Netherlands – Court of the Hague, 13 May 2016, 16/7663 and 16/7665

Country of Decision:
Country of Applicant:
Date of Decision:
13-05-2016
Citation:
16/7663 and 16/7665
Court Name:
Court of The Hague
National / Other Legislative Provisions:
Netherlands - Immigration Act 2000 (Vw) - Article 28
Netherlands - Immigration Act 2000 (Vw) - Article 30
The Netherlands - General Administrative Law Act (CC) Article 8:51a
The Netherlands - General Administrative Law Act (CC) Article 3:46
The Netherlands - General Administrative Law Act (CC) Article 8:75
Printer-friendly versionPrinter-friendly versionPDF version of SummaryPDF version of Summary
Headnote: 

In the case of a claimant whose first asylum application would be viewed as being withdrawn by Bulgarian authorities, it cannot be ruled out that upon return to Bulgaria under a take back request the applicant would not be detained. In light of reported detention conditions the Secretary of State should have investigated the risk of a potential Article 3 violation if the applicant were to be returned to Bulgaria.  

Facts: 

Pursuant to Article 18(1)(b) of the Dublin III Regulation, the Netherlands requested Bulgaria to take the applicant back. This request was accepted by the Bulgarian authorities on the basis of Article 20(5) of the Regulation. The Secretary of State therefore refused to assess the asylum application. This decision was appealed by the applicant who submitted that he will be viewed as a subsequent applicant and that there is a risk of detention upon return to Bulgaria. Any remedy against the imposition of detention is ineffective given the lack of legal aid. Indeed, the applicant had already been subject to detention in conditions which amounted to an Article 3 breach.

Conversely the defendant advanced that detention is a future uncertain event which can be subject to judicial review. Similarly, whilst disconcerting, the conditions of detention do not amount to an Article 3 violation.

Decision & Reasoning: 

First the Court considered M.S.S v Belgium and Greece underlying that whilst interstate protection means that the applicant has to provide reasons as to why the proposed receiving country does not comply with its treaty obligations, this can be rebutted when assessed against detention and/or living conditions and the quality of the asylum procedure in the receiving country.

Given that the Bulgarian authorities accepted the take back request under Article 20(5) it follows that Bulgaria views the application lodged in the country to have been revoked. Thus the defendant’s submission that the applicant’s asylum procedure is still running in Bulgaria is erroneous. As the Court explains, with reference to the AIDA Country report on Bulgaria and the ECRE/ELENA note on reception and procedural conditions in the country, it is unclear what the status is of an applicant whose application has been withdrawn in Bulgaria and whether they would be subject to detention upon return.  Moreover from the evidence presented detention conditions are insalubrious, over-crowded and there is a lack of legal interpretation and legal aid by which to judicially review the legality of detention.

According to the Court, the national authority had the duty to investigate whether the transfer of the applicant to Bulgaria would give rise to an Article 3 violation. Assumptions in this regard leads to an unsubstantiated decision which results in its invalidity.

Outcome: 

Appeal valid, contested decision over ruled and an order to the Secretary of State to take a new decision within six weeks. 

Subsequent Proceedings : 

It is important to state the diverging amount of case law on transfers to Bulgaria within the Netherlands.

In cases 16/7451, 16.1081 and 16.1082 from May and June 2016 respectively the Hague Court found that the applicant could access asylum procedures upon return and, therefore, that transfer to Bulgaria would not amount to an Article 3 violation. This has been confirmed by a Council of State ruling on the 15 July, 201603752/1 / V3, which looked specifically at the provision of legal aid. The Council found that given neither the Asylum Procedures Directive nor the Dublin Regulation oblige Member States to provide free legal assistance in the administrative phase a transfer would not breach Article 3.

Conversely the Court of the Hague has on 20 June 2016, 16.1197 and 16.1198, reiterated the rationae in this summarised judgment from 13 May 2016. The Court confirmed the risk of detention upon return and the need to further investigate the risk of an Article 3 violation if transferred back to Bulgaria.  

Observations/Comments: 

An unofficial full English translation of the case can be found at the top of the page.