Does the formal definition of the term refugee in national legislation since the transposition make a distinction between refugees who are EU citizens and refugees who are not? Q.6 Article 2(e). Article 2(e) defines persons eligible for subsidiary protection for the purposes of the QD. The definition begs questions as regards a.o. the distinction between EU citizens and third country nationals. 6.A Is the definition of persons eligible for subsidiary protection in national legislation since the transposition identical to Article 2(e) QD? 1625

6 6.B Does the definition of the term person eligible for subsidiary protection in national legislation make a distinction between refugees who are EU citizens and refugees who are not? 6.C If the answer to question 6.A is no, please explain the difference or differences: The aliens law provides for the issue of as residence to persons who run a real risk of being submitted to torture or inhuman or degrading treatment (Article 29(1)(b)). Provision for exclusion as well as inclusion on the basis of Article 15(a) and (c) is made elsewhere (article 31(2) of the Aliens Act 2000, Article 3.105d of the Aliens Decree). 6.D Does national legislation prescribe that the applicants eligibility for refugee status is addressed before eligibility for subsidiary protection status? II. ASSESSMENT OF APPLICATIONS FOR INTERNATIONAL PROTECTION Q.7 Article 4(1), first clause and (5). Optional provision. Article 4(1), first clause offers states the option to regard it as a duty of the applicant to submit as soon as possible all elements needed to substantiate the application. Article 4(5) states that where states apply this option, applicant s statements that are not supported by documentary or other evidence shall not need confirmation if certain conditions are met. 7.A Does your member state apply the principle mentioned in Article 4(1), according to which it is the duty of the applicant to submit as soon as possible all the elements needed to substantiate the claim? Yes x No 7.B Does domestic legislation elaborate the element as soon as possible for the purposes of application of Article 4(1) QD (for example, a period of time after entry in the member state)? 7.C If the answer to question 7.B is yes, please explain: Domestic law does not state a period of time. But the alien is supposed to substantiate his claim in his second hearing (the first hearing is not about the substance of the claim). 7.D Does domestic legislation attach consequences to failure to submit as soon as possible all elements needed to substantiate the claim? 1626

7 7.E If the answer to question 7.D is yes, please explain: New information that is brought into the procedure after the second hearing is excluded according to case law from the Council of State if no good reason for the late submission can be given 7.F Does domestic legislation state the principle that aspects of the applicant s statements that are not supported by documentary or other evidence shall not need confirmation if certain conditions are met (cf. Article 4(5) QD)? 7.G If your answer to question 7.F is yes, please explain which changes, if any, the Directive has brought for domestic legislation as regards credibility assessment as included in Article 4(5): Although case law from the Council of State in combination with parts of the Aliens Circular 2000 were stated to be already in accordance with the directive, the benefit of the doubt duty is literally transposed in the Aliens Instructions H If the answer to question 7.F is yes, are the conditions for application of the principle meant in question 7.F identical to those in Article 4(5) of the QD? Yes x No 7.I If the answer to question 7.H is no, please explain in which respects conditions in domestic legislation differ from those stated in Article 4(5) QD 7.J Is domestic legislation on the duty of the applicant to submit all relevant elements as soon as possible and credibility assessment as meant in Article 4(1) and 4(5) as regards assessment of eligibility for refugee status different from such legislation as regards assessment of eligibility for subsidiary protection status? 7.K If the answer to question 7.J is yes, please explain in which respects the rules differ: Q.8 Article 4(1). Mandatory provision. According to Article 4(1), member states have the duty to assess all relevant elements in cooperation with the applicant for refugee and/or subsidiary status protection. The duty to cooperate begs questions. 8.A Has Article 4(1) been transposed literally in domestic legislation? 8.B Please explain how the duty of the member state to cooperate with the applicant when assessing the application, referred to in Article 4(1), is complied with by your member state: 1627

