Netherlands – Court of The Hague, 19 October 2020, NL20.15181, NL20.15183, NL20.15188 and NL20.15194
| Country of Decision: | Netherlands |
| Country of applicant: | Syria |
| Court name: | Court of The Hague |
| Date of decision: | 19-10-2020 |
| Citation: | NL20.15181, NL20.15183, NL20.15188, NL20.15194 |
| Additional citation: | ECLI:NL:RBDHA:2020:10437 |
Keywords:
| Keywords |
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Burden of proof
Description
"In the migration context, a non-national seeking entry into a foreign State must prove that he or she is entitled to enter and is not inadmissible under the laws of that State. In refugee status procedures, where an applicant must establish his or her case, i.e. show on the evidence that he or she has well-founded fear of persecution. Note: A broader definition may be found in the Oxford Dictionary of Law." |
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First country of asylum
Description
"A country can be considered to be a first country of asylum for a particular applicant for asylum if: (a) he/she has been recognised in that country as a refugee and he/she can still avail himself/herself of that protection; or (b) he/she otherwise enjoys sufficient protection in that country, including benefiting from the principle of non-refoulement; provided that he/she will be re-admitted to that country." Member States may consider an application for asylum as inadmissible if a country which is not a Member State is considered as a first country of asylum for the applicant. |
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Non-refoulement
Description
A core principle of international Refugee Law that prohibits States from returning refugees in any manner whatsoever to countries or territories in which their lives or freedom may be threatened. Note: The principle of non-refoulement is a part of customary international law and is therefore binding on all States, whether or not they are parties to the Geneva Convention. |
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Personal circumstances of applicant
Description
The range of factors such as background, gender, age, and individual position which must to be taken into account in the assessment of an application for international protection per Article 4(3)(c) of the Qualification Directive. |
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Inadmissible application
Description
Member States may consider an application for asylum as inadmissible pursuant toArticle 25 of the Asylum Procedures Directive if: “(a) another Member State has granted refugee status; (b) a country which is not a Member State is considered as a first country of asylum for the applicant, pursuant to Article 26; (c) a country which is not a Member State is considered as a safe third country for the applicant, pursuant to Article 27; (d) the applicant is allowed to remain in the Member State concerned on some other grounds and as result of this he/she has been granted a status equivalent to the rights and benefits of the refugee status by virtue of Directive 2004/83/EC; (e) the applicant is allowed to remain in the territory of the Member State concerned on some other grounds which protect him/her against refoulement pending the outcome of a procedure for the determination of status pursuant to point (d); (f) the applicant has lodged an identical application after a final decision; (g) a dependant of the applicant lodges an application, after he/she has in accordance with Article 6(3) consented to have his/her case be part of an application made on his/her behalf, and there are no facts relating to the dependant’s situation, which justify a separate application.“ |
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Access to the labour market
Description
Per Art 26 QD: Member States must authorise beneficiaries of international protection status to engage in employed or self-employed activities subject to rules generally applicable to the profession and to the public service immediately after the status has been granted. In the case of refugee status, Member States must ensure activities such as employment-related education opportunities for adults, vocational training and practical workplace experience are offered under equivalent conditions as nationals. In the case of subsidiary protection the same may be offered under conditions to be decided by the Member States. Per Art. 11 RCD: "Member States shall determine a period of time, starting from the date on which an application for asylum was lodged, during which an applicant shall not have access to the labour market. If a decision at first instance has not been taken within one year of the presentation of an application for asylum and this delay cannot be attributed to the applicant, Member States shall decide the conditions for granting access to the labour market for the applicant." |
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Integration measures
Description
Member Statemeasures intended to further the integration of immigrants into their host communities. Per Art. 7(2) FRD Member States may require third country nationals to comply with integration measures, in accordance with national law. |
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Material reception conditions
Description
“Reception conditions that include housing, food and clothing, provided in kind, or as financial allowances or in vouchers, and a daily expenses allowance.” |
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Health (right to)
Description
Member States shall ensure that applicants receive the necessary health care which shall include, at least, emergency care and essential treatment of illness. Member States shall also ensure that beneficiaries of refugee or subsidiary protection status have access to health care under the same eligibility conditions as nationals of the Member State that has granted such statuses. |
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Education (right to)
Description
PerArt. 10 RCD Member States must grant minor children of asylum seekers and asylum seekers who are minors access to the education system under similar conditions as nationals of the host State for so long as an expulsion measure against them or their parents is not actually enforced. Per Art. 27 QD Member States must grant full access to the education system to all minors granted refugee or subsidiary protection status, under the same conditions as nationals . Adultsgranted protection status are entitled to access to the general education system, further training or retraining, under the same conditions as third country nationals legally resident |
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Vulnerable person
Description
Persons in a vulnerable position, such as"Minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence. Note: Directive 2011/36/EU defines a position of vulnerability as a situation in which the person concerned has no real or acceptable alternative but to submit to the abuse involved." |
Headnote:
The reception conditions for beneficiaries of international protection in Bulgaria are such that they may face severe material deprivation due to “indifference” on the part of the authorities (cfr. CJEU, Ibrahim), potentially amounting to a violation of Article 3 ECHR / Article 4 CFREU.
