Mohamed EL MORABIT v the Netherlands - 46897/07 [2010] ECHR 913 (18 May 2010)

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The European Court of Human Rights (Third Section), sitting on 18 May 2010 as a Chamber composed of:

Josep Casadevall, President,
Elisabet Fura,
Boštjan M. Zupančič,
Egbert Myjer,
Ineta Ziemele,
Luis López Guerra,
Ann Power, judges,
and Santiago Quesada, Section Registrar,

1. The applicant, Mr Mohamed El Morabit, is a Moroccan national who was born on 24 January 1981. His current place of residence is El Hoceima, Morocco, his place of birth. He was represented before the Court by Mr M. Wijngaarden, a lawyer practising in Amsterdam.

2. The facts of the case, as submitted by the applicant and as apparent from information available to the public, may be summarised as follows.

3. The applicant entered the Netherlands in 1998, at the age of seventeen, for the purpose of lawful family reunion. He was granted a residence permit (vergunning tot verblijf) for that purpose, which was extended several times at his request until the events complained of.

4. After his arrival in the Netherlands, the applicant went to school for a time; he later became unemployed.

5. In November 2004 the applicant was arrested on suspicion of belonging to an Islamist terrorist group known as the “Hofstad group” (Hofstadgroep), from its being based in the town of The Hague which is the place of residence of the Queen (Hofstad, town where the royal residence is located).

6. On 20 January 2005 the then Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie; “the Minister”) notified the applicant of her intention to withdraw his residence permit on the ground that he posed a threat for national security. That finding was based on an individual intelligence report (individueel ambtsbericht) dated 24 December 2004 that the General Intelligence and Security Service (Algemene Inlichtingen- en Veiligheidsdienst; “AIVD”) had submitted, and which was appended.

7. According to the intelligence report of 24 December 2004, the applicant was a member of a group led by a Syrian national who recruited radical Muslim youths. The group, of which the applicant was stated to be one of the more radical members, held regular meetings, during which the Syrian preached Islamic extremism and violent jihad (holy war). The applicant was understood to be in the possession of tape recordings calling for armed jihad and stating that it was forbidden to have dealings with “Christian dogs” (dat omgang met “christenhonden” is verboden). The applicant was stated to have radicalised a young woman of Moroccan origin to the point where she had taken to wearing a burka and refused to pray with her own family. The report identified other members of the group by name; of these, the best known was Mohamed B., who was later convicted of the murder of the film director Theo van Gogh.

8. An earlier intelligence report, dated 4 November 2004 and on which the later intelligence report was based in part, described the members of the group meeting to discuss and plan violent jihad, and watching and expressing approval of films showing the beheading of persons including hostages in Iraq.

9. On 11 February 2005 the applicant, through his counsel, submitted written comments denying his involvement in the planning of unlawful violence, arguing that the AIVD information was unreliable and unverifiable, and that the measure intended was a disproportionate interference in his family life.

10. On 1 March 2005 the Minister gave a decision withdrawing the applicant's residence permit, essentially on the same grounds as those stated in the original notification. The following day she gave an additional decision declaring the applicant an undesirable alien, entailing the imposition of an exclusion order (ongewenste vreemdeling).

11. On 7 March 2005 the applicant applied for an interim measure (voorlopige voorziening) aimed at preventing his deportation pending the outcome of the proceedings. He lodged an objection (bezwaarschrift) against each of the two decisions on 24 March 2005.

12. On 20 April 2005 the applicant supplemented his objection with a statement of grounds in which he argued that the AIVD information was unreliable and that he could not be expected to return to Morocco and accept permanent separation from his parents. In a separate letter of the same day he asked to see the information on which the AIVD intelligence report was based.

13. On 2 May 2005 the applicant asked for the decision on his objection to be deferred until he had had a chance to study the AIVD information. This request was repeated on 6 July and 22 July 2005. On 27 July 2005, however, the Minister for Immigration and Integration replied that there was no reason not to proceed.

14. On 19 September 2005 the Minister gave two separate decisions dismissing the objections. The conclusions reached by the AIVD were presumed correct; the immigration authorities were not duty bound to undertake any further investigation of their own.

15. The applicant appealed to the Regional Court (rechtbank) of The Hague against both decisions on 12 October 2005.

16. On 10 March 2006, in criminal proceedings distinct from the immigration proceedings, the Regional Court of Rotterdam convicted the applicant of membership of a criminal organisation and membership of an organisation aiming to commit terrorist crimes and sentenced him to two years' imprisonment.