8 According to the government, it follows from general administrative law (articles 3:2 and 3:4 Awb) that the administration has a duty to examine all the relevant facts and interests. This principle applies to the assessment of an application for refugee/subsidiary protection. In particular, before a decision on the application is taken, a draft decision will be issued to the applicant on which he can comment. (see also article 37 Aliens Act 2000 read in conjunction with article Aliens Decree 2000). 8.C Is domestic legislation on the duty to assess relevant elements in cooperation with the applicant as meant in Article 4(1) as regards assessment of eligibility for refugee status different from such legislation as regards assessment of eligibility for subsidiary protection status? 8.D If the answer to question 8.C is yes, please explain in which respects the rules differ: Q.9 Article 4(2). Mandatory provision. Article 4(2) lists the elements that member states must assess according to Article 4(1). 9.A Has Article 4(2) been transposed literally in domestic legislation? Yes x No 9.B If the answer to question 9.A is no, does national legislation require assessment of all elements listed in Article 4(2)? Yes No 9.C If the answer to question 9.B is no, please explain as regards which of the elements mentioned in Article 4(2) domestic legislation does not require assessment: - 9.D Does national legislation explicitly require assessment of other elements than those, listed in Article 4(2) QD? 9.E If your answer to question 9.D is yes, please explain which elements: 9.F Is domestic legislation on the list of elements as meant in Article 4(2) as regards assessment of eligibility for refugee status different from such legislation as regards assessment of eligibility for subsidiary protection status? 1628

9 9.G If the answer to question 9.F is yes, please explain in which respects the rules differ: Q.10 Article 4(3). Mandatory provision. Article 4(3) requires that the assessment of an application is carried out on an individual basis and includes taking into account the facts, documents and circumstances listed under a e. 10.A Has Article 4(3) been transposed literally in domestic legislation? Yes x No 10.B Does national legislation require that all elements listed in Article 4(3) are taken into account? Yes x No 10.C If the answer to question 10.B is no, please explain as regards which elements domestic legislation does not require that they are taken into account: 10.D Does national legislation explicitly require that other elements than those, listed in Article 4(3), must be taken into account when an application is being assessed? 10.E If the answer to question 10.D is no, please explain which elements must also be taken into account: 10.F Is the assessment of the circumstance mentioned in Article 4(3)(e), the possibility for the applicant to avail himself of the protection of another country where he could assert citizenship, as regards to applicants for refugee status done separately from assessment of applicability of Articles 11 and 12(1)(b) QD (Article 1C and 1E of the 1951 Geneva Convention)? 10.G Is domestic legislation on the elements to be taken into account when assessing an application mentioned in Article 4(3), as regards assessment of eligibility for refugee status, different from such legislation as regards assessment of eligibility for subsidiary protection status? 10.H If the answer to question 10.I is yes, please explain in which respects the rules differ: 1629

10 Q.11 Article 4(4). Mandatory provision. According to Article 4(4), previous persecution or serious harm is a serious indication of future persecution or serious harm, unless there are good reasons to suspect otherwise. 11A. Has Article 4(4) been transposed literally in domestic legislation? Yes x No 11.B Does domestic legislation elaborate the element good reasons to consider that persecution or serious harm will not occur after expulsion? 11.C If the answer to question 11.B is yes, please explain how the element good reasons has been elaborated: 11.D Is domestic legislation on the relevance of previous persecution as regards assessment of eligibility for refugee status different from such legislation on the relevance of previous serious harm as regards assessment of eligibility for subsidiary protection status? 11.E If the answer to question 11.D is yes, please explain in which respects the rules differ: Q.12 Article 5(1) and (2). Mandatory provision. Article 5(3). Optional provision Article 5(1) recognizes that protection needs may arise sur place, that is, may be based on events that took place since the applicant left his country of origin. Article 5(2) further states that protection needs may be based on activities by the applicant since he left his country of origin, adds that this is so in particular when those activities are the expression and continuation of convictions or orientations the applicant already held in the country of origin. Article 5(3) states that refugee status (NOT: subsidiary protection status) may (without prejudice tot the 1951 Geneva Convention) be denied if the fear of persecution is due to circumstances that the applicant created by his own decision since he left his country of origin. 12.A Have Article 5(1) and Article 5(2) been transposed literally in domestic legislation? 12.B Can, according to domestic legislation, well-founded fear or real risk also be based upon activities, engaged in by the applicant since he left the country of origin, that do not constitute the expression and continuation of convictions or orientations held in the country of origin (cf. Article 5(2 QD), but constitute the expression of convictions or beliefs adopted by the applicant after he left the country of origin? 1630

