Netherlands – Court of The Hague, 24 November 2015, AWB 15/19968

Country of Decision:
Country of Applicant:
Date of Decision:
24-11-2015
Citation:
AWB 15/19968
Additional Citation:
ECLI:NL:RBDHA:2015:14138
Court Name:
Court of The Hague (Hearing location Haarlem)
National / Other Legislative Provisions:
Netherlands - Aliens Act Article 44a
Netherlands - Aliens Act Article 59a
Netherlands - Aliens Act Article 62 c
Netherlands - Aliens Act Article 94
Netherlands - Aliens Act Article 106
Netherlands - General Administrative Act Article 8:75
Netherlands - Code of Criminal Procedure Article 93
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Headnote: 

No obligation rests upon the asylum seeker to voluntarily and of their own accord go to the Member State that will examine the asylum application under the Dublin Regulation as this obligation rests primarily on the Member States. Neither the failure to leave, nor the lack of adequate resources, can form the basis for a custodial measure.

Facts: 

The claimant is obliged to leave the Netherlands, given the fact that another Member State (Italy) is responsible for assessing the application for international protection under the Dublin Regulation. Four weeks after receiving the decision that another Member State will assess his asylum application, the claimant has failed to respond by turning to the other Member State. On the 9 November 2015, the defendant has demanded a custodial measure on public order grounds because there was a significant risk of the claimant absconding. On 11 November 2015, the claimant has appealed against this custodial measure and has requested compensation.

 
Decision & Reasoning: 

First, the court decides - as the Administrative Jurisdiction Division of the Council of State in its judgment of July 30, 2015 – that the Dublin Regulation contains an entirely separate system for voluntary departure or removal of asylum seekers within the European Union. The Dublin Regulation also states that if the request is submitted in a Member State other than the one responsible, this Member State is not obliged to assess the substance of the asylum application where the Member State can send the asylum seeker back to the Member State responsible. The Dublin Regulation states that the primary responsibility for this transfer of asylum seekers lies with the national authorities. In addition, the asylum seeker is given the opportunity to take responsibility for his transfer under article 7 of the Implementing Regulation for the application of the Dublin Regulation. The defendant’s argument that the applicant is under the obligation to undertake his own transfer, according to article 44a and 62c of the Aliens Act, was not believed to be in accordance with European Law by the court as European law only provides for an opportunity to make a transfer on the claimant’s initiative and not an obligation. The fact that the applicant/claimant has not left the Member State within the stated four weeks, nor has expressed his intention to do so of his own accord, cannot be invoked against the applicant and does not constitute the basis for detention.

Secondly, the court has decided that the lack of sufficient resources of subsistence does not require custodial measures. However, the court accepts the claimant’s argument that the lack of sufficient resources of subsistence makes it less probable for the claimant to fund his voluntary transfer. On the other hand, the court does not agree with the defendant’s argument that the lack of sufficient resources of subsistence will automatically lead to a more significant risk of absconding.

Thirdly, the court acknowledges that the claimant was not able to establish credibility regarding the time of travelling to the Netherlands or whether he was in the possession of a valid visa. Consequently, the plaintiff did not fall under the supervision of the Aliens Act, as all third-country nationals must inform the authorities on their time of travelling to the Netherlands. However, the court mentioned that this breach of the Aliens Act does not infer a significant risk of absconding.

Fourthly, the court has ruled – as stated by the Administrative Law Division of the Council of the State in its judgment of June 12, 2015 – that the defendant should have motivated already in the decision on the custodial measure why a lighter measure would not have been sufficient. The court followed the position of the claimant that the absence of a balance of interests, when taking into account the state of health of the claimant, meant an insufficient consideration as to whether a a lighter measure would have been proportionate.

Therefore the court has ruled for the abolition of the custodial measure as this measure was unlawful from its implementation onwards.

Outcome: 

Appeal granted: abolition of the custodial measure (and compensation).

Observations/Comments: 

This case law is an application of the jurisprudence by the Administrative Law Division of the Council of the State in its judgment of July 30, 2015. The judgment clearly limits the possibility for the Member State to detain asylum seekers before being transferred to the Member State that will investigate their asylum application  under the Dublin Regulation.

This case summary was written by Birte Schorpion, an 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: 

Commission Regulation (EC) No 1560/2003 of September 2003 laying down detailed rules for the application of Council Regulation (EC) No 343/2003 establishing the criteria and mechanisms for determining the Member State repsonsible for examining an asylum application lodged in one of the Member States by a third-country national - Article 7. 

Case Law Cited: 

Netherlands: ABRvS (Afdeling Bestuursrechtspraak Raad van State), 12 June 2015, ECLI:NL:RVS:2015:2002

Netherlands: ABRvS (Afdeling Bestuursrechtspraak Raad van State), 30 July 2015, ECLI:NL:RVS:2015:2537