Netherlands – Council of State, Administrative Law section, 13 April 2016, 201506502/1/V2

Country of Decision:
Country of Applicant:
Date of Decision:
13-04-2016
Citation:
201506502/1/V2.6
Additional Citation:
ECLI:NL:RVS:2016:891
Court Name:
Council of State
Keywords:
National / Other Legislative Provisions:
Netherlands - Aliens Act: art. 83a
Netherlands - Aliens Act: art 91
General Administrative Act (awb): art. 8:72
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Headnote: 

The administrative court may not replace the State Secretary’s credibility assessment of the asylum claim with his own assessment. The administrative court can, however, express its opinion on the underlying facts submitted by the Secretary of State. 

Facts: 

The applicant, originating from Cuba, has requested asylum based on the fact that he has worked as a nurse in Qatar with his employment being part of an agreement between the Cuban government and the authorities in Qatar. The applicant has resigned from his employment in Qatar out of disagreement with the poor working conditions. Consequently, the applicant claims to be seen as ‘anti-revolutionary’ by the Cuban authorities and will therefore face persecution upon return to Cuba.

The Secretary of State considers the applicant’s Cuban origin as credible, as well as the fact that he has been sent by his government to Qatar to work as a nurse. However, the Secretary of State does not consider it plausible that the applicant has resigned in Qatar because of multiple contradicting statements in this regard during the first interview. It is, according to the Secretary of State, impossible to establish credibility regarding the fact that the applicant would, as a result of this so-called resignation, receive negative attention of the Cuban government in this regard. The applicant has consequently failed to substantiate his claim of international protection.

Upon appeal the administrative court reassessed the Secretary of State’s credibility assessment and ruled that the asylum-seeker’s statements had, erroneously, not been seen in the context of the questions asked during the first interview.

The Secretary of State now challenges in appeal whether the administrative court had the competence to substitute its credibility assessment with its own. The Secretary of State challenges in addition the assessment intensity of the administrative court in asylum claims.

Decision & Reasoning: 

Different language versions of article 46 of the Asylum Procedures Directive make clear that a complete and ex nunc investigation includes both factual and legal questions and that no aspect of the decision may be excluded in a judicial review. The text of article 46 is however not conclusive on the question whether the administrative judge may substitute the Secretary of State’s credibility assessment with his own. Consequently, the scope and meaning of this article must be determined, taking into account the Asylum Procedures Directives’ other articles, context, aim and history of its creation.

The Asylum Procedure Directive allows the administrative judge to assess the legality of the decision taken by the administrative authorities of the Secretary of State. It is the task of this authority to assess the credibility of the asylum story and the administrative judge assesses this assessment. The Asylum Procedure Directive intends to comply with case law on the right to an effective remedy of the European Court of Justice and the European Court of Human Rights. It can, however, not be concluded from this case law that the administrative judge can substitute the Secretary of State’s credibility assessment. The mere fact that the European Court for Human Rights occasionally adheres to another approach, namely substituting the national authorities’ credibility assessment based on its own investigations, is no reason to come to a different conclusion. It must be taken into account that the position of the European Court of Human Rights is not comparable to the one of a national judge as it rules in last instance and has no competence to ensure that the national judge would reassess its judgment taking into account its ruling.

The Council of State has firstly clarified that the administrative judge has no competence to replace the Secretary of State’s credibility assessment of the asylum story by his own under article 46 of the Asylum Procedures Directive. The administrative judge is a mere assessing judge in asylum cases. This does, nevertheless, not change the fact that this administrative judge can, under the circumstances stipulated by general administrative law, conclude under certain circumstances on a certain case. When the administrative judge uses this competence, he is obligated to take into consideration the position of the Secretary of State.

The Council of State secondly addressed the higher appeal and concludes that the Court had given its opinion on the facts and circumstances submitted by the Secretary of State to support its decision. The Court declared that the asylum-seeker’s statements during the first interview had not been seen in the context of the questions asked by the Secretary of State’s administrative authorities during that interview. This does, however, not mean that the court has replaced the decision of the Secretary of State with its own.

