Netherlands - Council of State, 22 May 2012, 201106665/1/V4

Facts:

This summary concerns an appeal by the Minister against the judgment of the Court of Amsterdam of 17 June 2011, AWB 11/19188. The Minister ordered the detention of the foreigner. The Court upheld the appeal against this and ordered the immediate lifting of the detention. The Minister appealed against this judgment.

Decision & reasoning:

The report of the findings shows that the foreigner, after indicating she wanted to apply for asylum in the Netherlands, was refused access, on the same day. She was then detained under Article 6(1) and (2) of the Foreigners Act (2000). The Court found that the Minister was obliged under Article 7(3) of the Reception Conditions Directive to investigate whether another, less extreme measure than detention could serve the border security interest. It was not evident that the Minister had carried out this investigation in this case. According to the Court, merely citing the border security interest insufficiently justifies why detaining this foreigner was reasonable.

The Minister appealed on the grounds that the Court had failed to recognise that the Reception Conditions Directive does not apply to asylum seekers denied access to the territory of the Netherlands, and that the foreigner indicating that she wanted to apply for asylum did not itself justify not detaining her. The Minister referred in this connection to the judgments by the Council of State of 29 June 2011 (case no. 201104031/1/V3) and of 22 September 2010 (case no. 200906855/1/V1).

In the assessment of the Council of State, its judgment of 4 October 2011 (201102753/1/V3) suggests that a third-country national expressing the desire before the authorities to be provided with international protection, must be deemed an asylum application, within the meaning of Article 2, introductory paragraph and (b) of the Reception Conditions Directive. The moment such a wish is expressed, this person is an asylum seeker. Denying the foreigner access does not change this.

Based on the above, the Council of State then concluded that the Reception Conditions Directive applies to the foreigner. The grounds for appeal cited by the Minister thus failed. However, this in itself does not form the basis for concluding that the Minister should not have detained the foreigner. As is clear from the aforementioned judgment of 29 June 2011, the Minister's view that, in cases such as this, the border security principle always requires detention is not incorrect. Cases in which an asylum seeker is denied access can therefore, in principle, be deemed cases in which 'it proves necessary', within the meaning of Article 7(3) of the Reception Conditions Directive. How the Minister exercises the power vested in him under Article 6(1) and (2) of the Foreigners Act (2000) is set down in Section C12/2.3 of the Vc (Foreigners Circular) 2000.

Outcome:

The Minister's appeal was upheld. The Court's judgment was overturned. The foreigner's appeal to the Court was then dismissed.