The Netherlands – The Hague Court decides on suspensory effect of appeal against rejection of asylum request

Wednesday, October 10, 2018

On 10 October, the District Court of The Hague ruled in a case concerning the application for provisional measures pending the decision on an appeal against the rejection of an asylum claim.

The case concerned an Algerian national who was refused asylum status in the Netherlands. It was decided that the appellant was not eligible for a temporary regular residence permit and was asked to leave the country, being also subject to an entry ban for a period of two years from the date of departure. The applicant lodged an appeal against the contested decision and an application for interim measures, requesting to stay in the country until the completion of the proceedings.

The Court found that, following the Gnandi judgment, read in conjunction with the provisions of Article 46(8) Directive 2013/32/EU, the applicant has the right to lawfully reside in the country of application during the examination of his application for asylum. This includes the period where the applicant may lodge an appeal against a negative decision and the period associated with the examination of that appeal. Therefore, an appeal, at least insofar as directed against the return decision, must have suspensive effect pending the outcome of the appeal against the negative asylum decision in order to be an effective remedy in court.

Consequently, in light of the CJEU’s jurisprudence, the authorities erred in determining that the appeal against the contested decision, which is also a return decision, does not have suspensory effect. However, as the appeal had already been decided by the time of the delivery of this judgment, the Court decided to reject the interim measures and only order the respondent to pay the costs of the proceedings incurred by the applicant.

Based on an unofficial translation by the ELENA Weekly Legal Update.

This item was reproduced with the permission of ECRE from the weekly ELENA legal update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.



Right to remain pending a decision (Suspensive effect)