Netherlands - Court of The Hague, 13 January 2016, AWB 15/22376

Facts:

This case concerns an individual of Iranian origin who was remanded in custody at Schiphol on suspicion of using false identification documents. During this detention, the authorities were told of the individual’s intention to seek asylum. After an immediate release was ordered by the prosecutor, the individual was released the next day. After he handed in the asylum application, the applicant was subsequently placed in detention the same day. The detention was considered necessary by the authorities to establish the applicant’s identity and information necessary to consider the asylum request. The applicant lodged an appeal against the legality of the detention measure.

The applicant in this case argues that the detention measure under article 59b(1)(a-b) was imposed based on incorrect information such as his intention to seek asylum. He also maintains that the immediate release order was not executed lawfully since he was not released until the next day. Moreover, the applicant submits that the grounds for detention were supported by insufficient motivation under the adequate reasons set out in article 8(1)(a-b) recast Reception Directive. In addition, he submitted that the authorities did not provide the necessary procedural information allowing for a lighter alternative to detention to be imposed in certain circumstances.

Besides, the applicant alleges that the detention measure itself is in contravention of article 6 of the CFREU subject to article 5 of the ECHR.

In the interim, the court has considered the asylum application in one sitting but has not yet reached a decision.

No return decision had been issued thus far.

Decision & reasoning:

In consideration of the proposed grounds for appeal, the court clarified that so far the presumed validity of the detention measure under Article 59b should be taken into account until the CJEU gives its ruling on the issue.

Furthermore, the court held that the detention was based on some inaccurate facts concerning the balancing of interests. Nevertheless, the court decided that the authorities had sufficient grounds for the applicant’s detention because of the use of false documents and thus the detention was rightly imposed.

The court then considered the applicant’s time held in custody given the immediate release under article 50 Foreigners Act 2000. Accordingly, the period between midnight and nine am should be excluded and thus there was no deprivation of liberty contrary to ECHR since he was detained for less than six hours.

The court then considered the argument that too little attention was spent on the motivation and clarification of the circumstances and considerations in relation to the imposition of a potentially more flexible measure than detention. The judgment in case no. C-146/14 PPU Mahdi elucidated that stance that any particular facts or circumstances relating to the applicant’s personal interests may require the detention measure to be waived in favour of a more flexible alternative. After further analysis of the police report, however, the court decided that the reasoning and information provided to the applicant was adequate and stated that the applicant’s declaration did not give rise to any such a waiver.

Thus, the court rejected all of the above grounds of appeal raised by the applicant.

Lastly, the court considered the approval of the appellant procedure under article 94 Foreigners Act 2000. Thus, as the asylum application has already been heard in the first instance, the court accepts that the application could be decided quickly hereby refuting the grounds that gave rise to this appeal. The court clarified that the applicant can lodge a new appeal provided he can raise new grounds.

Outcome:

The appeal has not yet been approved. The court formulated the prejudicial question and requested the CJEU to consider the question and judge the appeal accordingly. Thus the court temporarily suspends further action in the case until the CJEU reaches a conclusion and maintains every future decision.

Subsequent proceedings:

In subsequent proceedings the CJEU will decide on an answer to the formulated prejudicial question in accordance with the emergency procedure under article 267 TFEU seeing as the judgment will prove decisive for the applicant’s appeal against the lawfulness of the detention.

Observations/comments:

This case formulates the following prejudicial question for the CJEU:

Are articles 8(3)a) and 8(3)b) of the recast Reception Conditions Directive valid in the light of Article 6 Charter of Fundamental Rights of the EU:

a) In a situation where a third country national is detained under these provisions but has a right to remain in the Member State until a first instance decision has been made on his asylum claim, pursuant to Article 9 recast Asylum Procedures Directive; and

b) Considering the explanatory notes to the Charter the limitations that may legitimately be imposed on the rights conferred by Article 6 of the Charter shall not extend further than those set out in Article 5(1)f) ECHR and the interpretation of the ECtHR of this provision, in particular in the case of Nabil and Others v. Hungary (no. 62116/12) in which it found that detention of an asylum seeker will violate Article 5(1)f) ECHR if it is not imposed for the purpose of removal?

This case summary was written by Laura Robyn, an LPC student at BPP University.

This case summary was proof read by Hamza Khayoun a student at BPP University.