Author
Third countries
An asylum application can be declared inadmissible when the asylum seeker has been recognised as refugee in a third country and can still receive protection in that country, or can enjoy sufficient protection in that country, including protection from refoulement, and will be re-admitted to the territory of that particular third country (Article 30a(1)(b) Aliens Act).[1] This inadmissibility clause is an implementation of Article 33(2)(b) and Article 35 APD.
As stipulated in Paragraph C2/6.2 of the Aliens Circular, the IND assumes that the asylum seeker will be re-admitted in the third country in case:
- The asylum seeker still has a valid permit for international protection in the third country;
- The asylum seeker has a valid residence permit or visa and he or she can obtain international protection;
- There is information from the third country from which it can be deduced that the asylum seeker already has been granted international protection or that he or she is eligible for international protection;
- Statements of the asylum seeker that he or she has already been granted protection in a third country and this information has been confirmed by the third country.
In the situations mentioned above, the IND assumes that the asylum seeker will be re-admitted to the third country, unless the asylum seeker can substantiate (make it plausible) that they will not be re-admitted to the third country. The first country of asylum concept is scarcely used in practice. Often, the (general) third country concept (see under 2. Safe third country) is used. In 2021, there was only one case about a first country of asylum concerning Peru.[2] Regional Court Amsterdam decided that the IND should further investigate the residential status of the Yemeni asylum seeker in Peru. Following the decision, the asylum seeker got another interview after which he received a residence permit.
In 2022, just one case of application of the first country of asylum (concerning Costa Rica) was brought in front of a court. The Regional Court of Middelburg decided that when the ‘first country of asylum’ concept is used, the IND should investigate whether this country is ‘safe’ using the same sources as with the investigation of ‘safe third countries’.[3] The State Secretary appealed this ruling and the appeal was still pending in 2023. Moreover, the Council of State ruled in an onward appeal of a case from 2020 concerning Uganda that a copy of the Refugee Family Attestation Card was enough to prove that person enjoyed international protection in Uganda.[4]
EU Member States
An asylum application will be declared inadmissible if the asylum seeker has international protection in another EU Member State (Article 30a (1) under a of the Aliens Act). Even if the residence permit has expired, the asylum application will be declared inadmissible.[5] This is because it is assumed that the international protection status can only be actively withdrawn and cannot simply expire.
Asylum seekers have often argued that their return to another Member State would be contrary to Article 3 ECHR. However, this is hardly ever accepted by the courts. Since the Ibrahim judgment,[6] the focus of the general situation in the Member State seems to have shifted to the particular vulnerability of the beneficiary of protection. However, case law with regard to particular vulnerability is also very strict. For example, the Council of State does not automatically recognise families, single parents and status holders with PTSD as particularly vulnerable.[7] In an internal information message of the IND, it is stated that for particular vulnerability it is important to assess whether someone is self-sufficient.[8] Moreover, the internal information message states that individual guarantees should be requested for particularly vulnerable beneficiaries of protection from Greece, Bulgaria and Hungary, given that protection beneficiaries returned to these Member States are in principle assumed to be at risk of facing a situation of extreme material poverty, as stated in the Ibrahim ruling.
Greece: Most EU-status holders that apply for asylum in the Netherlands come from Greece. On 7 November 2022, the State Secretary communicated there were 1,000 such cases pending before the IND.[9]
On 11 December 2020, an article in the Volkskrant mentioned some ‘unexpected statuses’ from Greece.[10] The article reported on the cases of many asylum seekers that reached the Netherlands after their entrance in the EU from Greece, where they did not receive a status, being instead only registered as asylum seekers in the country. Upon request by the IND many of these asylum seekers had been granted a status in Greece, without being informed, while residing in the Netherlands. In such a case, the IND still declares the application inadmissible. This practice is particularly interesting when looking at the blocking of Dublin transfers to Greece by the Council of State (see Dublin (“Track 1”) – Suspension of transfers).
On 28 July 2021, the Council of State finally ruled that protection beneficiaries from Greece cannot be sent back without the State Secretary more thoroughly motivating that there is no breach of Article 3 ECHR upon their return.[11] In response, the State Secretary announced that it would start an investigation into the situation of beneficiaries of international protection in Greece, thereby extending the decision term for 9 months for these cases of BIPs as of 1 October 2021 on the ground of it being a complex factual and legal matter.[12] Cases in which the decision term had already expired by 1 October were handled in the national procedure without declaring the requests inadmissible.
