Author
General
Dublin statistics for the full year 2022 were not available by the time of publication of the report.
Application of the Dublin criteria
As a result of the answers of the CJEU in the case of H. and R.,[1] the Council of State concluded that an asylum seeker cannot rely on a Chapter III-criterion in case of take backs.[2] The exception to this rule is the situation described in Article 20(5) of the Dublin Regulation.[3] This means that the IND only looks at the responsibility criteria of Chapter III of the Dublin Regulation in take charge and Article 20(5)-situations.
Out of the total of 5,669 outgoing requests in 2021 (latest data available at the moment of publication of the report), only 1,781 requests were take charge requests. All other requests were tack back requests in which the criteria of Chapter III are, in principle, not applied following the ruling in H. and R.
Eurodac and prior applications
According to the Council of State, the Secretary of State may rely on the information in Eurodac when establishing which Member State is responsible for handling the asylum request.[4] It is up to the asylum seeker to demonstrate that the registration is incorrect. In addition to a match in the Eurodac system or a prior application, other information, such as an original visa supplied by another Member State or statements from the asylum seeker regarding family members or their travel route, may result in a Dublin claim.
Guarantees for) minors: Article 6 and 8 Dublin Regulation
Unaccompanied children who have already applied for asylum in another Member State and who do not have any family members legally residing in the EU will not receive a Dublin claim. The current practice is therefore in line with the CJEU’s judgement in the case of MA and Others.[5]
In cases where an unaccompanied minor has a family member in another Member State or travels with a family member, the IND may not transfer the unaccompanied minor without investigating whether transfer would be in the best interest of the child. This follows from several judgements by the Council of State.[6] The Regional Court of Amsterdam has ruled that the best interest of the child should also be taken into account in cases where not the child, but their family member, receives a Dublin claim.[7] The IND has not yet appointed an agency to carry out best interest of the child assessments in Dublin cases, because of this the best interest assessment does not take place in practice.
For more information on age assessment, see section on Age Assessment.
Family unity: Article 9 and 10 Dublin Regulation
Dutch policy only clarifies how family links are assessed with regard to unaccompanied children. In such cases, where possible, the IND uses DNA tests. If this option is not available, for example due to family links not being biological, the IND assesses family ties with identifying questions. When an applicant does not mention their family members during the interview conducted at the start of the asylum procedure, this can be used against the family members when they wish to invoke the family unity criteria in Articles 8-11 of the Regulation.[8] In general, jurisprudence shows that documents are required in order for the IND to establish a family relationship or a marital bond. However, even without official documents having been produced, there may be cause for the Secretary of State to should have investigate whether family unity and a stable relationship exist.[9] Family unity can also be established from circumstantial evidence.[10]
As to the question of whether there is a stable relationship within the meaning of the Dublin Regulation the Council of State ruled that this must also be seen in the light of the circumstances under which the applicants were able to give substance to their relationship in their country of origin.[11] According to the Council of State, in view of the difficult position of the LGBTI community in Russia, the Secretary of State should have asked more questions regarding the sustainability of the relationship between the asylum seeker and her female partner.
Out of the total of 1,781 outgoing take charge requests, only 5 were on the basis of articles 9 and 10 of the Dublin Regulation.[12] There were 40 incoming requests, with 20 people actually transferred to the Netherlands.
Residence documents or visas: Article 12 Dublin Regulation
As to the application of Article 12(4) of the Dublin Regulation, the Council of State ruled on the interpretation of the phrase “one or more visas which have expired”. It stated that Regulation 810/2009 (Visa code) differentiates between the duration, the permitted length of stay and the number of entries permitted by a visa. The Council of State concludes that phrase refers to the duration of a visa.[13] According to the Council of State, there is no reason to submit preliminary questions on this matter to the CJEU.
On 25 August 2021, the Council of State decided to refer prejudicial questions to the CJEU in the case of applicants who received diplomatic cards from the Ministry of Foreign Affairs of another Member State. The IND claimed the Member State issuing the diplomatic card would be responsible on the basis of Article 12 Dublin Regulation. The Council of State asks whether a diplomatic card issued by a Member State under the Vienna Convention on Diplomatic Relations is a residence document within the meaning of Article 2(1) Dublin Regulation.[14] The case is still pending at the moment of writing. The AG has concluded that the diplomatic card must be seen as a residence document within the meaning of Article 2.