17. On 12 June 2006 the Regional Court of The Hague, sitting in Amsterdam, gave an order for a provisional measure that would allow the applicant to await the outcome of the proceedings in the Netherlands. In separate decisions, it declared the appeals well-founded; it considered the AIVD intelligence reports to be insufficiently “objective and transparent” (objectief en inzichtelijk). The Minister's decisions were annulled and the Minister was ordered to decide afresh.

18. On 19 June 2006 the Security and Integrity Office (Bureau Veiligheid en Integriteit) of the Immigration and Naturalisation Service (Immigratie- en Naturalisatiedienst) submitted a written statement to the Minister to the effect that, after examination of the documents underlying the reports, it appeared that the AIVD intelligence investigation had met applicable standards of due care as regards content and procedure followed and was transparent.

19. The Minister appealed to the Administrative Jurisdiction Division of the Council of State (Afdeling Bestuursrechtspraak van de Raad van State) against the Regional Court's decisions on 10 July 2006.

20. In parallel, the Minister gave a new decision on the objection against the withdrawal of the applicant's residence permit on 20 July 2006. She accepted that the AIVD reports were adequate as to their objectivity, impartiality and thoroughness and that the AIVD had to protect their sources of information. In so far as the applicant had denied the accuracy of the AIVD reports, he had not given any relevant arguments.

21. The following day the Minister gave a new decision in much the same terms in which she dismissed the objection against the decision to impose an exclusion order on the applicant.

22. On 28 July 2006 the President of the Administrative Jurisdiction Division of the Council of State declared the Minister's appeal of 10 July 2006 well-founded. He annulled the Regional Court's decisions of 12 June 2006 and remitted the cases to the Regional Court. In the same decision he annulled the Minister's decisions of 20 and 21 July 2006, which had been adopted pursuant to the Regional Court's decision of 12 June 2006, and ordered the deferral of the applicant's deportation until 4 August 2006 so that the applicant had a realistic chance to seek a provisional measure from the Regional Court itself.

23. The applicant applied to the Regional Court of The Hague for a stay of deportation on 2 August 2006. In his statement of grounds, submitted the following day, he now relied on Article 3, arguing that the Moroccan authorities treated terrorist suspects harshly. On 24 August 2006 the Regional Court granted an interim measure allowing the applicant to await the outcome of his appeals in the Netherlands.

24. Having held a hearing on 4 October 2006, the Regional Court decided that it needed to study the information on which the conclusions of the AIVD intelligence reports were based. To that end, it reopened the case.

25. The Regional Court gave its decision on 12 January 2007. Having studied the AIVD information, it found that the AIVD's conclusions had an adequate basis in fact; there was no need to reopen the discussions on that score. A threat relevant to Article 3 of the Convention in the event of the applicant's return to Morocco had not been established. The applicant's appeal against the withdrawal of his residence permit was held to be inadmissible in view of the decision to impose an exclusion order on the applicant; the appeal against the latter decision was dismissed as unfounded.

26. The applicant lodged an appeal with the Administrative Jurisdiction Division of the Council of State, which on 27 April 2007 dismissed it, referring to standing case-law.

28. The applicant appealed against his conviction (paragraph 16 above). On 24 January 2008 the Court of Appeal of The Hague quashed the conviction and acquitted the applicant.

29. The Public Prosecution Service lodged an appeal on points of law (cassatie) with the Supreme Court (Hoge Raad) against the acquittal. On
2 February 2010 the Supreme Court quashed the judgment of the Court of Appeal and remitted the case to the Court of Appeal of Amsterdam where it remains pending.

30. On 21 December 2006 the Council of the European Communities adopted a list of persons, groups and entities to be subjected to restrictive measures pursuant to Council Regulation (EC) No 2580/2001 of 27 December 2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism (Council Decision 2006/1008/EC). This list was updated on 28 June 2007 (Council Decision 2007/445/EC). These lists mentioned the applicant as follows:

“EL MORABIT, Mohamed, born 24.1.1981 in Al Hoceima (Morocco), passport (Morocco) No. K789742 (Member of the 'Hofstadgroep')”

As provided for in Council Regulation (EC) No 2580/2001, this restricted the applicant's use of financial services and of any assets which he might possess, access to these being permissible only for limited purposes including the fulfilment of essential human needs and the payment of taxes.

