Netherlands: Case C-601/15 (PPU) Raad van State urgent preliminary reference on detention, the Reception Directive, and the EU Charter

Tuesday, November 17, 2015

The Administrative Law Division of the Raad van State has sought an urgent preliminary ruling from the CJEU on whether Article 8(3)e) recast Reception Conditions Directive(rRCD) is valid in light of the Charter of Fundamental Rights of the EU in a situation where a third country national is detained pursuant to this provision, who has the right to be allowed to remain in a Member State until a decision is taken on his application at first instance. This is in view of the explanatory notes to the Charter which provide that the limitations to Article 6 of the Charter may not extend further than that in Article 5 ECHR, and the ECtHR interpretation of this, in particular in Nabil and Others v. Hungary that detention of an asylum seeker violates Article 5(1)f), if the detention is not imposed for the purpose of removal.
The case relates to a third country national who made another subsequent asylum application (third application) in the Netherlands. In January 2014, he was given a rejection decision and ordered to leave the EU with a 10 year entry ban. He applied for asylum again in February 2015. The applicant was convicted of a number of criminal offences and following the end of his latest period of criminal detention in September 2015, his continued detention was ordered on the basis that he posed a threat to public order. At this time, a first instance decision on his asylum application was still pending. No use was made of the possibility to withhold from the applicant the right to remain in the Netherlands pending his application.
Article 8(3) e) rRCD allows the detention of an asylum applicant ‘when the protection of national security or public order so requires’, which is transposed into national law. National law also provided that a third country national would be lawfully resident in the Netherlands pending a first instance decision on an application for a residence permit, and that they could not be deported unless a subsequent application is definitively rejected as inadmissible or manifestly unfounded.
The Raad van State considers that an issue arises as to whether Article 8(3) e) is contrary to Article 6 of the Charter, which corresponds to Article 5 ECHR. In view of the ECtHR ruling in Nabil and Others v. Hungary at para. 35, Article 5(1)f) would be violated where an applicant is detained pending asylum proceedings, in circumstances where this could not be for the purpose of deportation, as this is not possible under national law. Article 9 (2) and (3) of the recast Asylum Procedures Directive (rAPD) allow for an exception to the right to remain in the Member State for the purpose of the procedure only when there is no risk of refoulement. To assess such a risk a preliminary examination is required into the question whether new elements and circumstances have been raised. This examination has not taken place which means that in case of the applicant this exception is not applicable. This means that the applicant has the right to remain according to Article 9 (1) rAPD.
It concluded that both national law and relevant provisions of the rAPD prevented removal of the applicant prior to a decision on his asylum claim, which means that the ground for detention in Article 8(3)e) rRCD does not pursue the aim of removal, as required by Article 5(1)f) ECHR. The proceedings in this case are suspended until the CJEU has given its ruling. 
Based on an unofficial ELENA translation. The ELENA Weekly Legal Update would like to thank Sadhia Rafi, ELENA national coordinator in the Netherlands, for her assistance.

This item was reproduced with the permission of ECRE from the weekly ELENA legal update supported by the Fundamental Rights and Citizenship Funding Programme and distributed by email. 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, the IRC or its partners.



Reception conditions
Serious non-political crime