The dependent persons and discretionary clauses
Dependent persons: Article 16 Dublin Regulation
The burden of proof in showing that a situation of dependency exists lies with the asylum seeker, but the IND has to motivate every case in which it refuses to apply Article 16.[15] It is settled case law that the applicant has to demonstrate that a situation of dependency exists between them and their family member, with objective documents demonstrating what concrete assistance their family member offers or receives.[16]
The IND typically only applies Article 16 of the Dublin Regulation in situations of ‘exclusive dependence’, meaning that the asylum seeker has to demonstrate they receive or provide care that no other person could facilitate. The Council of State has approved this strict framework. In 2020, the Council of State ruled that Article 16 did not apply to the situation in which the asylum seeker was dependent on intensive informal care, mainly provided by her son.[17] According to the Council of State, it had not been shown that it was impossible, or very difficult, to replace her son as a care provider nor had they shown that the presence of her son was necessary for the treatment to be successful. Similarly, in 2019, the Council of State ruled that the asylum seeker had failed to show that she was the only person capable of caring for her seriously ill mother, as her brothers were also present and there is the option of home care.[18] In the case of an asylum seeker who claimed that a situation of dependency existed between him, his mother and his mentally impaired brother, the Council of State ruled that a statement of a family doctor – indicating that the asylum seeker’s presence is indispensable to his mother and his brother – was not sufficient to demonstrate the existence of exclusive dependency.[19]
Both the Regional Court of Den Bosch and the Regional Court of Haarlem recently held that the strict interpretation of Article 16 employed by the IND and Council of State conflicts with Union law.[20]
On 30 November 2021, the Regional Court of Zwolle decided to refer prejudicial questions on the scope of Article 16 to the CJEU. The case concerns a woman, who married shortly after her arrival in the Netherlands, whose husband resides lawfully in the Netherlands. At the time the IND issued a transfer decision, the woman was pregnant with their child. The Regional Court requested the CJEU whether Union law precludes national legislation that takes into account the best interests of an unborn child and whether Article 16(1) of the Dublin III Regulation applies to the relationship between the unborn child and the father of that unborn child who is lawfully residing in the Member State.[21] The CJEU has concluded that Article 16 of the Dublin Regulation does not apply to a dependency link either between an applicant for international protection and that applicant’s spouse who is legally resident in the Member State in which the application was lodged, or between the unborn child of that applicant and the spouse who is also the father of that child. However, Article 17 of the Regulation does not preclude the legislation of a Member State from requiring competent national authorities, on the sole ground of the best interests of the child, to examine an application for international protection lodged by a third-country national where she was pregnant at the time her application was lodged, even though the criteria set out in Articles 7 to 15 of the Regulation indicate that another Member State is responsible for that application.
Sovereignty clause: Article 17(1) Dublin Regulation
The IND is reticent regarding the application of Article 17 of the Dublin III Regulation in taking responsibility for handling an asylum request. This is a result of the principle of mutual trust between Member States. Paragraph C2/5 of the Aliens Circular stipulates in which case Article 17(1) of the Dublin III Regulation will be applied:
- Where there are concrete indications that the Member State responsible for handling the asylum request does not respect international obligations;
- Where the transfer of the asylum seeker to the responsible Member State is of disproportionate harshness, due to special individual circumstances;
- Where the IND finds that the application of Article 17 of the Dublin III Regulation may better serve process control, in particular when the asylum seeker originates from a safe country of origin, and a return to the country of origin is guaranteed in the foreseeable future (after the procedure has been processed).
