The Netherlands - Court of The Hague, Administrative Law Department, 30 June 2016, AWB 16/11081

Country of Decision:
Country of Applicant:
Date of Decision:
30-06-2016
Citation:
Plaintiff v The State Secretary of Security and Justice, 2016, Court of The Hague, AWB 16/11081
Additional Citation:
ECLI:NL:RBDHA:2016:7335
Court Name:
Court of The Hague, Administrative Law Department
Relevant Legislative Provisions:
National / Other Legislative Provisions:
Netherlands - Vreemdelingenbesluit 2000 (Foreigners Act) - Art 55
Netherlands - Vreemdelingenbesluit 2000 (Foreigners Act) - Art 8(f)
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Headnote: 

If an Applicant, whilst his asylum application is being processed, is held in a limited area, this may be in contravention of Article 5 of the European Convention on Human Rights (“ECHR”). In determining this, the Court may take into account all of the circumstances of the case, in particular the nature, period and effect of the holding of the Applicant and how the holding of the Applicant is enforced.

Facts: 

The Applicant filed his asylum application on 21 November 2015 and received a M-117C form on 20 May 2016 requiring him to be available in Badhoevedorp for the duration of the examination of his asylum application. Moreover, between 20 and 23 May 2016 the Applicant had to be available within a designed area in Schiphol for further hearings and consultation with his lawyer. This area was very small, and the Applicant was not permitted to leave without the assistance of a staff member. It was not communicated to the Applicant that he could leave the building to smoke a cigarette or get fresh air. 

Decision & Reasoning: 

The Court held that pursuant to Article 5 ECHR, every individual has the right to liberty and security (subject to specified exceptions). Under Dutch law, Article 55(1) of the Foreigners Act 2000 does not authorise the State Secretary of Security and Justice to require the Applicant to make himself available during the processing period in a residence which would, factually, result in detaining the Applicant and depriving him of his right pursuant to Article 5 ECHR.

The Court considered that, pursuant to established case law, it should take into account all of the circumstances of the case, in particular the nature, period and effect of the holding of the Applicant and how the holding of the Applicant is enforced.

The Court, in reaching a decision, took into account the following: (i) that the Applicant was required to stay in a cell complex and was unable to leave without the assistance of a staff member; (ii) that the Applicant was not permitted to take his phone or any other electronics inside the area; and, (iii) that the Applicant was told that it was a criminal offence, under Dutch law (Article 108(1) VW 2000), for him to leave and that leaving may result in adverse consequences for his asylum application.  

Taking into account these circumstances, the Court ruled that the treatment of the Applicant amounted to a deprivation of freedom within the meaning of Article 5 ECHR.

The application was allowed and the Applicant awarded damages for the four days for which he was held in the cell complex. Damages were calculated at a rate of €45 per day, which amounted to €180 in total.

Outcome: 

Application granted.

Observations/Comments: 

This case summary was written by Linklaters LLP.