Netherlands: Council of State, Case 201502024/1/V3, 10 April 2015

Friday, April 10, 2015

The Council of State of the Netherlands ruled on 10 April 2015 that there was a need for an individualised assessment of detention alternatives for third-party nationals who are subject to a return decision, with such decisions requiring reasoning on why alternatives to detention could not be applied, and whether there was a reasonable prospect of removal. The Council concluded that all detention orders on illegally-staying migrants should contain reasoning on those two aspects.

Further, it was noted that Article 15 (1) of the Directive 2008/115/EC of the European Parliament and of the Council on common standards and procedures in Member States for returning illegally staying third-country nationals (Returns Directive), Member States may only keep a third-country national in detention in order to prepare the return when there is a risk of absconding, or the third-country national concerned avoids or hampers the preparation of return or the removal process.

Recalling the CJEU judgment in Mahdi regarding the correct application of the Returns Directive, the Council held that  the application of Article 15(2) of the Directive compelled all State authorities deliver a detention decision in writing with reasons being given in fact and in law for the decision. In doing this, the Council said that the State Secretary needs to assess whether the third-country national has put forward special personal facts and circumstances that would lead to the conclusion that detention would be disproportionate. If no such evidence is provided by the third-country national, the State Secretary must note this to discharge their investigative obligation. With the present case having neither specific reasoning on whether less coercive measures were available, nor on whether there was a reasonable prospect of removal, the Council concluded that the third-country national should not be held in detention.

The ELENA Weekly Legal Update would like to thank Sadhia Rafi for notifying us of this decision and providing a summary.

10 April 2015
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Individual assessment
Obligation to give reasons
Personal circumstances of applicant