The Council of State already ruled in 2018 that the Court shall only minimally review the application of the discretionary clause of Article 17 of the Dublin III Regulation. The Regional Court cannot overrule the IND’s decision to apply Article 17 of the Dublin III Regulation and replace that decision with its own judgment.[22] Again, in 2020 the Council of State ruled that as to the application of Article 17 of the Dublin Regulation, the Courts should limit themselves to testing the decision-making by the Secretary of State against the requirements set by the law. The Courts should refrain from substituting their own judgment for that of the Secretary of State.[23]
The Council of State ruled in 2016 that there is no obligation for the IND to protect family relations other than those mentioned in the Dublin III Regulation.[24] For example, the relationship between the asylum seeker and his wife, who has been naturalised and is pregnant with his child is not, according to the Council of State, a special, individual circumstance that obliges the IND to apply Article 17 of the Dublin III Regulation.[25] The interests of the child and respect for family life are enshrined in the Dublin III Regulation in various binding criteria for identifying the responsible Member State, according to the Council of State.[26] Although Article 6 of the Dublin Regulation does not oblige the Secretary of State to assume responsibility on the basis of Article 17(1) of the Dublin Regulation, the best interests of the child should be taken into account.[27]
While enjoying a large margin of discretion in applying Article 17, the IND must state reasons for refraining from applying the discretionary clause if the applicant appeals to this clause. The Council of State ruled that the IND had not stated sufficient reasons not to apply Article 17 in the case of two brothers who had been actively searching for each other for the past 16 years.[28] Similarly, the Council of State ruled that the IND had to state reasons for refraining from applying Article 17 in the case of an asylum seeker who supported her seriously ill sister in the Netherlands[29] and in the case of a woman and her children who had already been staying in the Netherlands for multiple years.[30]
Humanitarian clause: Article 17(2) Dublin Regulation
The IND is equally reticent with regard to the application of Article 17(2) of the Dublin III Regulation in requesting another Member State to undertake responsibility for an asylum application. Reasons for using the clause can be family reunification or cultural grounds, although there have to be special individual circumstances that would result in the asylum seeker facing disproportionate hardship if he or she is not reunited with his or her family.[31]
The IND does not register the grounds most commonly accepted for using the “humanitarian clause” or the number of cases in which it is used. This practice has not changed in 2022.
Procedure
Immediately after the request for asylum has been filed, during the application procedure, the IND starts investigating whether another Member State is responsible for examining the asylum application. All asylum seekers are systematically fingerprinted and checked in Eurodac and EUVis.[32] Refusal to be fingerprinted can be considered as lack of sufficient cooperation during the procedure. If the application is rejected, the refusal to be fingerprinted can lead to a rejection as ‘manifestly unfounded’ instead of ‘unfounded’, which entails that an entry ban (of two years) would also be imposed to the applicant.
The IND, in cooperation with the Dutch Council for Refugees, has drafted brochures that provide asylum seekers information on the Dublin procedure in 12 languages. These brochures are available in Arabic, Chinese, Dari, Dutch, English, Farsi, French, Mongolian, Russian, Servo-Croatian, Somali and Tigrinya.
In case the IND presumes that another Member State is responsible for examining the asylum request on its merits, the application will be assessed in “Track 1”. In this procedure, the asylum seeker is not granted a rest and preparation period and is not medically examined by MediFirst.[33] There is one case in which the Regional Court of Rotterdam has ruled that the asylum seeker should have been examined by FMMU/Medifirst, even though the application was dealt with in Track 1.[34]
Within a few days after filing the application, the asylum seeker takes part in a registration interview with the IND (see below for more information). After the interview, the IND decides whether another Member State is indeed responsible for examining the asylum request on its merits. If that is the case, the asylum request is rejected and processed in the Dublin procedure.[35] In 2022, there have been issues relating to the formal registration and the registration interview, because of the chaotic situation in Ter Apel (for more information, see: Reception Conditions). Because of this, asylum seekers had to wait up to several months after filing their application until they had their reporting interview.
The IND files a Dublin request as soon as it has good reason to assume that another Member State is responsible for examining the asylum application according to the criteria set out in the Dublin III Regulation. The IND does not wait for a response from the other Member State before the next step in the Dublin procedure is taken in Track 1. The negative decision on the asylum request, however, is only taken after the Dublin request has been expressly or tacitly accepted by the other Member State. Normally, the asylum seeker will be notified that their application will be handled in the Dublin-track relatively soon after registration. However, the procedure has taken much longer than usual in 2022. For comparison: in 2019 it took al average of 14-15 weeks from the moment of registration to the moment of a Dublin decision. In 2022, the average time increased to 20-28 weeks.[36]
An asylum seeker whose request has been rejected because another Member State is responsible for handling the asylum request may, under certain conditions, be detained. Article 28 of the Dublin III Regulation is interpreted in a way that allows detention in many cases (see section on Detention of Asylum Seekers). The Regional Court compensated an asylum seeker who had been detained before being transferred to another Member State, as the IND’s explanation of the reasons for having postponed the transfer were considered to be insufficient.[37]
In principle, the asylum seeker has the option to either travel to the responsible Member State voluntarily or under escort. When the applicant chooses to leave voluntarily, they have 4 weeks to do so.[38] On the other hand, the Council of State has ruled in 2017 that the IND may withhold this possibility, especially when the responsible Member State does not agree to a voluntary transfer.[39]
General remarks concerning video/audio recording, interpreters, accessibility and quality of the interview also apply to the Dublin procedure.
