Netherlands - Council of State, Administrative Jurisdiction Division, Case No. 201810377/2/V3, 12/01/2022
| Country of Decision: | Netherlands |
| Country of applicant: | Unknown |
| Court name: | Council of State |
| Date of decision: | 12-01-2022 |
| Citation: | 201810377/2/V3 |
Keywords:
| Keywords |
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Delay
Description
Failure to act within a certain period of time: often with regard to undue, unreasonable or unjustifiable delay. According to Article 23 of the Asylum Procedures Directive, Member States must process applications for asylum in an examination procedure in accordance with the basic principles and guarantees of Chapter II of the Asylum Procedures Directive ensuring that such a procedure is concluded as soon as possible, without prejudice to an adequate and complete examination. Where a decision cannot be taken within six months, Member States shall ensure that the applicant concerned is either: (a) informed of the delay; or (b) receives, upon his/her request, information on the time-frame within which the decision on his/her application is to be expected (but such information is not an obligation for the Member State to take a decision within that time-frame.) |
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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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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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Subsequent application
Description
Where a person who has applied for refugee status in a Member State makes further representations or a subsequent application in the same Member State. Member States may apply a specific procedure involving a preliminary examination where a decision has been taken on the previous application or where a previous application has been withdrawn or abandoned. As with all aspects of the procedures directive, the same provisions will apply to applicants for subsidiary protection where a single procedure applies to both applications for asylum and subsidiary protection. |
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Return
Description
"In the context of the Return Directive (2008/115/EC), the process of going back - whether in voluntary compliance with an obligation to return, or enforced - to: - one's country of origin; or - a country of transit in accordance with EU or bilateral readmission agreements or other arrangements; or - another third country, to which the third-country national concerned voluntarily decides to return and in which he/she will be accepted. There are subcategories of return which can describe the way the return is implemented, e.g. voluntary, forced, assisted and spontaneous return; as well as sub-categories which describe who is participating in the return, e.g. repatriation (for refugees)." |
Headnote:
In a case concerning a foreign national who had a valid refugee status in Germany, the Dutch Secretary of State ordered them to leave the country and placed her in detention in view of returning her to Germany. The Council of State found that the first instance Court wrongfully declared that Article 59(2) of the Aliens Act of 2000 provided no basis for detaining the foreign national.
Facts:
The Dutch Secretary of State for Justice and Security ordered a person with refugee status in Germany to leave the territory. She was subsequently placed in detention in view of her removal to Germany.
She appealed against the detention decision before the District Court which upheld the appeal and awarded compensation. The Secretary of State appealed against this decision before the Council of State.
Decision & reasoning:
The question was whether the Secretary of State lawfully placed the foreign national in detention in view of her removal to Germany and, more particularly, if (a) the Return Directive precluded the foreign national from being placed in detention, and (b) whether the legal basis used respected the foreign national's fundamental rights.
The Dutch Council of State referred to the CJEU for a preliminary ruling on the issue whether the Return Directive precludes a foreign national who is a beneficiary of international protection in another EU Member State from being placed in detention pursuant to national legislation, given the fact that the detention is intended for removal to that other Member State and that, for that reason, an order had first been given to leave to the territory of that Member State, but no return decision was subsequently made.
The judgment was delivered on 24 February 2021, (ECLI:EU:C:2021:127). According to the CJEU, the Return Directive does not preclude the detention of the foreign national in this case.
The Council of State ruled that the foreign national was lawfully detained pursuant to article 59, 2), of the Dutch Aliens law of 2000 and that the legal basis used for detention respects the fundamental rights of the foreign national, more precisely article 5 ECHR and its requirement of legality. The Court argues that the legal basis was sufficiently accessible, precise and foreseeable, and that the detention was in accordance with the requirements of necessity and proportionality.
The Council of State concluded that the Secretary of State therefore correctly complained that the District Court had wrongly considered that Article 59(2) of the Aliens Act 2000 provided no basis for detaining the foreign national in view of her removal to Germany.
Outcome:
Appeal granted
Observations/comments:
This summary was written by Amirsalar Kavoosi, student at the Human Rights and Migration Law Clinic of the University of Gent.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Netherlands - Aliens Act 2000 (Vreemdelingenwet 2000 |
Cited Cases:
| Cited Cases |
| ECtHR - Ismoilov v Russia (2008) (Application no. 2947/06) |
| ECtHR – J.N. v. United Kingdom, Application No. 37289/12, 19 May 2016 |
| CJEU - C-673/19 M and Others (Transfert vers un État membre), 24 February 2021 |
| Netherlands - Council of State, Administrative Jurisdiction Division, Case No. 201806377/1/V3, 31/08/2018 |
| ECtHR (Grand Chamber) - S., V. and A. v Denmark, Applications Nos. 35553/12, 36678/12 and 36711/12, 22/10/2018 |