Netherlands - Court of The Hague, 23 November 2016, AWB 16/22612

Facts:

The applicants are minors of Syrian nationality. They are being represented by their mother, who is a Lebanese national. In August 2012, the applicants arrived from Syria in Egypt. In August 2015, the applicants and their mother arrived in the Netherlands.

On 29 September 2016, the applicants’ request for temporary asylum residence permits was declared inadmissible based on the Safe Third Country concept. According to the State Secretary for Security and Justice, the applicants have a connection with Lebanon which makes it reasonable for them to return to this country . The State Secretary argued that for the applicants, Lebanon could be considered to be a Safe Third Country.

Decision & reasoning:

Firstly, the Court referred to the applicable legal provisions, in particular article 28 and 30a(1)(c) of the Aliens Act 2000 (Vw 2000), article 3.106a(1) and 3.106a(2) of the Aliens Decree (Vb 2000) and article 3.37e of the Aliens Regulation (Vv 2000).

The Court then addressed the applicants’ argument that Lebanon is not a Safe Third Country since it is not a party to the 1951 Convention relating to the Status of Refugees. According to the applicants, article 38 of the Asylum Procedures Directive 2013/32/EU and the corresponding national implementation legislation require that a country is a party to the 1951 Convention before it can be considered as a Safe Third Country. The Court rejected this argument as in line with the State Secretary’s submission, Lebanon does not need to be a party to the 1951 Convention. The relevant issue is not whether a third country is a party to the Convention but whether it complies with the human rights principles covered in article 3.106a of the Aliens Decree, which include the principle of non-refoulement.

Thirdly, the Court upheld the applicants’ submission relating to the application of article 3.106a(1)(e) of the Aliens Decree. Subparagraph e states that when deciding on the admissibility of a request for a temporary asylum residence permit, the State Secretary should consider whether in the third country concerned, the applicant will have the opportunity to apply for refugee status and if successful in this application, to receive protection according to the 1951 Convention. As the State Secretary failed to elaborate on the requirement in article 3.106a(1)(e) when rejecting the application for temporary asylum residence permits, the Court concluded that his decision was insufficiently motivated.

For this reason, the Court granted the appeal, quashed the State Secretary’s decision and ordered him to adopt a new decision in relation to the applicants. 

Outcome:

Appeal granted. 

Subsequent proceedings:

This case follows on from previous Dutch jurisprudence which looks at whether a Third Country is "Safe" where they are not party to the 1951 Convention. For example in AWB 16/26357 13 December 2016 concerning Kuwait and AWB 16/27150 9 December 2016 concerning UAE the Dutch regional courts held that  refugee status cannot be sought and that the individual will not be recognised as a refugee. Moreover, UNHCR protection cannot be assimilated to State protection.

With regards to Third Countries who are parties to the 1951 Convention, the Courts have held that they cannot be automatically deemed to be safe. Persons in need of protection must be able to request refugee status and actually receive protection provided in accordance with the Refugee Convention (see the relevant EDAL case law summaries on Egypt and Russia). 

Observations/comments:

This case law summary was written by Philippine Van den Brande, a GDL student at BPP University. 

Other sources:

U.S. State Department, “Country Reports on Human Rights Practices for 2015” - Lebanon