Personal interview
During the application procedure, the IND conducts a registration interview that focuses on the asylum seeker’s identity, nationality and travel route. The aim of this interview is to determine whether another Member State is responsible for examining the asylum request on its merits. During this interview, the asylum seeker is informed that the Netherlands may or already has sent a “take back” or “take charge” request to another Member State. The asylum seeker may present arguments as to why the transfer should not take place and why the Netherlands should deal with his or her asylum application. As a result of the CJEU’s ruling in Ghezelbash in 2016, the asylum seeker can claim a wrongful application of the Dublin criteria as well as state circumstances and facts demonstrating that a transfer would result in a violation of Article 3 ECHR.[40]
In the case of an asylum seeker who, during the registration interview had declared to have entered the EU via Italy, but later on claimed these statements were incorrect, the Council of State ruled that the IND was not compelled to inform Italian authorities about these corrections.[41]
Appeal
In case an asylum application is rejected because another Member State is responsible for examining the asylum application according to the IND, the asylum request “shall not be considered”.[42] The asylum seeker may appeal this decision before the Regional Court.[43] The appeal must be filed within a week after the decision not to handle the asylum application.[44] As the appeal has no automatic suspensive effect, the applicant must file a separate request to suspend the transfer.
At the beginning of January 2021, a request for a preliminary ruling was made by the Regional Court of Haarlem.[45] The court was faced with the question of whether an unaccompanied minor has the right to bring an effective legal remedy against the rejection to take charge of their case based on Article 8, second paragraph, of the Dublin Regulation. The CJEU concludes that an unaccompanied minor applicant must be able to exercise a judicial remedy, under Article 27(1) of the Dublin Regulation, not only where the requesting Member State adopts a transfer decision, but also where the requested Member State refuses to take charge of the person concerned, in order to be able to plead an infringement of the right conferred by Article 8(2) of that regulation.[46]
Legal assistance
In Dublin cases (“Track 1”), the right to free legal assistance differs from the regular procedure (“Track 4”). Instead of being referred to a lawyer once they register their asylum application, asylum seekers subject to the Dublin procedure are assigned a legal representative only at the point when the IND issues a written intention to reject the application.[47]
Numerous cases have been reported where this has caused problems concerning the obligation, or even the possibility, for a legal counsel to represent the asylum seeker. In those cases, no contact was established between the applicant and his or her lawyer due to the fact that the applicant would abscond after receiving the IND’s written intention to reject the application. The Legal Aid Board has published guidelines on how to deal with this situation on 20 September 2019.[48] Essentially, the lawyer informs the Legal Aid Board and withdraws him- or herself from the case.
Suspension of transfers
Dutch case law and practice on the subject of suspension of Dublin transfers is worth mentioning more extensively, referring in particular to some specific Member States.
Italy: Following the ECtHR judgement in the case of M.T. v the Netherlands[49], establishing that a Dublin transfer to Italy of a single mother and two children would not violate Article 3 ECHR, the Dutch Council of State has also confirmed that the principle of mutual trust applies to Italy for particularly vulnerable applicants.[50]
A more detailed description of the case law regarding Dublin Italy cases over the years 2015 – 2021 can be found in the AIDA report: Netherlands update 2021.
On 5 December 2022, the Italian authorities issued a circular letter asking the other Dublin Units to temporarily halt all Dublin transfers to Italy due to a lack of reception facilities for Dublin returnees. The IND emphasizes that this is a temporary transfer impediment and that this does not mean that Italy can no longer be regarded as the responsible Member State. Some Regional Courts have agreed with this assessment,[51] while others concluded that this cannot be seen as a temporary issue and must rather be seen as a possible structural issue with Italian reception conditions.[52] There are multiple onward appeals pending in front of the Council of State.