11 12.C If your answer to question 12.A is no, please explain in which respects domestic legislation differs from Article 5(1) and (2) (otherwise than as regards the issue addressed in question 12.B): 12.D Did your member state use the option laid down in Article 5(3)? 12.E If your answer to question 9.D is yes, does domestic legislation on the matter differ from Article 5(3) in a manner that affects the possibility for refugee status recognition (for example the rule can apply also to first applications)? Yes No 12.F If your answer to question 12.E is yes, please explain in which respects: 12.G Is domestic legislation on protection needs arising sur place as meant in Article 5 as regards assessment of eligibility for refugee status different from such legislation as regards assessment of eligibility for subsidiary protection status? 12.H If the answer to question 12.G is yes, please explain in which respects the rules differ: Q.13 Article 6. Mandatory provision. Article 6 states that actors of persecution or serious harm include not only states and parties or organisations controlling (a substantial part of the territory of) the state can qualify, but non-state actors also, provided that it can be demonstrated that agents of protection meant in Article 7(1) are unable or unwilling to provide for protection. 13.A Has the definition of actors of persecution or serious harm in Article 6 been transposed literally in domestic legislation? Yes x 115 No 13.B. Does domestic legislation state rules additional to those set out in Article 6 QD as regards actors of persecution or serious harm and that affect the possibility for status recognition? 13.C If your answer to question 13.B is yes, please explain: 115 Although if it can be demonstrated is translated as if a reasonable case can be made which seems to set the evidentiary standard a little lower. 1631

12 13.D Is domestic legislation on the actors of persecution as regards assessment of eligibility for refugee status different from such legislation on actors of serious harm as regards assessment of eligibility for subsidiary protection status? 13.E If the answer to question 13.D is yes, please explain in which respects the rules differ: Q.14 Article 7(1). Mandatory provision. According to Article 7(1), not only states, but also parties or (international) organisations that control (a part of the territory of) the state can qualify as providers of protection. This provision begs questions, as some opinions state that parties and in particular international organisations cannot provide for protection for the purposes of Article Geneva Convention and/or Article 3 ECHR. 14.A Has the definition of actors of protection in Article 7(1) been transposed literally in domestic legislation? 14.B. Can, according to domestic legislation, parties or organisations, including international organisations as meant in Article 7(1)(b) qualify as actors of protection? 14.C Does domestic legislation state rules that are different from or additional to those set out in Article 7(1) QD and that affect the possibility for status recognition? 14.D If your answer to question 14.C is yes, please explain which rules: 14.E Is domestic legislation on actors of protection as meant in Article 7(1) as regards assessment of eligibility for refugee status different from such legislation as regards assessment of eligibility for subsidiary protection status? 14.F If the answer to question 14.E is yes, please explain in which respects the rules differ: 1632

13 Q.15 Article 7(2) and (3). Mandatory provision. Article 7(2) defines circumstances wherein protection is generally provided, that is, it gives a definition of protection. Article 7(3) requires that member states take into account guidance provided by the Council as regards the assessment whether an international organisation controls (a substantial part of the territory of) a state and provides for protection as meant in Article 7(2). 15.A Has the definition of protection in Article 7(2) been transposed literally in domestic legislation? Yes x No 15.B. Does domestic legislation state rules that are different from or additional to those set out in Article 7(2) QD and that affect the possibility for status recognition, are stated in domestic legislation as regards protection? 15.C If your answer to question 15.B is yes, please explain: 15.D Does domestic legislation refer to the obligation to take guidance from the Council as regards protection by international organisations as meant in Article 7(3)? (but according to the Dutch government this obligation ensues from the decisions, taken by the Council itself) 15.E Is domestic legislation on protection as meant in Article 7(2) and (3) as regards assessment of eligibility for refugee status different from such legislation as regards assessment of eligibility for subsidiary protection status? no 15.F If the answer to question 15.E is yes, please explain in which respects the rules differ: Q.16 Article 8. According to Article 8(1), member states may (NOT: must) apply the internal protection alternative, that is, they may determine that the applicant is not in need of international protection if he has no well-founded fear of being persecuted or does not run a real risk of serious harm in a part of his country of origin, AND the applicant can «reasonably» be expected to stay there. When member states make use of this option, according to Article 8(2), they must (NOT: may) take into account both the general circumstances in that part of the country, as well as the personal sitution of the applicant, at the time of taking the decision. According to Article 8(3), member states may (NOT : must) apply the internal protection alternative included in Article 8(1), even though there may be technical obstacles to return to the country of origin. 1633