The announced investigation was carried out by the Ministry of Foreign Affairs. The report was published on 24 June 2022.[13] On 14 September 2022, the State Secretary announced that it needed more time to study the report, which meant that decision-making in cases of BIPs from Greece was still suspended.[14] Finally, on 7 November 2022 the State Secretary said that following the report, BIPs from Greece could no longer be sent back to the country. However, as the situation in Greece is changing rapidly, cases will still only be decided upon after the prolonged decision period has ended (using the general prolonging of decision from WBV 2022/22, see Legal Penalties).[15] This means that BIPs from Greece applying for asylum in the Netherlands have to wait 15 months before their asylum procedure starts. However, an exception has been made for the asylum requests of BIPs who can be regarded as ‘self-reliant’. The conditions are as follows: the BIP possesses a residence permit and residence document (the ADET), a tax number, a social security number, had access to accommodation and facilities in Greece and can obtain them again. However, the few cases that were (about to be) declared inadmissible based on this ‘self-reliance’ criterium were all cancelled or dismissed in court,[16] with just one exception.[17]
For a short period of time during 2022, the IND also exempted unaccompanied minors with a status in Greece from the suspension of decision-making. In a few cases, the IND asked the Greek authorities for individual guarantees on reception of the minor. Some of these cases are still pending, but individual guarantees are no longer requested.[18]
Whether the IND is allowed to treat asylum seekers who are BIPs from Greece (but cannot be sent back to Greece) as first-time applicants is still up for discussion. On 30 August 2023, following preliminary questions from Germany,[19] the Council of State sent the Court additional preliminary questions on how to deal with an asylum request of a TCN who has already been granted international protection in Greece but faces inhuman conditions in Greece.[20]
Hungary: The Council of State ruled in 2020 that the State Secretary must provide further reasons why a BIP and her minor children, due to their special vulnerability, would not end up in a state of material deprivation as described in the Ibrahim judgment, in violation of Article 3 ECHR after their return to Hungary. The country information included by the Council of State showed that conditions in Hungary are extremely difficult for status holders. The Council also considered that the Hungarian authorities have not been willing to assist status holders and even actively oppose them.[21] As far as known to the authors of the report, there is no case law on BIPs from Hungary registered in 2023.
Bulgaria: At the end of 2021, the Council of State ruled that the situation for protection beneficiaries in Bulgaria, while difficult, does not meet the threshold of the Ibrahim judgment;[22] as such, the State Secretary did not need to further investigate their situation in the country. Since then, case law has been varying.[23] The Regional Court of Den Bosch issued positive rulings regarding the Bulgarian cessation law, which states that BIPs who do not renew their identity card and/or residence permit within the set period will be faced with the withdrawal or termination or their protection status upon return to Bulgaria.[24] This cessation clause is not in line with the EU Qualification Directive and might lead to risk of inhumane treatment upon return to Bulgaria. However, in the onward appeal initiated by the State Secretary, the Council of State ruled that the possibility of revoking permits due to untimely renewal is not problematic, as there is no systematic reassessment, and – according to the Bulgarian authorities – this only prompts the start of an investigation to revoke, which is allowed under Article 44 APD.[25]
In February 2021, the CJEU answered preliminary questions of the Council of State about the detention of EU status holders.[26] The question was whether the Return Directive prevents BIPs recognised in other EU member states from being detained on national grounds, given that they do not receive a return decision, but merely an order to leave for the territory of the other Member State. The Court ruled that the Return Directive does not preclude a Member State from placing a protection beneficiary residing illegally on its territory in administrative detention, in order to carry out the forced transfer to the Member State in which that person holds a protection status. That applies for cases in which the person refused to comply with the order to move to the Member State having issued their status, and it is not possible to issue a return decision.
[1] Article 30a(1)(b) Aliens Act.
[2] Regional Court Amsterdam, Decision No NL21.18983, 24 December 2021.
[3] Regional Court Middelburg, ECLI:NL:RBDHA:2022:10443, 6 October 2022.
[4] Council of State, ECLI:NL:RVS:2023:2670, 12 July 2023, available in Dutch at: https://bit.ly/4bqEkpP.
[5] Council of State, ECLI:NL:RVS:2017:1253, 19 May 2017, available in Dutch at: https://bit.ly/3utWGpa.
[6] CJEU, Bashar Ibrahim (C‑297/17), Mahmud Ibrahim, Fadwa Ibrahim, Bushra Ibrahim, Mohammad Ibrahim, Ahmad Ibrahim (C‑318/17), Nisreen Sharqawi, Yazan Fattayrji, Hosam Fattayrji (C‑319/17) v Bundesrepublik Deutschland, and Bundesrepublik Deutschland v Taus Magamadov (C‑438/17), 19 March 2019, available at: https://bit.ly/499i3uS.