At the time of writing this report, no Dublin transfers had been carried out to Italy since the circular letter.
Greece: The Netherlands suspended all Dublin transfers to Greece after the ECtHR’s ruling in M.S.S. v. Belgium and Greece. The Aliens Circular incorporates the M.S.S. jurisprudence as interpreted by the Council of State.[53] However, following the recommendation of the European Commission of 8 December 2016, the Dutch government expressed the wish to recommence Dublin transfers to Greece, with the exception of transfers of vulnerable asylum seekers.[54] In 2019, the Dutch Secretary of State tried to transfer several applicants to Greece on the basis of these reccomendations by the EC Guarantees were required from the Greek authorities, i.e. that reception conditions are suitable and that the asylum seeker will be treated in accordance with European standards. Dutch authorities further asked whether Greece has an “accommodation model” that may be regarded as suitable in general, probably in order to obtain a general guarantee for future cases. However, the Council of State ruled that transfer to Greece would result in a violation of Article 3 ECHR, unless the asylum seeker is guaranteed legal assistance during the asylum procedure by the Greek authorities.[55] Until now, the Secretary of State has not issued any transfer decisions for Dublin transfers to Greece.
Malta: On 15 December 2021, the Council of State ruled that the Secretary of State must conduct further research on the situation for asylum seekers in Malta.[56] The Council of State comes to this conclusion based on recent information from the Maltese NGO aditus foundation, which shows that asylum seekers who are deported to Malta on the basis of the Dublin Regulation will be detained upon arrival. Several reports also show that detention conditions in Malta are very poor and that access to legal aid has deteriorated. According to the Council of State, the Secretary of State has provided inadequate reasons that there is no real risk for Dublin claimants of a violation of Article 3 of the ECHR or Article 4 of the EU Charter if they are detained after arrival in Malta. The conclusions of the European Committee for the Prevention of Torture and Inhumane or Degrading Treatment or Punishment (CPT report) of 10 March 2021 show that living conditions in the various detention centres are completely inadequate and Malta’s response to the report does not reflect the extent to which these shortcomings have actually improved since its publication.[57] Additionally, the Council of State referred to the AIDA Malta country report, indicating that NGOs have not observed any improvements in detention conditions, nor have they sufficient access to detention centres, inferring that no adequate control on detention conditions can be exercised. There have not been any claims or transfers to Malta since this judgement.
Denmark: On 6 July 2022, the Council of State issued three judgments on indirect refoulement in Dublin cases in the event of differences in protection policies between Member States.[58] Two of these cases concerned Syrian nationals who argued that would be at risk of refoulement in case of being returned to Denmark, as in the country the province of Damascus is considered safe enough to return to. The Council ruled that a difference in protection policy may be a reason to suspend the Dublin transfer. To this end, the applicant must demonstrate: 1) that there is a fundamental difference in protection policy between the Netherlands and the other Member State (whereby it is established that he would receive protection in the Netherlands and not in the other Member State), 2) that the highest national court in the other Member State does not disapprove of the policy applicable there. In the opinion of the Council of State, the applicants had fulfilled their burden of proof with regard to the Danish policy on Damascus and the level of judicial protection in Denmark.
Hungary: Following a Council of State ruling in November 2015,[59] the “sovereignty” clause is applied in cases where it has been established that Hungary is the responsible Member State. As a result, to our knowledge, no asylum seekers have been transferred to Hungary.
There were differences of opinion between the Dutch and Hungarian authorities concerning the interpretation of the Regulation. This concerns two categories of cases:
(1) asylum seekers who travel through Hungary and apply for asylum for the first time in the Netherlands;
(2) asylum seekers who have applied for asylum in Hungary and applied for a second time in the Netherlands.
According to Dutch authorities, Hungary is responsible for the asylum application in both situations, but the Hungarian authorities generally refused these requests. Therefore, the Dutch Secretary of State initiated a conciliation procedure with the European Commission.[60] In a letter to the House of Representatives of 22 March 2018, the Secretary of State made clear that Hungary refuses to participate in a conciliation procedure.[61] As the Secretary of State has no other means to resolve the differences of interpretation between the Hungarian and Dutch authorities, he informed the House of Representatives that Dublin claims to Hungary are suspended. [62] This was still the case in 2022.
