Netherlands - ABRvS, 22 september 2010, 200906855/1/V1

Facts:

Appeal by the COa (the Central Agency for the Reception of Asylum Seekers, an independent public authority that is responsible for the reception, supervision, and departure from reception sites of asylum seekers in the Netherlands) against the judgment by the Court of Amsterdam dated 7 August 2009 in case number 08/8710. When the alien's repeated asylum application was rejected, he was also given an exclusion order. The alien appealed against the exclusion order and sought a temporary injunction against deportation during the appeal process. As the alien did not have accommodation, he applied to the COa for reception. The COa refused to provide the alien with accommodation, citing Article 4 of the RVA 2005 (Regulation(s) for the Provisions for Asylum Seekers 2005), which states that an alien given an exclusion orderis not entitled to reception. The alien is contending that Article 4 of the RVA 2005 breaches Article 3(1) of the Reception Conditions Directive.

Decision & reasoning:

Under Article 3(1) of the Reception Conditions Directive, the Directive applies to third country nationals and stateless persons who make an application for asylum at the border or in the territory of a Member State as long as they are allowed to remain on the territory as asylum seekers and to family members, if they are covered by the asylum application in accordance with domestic law.

The Council of State found that the mere fact that an alien who has been given an exclusion order cannot be deported does not mean he may remain on the territory as defined in Article 3(1) of the Reception Conditions Directive. The national legislator, in this case, interpreted the phrase 'allowed to remain' occurring in Article 3(1) of the Reception Conditions Directive more narrowly than the term 'allowing … to remain' in the Procedures Directive by understanding it, in its usage in the Reception Conditions Directive, as having 'right to remain', within the meaning of Article 8 of the Dutch Aliens Act 2000. A temporary injunction granted does not therefore, in the case of an exclusion order, give rise to a 'right to remain', so the alien does not fall within the scope of application of the Reception Conditions Directive.

In the view of the Council of State, Articles 3 and 13 of the Reception Conditions Directive have been correctly transposed in the RVA 2005 and was applied in the correct manner.

Outcome:

An exclusion order is given to aliens who are no longer allowed to remain in the Netherlands. By issuing exclusion orders to aliens, both their stay in the Netherlands and their possible illegal return to the Netherlands becomes a criminal offence.