Netherlands – Court of The Hague, 24 November 2015, AWB 15/19968
| Country of Decision: | Netherlands |
| Country of applicant: | Armenia |
| Court name: | Court of The Hague (Hearing location Haarlem) |
| Date of decision: | 24-11-2015 |
| Citation: | AWB 15/19968 |
| Additional citation: | ECLI:NL:RBDHA:2015:14138 |
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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Responsibility for examining application
Description
The Member State responsible for examining an application for asylum is determined in accordance with the criteria contained in Chapter III Dublin II Regulation in the order in which they are set out in that Chapter and on the basis of the situation obtaining when the asylum seeker first lodged his application with a Member State. |
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Dublin Transfer
Description
"The transfer of responsibility for the examination of an asylum application from one Member State to another Member State. Such a transfer typically also includes the physical transport of an asylum applicant to the Member State responsible in cases where the applicant is in another Member State and/or has lodged an application in this latter Member State (Article 19(3) of Council Regulation (EC) 343/2003). The determination of the Member State responsible for examining an asylum application is done on the basis of objective and hierarchical criteria, as laid out in Chapter III of Council Regulation (EC) 343/2003." |
Headnote:
No obligation rests upon the asylum seeker to voluntarily and of their own accord go to the Member State that will examine the asylum application under the Dublin Regulation as this obligation rests primarily on the Member States. Neither the failure to leave, nor the lack of adequate resources, can form the basis for a custodial measure.
Facts:
The claimant is obliged to leave the Netherlands, given the fact that another Member State (Italy) is responsible for assessing the application for international protection under the Dublin Regulation. Four weeks after receiving the decision that another Member State will assess his asylum application, the claimant has failed to respond by turning to the other Member State. On the 9 November 2015, the defendant has demanded a custodial measure on public order grounds because there was a significant risk of the claimant absconding. On 11 November 2015, the claimant has appealed against this custodial measure and has requested compensation.
Decision & reasoning:
First, the court decides - as the Administrative Jurisdiction Division of the Council of State in its judgment of July 30, 2015 – that the Dublin Regulation contains an entirely separate system for voluntary departure or removal of asylum seekers within the European Union. The Dublin Regulation also states that if the request is submitted in a Member State other than the one responsible, this Member State is not obliged to assess the substance of the asylum application where the Member State can send the asylum seeker back to the Member State responsible. The Dublin Regulation states that the primary responsibility for this transfer of asylum seekers lies with the national authorities. In addition, the asylum seeker is given the opportunity to take responsibility for his transfer under article 7 of the Implementing Regulation for the application of the Dublin Regulation. The defendant’s argument that the applicant is under the obligation to undertake his own transfer, according to article 44a and 62c of the Aliens Act, was not believed to be in accordance with European Law by the court as European law only provides for an opportunity to make a transfer on the claimant’s initiative and not an obligation. The fact that the applicant/claimant has not left the Member State within the stated four weeks, nor has expressed his intention to do so of his own accord, cannot be invoked against the applicant and does not constitute the basis for detention.
Secondly, the court has decided that the lack of sufficient resources of subsistence does not require custodial measures. However, the court accepts the claimant’s argument that the lack of sufficient resources of subsistence makes it less probable for the claimant to fund his voluntary transfer. On the other hand, the court does not agree with the defendant’s argument that the lack of sufficient resources of subsistence will automatically lead to a more significant risk of absconding.
Thirdly, the court acknowledges that the claimant was not able to establish credibility regarding the time of travelling to the Netherlands or whether he was in the possession of a valid visa. Consequently, the plaintiff did not fall under the supervision of the Aliens Act, as all third-country nationals must inform the authorities on their time of travelling to the Netherlands. However, the court mentioned that this breach of the Aliens Act does not infer a significant risk of absconding.
Fourthly, the court has ruled – as stated by the Administrative Law Division of the Council of the State in its judgment of June 12, 2015 – that the defendant should have motivated already in the decision on the custodial measure why a lighter measure would not have been sufficient. The court followed the position of the claimant that the absence of a balance of interests, when taking into account the state of health of the claimant, meant an insufficient consideration as to whether a a lighter measure would have been proportionate.
Therefore the court has ruled for the abolition of the custodial measure as this measure was unlawful from its implementation onwards.
Outcome:
Appeal granted: abolition of the custodial measure (and compensation).
Observations/comments:
This case law is an application of the jurisprudence by the Administrative Law Division of the Council of the State in its judgment of July 30, 2015. The judgment clearly limits the possibility for the Member State to detain asylum seekers before being transferred to the Member State that will investigate their asylum application under the Dublin Regulation.
This case summary was written by Birte Schorpion, an Immigration Law LLM-student at Queen Mary University of London.
The case summary was proof read by Miek Lamaire, MA International Security.
Relevant International and European Legislation:
Cited National Legislation:
Other sources:
Commission Regulation (EC) No 1560/2003 of September 2003 laying down detailed rules for the application of Council Regulation (EC) No 343/2003 establishing the criteria and mechanisms for determining the Member State repsonsible for examining an asylum application lodged in one of the Member States by a third-country national - Article 7.