Poland: According to a 2020 decision of the Regional Court Haarlem, there is a fundamental lack of independence of the courts of Poland. However, according to the court, it cannot be inferred that there are compelling and factual grounds to believe that every asylum seeker runs a real risk that their fundamental right to an effective remedy will be violated. The court found that the principle of mutual trust regarding Poland still stands.[63] In 2021, the Regional Courts of Amsterdam,[64] Groningen,[65] and Den Bosch[66] have ruled that the principle of mutual trust does not apply to Dublin transfers to Poland concerning applicants who are part of the LGBTQIA+ community.
The Regional Court of Den Bosch has referred prejudicial questions to the CJEU on the on the scope and purport of the principle of mutual trust in the context of the transfer of the applicant to the Member State responsible. The Court made specific reference to cases in which said Member State allegedly infringed fundamental rights with respect to the applicant and third-country nationals generally, in the form of, inter alia, pushbacks and detention. The Court also asked questions relating to the evidence the applicant has at their disposal and the standard of proof that applies when they claim that transfer should be prohibited under Article 3(2) of the Dublin Regulation.[67] Because the decision in that case has been withdrawn, the questions have also been withdrawn and there will be no judgment from the CJEU in that case. However, the questions have been asked again in a case about Dublin transfer to Poland.[68] The Council of State has held a hearing on Dublin-Poland cases on 12 December 2022 and has decided to wait for the CJEU case before issuing a judgment on the matter.
Romania: In a case regarding a Dublin transfer to Romania, the applicant stated that he was detained and mistreated by Romanian authorities. The Council of State, however, ruled that the principle of mutual trust still applies to Romania. The statements and country of origin information brought forward by the applicant did not lead the Council to conclude otherwise.[69]
Croatia: On 13 April 2022, the Council of State ruled that the Secretary of State must conduct further research on the situation of asylum seekers being transferred to Croatia under the Dublin Regulation. This is due to reports of frequent pushbacks (including of asylum seekers who have already reached Croatian territory), which may result in a violation of the principle of nonrefoulement.[70] On 20 January 2023, the Secretary of State announced that Dublin transfers to Croatia would be resumed.[71] The Croatian authorities had responded to answers put forward by the Dutch authorities and had assured that they will act in line with international obligations, according to the Secretary of State.
Bulgaria: In a judgment of 28 August 2019, the Council of state confirmed that the principle of mutual trust applies to Bulgaria. Recently, various Regional Courts have made reference to the Council of State judgement regarding pushbacks in Croatia (see above) and have ruled that the widespread practice of pushbacks in Bulgaria also stand in the way of Dublin transfers to that Member State.[72]
Cyprus: Several Regional Courts have ruled that Dublin transfers to Cyprus can no longer be carried out, due to a lack of reception facility in Cyprus.[73] There are currently cases pending in front of the Council of State.
Belgium: On 20 February 2023, the Regional Court of Rotterdam ruled that it is not clear whether the applicant will have access to reception facilities upon return to Belgium. It concluded that the applicant provided concrete indications of his risk of being treated contrary to Article 3 ECHR or Article 4 EU Charter if returned to Belgium. Consequently, the Court annulled the decision and requested the Netherlands to justify its reliance on the principle of mutual trust.[74] The Secretary of State did not appeal this judgement.
COVID-19
In 2020 and 2021, COVID-19 had a large influence on Dublin cases (for more information see the AIDA reports on the Netherlands updates 2020 and 2021). Since August 2022, Member States no longer require a negative PCR test or proof of vaccination prior to a Dublin transfer.[75] Therefore, Dublin transfers were not influenced by the pandemic in 2022 as much as in previous years.
The Secretary of State has acknowledged that the Dublin Regulation does not allow for suspension of the time limits for transfers based on exceptional circumstances such as the COVID-19 pandemic.[76]
Suspension of transfers due to the war in Ukraine
In a letter to parliament dated 17 March 2022, the Secretary of State stated that Poland, Slovakia, the Czech Republic and Romania had suspended all incoming Dublin transfers due to the influx of Ukrainian refugees.[77] This suspension lasted only until summer; around August 2022, the Secretary of State reprised Dublin transfers to these countries.
