Netherlands - AJDCoS, 7 July 2010 , 200907796/1/V2

Facts:

This case concerned the further appeal of the applicants against the decision of the District Court Groningen of the 2nd October 2009 (AWB 09/32502 and 09/32503). The applicants submitted that the District Court wrongly concluded that the procedure of Art 4:6 of the General Administrative Law Act is in conformity with Art 32.3 of the Asylum Procedures Directive in relation to subsequent applications. 

Decision & reasoning:

The Council of State held that it is established jurisprudence that an appeal against a subsequent asylum decision does not make the court assess this decision as if it is a first rejection. Only if there are new facts and circumstances in the subsequent claim or a situation where there has been a relevant change of law in the administrative phase, will the first decision be assessed by the court.

The Council of State held that this assessment framework is not a violation of the procedure described in Art 32.2 and Art 32.3 of the Asylum Procedures Directive, because this procedure aims to have an examination as to whether new elements or findings have arisen or have been presented by the applicant. This corresponds to the assessment framework of Art 4:6 General Administrative Law Act. Furthermore, the consequence that is given to the lack of new facts and circumstances in this assessment framework corresponds with Art 32.4 of the Directive. Any appeal based on paragraph 6 fails, because the applicant insufficiently substantiated that they could not invoke the described situations in paragraph 3, 4 and 5 in the previous procedure.

The competence of Art 4:6 (2) General Administrative Law Act to reject the request and refer to the earlier decision if there are no new facts or changed circumstances is in accordance with Art 32.4of the Procedures Directive. Given this, the Procedures Directive is correctly implemented in the General Administrative Law Act. 

Outcome:

The further appeal of the applicant was dismissed. 

Observations/comments:

Art 4:6 of the General Aministrative Law Act states:

(1) If a subsequent application is made after the first application has been rejected in whole or in part, the applicant has to state new facts or circumstances.

(2) When the applicant does not state new facts or circumstances, the administrative body can reject the subsequent application with reference to its previous rejection […]