The Netherlands - Court of The Hague, Administrative Law Department, 30 June 2016, AWB 16/11081
| Country of Decision: | Netherlands |
| Country of applicant: | Syria |
| Court name: | Court of The Hague, Administrative Law Department |
| Date of decision: | 30-06-2016 |
| Citation: | Plaintiff v The State Secretary of Security and Justice, 2016, Court of The Hague, AWB 16/11081 |
| Additional citation: | ECLI:NL:RBDHA:2016:7335 |
Keywords:
| Keywords |
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Detention
Description
"Restriction on freedom of movement through confinement that is ordered by an administrative or judicial authority(ies) in order that another procedure may be implemented. In an EU asylum context, this means confinement of an asylum seeker by a Member State within a particular place, where the applicant is deprived of his or her freedom of movement. This may occur during any stage of or throughout the asylum process, from the time an initial application is made up to the point of removal of an unsuccessful asylum seeker. In an EU Return context, Member States may only detain or keep in a detention facility a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular when: (a) there is a risk of absconding; or (b) the third-country national concerned avoids or hampers the preparation of return or the removal process. Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence." |
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Effective remedy (right to)
Description
A general principle of EU law now set out in Article 47 of the Charter of Fundamental Rights: "Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.” “[It] is based on Article 13 of the ECHR: ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’ However, in Community law the protection is more extensive since it guarantees the right to an effective remedy before a court. The Court of Justice enshrined the principle in its judgment of 15 May 1986 (Case 222/84 Johnston [1986] ECR 1651; see also judgment of 15 October 1987, Case 222/86 Heylens [1987] ECR 4097 and judgment of 3 December 1992, Case C-97/91 Borelli [1992] ECR I-6313. According to the Court, this principle also applies to the Member States when they are implementing Community law. The inclusion of this precedent in the Charter is not intended to change the appeal system laid down by the Treaties, and particularly the rules relating to admissibility. This principle is therefore to be implemented according to the procedures laid down in the Treaties. It applies to the institutions of the Union and of Member States when they are implementing Union law and does so for all rights guaranteed by Union law.” |
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Freedom of movement (right to)
Description
Generally: “This right is made up of three basic elements: freedom of movement within the territory of a country, right to leave any country and the right to return to his or her own country." In an EU context: "A fundamental right of every citizen of an EU Member State or another European Economic Area (EEA) State or Switzerland to freely move, reside and work within the territory of these States. Notes: 1. This is a fundamental right enshrined in Article 45 of the Charter of Fundamental Rights of the European Union. 2. Whilst initially one of the founding rights in the establishment of the European Union, it has also been extended, via various acquis and agreements (e.g. see Protocol 19 of the Treaty on the Functioning of the EU), to other EEA states (i.e. Iceland, Liechtenstein, Norway) plus Switzerland and certain categories of third-country nationals (as outlined in Notes 4. and 5. below). 3. Some Member States have applied transitional arrangements that currently restrict freedom of movement of workers/(citizens) of EU-2 Member States (see http://ec.europa.eu). 4. Whilst third-country nationals have the right to travel freely within the Schengen area, taking up residence in another Member State is covered by specific legal instruments, detailed below. 5. Third-country nationals may take up residence in another Member State depending on their status and subject to the necessary conditions being met. For third-country nationals who are long-term legal residents in an EU Member State, this is covered by Chapter III of Council Directive 2003/109/EC, whilst for third-country nationals with highly qualified employment, this is covered by Article 18 of Council Directive 2009/50/EC.” |
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Procedural guarantees
Description
“In the interests of a correct recognition of those persons in need of protection … every applicant should, subject to certain exceptions, have an effective access to procedures, the opportunity to cooperate and properly communicate with the competent authorities so as to present the relevant facts of his/her case and sufficient procedural guarantees to pursue his/her case throughout all stages of the procedure.” Procedures should satisfy certain basic requirements, which reflect the special situation of the applicant for refugee status, and which would ensure that the applicant is provided with certain essential guarantees. Some of these basic requirements are set out in on p.31 of the UNHCR Handbook as well as the APD Arts. 10, 17 and 34 and include: a personal interview, the right to legal assistance and representation, specific guarantees for vulnerable persons and regarding the examination procedure, and those guarantees set out in the Asylum Procedures Directive. |
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Right to remain pending a decision (Suspensive effect)
Description
According to Asylum Procedures Directive, Article 7 "Applicants shall be allowed to remain in the Member State, for the sole purpose of the procedure, until the determining authority has made a decision in accordance with the procedures at first instance set out in Chapter III. This right to remain shall not constitute an entitlement to a residence permit. Member States can make an exception only where, in accordance with Articles 32 and 34, a subsequent application will not be further examined or where they will surrender or extradite, as appropriate, a person either to another Member State pursuant to obligations in accordance with a European arrest warrant or otherwise, or to a third country, or to international criminal courts or tribunals." Art 39 APD requires applicants for asylum to have the right to an effective remedy before a court or tribunal, against a number of listed decisions. Member States must, where appropriate, provide for rules in accordance with their international obligations dealing with the question of whether the remedy shall have the effect of allowing applicants to remain in the Member State concerned pending its outcome. |
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Reception conditions
Description
The full set of measures that Member States grant to asylum seekers in accordance with Directive 2003/9/EC. |
Headnote:
If an Applicant, whilst his asylum application is being processed, is held in a limited area, this may be in contravention of Article 5 of the European Convention on Human Rights (“ECHR”). In determining this, the Court may take into account all of the circumstances of the case, in particular the nature, period and effect of the holding of the Applicant and how the holding of the Applicant is enforced.
Facts:
The Applicant filed his asylum application on 21 November 2015 and received a M-117C form on 20 May 2016 requiring him to be available in Badhoevedorp for the duration of the examination of his asylum application. Moreover, between 20 and 23 May 2016 the Applicant had to be available within a designed area in Schiphol for further hearings and consultation with his lawyer. This area was very small, and the Applicant was not permitted to leave without the assistance of a staff member. It was not communicated to the Applicant that he could leave the building to smoke a cigarette or get fresh air.
Decision & reasoning:
The Court held that pursuant to Article 5 ECHR, every individual has the right to liberty and security (subject to specified exceptions). Under Dutch law, Article 55(1) of the Foreigners Act 2000 does not authorise the State Secretary of Security and Justice to require the Applicant to make himself available during the processing period in a residence which would, factually, result in detaining the Applicant and depriving him of his right pursuant to Article 5 ECHR.
The Court considered that, pursuant to established case law, it should take into account all of the circumstances of the case, in particular the nature, period and effect of the holding of the Applicant and how the holding of the Applicant is enforced.
The Court, in reaching a decision, took into account the following: (i) that the Applicant was required to stay in a cell complex and was unable to leave without the assistance of a staff member; (ii) that the Applicant was not permitted to take his phone or any other electronics inside the area; and, (iii) that the Applicant was told that it was a criminal offence, under Dutch law (Article 108(1) VW 2000), for him to leave and that leaving may result in adverse consequences for his asylum application.
Taking into account these circumstances, the Court ruled that the treatment of the Applicant amounted to a deprivation of freedom within the meaning of Article 5 ECHR.
The application was allowed and the Applicant awarded damages for the four days for which he was held in the cell complex. Damages were calculated at a rate of €45 per day, which amounted to €180 in total.
Outcome:
Application granted.
Observations/comments:
This case summary was written by Linklaters LLP.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Netherlands - Vreemdelingenbesluit 2000 (Foreigners Act) - Art 8(f) |
| Netherlands - Vreemdelingenbesluit 2000 (Foreigners Act) - Art 55 |