[7] Council of State, ECLI:NL:RVS:2020:1102, 22 April 2020, available in Dutch: https://bit.ly/3ST9zmc (single parents are not particularly vulnerable), Regional Court Middelburg, Decision No NL20.15979, 24 November 2020 (PTSD on its own does not lead to particular vulnerability).
[8] IB 2021/56 asielverzoeken van bijzonder kwetsbare statushouders, available in Dutch at: https://bit.ly/3hCLBf6.
[9] KST 30573, nr. 195, 7 November 2022, available in Dutch at: https://bit.ly/3BKuHC5.
[10] Irene de Zwaan, Onrust onder asielzoekers die onverwacht een status in Griekenland hebben gekregen, 11 December 2020, Volkskrant, available in Dutch at: https://bit.ly/2XXL35W.
[11] Council of State, ECLI:NL:RVS:2021:1626 and ECLI:NL:RVS:2021:1627, 28 July 2021, available in Dutch at: https://bit.ly/4btJzoD.
[12] KST 32317, No 719, 30 September 2019. The extension of the decision term is done by declaring the cases on to be of a complex factual and legal matter (Article 42(4)(a) Aliens Law 2000).
[13] Ministry of Foreign Affairs, ‘Verslag feitenonderzoek naar statushouders in Griekenland juni 2022’, 24 June 2022, available in Dutch at: https://bit.ly/3HOcBD0.
[14] IB 2022/84 Griekse statushouders, available in Dutch at: https://bit.ly/3WwmFor.
[15] KST 30573, nr. 195, 7 November 2022, available in Dutch at: https://bit.ly/3BKuHC5.
[16] Regional Court Haarlem, ECLI:NL:RBDHA:2022:13464, 11 November 2022, available in Dutch at: https://bit.ly/49L3DRH. The Dutch Council for Refugees knows of two other cases in which the IND intended to declare the asylum request inadmissible but decided not after the view of the asylum lawyer. Regional Court Middelburg, ECLI:NL:RBDHA:2023:19330, 6 December 2023, available in Dutch at: https://bit.ly/48rppcb.
[17] Regional Court Roermond, ECLI:NL:RBDHA:2022:3491, 12 April 2022, available in Dutch at: https://bit.ly/3SGK7z4.
[18] This is derived from the internal information message IB 2022/84 Griekse statushouders, available in Dutch at: https://bit.ly/3CrqMKO.
[19] QY v Bundesrepublik Deutschland, C-753/22, 12 December 2022, CJEU case information available at: https://bit.ly/48XiHfb and El Baheer v Bundesrepublik Deutschland, C-288/23, request filed 3 May 2023, CJEU case information available at: https://bit.ly/42n4Egc.
[20] Council of State, ECLI:NL:RVS:2023:3275, 30 August 2023, available in Dutch at: https://bit.ly/3wiaSly. The case is registered as case C-551/23 before the CJEU and information on its progress can be found here: https://bit.ly/42yvUIJ.
[21] Council of State, ECLI:NL:RVS:2020:1088, 22 April 2020, available in Dutch at: https://bit.ly/3OC6zYK.
[22] Council of State, ECLI:NL:RVS:2021:2857, 16 December 2021, available in Dutch at: https://bit.ly/3utXZV6.
[23] Some negative rulings following the ruling of the Council of State: Regional Court The Hague, ECLI:NL:RBDHA:2022:13278, 1 December 2022, available in Dutch at: https://bit.ly/3utY8YE; Regional Court Middelburg, ECLI:NL:RBDHA:2022:12279, 14 November 2022, available in Dutch at: https://bit.ly/3OyfV7F; Regional Court Haarlem, ECLI:NL:RBDHA:2022:13310, 31 October 2022, available in Dutch at: https://bit.ly/3SC7g5s.
[24] Regional Court of Den Bosch, ECLI:NL:RBDHA:2022:11120 and ECLI:NL:RBDHA:2022:11129, 16 October 2022, available in Dutch at: https://bit.ly/3USczkf. Followed by Regional Court Middelburg, ECLI:NL:RBDHA:2022:11615, 2 November 2022, available in Dutch at: https://bit.ly/3uskd9V.
[25] Council of State, ECLI:NL:RVS:2023:3967, 1 November 2023, available in Dutch at: https://bit.ly/3UtnNLI.
[26] CJEU, C‑673/19, M, A, Staatssecretaris van Justitie en Veiligheid v Staatssecretaris van Justitie en Veiligheid, T, 24 February 2021, available at: https://bit.ly/3HV1p6A.