Netherlands - ABRvS, 28 June 2012, 201113489/1/V4

Facts:

On 11 January 2005, the asylum seeker submitted the first asylum application. The Minister rejected this application on 20 December 2005. The appeal and further appeal against this decision were dismissed. On 14 October 2008, the decision became final. The asylum seeker then submitted a second asylum application to which he appended an identity card and a medical report. The Minister rejected this application on 17 November 2011. The judge in the interim injunction proceedings found, on appeal against this decision, that no new facts or circumstances had been brought to light, within the meaning of Article 4(6) of the General Administrative Law Act, and therefore dismissed the appeal. The asylum seeker lodged a further appeal against this decision.

Decision & reasoning:

The asylum seeker asserted that the term 'new elements' as referred to in Article 32(3) of the Asylum Procedures Directive relates to all elements not previously discussed or not previously submitted by the asylum seeker. According to him, therefore, the term is broader in scope than the term 'new facts or changed circumstances' as referred to in Article 4(6) of the General Administrative Law Act (AWB), as this latter term refers to facts and circumstances arising after the earlier decision, which could not therefore be reported before the decision. According to the asylum seeker, it must be examined whether the new elements are such that there is a significantly greater likelihood that the asylum seeker will qualify as a refugee. This assessment is broader than the assessment of whether there is no possibility at all that what has been cited or submitted might change the earlier decision, which is the assessment carried out under Article 4(6) of the AWB. According to the asylum seeker, a Member State may make limited use of the exception provided for in Article 32(6) of the Asylum Procedures Directive, in this connection referring to the Rhimou Chakroun v. Minister van Buitenlandse Zaken case (hereinafter 'the Chakroun case'), heard before the Court of Justice of the European Union. In addition, the asylum-seeker cited Articles 18 and 19 of the CFREU and Article 13 of the ECHR.

The Council of State found that, if, after a negative decision, a further negative decision is made, an appeal against the latter cannot result in the administrative judge reviewing the judgment as if it were the first negative decision. Only if and to the extent that new facts or changed circumstances are cited or a pertinent change in the law takes place during the administrative phase can the decision be reviewed by the administrative judge.

'New facts or changed circumstances' must be taken to mean facts or circumstances that arise after the first decision or could not have been cited before that decision and should therefore be cited now. In addition, this term denotes evidence of facts or circumstances previously asserted that could not have been submitted before the first decision and therefore should be submitted now. Furthermore, the judge carries out no further examination if there is no possibility at all that what is now being cited or submitted might change the earlier decision.

Article 32 of the Asylum Procedures Directive does not prohibit the application of this assessment framework. Neither the text of nor the preamble to the Asylum Procedures Directive, also based on Article 32(6) of the Directive, support the interpretation that the term 'new elements or findings' in Article 32(3) of the Directive requires that a substantive assessment of a subsequent asylum application examine all facts and circumstances not previously discussed or not previously cited by the asylum seeker, regardless of whether or not these could have been brought into the earlier proceedings.

The Council of State therefore found that the judge may, in a subsequent procedure, take into account facts and circumstances that were known but not brought to light during an earlier procedure. Then, the asylum seeker must explain concretely why he was not able to bring these facts to light in the earlier procedure. In the Council of State's view, this approach is consistent with the assessment implied by Article 32(6) of the Asylum Procedures Directive as to whether it is an alien's fault that he did not cite a circumstance or event in the earlier procedure.

The mere reference to the judgment in the Chakroun case does not justify the conclusion that the exception provided for in Article 32(6) of the Asylum Procedures Directive may be applied only in a limited fashion, as otherwise the beneficial effect of the Directive would not be assured. Based on recital 15, read in the context of Articles 24(1), 25(2), the introductory words and paragraph (f), and 32 of the Asylum Procedures Directive, it must be presumed that the explicit intention was to provide the Member States with the option to process subsequent asylum applications without a substantive examination.

Article 32(4) of the Asylum Procedures Directive requires an assessment of whether new elements and findings have been presented that significantly add to the likelihood of the applicant qualifying as a refugee. According to the Council of State, this assessment is no broader in scope than the assessment of whether there is any possibility that what is now being cited or submitted might change an earlier decision, as, in both cases, it should be examined whether what has been cited or submitted is relevant to the assessment of the asylum application.

The Council of State found the following in relation to the appeal on the basis of Article 13 of the ECHR and Articles 18 and 19 of the CFREU. Even in the case of forced repatriation to a country where, as asserted, there is a risk of an act in breach of Article 3 of the ECHR, the procedural rules enshrined in domestic law must be complied with. Only if there are special facts and circumstances, as referred to in the Bahaddar judgment of the ECtHR (Bahaddar v. the Netherlands), may it be necessary not to apply the rules. In that case, the administrative judge may examine the decision with the same outcome as a previous decision despite the lack of new facts or changed circumstances. This ensures that a potential breach of Article 3 of the ECHR may be brought before the judge. On the basis of the Bahaddar judgment, there is thus no basis for the finding that the assessment framework applied by the Dutch judge is in breach of Articles 3 and 13 of the ECHR.

Based on the interpretation of Article 3 of the ECHR provided in the judgment in the M.S.S. v. Belgium and Greece case, it must be presumed that Articles 18 and 19(2) of the CFREU contain no additional rights. The judgment by the Court of Justice of the European Union in the N.S. andM.E. joined cases (N.S. v. Secretary of State for the Home Department joined with M.E. and others v. Refugee Applications Commissioner and Minister for Justice, Equality and Law Reforms) suggests that this is how an appropriate assessment is carried out of whether the requirements arising out of EU law are being complied with. Articles 18 and 19 of the CFREU also do not contain any provisions that prevent application by the Dutch judge of the assessment framework in question. In the light of the above, the Council of State found no grounds for submitting a reference for a preliminary ruling.

Outcome:

The Council of State dismissed the further appeal by the asylum seeker as manifestly unfounded and upheld the judgment by the Court.

Observations/comments:

This judgment is closely related to the judgment by the ABRvS (Administrative Jurisdiction Division of the Council of State) of 29 June 2012 in case number 201112955/1/V4 and is furthermore based on the judgment by the ABRvS of 7 July 2010 in case number 200907796/1/V2.