14 16.A Did your member state make use of the option laid down in Article 8(1), and determine that an applicant is not in need of international protection if, in a part of the country of origin, there is no well-founded fear of being persecuted or no real risk of suffering serious harm and the applicant can reasonably be expected to stay in that part of the country? x Yes, as regards both refugee and subsidiary protection status Yes, but only as regards applications for refugee status Yes, but only as regards applications for subsidiary protection status No 16.B. If your answer to question 16.A is yes, did your member state make use of the option laid down in Article 8(3) (and determine that the internal protection alternative as meant in Article 8(1) may apply notwithstanding technical obstacles to return to the country of origin)? Yes x No 16.C. If the answer to 16.A is yes, have the requirements of Article 8(1) and (2) been transposed literally in domestic legislation? Yes x No 16.D. If the answer to 16.B is yes, have the requirements of Article 8(3) been transposed literally in domestic legislation? Yes x No 16.E.I If the answer to question 16.A, or 16.A and 16.B, is yes, does domestic legislation state different requirements for refugee than for subsidiary protection as regards internal protection? 16.E.II If so, please explain in which respect(s) rules and/or practice differ(s): 16.F If your answer to question 16.A is yes, does domestic legislation elaborate when an applicant can reasonably be expected to stay in the internal protection alternative as meant in Article 8(1)? 16.G If your answer to questions 16.F is yes, please explain how domestic legislation elaborates the term reasonably : 1634

15 16.H If your answer to question 16.B is yes, does domestic legislation state requirements as to when the authorities may decide that technical obstacles as meant in Article 8(3) do or do not block application of the internal protection alternative? 16.I If your answer to questions 16.H is yes, please explain which requirements apply as regards the technical obstacles : Domestic legislation does not, but the explanatory note did state that the obstacles should be of a temporary nature and that the term obstacles is to be interpreted very restrictive. 16.J Does domestic legislation state any rules that are additional to or different from those set out in Article 8 as regards the internal protection alternative, and that affect the possibility for the applicant to qualify for international protection (otherwise than rules addressed already in question 16.F-I)? x 16.K If the answer to 16.J is yes, please explain which rules: 16.L If your answer to question 16.A is yes, is domestic legislation on internal protection as regards assessment of eligibility for refugee status different from such legislation as regards assessment of eligibility for subsidiary protection status? 16.M If the answer to question 16.L is yes, please explain in which respects the rules differ: III. RULES THAT ADDRESS ONLY QUALIFICATION FOR REFUGEE STATUS Q.17 Article 9(1). Mandatory provision. Article 9(2). Article 9(1) defines acts of persecution. Article 9(2) lists examples of acts of persecution. No instrument of international law defines or exemplifies the term persecution. 17.A Has the definition of acts of persecution in Article 9(1) been transposed literally in domestic legislation? Yes x No 17.B Have the examples of acts of persecution in Article 9(2) been transposed literally in domestic legislation? Yes x No 1635

16 17.C Does domestic legislation elaborate when punishment for formal worship in public (as meant in Article 10(1)(b) QD) constitutes persecution? 17.D Does domestic legislation elaborate on the issue addressed in Article 9(2)(e), punishment for refusal to perform military service (either in legislation addressing persecution or in legislation addressing persecution grounds)? 17.E If the answer to question 17.D is yes, does domestic legislation require that in order to qualify as an act of persecution, performing military service must include committing acts as mentioned in Article 12(2) (as suggested in Article 9(2)(e))? Yes x No 17.F If your answer to question 17.E is no, please which requirements do apply in this context: 17.G Does domestic legislation state requirements, that are additional to or differ from those set out in Article 9(1) and/or 9(2) and that affect the possibility for refugee status recognition? 17.H If your answer to question 17.G is yes, please explain which requirements: Q.18 Article 9(3). Mandatory provision. Article 9(3) requires a connection ( causal nexus ) between the act of persecution and the so-called Convention grounds ( reasons for persecution, i.e. race, religion, and the other grounds listed in Article 10(1)). In some jurisdictions, courts have ruled that in the absence of such a nexus, a person may nevertheless qualify for refugee protection in case of a nexus between absence of protection and a Convention ground. 18.A Has the requirement of a connection between reasons for persecution and acts of persecution in Article 9(3) been transposed literally in domestic legislation? Yes No x 18.B According to domestic legislation, can a person qualify for refugee status in case the persecution act was not committed for reasons of a Convention ground, but the protection was withheld on such a ground? 1636

