Netherlands - ABRvS, 25 June 2012, 201103520/1/V3

Facts:

The foreigner was declared undesirable on 6 January 2008. The appeals against the first and second instance decisions were dismissed. On 25 September 2009, the decision became final. On 17 August 2009, the Minister rejected an asylum application by the foreigner. On 25 September 2009, the court declared the appeal submitted by the foreigner against this decision to be inadmissible. The foreigner was deported to Bosnia-Herzegovina on 24 September 2009. On 15 February 2011, the foreigner indicated at Schiphol airport that he would like to apply for asylum. On that day, admission was refused, and he was detained. On 14 March 2011, the court dismissed the appeal against this. The foreigner is appealing against this decision. 

Decision & reasoning:

The Council of State found that, on 15 February, the individual indicated to the Royal Netherlands Marechaussee that he wanted to apply for asylum. This had to be classed as an asylum application within the meaning of Article 2, introductory paragraph and Ariicle 2(b) of the Asylum Procedures Directive. The foreigner was therefore an Applicant for asylum, as defined in that provision. Under the Returns Directive, according to the Council of State, an individual is allowed to remain if and for as long as the conditions for remaining are complied with. The condition for the right to remain set out in Article 7(1) of the Asylum Procedures Directive is that the individual be an Applicant for asylum in respect of whose application no decision has been made at first instance. If and for as long as a national of a non-EU member state is in this position and thus complies with the condition, his stay must be classed as lawful. The Council of State disagreed with the Minister's view that Article 7(1) of the Asylum Procedures Directive relates only to actual residence of an Applicant for asylum in the territory of a Member State.

Right to remain and public order

Member States may make a limited number of exceptions to the right to remain referred to in Article 7(1) of the Asylum Procedures Directive. The protection of public order, through a declaration of undesirability, as in this case, is not one of the exceptions referred to in Article 7(2) of the Asylum Procedures Directive. An interpretation of Article 28 of the Foreigners Act 2000 in line with the Directive suggests that a foreigner expressing his desire to be granted international protection should also be viewed as an Applicant for asylum within the meaning of this provision. In addition, an interpretation of Article 8, introductory paragraph and Article 8(f) of the Foreigners Act 2000 in line with the Directive suggests that a foreigner awaiting a formal submission of an application for asylum must be considered to fall within the scope of the provision and to be allowed to remain. Under Article 67(3) of the Foreigners Act 2000, an Applicant who has been declared undesirable, in deviation from Article 8, introductory paragraph and Article 8(f), is not allowed to remain. In view of the wording of this provision, an interpretation in line with the Directive that gives rise to a right to remain under Article 8, introductory paragraph and Article 8(f) of the Foreigners Act 2000 is not possible. Article 7(1) of the Asylum Procedures Directive, read in conjunction with Article 7(2) of the Asylum Procedures Directive, is unconditional and sufficiently precise to be applicable by domestic judges and thus has direct effect. This provision therefore forces Article 67(3) of the Foreigners Act 2000 to be disregarded in the case of a foreigner previously declared undesirable but awaiting the submission of a formal application for asylum or the decision on an application already submitted. The foreigner may not, therefore, be refused right to remain in order to protect public order.

Right to remain and second or subsequent application

The application for asylum that the foreigner submitted on 15 February 2011 should be viewed as a second or subsequent asylum application, within the meaning of Articles 32 and 34 of the Asylum Procedures Directive. Article 32 of the Asylum Procedures Directive was transposed by Article 4(6) of the General Administrative Law Act. The principle that the same case may not be ruled upon more than once forms the basis for this provision. This legal principle is not in breach of Article 32 of the Asylum Procedures Directive. Under Article 32(3), read in conjunction with Article 34(3), introductory paragraph and Article 34(3)(a) of the Asylum Procedures Directive, a subsequent application for asylum is subject to a preliminary examination of whether there are new elements or findings cited by the Applicant for asylum. The Applicant for asylum is notified of the outcome of the examination. As soon as the Applicant for asylum has been informed that his application for asylum under Articles 32 and 34 of the Asylum Procedures Directive will not be further examined, the exception to the right to remain provided for under Article 7(2) of the Asylum Procedures Directive becomes operative. Within the system established by the Foreigners Act 2000, the notification of the decision ruling that there are no new facts or circumstances is the moment referred to in the Asylum Procedures Directive when the Applicant for asylum learns that the application for asylum will not be further examined. This means that a foreigner has a right to remain as referred to in Article 7(1) of the Asylum Procedures Directive until this decision is notified. Once the notification has been made, the foreigner, under domestic law, has no further right to remain. When the notification is made, the exception to Article 7(1) of the Asylum Procedures Directive (which provides for right to remain) afforded by Article 7(2) of the Asylum Procedures Directive becomes operative. The exception to the right to remain provided for in Article 7(2) of the Asylum Procedures Directive was operative neither when the individual was detained nor when the contested decision was made.

The Council of State concluded that the foreigner had a right to remain in the Netherlands when he was detained and when the court issued its decision.

Outcome:

The Council of State dismissed the appeal. The contested decision was upheld, with an improvement to the grounds. The claim for damages was dismissed.