Additionally, the Council of State also decided upon the assessment intensity of the administrative court in asylum claims. The administrative judge must at all times assess the due diligence and the motivation of the Secretary of State’s decisions, including when he uses his margin of appreciation to make decisions. The administrative judge can determine that certain declarations are contradictory to each other. Here, the Secretary of State has no decision-making authority. The Council of State has concluded that the Court has the competence to declare that statements made during the first interview had been clarified in order to eliminate possible contradictions by the asylum-seeker.

Therefore, the Council of State concludes that the appeal is unfounded, as the Court has not replaced the Secretary of State’s credibility assessment with its own. The administrative judge has only assessed the due diligence and motivation of the Secretary of State’s decision.

Outcome: 

The appeal is unfounded: the challenged decision ought to be confirmed.

Subsequent Proceedings : 

The Secretary of State must, as the Court had already ruled, reassess the asylum application.

The Council of State provided an additional judgment on the same day which assessed the same issue as summarised above. Full English translations from the Council of State for both cases can be found underneath the original version of the judgment. 

Observations/Comments: 

This ruling was accompanied by a press release: https://www.raadvanstate.nl/pers/persberichten/tekst-persbericht.html?id=942

The Council of State has further clarified that the administrative judge has, just as the Secretary of State, the competence to assess some parts of the credibility of the asylum story. In these cases, the administrative judge assesses incisively.

When the asylum-seeker does not further substantiate his asylum claim, and thereby merely tells what has happened to him, the Secretary of State has the margin of appreciation to assess whether the asylum-seeker’s statements are credible. In these cases, the administrative judge cannot replace the Secretary of State’s credibility assessment by its own.

As a consequence of the recast Asylum Procedure Directive, the administrative review of the credibility assessment has become more frequent.

Nevertheless the administrative court still does not have the competence to assess the asylum story independently as the decision of the Secretary of State is the starting point for the judge’s assessment.

 

This case summary was written by Birte Schorpion, Immigration Law LLM-student at Queen Mary University of London.

The case summary was proof read by Miek Lamaire, MA International Security.

Other sources cited: 

- Document Parliamentary Chamber II 2014/15, 34088, nr. 3 en 6, page. 20-22; 27 and 31

- Document Parliamentary Chamber I 2014/15, 34088, nr. C, page. 2

Case Law Cited: 

ECtHR - R.H. v. Sweden, 10 September 2015, nr. 4601/14

Netherlands - Court of Den Haag, 24 August 2015, ECLI:NL:RBDHA:2015:9942

CJEU - C-283/81 C.I.L.F.I.T. Srl and Others v Ministro della Sanita' (Minister of Health)

ECtHR - Hilal v United Kingdom, Application no. 45276/99

ECtHR - F.N. and Another v. Sweden, Application No. 28774/09

CJEU - C-604/12, H. N. v Minister for Justice, Equality and Law Reform and Others (UP)

C-146/14 Bashir Mohamed Ali Mahdi

Netherlands - Council of State, Adminstrative Law Section, 13 April 2016, 201507952/1/V2

Netherlands - Court of Den Haag, 1 October 2015, ECLI:NL:RBDHA:2015:11350

ECtHR - Sigma Radio Television v. Cyprus, 21 July 2011, nrs. 32181/04 en 35122/05

Netherlands - Court of Den Haag, 18 January 2016, ECLI:NL:RBDHA:2016:629

Kraaijeveld, 24 October 1996, C-72/95, ECLI:EU:C:1996:404

Z. Zh. en I.O., 11 June 2015, C-554/13, ECLI:EU:C:2015:377

H.T., 24 June 2015, C-373/13, ECLI:EU:C:2015:413,

Netherlands - Genius Holding BV, 13 December 1989, C-342-87, ECLI:EU:C:1989:635

Upjon, 21 January 1999, C-120/97, ECLI:EU:C:1999:14

CJEU - X en Van Dijk, 9 September 2015, ECLI:EU:C:2015:564

CJEU - Ferreira da Silva e Brito e.a., 9 September 2015, C-160/14