17 18.C If your answer to question 18.B is yes, please explain which requirements and/or rules apply: 18.D Does domestic legislation state requirements on the connection with the Convention grounds that are additional to or differ from those set out in Article 9(3) and that affect the possibility for refugee status recognition (otherwise than those addressed in question 15.B)? 18.E If the answer to question 18.D is yes, please explain: Q.19 Article 10. Mandatory provision. Article 10(1) gives (non-exhaustive, cf. in particular ) interpretations of the Convention grounds ( reasons for persecution ). Most elaborate is Article 10(1)(d), on membership of a particular social group; this interpretation addresses specifically particular social groups based on gender or sexuality. Article 10(2) states that a person may qualify for refugee status not only if the characteristics meant in Article 10(1) (the Convention grounds) do apply to him, but also, if the actor of persecution attributes them to the applicant. 19.A. Have the elements listed in Article 10(1) been transposed literally in domestic legislation? 19.B As regards the requirements that a group must meet in order to qualify as a particular social group, it appears that in some language versions the requirements stated in Article 10(1)(d) first and second indent apply cumulatively (that is, the last word of after the first indent is AND), whereas in other language versions, meeting one of both requirements suffices (the last word after the first indent is OR). Does it follow from the language version of the QD that is used in your member state that both requirements for forming a particular social group meant in Article 10(1)(d) first and second indent apply cumulatively? 19.C Does domestic legislation require that both requirements for forming a particular social group (meant in Article 10(1)(d) first and second indent) apply cumulatively? 19.D Does it follow from domestic legislation that a particular social group could be defined on gender related aspects alone (cf. Article 10(1)(d))? Legislation does not explicitly exclude the possibility, but the explanatory note did state that gender related aspects alone do not suffice to qualify as a social group, as mentioned in article

18 19.E If the answer to question 19.D is yes, please explain in which types of situations: 16.F Does domestic legislation state rules and/or requirements as regards the Convention grounds, that are additional to or differ from those set out in Article 10(1)(a)-(e) and that affect the possibility for refugee status recognition, on the concept of race, religion, nationality, particular social group or nationality (otherwise than those addressed in questions 16.E)? 19.G If your answer to question 19.F is yes, please explain which rules and/or requirements: 19.H Has Article 10(2) been transposed literally into domestic legislation? Yes x No 19.G Does it follow from domestic legislation that a person may qualify as a refugee if the characteristic is imputed to him not by the actor of persecution, but protection is withheld on that ground? Yes x No 19.H If the answer to question 19.G is yes, please explain in which situations: 19.I Does domestic legislation state rules and/or requirements on the issue of imputed characteristics, that are additional to or differ from those set out in Article 10(2) and that affect the possibility for refugee status recognition? 19.J If the answer to question 19.I is yes, please explain: IV GROUNDS OF CESSATION AND EXCLUSION FROM REFUGEE AND SUBSIDIARY PROTECTION STATUS Q.20 Articles 11 and 16. Mandatory provisions. Articles 11 and 16 address cessation of refugee and of subsidiary protection status. Cessation of refugee and subsidiary protection status. Article 11(1) states all 6 grounds for cessation in Article 1C 1951 Geneva Convention, Article 16(1) only two of them. Articles 11(2) and 16(2) are identical; they offer guidance as regards application of the cessation clause. 20.A. Does domestic legislation (since the transposition of the Directive) contain a provision that is identical: 1638

19 20.A.I to Article 11 (as regards refugee status) 20.A.II to Article 16 (as regards subsidiary protection status) 20.B If one of the answers to 20.A is no, please indicate the difference(s): 20.B.I as regards Article 11: According to the Aliens Act, refugees as meant in Article 1 RC are entitled to a status. Thus, the cessation grounds are not mentioned separately. 20.B.II as regards Article 16: Provision is not identical, but no differences in substance. 20.C. According to domestic legislation, can refugee status cease because the circumstances in the country of origin changed due to an actor of protection as meant in Article 7(1)(b) QD (parties or organisations including international organisations, controlling a substantial part of the state)? 20.D If the answer to Article 20.C is yes, please indicate which additional rules, if any, domestic legislation states on cessation of refugee status in that situation: Article 1C RC has been applied to persons who had visited Northern Iraq (Kurdish Iraq) under the regime of Saddam Hussein. No additional rules are stated in domestic law. 20.E According to domestic legislation, can refugee status cease because the circumstances in the country of origin changed due to protection as meant in Article 8(1) QD (internal protection)? 20.F If the answer to 20.E is yes, please indicate which additional rules, if any, domestic legislation states on the matter: There are a few grounds that are probably covered by the words reasonably be expected to stay in that part of the country as stated in article 8(1) QD, but as an additional rule it can be stated that the refugee must be able to uphold a certain minimal standard of life measured according to local standards-, e.g. he must be at least able to make a living. 20.G Please indicate whether domestic legislation requires or allows for cessation of subsidiary protection status in case one of the situations addressed in Article 11(1)(a)- (d) (but NOT in the text of Article 16) applies: There is no direct equivalent in the Aliens Act or Aliens Decree of the mentioned grounds for subsidiary protection status. But according to article 32(1)(c) domestic legislation allows cessation on those grounds (albeit with an implicit reference to the RC). 1639

