Netherlands - Council of State, Administrative Law section, 19 December 2018, 201808522/1/V3
| Country of Decision: | Netherlands |
| Country of applicant: | Eritrea |
| Court name: | Council of State |
| Date of decision: | 19-12-2018 |
| Citation: | 201808522/1/V3 |
| Additional citation: | ECLI:NL:RVS:2018:4131 |
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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Standard of proof
Description
The degree or level of persuasiveness of the evidence required in a specific case. For example, in the refugee context, ‘well-founded’ is a standard of proof when assessing the fear of persecution. |
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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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Reception conditions
Description
The full set of measures that Member States grant to asylum seekers in accordance with Directive 2003/9/EC. |
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Dublin Transfer
Description
"The transfer of responsibility for the examination of an asylum application from one Member State to another Member State. Such a transfer typically also includes the physical transport of an asylum applicant to the Member State responsible in cases where the applicant is in another Member State and/or has lodged an application in this latter Member State (Article 19(3) of Council Regulation (EC) 343/2003). The determination of the Member State responsible for examining an asylum application is done on the basis of objective and hierarchical criteria, as laid out in Chapter III of Council Regulation (EC) 343/2003." |
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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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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 Council of State concludes that the Legislative Decree 113/2018 (also referred to as ‘Salvini Decree’) that reorganises the Italian reception facilities for asylum seekers does not affect the principle of mutual trust between EU member states underpinning the Dublin Regulation. The expected limits on access to adequate reception centres, specifically for vulnerable persons, does not amount to systemic flaws in the sense of Article 3 of the Dublin Regulation.
Facts:
The applicant’s request for international protection (Vreemdelingenwet art. 28) was not taken into consideration by the State Secretary for Security and Justice who argued that, according to the Dublin Regulation, Italy was the member state responsible for examining the application.
Decision & reasoning:
The Council of State refers to its conclusion in previous cases that Dublin tranfers to Italy are not contrary to the principle of mutual trust between EU member states.
Outcome:
Appeal granted.
Subsequent proceedings:
National remedies exhausted.
Observations/comments:
The Council of State concluded that the expected negative effects on the reception conditions for vulnerable applicants for internationale protection of the so-called Salvini Decree (and the shortcomings already existing) do not prohibit Dublin transfers to Italy. To decide otherwise could have had a significant impact on the implementation of the Dublin Regulation and would have caused political controversy.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Italy - Legislative Decree 113/2018 |
Other sources:
Netherlands – Council of State, Adminstrative Law Section, 10 August 2016, 201508456/1/V3, ECLI:NL:RVS:2016:2278