31. The applicant brought actions in the Court of First Instance (now re-named the General Court; the first-instance body of the Court of Justice of the European Communities, as it was named at the time) for annulment of Council Decisions 2006/1008/EC and 2007/445/EC in so far as they included his name (Cases T-37/07 and T-323/07 respectively). The European Commission and the Netherlands Government sought, and were granted, permission to intervene.

32. On 2 September 2009 the Court of First Instance dismissed both actions and ordered the applicant to pay his own costs and those of the Council.

33. Section 67 of the Aliens Act 2000 (Vreemdelingenwet 2000) provides that a foreign national may be declared an undesirable alien, entailing the imposition of an exclusion order, on the ground, inter alia, that he or she poses a danger to national security. An alien on whom an exclusion order has been imposed cannot be lawfully resident in the Netherlands.

34. An exclusion order may be revoked, upon request, if the alien concerned has been residing outside the Netherlands for a period of ten years (section 68 of the Aliens Act 2000). Such revocation entitles the alien to seek readmission to Netherlands territory subject to the conditions that are applicable to every alien.

35. The applicant complained under Article 8 of the Convention of an unwarranted interference with the “family life” which he had previously enjoyed with his parents. He also complained under Article 13 of the Convention of the absence of any effective remedy.

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The applicant complained that he had never had a fair chance to refute the allegations made by the AIVD that he posed a danger to national security. He also complained that the measure imposed on him constituted a disproportionate interference with his “family life” in that it resulted in permanent separation from his parents.

37. The Court reaffirms at the outset that a State is entitled, as a matter of international law and subject to its treaty obligations, to control the entry of aliens into its territory and their residence there. The Convention does not guarantee the right of an alien to enter or to reside in a particular country and, in pursuance of their task of maintaining public order, Contracting States have the power to expel an alien convicted of criminal offences (Üner v. the Netherlands [GC], no. 46410/99, § 54, ECHR 2006 XII). This applies regardless of whether an alien entered the host country as an adult or at a very young age, or was perhaps even born there (ibid., § 55).

38. The Court reiterates that while the exclusion of a person from a country where his or her immediate family resides may in some circumstances raise an issue under Article 8, relationships between adult relatives do not necessarily attract the protection of that provision without further elements of dependency involving more than the normal emotional ties (see, among many other authorities, Kwakie-Ntie and Dufie v. the Netherlands (dec.), no. 31519/96 , 7 November 2000; Z. and T. v. the United Kingdom (dec.), no. 27034/05, ECHR 2006-III; and Emonet and Others v. Switzerland, no. 39051/03, § 35, ECHR 2007 XIV).

39. The applicant entered the Netherlands at the age of seventeen. He was twenty-three years old at the time of his arrest, in November 2004, and nearly twenty-six when he was deported.

40. The basis for the applicant's claim of “family life” with his parents is the fact of his having lived with them since arriving in the Netherlands. There is nothing to suggest that he is in any way dependent on them; nor, conversely, would it appear that they were dependent on him, given that he was unemployed at the relevant time.

41. It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The applicant's complaints under this Article were that he was never granted access to the information on which the AIVD based its conclusion that he posed a threat to national security and that the proportionality of the interference with his right to respect for his family life was not properly considered by any domestic authority.

43. The Court will confine itself to noting that, according to its standing case-law, Article 13 requires a remedy in domestic law to be available in respect only of such grievances as are “arguable” in terms of the Convention (see, among many other authorities, Boyle and Rice v. the United Kingdom, 27 April 1988, § 52, Series A no. 131; more recently, Athanassoglou and Others v. Switzerland [GC], no. 27644/95, § 58, ECHR 2000 IV; Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 137, ECHR 2003 VIII; and Taheri Kandomabadi v. the Netherlands (dec.), nos. 6276/03 and 6122/04 , 29 June 2004). In view of its findings above, the Court does not consider that an arguable claim has been established under Article 8 of the Convention or any other Article.

44. Consequently this complaint too is manifestly ill-founded and must be rejected, pursuant to Article 35 §§ 3 and of the Convention.

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You are here: BAILII >> Databases >> European Court of Human Rights >> Mohamed EL MORABIT v the Netherlands - 46897/07 [2010] ECHR 913 (18 May 2010) URL: http://www.bailii.org/eu/cases/ECHR/2010/913.html Cite as: [2010] ECHR 913