When the State Secretary decides that a request for international protection is not admissible, because the applicants have refugee status in Bulgaria, it is not sufficient for him to refer to the principle of mutual trust between EU Member States and to the Council of State’s jurisprudence, but he is obliged to examine the applicant’ s individual circumstances and to obtain specific information and guarantees from the Bulgarian authorities.
Facts:
The State Secretary considered the application for international protection of a Syrian woman and her children inadmissible because they were beneficiaries of international protection in Bulgaria (cfr. Article 33(2), a Asylum Procedures Directive). The applicants appeal this decision before the Court of The Hague.
The applicants forward evidence about the dire circumstances that refugees are forced to live in in Bulgaria. They did not receive any public aid and remained deprived of resources to provide for their basic necessities of life (food and living space). They specifically point to the fact that they cannot obtain an identification document in Bulgaria because they have no fixed residence place and they have no access to housing, healthcare, employment and social welfare because they cannot obtain the required identification document. Moreover, Bulgaria has not had integration facilities for beneficiaries of international protection for seven consecutive years, contrary to the Qualification Directive. Finally, they argue that they risk violation of Article 3 ECHR / Article 4 CFREU upon return to Bulgaria.
Decision & reasoning:
First, the Court considers it proven that applicants are refugee beneficiaries of international protection in Bulgaria. Based on the principle of mutual trust between EU Member States, the State Secretary can, in principle, assume that Bulgaria honors its obligations under the Qualification Directive. Therefore, if applicants claim that Bulgaria fails to comply with their obligations under the EU acquis , it is up to them to prove this.
The State Secretary’s inadmissibility decision, the Court then argues, is not sufficiently motivated when it merely refers to the principle of mutual trust between EU Member States and to the Council of State jurisprudence confirming this principle in the case of Bulgaria. The State Secretary is obliged to examine whether in this specific case the principle of mutual trust between EU Member States upholds. Therefore, the State Secretary has to examine the proof that the applicants present.
From the applicants’ accounts and NGO reports, The Court concludes that the applicants faced extreme deprivation in Bulgaria and that this was the result of official indifference (cfr. CJEU, Ibrahim). Therefore, the principle of mutual trust between EU Member States cannot be relied upon without obtaining specific information and guarantees from Bulgaria on the applicants’ access to identification documents, accommodation and integration facilities upon return.
Outcome:
Appeal granted.
Subsequent proceedings:
The State Secretary has to take a new decision, taking into account this court decision. The decision has not yet been brought before the Council of State.
Observations/comments:
The Court’s reasoning is similar to the reasoning used by the Council of State when it decided on a similar case, concerning Hungary (Council of State, Administrative Law section, 22 April 2020, 201904529/1/V3).
The reception conditions for beneficiaries of international protection in Bulgaria are such that the principle of mutual trust between Member States can no longer be taken for granted. It is likely that this judgment will impact the possibility of the State Secretary to transfer asylum seekers under the Dublin regulation to Bulgaria.
In the Council of State’s jurisprudence so far the reception conditions in Bulgaria were considered difficult but not such that removal to Bulgaria would entail the risk of a breach of Article 3 ECHR. In this case the Court departs from this jurisprudence and it very carefully examines the applicants’ accounts, NGO reports and CJEU and ECtHR jurisprudence to support the conclusion that removal to Bulgaria can entail a breach of Article 3 ECHR.
This summary was written by Roel Stynen, Law student at Ghent University.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Article 30a (1) Aliens Law |
| Aliens Decree |
| 3.106a Aliens Circular |
Cited Cases:
| Cited Cases |
| ECtHR - M.S.S. v Belgium and Greece [GC], Application No. 30696/09 |
| ECtHR - Mohammed Hassan and Others v. the Netherlands and Italy (dec.), no. 40524/10 |
| ECtHR - Georgiy Bykov v. Russia, Application no. 24271/03, 14 October 2010 |
| C 297/17, C 318/17, C 319/17 and C 438/17, Ibrahim and Others, 19 March 2019 |
Other sources:
Domestic Case Law Cited
Council of State, 6 August 2015, ECLI:NL:RVS:2015:2621
Council of State, 9 May 2017, ECLI:NL:RVS:2017:1253
Council of State, 30 May 2018, ECLI:NL:RVS:2018:1795
Council of State, 30 May 2018, ECLI:NL:RVS:2018:1793
Council of State, 12 February 2019, ECLI:NL:RVS:2019:442
Council of State, 28 August 2019, ECLI:NL:RVS:2019:2961
Reports
ECRE, “Housing out of reach? The reception of refugees and asylum seekers in Europe”, 29 May 2019
Schweizerische Flüchtlingshilfe, “Bulgarien: Aktuelle Situation für Asylsuchende und Personen mit Schutzstatus”, 30 August 2019
AIDA, “Bulgaria: country report”, 21 Februari 2020
Vluchtelingenwerk Nederland, “Veelgestelde vragen - Dublinterugkeerders en statushouders Bulgarije”, April 2020