Netherlands - Council of State Administrative Law Division, 26 November 2015, 201507248/1/V3

Country of Decision:
Country of Applicant:
Date of Decision:
26-11-2015
Citation:
201507248/1/V3
Court Name:
ABRvS (Afdeling Bestuursrechtspraak Raad van State)
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Headnote: 

This case is concerned with whether the Secretary of State for Justice has discharged or breached his duty of care with regards to the risk of refoulement in an asylum application.

Facts: 

This summary concerns an appeal by  an asylum applicant against the judgment of the Court of Den Hague of 8 September 2015 in case no. 15/15138. In a decision dated 6 August 2015, the applicant’s application for a temporary asylum-related residence permit was not taken into consideration by the Secretary of State for Justice. In its judgment dated 8 September 2015, the Court dismissed the applicant’s appeal against the previous decision. The applicant asserted that her application should have been taken into consideration by the Secretary of State and that the first appeal should have been granted. 

Decision & Reasoning: 

The applicant asserted that the court incorrectly considered her previous statements as unclear regarding the Secretary of State’s wrongful reliance on the mutual interstate trust principle. She asserted that a transfer to Hungary would amount to a contravention of Articles 3, 5 and 13 of the European Convention on Human Rights (ECHR) because the asylum procedure in Hungary has been found to be lacking.

Moreover, the applicant asserted that the court incorrectly found that following a transfer to Hungary, the asylum application would automatically be resumed which does not correspond to the amended Hungarian domestic asylum legislation.

Moreover, the case of M.S.S. v Belgium and Greece (application No. 30696/09) clarified that where a proposed transfer is potentially in contravention to Articles 3 and 13, the applicant may support their assertions with general documentation so as to prove reasonable doubt. In this case the applicant presented such documentation proving reasonable doubt as to the potential contravention of the ECHR and thus the Secretary of State had a duty of care, despite the principle of mutual interstate trust, to investigate the circumstances in the proposed destination.

The Council considered and accepted the applicant’s assertion that the Secretary of State did not discharge his duty of care by failing to investigate so as to ascertain the risk of the transferee being exposed to circumstances in violation of Article 3 ECHR. Accordingly, the court was found not to have acknowledged the lack of sufficient motivation for the Secretary of State’s decision. Furthermore, no legal questions or questions of a factual nature were discussed on appeal that could not be settled on the basis of the documents relating to the case.

Therefore the Council of State division decided to grant the appeal. In addition the previous appeal was granted whereas the decisions by the Secretary of State and the court were overturned.

Outcome: 

The appeal was granted and both decisions by the Secretary of State and the Court of Den Hague were overturned. The Secretary of state was ordered to pay damages for the amount of €1,960 as an estimation of both appeals worth of court fees and legal costs.

Subsequent Proceedings : 

A second ruling given by the Council of State on the same day reiterated this finding in Council of State, 201507322/1/V3, Judgment of 26 November 2015.

The findings have been confirmed by the Dutch lower courts, for example Hague District Court VK-15_20035 / VK-15_20036, Decision of 8 December 2015 as well as in a letter from the Secretary of State for Security and Justice on the 4 January 2016.

Observations/Comments: 

The court clarified that the acceptance by the Hungarian authorities of the readmission application and the requested prejudicial questions were irrelevant to this case.

This case summary was written by Laura Robyn, a LPC student at BPP University. 

The summary was proof read by Joanna Oomen a GDL student at BPP University.