Netherlands - ABRvS, 4 October 2011, 201102753/1/V3

Country of Decision:
Country of Applicant:
Date of Decision:
04-10-2011
Citation:
201102753/1/V3
Court Name:
ABRvS (Administrative Jurisdiction Division of the Council of State)
National / Other Legislative Provisions:
Netherlands - Vreemdelingenwet 2000 (Aliens Act) - Art 6(1)
Netherlands - Vreemdelingenwet 2000 (Aliens Act) - Art 6(2)
Netherlands - Vreemdelingenwet 2000 (Aliens Act) - Art 8(f)
Netherlands - Vreemdelingenwet 2000 (Aliens Act) - Art 28
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Headnote: 

Right to remain arises the moment an alien indicates he would like to be granted asylum. This means that an alien, from that time onwards, cannot be refused access to the territory; he may be refused only 'further access', in other words 'actual further entry' to the territory.

Facts: 

The case concerns an appeal by an alien against a judgment by the Court of Haarlem; dated 24 February 2011, case number AWB 11/2626. The alien was detained under Article 6(1) of the Aliens Act on arrival at Schiphol Airport. A few days later, the alien submitted an asylum claim; detention was then lifted. The alien appealed, claiming he was eligible for compensation due to unlawful detention.

Decision & Reasoning: 

Asylum application

In the view of the Council of State, a wish expressed by an alien to be afforded international protection, expressed explicitly and in person to the authorities, must be treated as an asylum application, within the meaning of Article 2, introductory words and paragraph (b) of the Reception Conditions Directive and Asylum Procedures Directive. The moment this wish is thus expressed, the alien is deemed an asylum seeker as defined in Article 2, introductory words and paragraph (c) of these Directives. Therefore, the Returns Directive does not apply here.

Position in relation to right to remain

In the view of the Council of State, a wish expressed by an alien to be provided international protection must be understood to be an application to be granted a residence permit. If this application is not made formally, this does not mean that an asylum application within the meaning of Article 28 of the Aliens Act has not been made or that the individual does not have right to remain within the meaning of Article 8, introductory words and paragraph (f) of the Aliens Act.

Detention order under Article 6(1) and (2) of the Aliens Act

Although the Returns Directive does not apply to aliens with a right to remain, in the Council of State’s view, border supervision may still be carried out in relation to asylum seekers under EU law. Article 2, introductory words and paragraph (k) of the Asylum Procedures Directive, read in conjunction with Article 7(1) of the Directive, suggest that remaining in the territory of a Member State also includes remaining at the border or in a transit zone. Article 35 of the Asylum Procedures Directive therefore offers Member States the opportunity to process asylum applications at the border, applying a normal or a special procedure. In the view of the Council of State, this means that the Asylum Procedures Directive contains no provisions preventing Member States from refusing asylum seekers 'further access' to the territory, in other words 'actual further entry', in their performance of border supervision.

The alien's appeal, which implied that the Court had failed to recognise he was unlawfully detained under Article 6(1) and (2), was dismissed, so he is not eligible for compensation.

Outcome: 

The alien's appeal was dismissed.