Netherlands - ABRvS, 4 October 2011, 201102753/1/V3
| Country of Decision: | Netherlands |
| Court name: | ABRvS (Administrative Jurisdiction Division of the Council of State) |
| Date of decision: | 04-10-2011 |
| Citation: | 201102753/1/V3 |
Keywords:
| Keywords |
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Effective access to procedures
Description
Effective access to legal and administrative procedures undertaken by UNHCR and/or States in accordance with the Asylum Procedures Directive to determine whether an individual should be recognized as a refugee in accordance with national and international law. |
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Detention
Description
"Restriction on freedom of movement through confinement that is ordered by an administrative or judicial authority(ies) in order that another procedure may be implemented. In an EU asylum context, this means confinement of an asylum seeker by a Member State within a particular place, where the applicant is deprived of his or her freedom of movement. This may occur during any stage of or throughout the asylum process, from the time an initial application is made up to the point of removal of an unsuccessful asylum seeker. In an EU Return context, Member States may only detain or keep in a detention facility a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular when: (a) there is a risk of absconding; or (b) the third-country national concerned avoids or hampers the preparation of return or the removal process. Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence." |
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Procedural guarantees
Description
“In the interests of a correct recognition of those persons in need of protection … every applicant should, subject to certain exceptions, have an effective access to procedures, the opportunity to cooperate and properly communicate with the competent authorities so as to present the relevant facts of his/her case and sufficient procedural guarantees to pursue his/her case throughout all stages of the procedure.” Procedures should satisfy certain basic requirements, which reflect the special situation of the applicant for refugee status, and which would ensure that the applicant is provided with certain essential guarantees. Some of these basic requirements are set out in on p.31 of the UNHCR Handbook as well as the APD Arts. 10, 17 and 34 and include: a personal interview, the right to legal assistance and representation, specific guarantees for vulnerable persons and regarding the examination procedure, and those guarantees set out in the Asylum Procedures Directive. |
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Responsibility for examining application
Description
The Member State responsible for examining an application for asylum is determined in accordance with the criteria contained in Chapter III Dublin II Regulation in the order in which they are set out in that Chapter and on the basis of the situation obtaining when the asylum seeker first lodged his application with a Member State. |
Headnote:
Right to remain arises the moment an alien indicates he would like to be granted asylum. This means that an alien, from that time onwards, cannot be refused access to the territory; he may be refused only 'further access', in other words 'actual further entry' to the territory.
Facts:
The case concerns an appeal by an alien against a judgment by the Court of Haarlem; dated 24 February 2011, case number AWB 11/2626. The alien was detained under Article 6(1) of the Aliens Act on arrival at Schiphol Airport. A few days later, the alien submitted an asylum claim; detention was then lifted. The alien appealed, claiming he was eligible for compensation due to unlawful detention.
Decision & reasoning:
Asylum application
In the view of the Council of State, a wish expressed by an alien to be afforded international protection, expressed explicitly and in person to the authorities, must be treated as an asylum application, within the meaning of Article 2, introductory words and paragraph (b) of the Reception Conditions Directive and Asylum Procedures Directive. The moment this wish is thus expressed, the alien is deemed an asylum seeker as defined in Article 2, introductory words and paragraph (c) of these Directives. Therefore, the Returns Directive does not apply here.
Position in relation to right to remain
In the view of the Council of State, a wish expressed by an alien to be provided international protection must be understood to be an application to be granted a residence permit. If this application is not made formally, this does not mean that an asylum application within the meaning of Article 28 of the Aliens Act has not been made or that the individual does not have right to remain within the meaning of Article 8, introductory words and paragraph (f) of the Aliens Act.
Detention order under Article 6(1) and (2) of the Aliens Act
Although the Returns Directive does not apply to aliens with a right to remain, in the Council of State’s view, border supervision may still be carried out in relation to asylum seekers under EU law. Article 2, introductory words and paragraph (k) of the Asylum Procedures Directive, read in conjunction with Article 7(1) of the Directive, suggest that remaining in the territory of a Member State also includes remaining at the border or in a transit zone. Article 35 of the Asylum Procedures Directive therefore offers Member States the opportunity to process asylum applications at the border, applying a normal or a special procedure. In the view of the Council of State, this means that the Asylum Procedures Directive contains no provisions preventing Member States from refusing asylum seekers 'further access' to the territory, in other words 'actual further entry', in their performance of border supervision.
The alien's appeal, which implied that the Court had failed to recognise he was unlawfully detained under Article 6(1) and (2), was dismissed, so he is not eligible for compensation.
Outcome:
The alien's appeal was dismissed.
Relevant International and European Legislation:
Cited National Legislation:
Follower Cases:
| Follower Cases |
| Netherlands - ABRvS, 25 June 2012, 201103520/1/V3 |