20 20.H Does domestic legislation on cessation of subsidiary protection status differ from domestic legislation on cessation of refugee status as regards the issues addressed in question 20.C and 20.E? 20.I If the answer to question 20.H is yes, please explain in which respects legislation on cessation of subsidiary protection status is different: - 20.J Does domestic legislation state rules and/or requirements, that are additional to or differ from those set out in Article 11 and 16 (otherwise than those already explained above and in questions 23-26): 20.J.I as regards cessation of refugee status: 20.J.II as regards cessation of subsidiary protection status: 20.K If your answer to question 20.J.I and/or 20.J.II is yes, please explain which rules and/or requirements 20.K.I as regards cessation of refugee status: - 20.K.II as regards cessation of subsidiary protection status: - Q.21 Articles 12 and 17(1) and (2). Mandatory provisions. Article 17(3). Optional provision. Articles 12(1) and (2) and 17(1) require exclusion, but differ as regards the grounds for exclusion. Article 12(1) reproduces the exclusion clauses Articles 1D and 1E of the 1951 Geneva Convention. Article 12(2) requires exclusion form subsidiary protection status on grounds that are similar to (although broader than) those listed in Article 1F of the 1951 Geneva Convention, and in case the grounds mentioned in Article 33(2) Geneva Convention apply (cf. Article 17(1)(d)). Article 17 does not make reference to the categories addressed in Article 1D and 1E 1951 Geneva Convention. Articles 12(3) and 17(2) offer a rule of interpretation as regards Article 12(2) and 17(1). Article 17(3) offers member states the option to exclude from subsidiary protection a person who previous to admission to the member state committed a crime that is punishable with imprisonment according to domestic legislation and fled in order to avoid sanctions. 21.A Are the grounds for exclusion from refugee status in domestic legislation different from those set out in Article 12 (including the deviations from the text of the 1951 Geneva Convention, cf. Article 12(2)(b) second clause and 12(2)(c) and 12(3) QD)? 1640

21 21.B. If the answer to 21.A is yes, please explain in which respects domestic legislation differs from Article 12: Dutch legislation refers to the Geneva Convention, so every deviation from the text of the Convention by the QD is not followed literally by Dutch legislation. Article 12(3) however is to be transposed literally. 21.C Was Article 17(1) and (2) transposed literally to domestic legislation? 21.D If the answer to question 21.C is no, please indicate the difference(s): - 21.E Does domestic legislation state the optional exclusion ground mentioned in Article 17(3)? 21.F If the answer to question 21.E is yes, please explain whether domestic legislation states any rules and/or requirements on this exclusion ground that are additional to or differ from those set out in Article 17(3) and if so, which (otherwise than those addressed in questions 23-26): - 21.G Please explain which rules and/or requirements, if any, that are additional to or differ from those set out in Article 12 and 17(1) and (2) are stated by domestic legislation on exclusion from both refugee and subsidiary protection status (otherwise than those addressed above, and in questions 23-26): - 21.H Please explain which rules and/or requirements, if any, that are additional to or differ from those set out in Article 12 or 17(1) and (2) are stated by domestic legislation, otherwise than those already addressed in question 18.G (and otherwise than those addressed in questions 21.A F, and in questions 23-26) on: 21.H.I exclusion from refugee status in particular: - 21.H.II exclusion from subsidiary protection status in particular:

22 V. GRANTING OF REFUGEE STATUS Q.22 Article 13. Granting of refugee status. Mandatory provision. According to Article 13, member states must grant refugee status, in case the applicant qualifies s a refugee in accordance with Chapters II and III. The mandatory nature of the provision begs questions. 22.A Is the granting of refugee status to a person who qualifies for it (and to whom Article 14 does not apply) worded as an obligation in domestic legislation? Yes x No 22.B If not, does domestic legislation allow for refusal of refugee status to persons who qualify for it on other grounds than those mentioned in Article 14 QD? Yes No 22.C If the answer to question 22.B is yes, please explain on which grounds the refugee status can be refused: VI. TERMINATION OF REFUGEE AND SUBSIDIARY PROTECTION STATUS Q.23 Articles 14(1) and 19(1). Mandatory provisions. Articles 14(1) and 19(1) require revocation of, ending of or refusal to renew (in short: terminate) refugee status and subsidiary protection status in case of cessation of refugee or subsidiary protection status. The mandatory nature of the provisions begs questions, as well as the relevance of lapse of (considerable stretches of) time since status recognition. 23A. Does domestic legislation show exceptions to the rule laid down in Articles 14(1) and 16(1) that termination of refugee status or subsidiary protection status are obligatory in case the grounds for cessation mentioned in Article 11 or 16 apply? Yes No x 23.B If the answer to Article 23.A is yes, please explain which exceptions: - 23C. Is, according to domestic legislation, the lapse of time since the grant of the status a relevant factor for deciding to terminate status on the grounds mentioned in Article 11 and Article 16 as regards 23.C.I persons granted refugee status: Yes x No 23.C.II persons granted subsidiary protection status: Yes x No 1642

23 23.D If the answer to question 23.C.I and/or 23.C.II is yes, please explain which rules or requirements apply 23.D.I as regards persons granted refugee status: A refugee can apply for a permanent residence permit after five years. Once such a residence permit has been granted, the grounds for termination are much more restricted. Thus, if the ground that led to the granting of the protection has ceased to exist, this is no longer seen as a reason to terminate the status. The reasons of public order and national security that can lead to the termination of a status are also to be applied in a more restricted way. 23.D.II as regards persons granted subsidiary protection status: A subsidiary status beneficiary can apply for a permanent residence permit after five years. Once this residence permit has been granted, the grounds for termination are much more restricted. If the ground that led to the granting of the protection has ceased to exist, this is no longer seen as a reason to terminate the status. The reasons of public order and national security that can lead to the termination of a status are also to be applied in a more restricted way. 23.E Is, after termination of status on the grounds mentioned in Article 11 or 16, another status (on for example humanitarian grounds) usually granted to: 23.E.I former refugees? 23.E.II former subsidiary protection beneficiaries? 23.F If the answer to question 23.E.I and/or II is yes, please indicate which rules/requirements apply 23.F.I as regards persons granted refugee status: - 23.F.II as regards persons granted subsidiary protection status: - 23.G. Does domestic legislation make a distinction between refugee and subsidiary protection status as regards termination of status because of cessation (otherwise than as regards issues mentioned in the answers to questions 23A-F)? 23.H If your answer to question 23.G is yes, please explain in which respects:

24 Q.24 Articles 14(2) and 19(4). Mandatory provision. Articles 14(2) and 19(4) state a procedural rule as regards termination of status: member states must demonstrate on an individual basis that the person has ceased to be a refugee. Article 14(2) states the same rule as regards exclusion ( the applicant has never been a refugee ), but Article 19(4) does not. This difference begs the question whether requirements are stricter as regards subsidiary protection beneficiaries than as regards refugees. Furthermore, both Article 14(2) and 19(4) state that this rule is without prejudice to the duty of the refugee [or the subsidiary status beneficiary] in accordance with Article 4(1) to disclose all relevant facts and provide all relevant documentation at his disposal. 24A. Article 14(2) states that member states must demonstrate on an individual basis that the person has ceased to be a refugee. Does domestic legislation state a similar obligation as regards exclusion (on the grounds mentioned in Article 14(3) and, if relevant, Article 14(4))? B Did your member state transpose the element that the procedural rule stated in Articles 14(2) and 19(4) is without prejudice to the duty of the status beneficiary in accordance with Article 4(1) to disclose all relevant facts and provide all relevant documentation at his disposal, 24.B.I as regards refugee status beneficiaries? B.II as regards subsidiary protection status beneficiaries? Yes No x C If your answer to question 24.B.I and./or 24.B.II is yes, please explain how. 24.C.I as regards refugee status beneficiaries: - 24.C.II as regards subsidiary protection status beneficiaries: - Q.25 Articles 14(3) and 19(3). Obligatory provisions. Articles 14(3) and 19(3) require revocation of/ending of/refusal to renew (in short: termination) of status if Articles 12/17(1) and (2) apply (that is, Article 1F 1951 Geneva Convention and related exclusion grounds) and in case misrepresentation or omission of facts were decisive for granting the status. The latter rule does not appear in the 1951 Geneva Convention and therefore begs questions. 117 Although this depends on one s reading of Dutch general administrative law. The Dutch government contends that the general obligation to balance the different interests and be meticulous when assessing applications also covers these duties. It can be questioned though whether these general obligations suffice. Depending on one s reading the answer is either yes or no. 118 Ibid. 119 Ibid. 1644

