Netherlands: Council of State rules that detention under Dublin III Regulation is unlawful if applicant is not given the opportunity to be heard

Wednesday, May 2, 2018

On 2 May 2018, the Dutch Council of State ruled against the State Secretary for Justice and Security and upheld the ruling of the District Court of The Hague in finding that applicants under the Dublin III Regulation cannot be detained prior to being given the opportunity to be heard. The ruling directly refers to the current practice of the Dutch national authorities, under which a legally residing applicant falling under the Dublin III Regulation can be placed in detention at “asylum seekers’ centre” prior to being given the chance to be heard and is later transferred to a detention centre where a hearing is then conducted as soon as possible.

The Council of State concurred with the lower court that Article 5(2) of the Dutch Aliens Decree 2000, which establishes that a third country national must be heard prior to be detained under Article 59 of the Aliens Act, should be the general rule and can only be circumvented under the exceptional circumstances laid down in that Decree. This exceptional circumstance cannot be adopted as a general rule for all those applicants who are legally residing and are placed in detention pursuant to Section 59(1)(a) of the Aliens Act 2000.

The Council of State relied upon the CJEU jurisprudence in C‑349/07 Sopropé and C-166/13 Mukarubega regarding the principle of respect for the rights of defence. Namely, it recalled that, before taking any decision adversely affecting a person, an administrative authority must give the person concerned the opportunity to be heard, in order to enable the authorities to take due account of all relevant factors prior to taking a decision.

Based on an unofficial translation by the ELENA Weekly Legal Update.

This item was reproduced with the permission of ECRE from the weekly ELENA legal update supported by the Fundamental Rights and Citizenship Funding Programme and distributed by email. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE, the IRC or its partners



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