European Court of Human Rights

THIRD SECTION

DECISION

Application no. 34583/08
by Rohina HOSSEIN KHEEL
against the Netherlands

The European Court of Human Rights (Third Section), sitting on 16 December 2008 as a Chamber composed of:

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

Having regard to the above application lodged on 21 July 2008,

Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court,

Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Rohina Hossein Kheel, is an Afghan national who was born in 1973 and lives in Breda. She was represented before the Court by Mr J. Eizenga, a lawyer practising in Prinsenbeek. The Dutch Government (“the Government”) were represented by their Deputy Agent, Ms L. Egmond, of the Ministry of Foreign Affairs.

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

In 2002, while she was still living in Afghanistan, the applicant married an Afghan man lawfully residing in the Netherlands. She fled Afghanistan in 2003 and unsuccessfully applied for asylum in the Netherlands on three occasions. During her stay in the Netherlands, two children were born to the applicant and her husband. The applicant's husband having obtained Dutch nationality in the meantime, the children are Dutch nationals, too.

The final decision on the third asylum application was taken by the Administrative Jurisdiction Division of the Council of State (Afdeling Bestuursrechtspraak van de Raad van State) on 4 June 2008.

Because of the strict separation between asylum and “regular” immigration in Dutch immigration law and practice, aspects relating to the applicant's family life with her husband and children could not come into play in the asylum proceedings. While the applicant could, in principle, have applied for a residence permit for the purpose of exercising family life in the Netherlands, this would have required her to give up on her asylum application(s). Moreover, such an application would, according to the applicant, not have stood any chance of success as long as she did not return to Afghanistan and apply for a provisional residence visa (machtiging tot voorlopig verblijf) from a representation of the Netherlands first.

In a letter of 28 October 2008 the Government informed the Court that the applicant had been granted a residence permit which was valid until April 2013.

COMPLAINTS

The applicant complained that she would face a real risk of being subjected to treatment contrary to Article 3 of the Convention if she were forced to return to Afghanistan. Such return would also have the effect of separating her from her family, contrary to Article 8. Under Article 13 she further complained of a lack of an effective remedy, arguing that the judicial review that had been available to her in the asylum proceedings had merely involved a marginal scrutiny, rather than a full review.

THE LAW

On 7 November 2008 the applicant's representative informed the Court that the applicant wanted to withdraw the application in view of the developments as set out in the Government's letter of 28 October 2008.

In these circumstances, and having regard to Article 37 § 1 (a) and (b) of the Convention, the Court is of the opinion that it is no longer justified to continue the examination of the application. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case. In view of the above, it is appropriate to discontinue the application of Rule 39 of the Rules of Court and to strike the case out of the list.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Santiago Quesada Josep Casadevall
Registrar President