Netherlands – Court of The Hague, 7 April 2016, NL16.6

Country of Decision:
Country of Applicant:
Date of Decision:
07-04-2016
Citation:
NL16.6
Additional Citation:
ECLI:NL:RBDHA:2016:3710
Court Name:
Court of The Hague (Hearing location Roermond)
National / Other Legislative Provisions:
Netherlands - Aliens Act Articles 28
Netherlands - Aliens Act: art. 29
Netherlands - Aliens Act: art. 31
Nethelands: Regulation Aliens: art.3.37(d)
Nethelands: Regulation Aliens: art.3.35
Nethelands: Regulation Aliens: art.3.45
Nethelands: Regulation Aliens: art.3.111
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Headnote: 

The three cumulative prerequisites for an internal protection alternative are not fulfilled, as it cannot be reasonably expected of the refugee to settle in the proposed part of the country. The UNHCR’s reasonability test is comparable with the national legislation’s one and UNHCR defines the internal protection alternative as ‘unreasonable’.

Facts: 

The claimant originates from northern Mali and it is disputed whether the claimant can be reasonably expected to settle in southern Mali under the Internal Protection Alternative. The claimant and his mother have fled, with the help of smugglers, to Libya where their father and husband was living and working. After the death of his father and the outbreak of the conflict in Libya, the claimant’s mother decided it would be better for the claimant to continue his journey to Europe while she would return to their original residence in Mali. The claimant has reached the Netherlands in the meantime after having stayed in Italy for one year and in Switzerland for four months.

On the 25th of April, the claimant’s request for asylum has been denied on the basis of credibility; however, on 26 November 2013 he received a residence permit as an unaccompanied minor. The claimant challenged the notion that southern Mali can qualify as an Internal Protection Alternative and when this action was dismissed, the claimant lodged an appeal. The Administrative Law Department of the Council of State declared his appeal well-founded as the lower court had disregarded the fact that the defendant had falsely approved the international protection alternative based on outdated and inaccurate information, considering the given applicant’s personal and general circumstances.

The Court is consequently obligated to reassess the contested judgment.

Decision & Reasoning: 

Only the Internal Protection Alternative must be reassessed as it has already been decided that the claimant is not eligible for another residence permit. The Internal Protection Alternative can only be implemented if the three conditions are cumulatively fulfilled. The Court addresses these in order.

Firstly, the Internal Protection Alternative requires an area where the asylum-seeker is not in danger and where his security is guaranteed. This also includes that the asylum-seeker will not be exposed to new dangers in this area. The Court has agreed that based on the current security situation in southern Mali the claimant does not have a well-founded fear of persecution  . The situation in Southern Mali, although unstable, is normalising. Recent non-structural violence occurred on a limited scale and is not directed toward the local population as much as to Westerners. The Court declared that the claimant will not be seen as a Westerner, due to his long stay outside Mali, as he originates from there and speaks the language fluently.

Secondly, the internal flight alternative requires that the asylum-seeker can travel safely and legally and gain admittance to that part of the country. The Court concluded  it would be possible for the claimant to travel safely by plane to Southern Mali.

Thirdly, it must be reasonably possible that the asylum-seeker can settle in the area of the internal flight alternative. This requires that the asylum-seeker can live a normal life, according to local standards. The Court believed that the defendant has not clearly established that the claimant can live a normal life when implementing the Internal Protection Alternative, according to local standards, by referring to UNHCR’s information of 2014 and 2015. The mere fact that others have returned to Southern Mali does not give the Court a reason to come to a different conclusion, as it is not established that these others are also originating from North Mali. The reasonability test that UNHCR uses when assessing an Internal Protection Alternative largely corresponds to the reasonability tests in national legislation. As UNHCR defines the situation of return as “not reasonable”, it can therefore be concluded that it will equally not pass the comparable national assessment.

It is unclear, therefore, whether the personal circumstances, introduced by the claimant, have been included in the reasoning of the defendant when assessing the reasonability of the claimant’s Internal Protection Alternative in Southern Mali.

The Court consequently concluded that the contested decision lacks an adequate motivation, thereby making the decision eligible for destruction.

Outcome: 

Appeal well-founded: hardship adequate motivation – no Internal Protection Alternative

Subsequent Proceedings : 

No information available 

Observations/Comments: 

The Court confirms – as stated in a temporary order – that the reasonability test of UNHCR to assess the Internal Protection Alternative largely corresponds to the test in national legislation. The comparability of the test has increased the protection of the refugee in this case and can lead to similar results in future cases. 

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: 

- Country Report UN Security Council 22 September 2015

- UNHCR position on returns to Mali 2014

- UNHCR position on returns to Mali 2015 (update)

 

 

Case Law Cited: 

Netherlands: Temporary Ruling Court of Utrecht, 11 January 2006 (ECLI:NL:RBMNE: 2015:336)

Netherlands: ABRvS (Afdeling Bestuursrechtspraak Raad van State), 8 May 2015

Netherlands: Court of Den Haag, 11 August 2014, AWB 13/32431