Netherlands – Court of The Hague, 13 June 2016, AWB 16/10406
| Country of Decision: | Netherlands |
| Country of applicant: | Syria |
| Court name: | Court of The Hague |
| Date of decision: | 13-06-2016 |
| Citation: | AWB 16/10406 |
| Additional citation: | ECLI:NL:RBDHA:2016:6624 |
Keywords:
| Keywords |
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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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Safe third country
Description
Any other country, not being the country of origin, in which an asylum seeker has found or might have found protection. Note: The notion of safe third country (protection elsewhere/first asylum principle) is often used as a criterion of admissibility to the refugee determination procedure. |
Headnote:
The application for international protection by a Syrian national was declared inadmissible based on the finding that Egypt was a Safe Third Country for the applicant. The Court of the Hague concludes that the State Secretary has failed to substantiate his claim that Egypt could be considered a Safe Third Country.
Facts:
The applicant, a Syrian national, is married with a Syrian national born in Egypt. In September 2014, the husband of the applicant returned to Egypt in light of the ongoing security threats in Syria. In Egypt, he acquired Egyptian nationality and received an Egyptian identity card.
In February 2015, the applicant and her youngest daughter arrived in Egypt via Lebanon and Turkey on a visa obtained by her husband. The applicant subsequently did not extend her visa. On 31 August 2015, the applicant arrived in the Netherlands via Turkey and Greece.
On 11 May 2016, the applicant’s application for international protection was declared inadmissible based on the Safe Third Country concept. According to the State Secretary, the applicant had previously been able to enter Egypt. In addition, the applicant’s husband has acquired the Egyptian nationality. Moreover, the applicant has failed to establish that she wouldn’t be eligible for a residence permit for stay with her spouse and over time apply for naturalisation in Egypt. The State Secretary further maintained that the degree of arbitrary violence in Egypt was not of such a degree that a returning individual runs a real risk of serious harm by his mere presence there. Furthermore, the expulsion to Egypt wouldn’t raise a violation under Article 3 ECHR.
Decision & reasoning:
First, the Court establishes that the inadmissibility decision is factually inaccurate and inherently contradictory. The applicant has never submitted a valid visa or residence permit for Egypt in the Netherlands. Most notably, the applicant has never declared that she and her husband were applying for permanent residency when the applicant left Egypt.
Second, the Court considers that the State Secretary has failed to clarify on which grounds Egypt could be considered a Safe Third Country. This is especially required in light of Article 38 of the Asylum Procedures Directive 2013/32/EU and the fact the applicant’s application for international protection will not be substantively assessed. According to the Court, this assessment should be done regardless of the question to what extent the applicant would be eligible to obtain a residence permit on non-asylum related grounds.
The State Secretary’s argument that Egypt should be considered a Safe Third Country because it is a party to the 1951 Convention relating the Status of Refugees, as amended by the New York Protocol of 31 January 1967 and the International Covenant on Civil and Political Rights is also not valid. Firstly, this does not mean that Egypt acts in conformity with these treaties. Secondly, even if the applicant would be able to apply for international protection in Egypt and would be recognised with such status, it provides no certainty that the applicant would not be subjected treatment contrary to the 1951 Refugee Convention or the principle of refoulement. The State Secretary had failed to properly investigate these two aspects.
Referring to Article 3.37e of the Regulation on Aliens 2000, the assessment of a Safe Third Country must be based on several information sources, such as provided by EASO, UNHCR, Council of Europe and other relevant international organisations. It further follows from Article 38(5) of the Asylum Procedures Directive that Member States shall inform the Commission periodically of the countries to which the Safe Third Country concept is applied in accordance with the provisions of Article 38 of the Asylum Procedures Directive.
For these reasons, the Court finds that the State Secretary’s inadmissibility decision has neither been sufficiently motivated nor carefully prepared in breach of Articles 3:2 and 3:46 of the General Administrative Act. The State Secretary will remake its decision. It will have to motivate to what extent Egypt is considered a Safe Third Country.
Outcome:
The appeal is granted and the decision by the State Secretary overturned. In addition, the State Secretary was ordered to pay the procedural costs of the applicant of the amount of €992 (as an estimation of the appeal of court fees and legal costs).
Relevant International and European Legislation:
Cited National Legislation:
Other sources:
Refugee Convention protocol 1967
ICCPR