Netherlands: Asylum applicants cannot be detained at border if appeal is still possible

Date: 
Wednesday, June 5, 2019

On 5 June 2019, the Dutch Council of State ruled in two separate cases regarding detention at the border. The State Secretary for Justice and Security submitted the appeal against decisions from the Court of Haarlem from 6 November 2018.

The judgments concern two applicants who applied for asylum upon arrival to the Netherlands under the border procedure. The State Secretary found their applications for asylum to be manifestly unfounded and consequently refused them entry to the Netherlands, ordered they leave the country immediately and issued an entry ban. Pursuant to Article 6 (6) of the Aliens Act 2000, the applicants were detained as there was a risk of absconding or obstructing their return. In an appeal to the Court of Haarlem, the Court found that, Article 6 (6) of the Aliens Act 2000 is not a sound basis for the deprivation of liberty of foreign nationals during the appeals period. It followed the Court of Justice of the European Union (CJEU) judgment in Gnandi (C-181/16) and order in C., J. and S. (C-269/18), under which it was found that during the appeals period, all legal consequences of the rejection of the asylum application, including the return decision, are suspended. Thus, as Article 6 (6) of the Aliens Act 2000 implements Article 15 of the Returns Directive 2008/115/EC, the Court of Haarlem found that the applicants could not be deprived of their liberty during the appeals period.

In the instant appeal submitted by the State Secretary, the Council of State held that it does not follow from the judgment in Gnandi and order in C., J. and S. that, in the border procedure, the legal effects of the decision on entry are also suspended when appeals are lodged against the rejection of the asylum application. It found that EU law does not preclude the deprivation of liberty of asylum applicants during the appeals period. However, the Court found that at present, national legislation does not provide an appropriate basis for the deprivation of liberty of asylum applicants who are in that situation.

It held that the deprivation of liberty of asylum applicants during the time allowed for appeals is possible only in accordance with the Reception Conditions Directive 2013/33/EC(rRCD). However, the current laws for deprivation of liberty in the above situation, in particular Article 6 (6) of the Aliens Act 2000, do not comply with the rRCD. Given that there are currently no suitable alternatives for residence at the external border for this category of persons, the Court ruled that the applicants should be granted access to the Netherlands. Furthermore, it held that Article 3 (6) of the Aliens Act 2000, which includes the obligation to refuse entry to the Netherlands immediately upon rejection of the asylum application in the border procedure, is unenforceable in practice and must not be applied.

The Court upheld the ruling of the Court of Haarlem, stating that while EU law does not preclude the deprivation of liberty of asylum seekers during the appeals period, at present, national legislation does not provide an appropriate basis for this deprivation of liberty. It stated that in order to deprive applicants for asylum of their liberty in the above situation, the legislator will have to introduce a legal basis on which to do so, in conformity with the applicable EU law.

Based on an unofficial translation by the EWLU team. Thank you to Ruben Fierens for his assistance with the translation of this case.


This item was reproduced with the permission of ECRE from the ELENA Weekly 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.

 

 

Keywords: 
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