The Netherlands: Raad van State rulings on Dublin transfers to Hungary

Thursday, November 26, 2015

On 26 November 2015, the Raad van State (the highest administrative court in the Netherlands) allowed the appeals of two asylum seekers to prevent their transfer to Hungary, under the Dublin III Regulation. Lower courts are now obliged to follow this ruling, which has consequences for all Dublin-Hungary cases in the Netherlands.

The appellant in case 201507248/1 applied for asylum in the Netherlands in May 2015, having previously travelled through Hungary. Hungary accepted a take back request pursuant to the Dublin III Regulation in June 2015 and thus a decision was made by the Secretary of State not to consider her application in the Netherlands.

The applicant appealed, against a dismissal from The Hague Court, arguing that transfer to Hungary would be contrary to  Articles 3, 5 and 13 ECHR, submitting evidence that showed several shortcomings in the asylum procedure including reception capacity, living conditions, detention, availability of legal aid, access to an effective remedy and the risk of refoulement.

Relying on M.S.S. v Belgium and Greece  the Raad van State considered that the evidence submitted gave rise to reasonable doubt with regard to the inter-state legitimate expectation. It considered that the Secretary of State had a duty to ascertain that the situation in another Member State would not lead to a violation of Article 3 ECHR, and had failed to do so. The Secretary of State was therefore obliged to make further investigation into whether the situation of Dublin transferees in Hungary would lead to a violation of the ECHR.

The same finding was made in case 201507322/1, decided by the Raad van State on the same day. The Secretary of State may not appeal against these decisions, and must now make another decision in relation to the two asylum claims.

Based on an unofficial 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.



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