Netherlands – Court of The Hague, 29 April 2016, AWB 16/6983 (appeal) and AWB 16/6985 (interim relief)

Country of Decision:
Country of Applicant:
Date of Decision:
26-04-2016
Citation:
AWB 16/6983 (appeal) and AWB 16/6985 (interim relief)
Additional Citation:
ECLI:NL:RBDHA:2016:5050
Court Name:
The Court of The Hague
National / Other Legislative Provisions:
Netherlands - Aliens Act - Art. 30(1)
Netherlands - General Administrative Act (AWB) - Art. 3.2
Netherlands - General Administrative Act (AWB) - Art. 3.46
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Headnote: 

This case relates to a take back request on grounds of Article 18(1)(d) Dublin III Regulation. Referring to the A-G opinion in Ghezelbash (Case C-63/15), the Court found that Abdullahi (C-349/12) is not applicable to the Dublin III Regulation. Hence,  an applicant could call into question the application of the criteria for determining the responsible Member State in circumstances where a Member State has agreed to take back an applicant for international protection.  

Facts: 

On 10 October 2015, the applicant, an Eritrean national, applied for a temporary asylum residence permit. In a decision dated 7 April 2016, the State Secretary of Security and Justice did not take into consideration the applicant’s application for international protection.

On 27 November 2015, the State Secretary submitted a take back request to Switzerland in accordance with Article 18(1)(d) of the Dublin III Regulation. In response to the take back request Switzerland stated that Italy had become the responsible Member State as it had failed to respond to the take back request by Switzerland.

On 7 December 2015, the State Secretary submitted a take back request to Italy in accordance with Article 18(1)(b) of the Dublin III Regulation. As the Italian authorities had failed to formally respond to this request, Italy became responsible for the examination of the asylum application.

In accordance with Article 30 (1) of the Asylum Act 2000 the Secretary of State rejected the application for asylum.

The applicant appealed against this decision. In this context, the applicant argued that he had neither submitted an application for international protection in Italy nor that his fingerprints had been taken in Italy. The Eurodac system had solely registered the applicant in Switzerland.

In response, the State Secretary referred to the CJEU Abdullahi judgment (C-349/12) dated 10 September 2013. It held that the applicant could not call into question the application of the criteria for determining the responsible Member State in circumstances where a Member State has agreed to take back an applicant for international protection. In addition, the State Secretary stated that the determination of the responsibility of Italy had been lawful and correct. 

Decision & Reasoning: 

Referring to the CJEU A-G Opinion in Ghezelbash (C-63/15), the Court found the Abdullahi judgment inapplicable to the Dublin III Regulation. As a consequence, the applicant’s appeal is to be substantively reviewed.

As the State Secretary had submitted a take back request to Italy in accordance with Article 18(1)(b) of the Dublin III Regulation, this request implied that the applicant had previously applied for international protection in Italy and an application for asylum was  still pending. The Eurodac system does not however reveal that the applicant has been registered in Italy. The State Secretary’s decision is therefore solely based on the rejection letter by the Swiss authorities. This letter does not however indicate the reason for the take back request from Switzerland to Italy. The State Secretary has also failed to clarify this with the Swiss authorities. 

In conclusion, the Court found that the State Secretary had insufficiently motivated its decision to submit a take back request to Italy based on Article 18(1)(b) of the Dublin III Regulation.   

Outcome: 

The appeal was granted and the decision by the State Secretary overturned. The Court obliged the State Secretary to remake its decision. In addition, the State Secretary was ordered to pay the procedural costs of the applicant for the amount of €1.488 (as an estimation of the appeal of court fees and legal costs). 

Subsequent Proceedings : 

The CJEU has since given its judgment in Ghezelbash which follows the AG Opinion as cited by the Hague Regional Court. 

Case Law Cited: 

CJEU - C-63/15 Mehrdad Ghezelbash v Staatssecretaris van Veiligheid en Justitie