Netherlands - Council of State, Administrative Law section, 13 May 2016, 201507729/1/V3

Country of Decision:
Country of Applicant:
Date of Decision:
Additional Citation:
Court Name:
Council of State
Relevant Legislative Provisions:
National / Other Legislative Provisions:
Netherlands - Aliens Act - Art. 85
Netherlands - Aliens Act - Art.91
Netherlands - General Administrative Act (AWB) - Art. 3.2
Netherlands - General Administrative Act (AWB) - Art. 8.54
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This case is concerned with whether the State Secretary for Security and Justice correctly argued that the medical report did not prevent the removal of an asylum seeker who was HIV positive.  

The Council of State of the Netherlands ruled that the State Secretary could not have relied on the medical report. Hence, the State Secretary failed to sufficiently investigate whether the applicant would find herself in a life threatening situation when ordered to leave the territory of the Netherlands.  


In a decision dated 20 February 2013, the applicant’s application for a temporary asylum-related residence was rejected by the State Secretary for Security and Justice. According to the State Secretary, the asylum applicant who was HIV positive could be removed to her country of origin, Burundi, in accordance with the medical report.  In its judgment dated 9 September 2015 (case no. 13/7747), the Hague District Court dismissed the applicant’s appeal against this previous decision.

The applicant appealed against this decision at the Council of State. Referring to the medical report, the applicant submitted that her expulsion would constitute a violation of Article 3 ECHR. The applicant maintained that she would not be able to receive appropriate medical treatment and specific medication in Burundi. As a result, she would find herself in a life threatening situation when ordered to leave the territory of the Netherlands.    

Decision & Reasoning: 

Referring to D. v The United Kingdom, Bensaid v The United Kingdom and N. v The United Kingdom, the Council of State reiterated that a decision to leave the territory could in exceptional circumstances result in a violation of Article 3 ECHR in light of the medical condition of an applicant. This exceptional situation would occur if the removal of the applicant would expose him or her to unbearable suffering and accelerate his or her death, due to a lack of medical facilities and social care in the receiving country. Nonetheless, Article 3 ECHR does not prevent the removal of an asylum seeker whose medical condition is in an advanced stage but is not immediately (or after removal) life threatening.

Regarding the use of medical reports by the State Secretary, the Council of State held that it would review to what extent the State Secretary had sufficiently verified that the medical report had been carefully prepared and that the content was clear and conclusive.

On 7 May 2015, the Bureau for Medical Advice (BMA) submitted their report on the medical situation of the applicant in light of Article 3 ECHR. This medical report confirmed that the asylum seeker tested positive for HIV. As she received effective treatment in the Netherlands, her condition had not been life threatening. If however medical treatment would be unavailable in the receiving country, this discontinuity of medical treatment would be fatal. The BMA concluded that, at the moment, the appropriate medical treatment is unavailable in Burundi.    

According to the Council of State, the medical report had established that the asylum seeker would be in a life threatening situation upon return to Burundi. In addition, the State Secretary had confirmed that the medical report did not fulfil the requirements under Article 3 ECHR. As a result, the State Secretary had failed to further investigate whether the decision to leave the country would result in a life threatening situation for the applicant. The State Secretary was therefore not permitted to base his negative decision on the medical report. 


The appeal was granted and both decisions by the State Secretary and the Hague District Court were overturned. The State Secretary was ordered to pay the procedural costs of the applicant of the amount of €1.736 (as an estimation of both appeal of court fees and legal costs).  

Other sources cited: 

Asylum Information Database (Aida), Country report:  Bulgaria October 2015

ELENA/ECRE Research Note: Reception conditions, detentions and procedural safeguards for asylum seekers and content of international protection status in Bulgaria, February 2016

Letter from Refugee Network Netherlands of 1 March 2016

Case Law Cited: 

Netherlands - Council of State, 13 October 2010, 201001245/1/V1, ECLI:NL:RVS:2010:BO0794

ECtHR - D v. United Kingdom, Application No. 30240/96 (UP)

ECtHR - N v United Kingdom (Application no. 26565/05)