25 25.A Does domestic legislation state that termination of status is obligatory for all grounds mentioned in 25.A.I Article 14(3), as regards refugees? Yes x No 25.A.II Article 19(3), as regards subsidiary status beneficiaries? Yes x No 25.B. 25.B.I If your answer to question 25.A.I and/or 25.A.II is no, please indicate on which ground exclusion is not obligatory as regards refugee status beneficiaries: 25.B.II as regards subsidiary protection status beneficiaries: 25.C. According to domestic legislation, is the lapse of time since the grant of the status a relevant factor for deciding to revoke, end or refuse to renew the status on the grounds mentioned in: 25.C.I Article 14(3)? 25.C.II Article 19(3) as regards subsidiary protection status beneficiaries? Yes X No 25.D If your answer to question 25..I and/or 25.C.II is yes, please explain which rules or requirements apply 25.D.I as regards as regards refugee status beneficiaries: A permanent residence permit (issued after 5 years of legal stay) cannot be revoked on the grounds meant in Article 14(3)(a). But if the alien had withheld information or provided false information relevant for application of the exclusion clause, the status can be revoked on that ground. 25.D.II as regards subsidiary protection status beneficiaries: A permanent residence permit (issued after 5 years of legal stay) cannot be revoked on the grounds meant in Article 19(3)(a). But if the alien had withheld information or provided false information relevant for application of the exclusion clause, the status can be revoked on that ground. 25.E According to domestic legislation, can a person qualify for another status (on humanitarian grounds or on any other grounds) 25.E.I 25.E.II after termination of status on the grounds mentioned in Article 14(3) (as regards refugee status beneficiaries)? Yes x No after termination of status on the grounds mentioned in Article 19(3) (as regards subsidiary protection beneficiaries)? 1645

26 25.F If your answer to question 25.E.I and/or 25.E.II is yes, please explain under which conditions: If Article 1F of the refugee convention applies, he is not entitled to any status. Otherwise there is in principle no reason why he could not qualify for a status on other grounds, e.g. family reunification. Q.26 Articles 14(4) and (5) and 19(2). Optional provisions. Member states have the option to revoke, end or refuse to renew (in short: to terminate) (Article 14(4)) or not to grant (Article 14(5)) refugee status in case the grounds of Article 33(2) 1951 Geneva Convention apply. According to Article 19(2), member states have the option to terminate subsidiary protection status in case the ground mentioned in Article 17(3) applies (i.e., the person had committed a crime punishable with imprisonment before admission to the member state). 26.A According to domestic legislation, is the refugee or subsidiary protection status revoked, ended or refused 26.A.I as regards refugee status beneficiaries, in the situations mentioned in Article 14(4)? 26.A.II as regards subsidiary status beneficiaries, in the situations mentioned in Article 19(2)? 26.B. According to domestic legislation, can the authorities decide not to grant refugee status in the situations mentioned in Article 14(4) (as stated in Article 14(5)? 26.C. 26.C.I According to domestic legislation, is the lapse of time since the grant of the status a relevant factor for deciding to terminate the status on the grounds mentioned in Article 14(4), as regards refugee status beneficiaries? 26.C.II Article 19(2)?, as regards subsidiary status beneficiaries? 19(2) not transposed by the Netherlands 26.D. 26.D.I If your answer to questions 26.C.I and/or 26.C.II is yes, please explain which rules or requirements apply as regards refugee status beneficiaries: Revocation of a permanent residence permit on public order grounds is stricter conditioned than revocation of the temporary residence permit (though still possible). 26.D.II as regards subsidiary status beneficiaries: Idem 1646