Time limits for transfer under the Dublin Regulation and suspensive effect
In line with Article 29, first paragraph of the Dublin Regulation, the Dutch authorities must carry out the transfer of an asylum seeker to the responsible Member State as soon as practically possible, and at the latest within six months after the take back/take over request was accepted by the responsible Member State or within six months after the final decision on the (onward) appeal against the decision not to handle the asylum request if suspensive effect was granted in the (onward) appeal stage.
A request for a provisional measure that has been granted during a procedure challenging the way the actual transfer will be carried out,[78] is a request that falls under Article 27, third paragraph of the Dublin Regulation.[79] In those cases, the transfer period is suspended and will restart after the court ruling.
In the course of 2021, the Council of State referred multiple prejudicial questions about suspensive effect in Dublin cases to the CJEU. These questions concern whether the so-called ‘chain rule’ applies to Dublin III (cases C-323/21, C-324/21 and C-325/21);[80] whether the suspensive effect granted as a result of an application for residence in the Netherlands on regular grounds can also be regarded as suspensive effect in accordance with Article 27, third paragraph of the Dublin Regulation (case C-338/21);[81] and whether the Secretary of State can request suspensive effect in the onward appeal stage (case C-556/21).[82]
On 12 January 2023, the CJEU ruled that the ‘chain rule’ does not apply to Dublin cases. On 30 March 2023, the CJEU answered the preliminary questions about the transfer period and suspensive effect in Dublin cases.
In the case of E.N., S.S. and J.Y. v. The Netherlands (C-556/21), the CJEU considers that the Secretary of State can only request suspensive effect in the onward appeal stage if the first appeal had suspensive effect. In practice, this means that the Secretary of State can only request to suspend the transfer deadline in Dublin cases when presenting an appeal against a judgment of the Council of State, if the first instance court had granted suspensive effect per request of the asylum seeker.
In the case of S.S. and N.Z v. Netherlands (C-338/21), the CJEU considers that suspensive effect that was granted in a procedure for a residence permit on regular grounds (in this case: a residence permit as a victim of human trafficking) does not lead to suspension of the Dublin transfer period.
Extension of time limits in case of absconding (Article 29, second paragraph Dublin Regulation)
With reference to the ruling of the CJEU in the Jawo case,[83] the Secretary of State clarified Dutch policy on the interpretation of Article 29, second paragraph, of the Dublin Regulation.[84] The Secretary of State made clear in which two situations it may in any case be assumed that the asylum seeker absconds, resulting in an extension of the transfer period to eighteen months:
- in case the asylum seeker leaves without informing authorities as to their destination, or
- in case the asylum seeker does not appear at the time of transfer
The Council of State has ruled that a person only ‘absconds’ in the sense of the Jawo case when he deliberately remains physically out of reach of the authorities.[85]
Asylum seekers with medical problems
Asylum seekers with serious medical problems, who need medical care, are transferred to the responsible Member State in accordance with Article 32 of the Dublin III Regulation (Exchange of health data before a transfer is carried out).[86] If the asylum seeker considers the mere exchange of medical information to be insufficient, he may request the IND to obtain additional guarantees from the other Member State. It is for the asylum seeker to demonstrate that, without these additional guarantees, he will not have access to adequate care and reception.[87] In the case of a family with six children, with one child suffering from severe psychological problems as a result of PTSD, the Council of State considered that no additional guarantees were required from the Italian authorities as it had not been established that adequate care could not be accessed.[88]
In the case of C.K. and others, the CJEU stated that even if there are no serious grounds for believing that there are systemic failures in the asylum procedure and the conditions for the reception of applicants for asylum, a transfer in itself can entail a real risk of inhuman or degrading treatment within the meaning of Article 4 Charter of Fundamental Rights of the European Union (CFR). According to the CJEU, this is notably the case in circumstances where the transfer of an asylum seeker, with a particularly serious mental or physical condition, leads to the applicant’s health significantly deteriorating.[89] This CJEU judgment has been invoked several times. The Council of State has made clear that not only does the asylum seeker need to mention his medical condition and (the need for) medical treatment, but also the consequences of a transfer in itself. Moreover, a medical practitioner should have declared there is an actual danger or high risk of suicide and decompensation. Only then is the IND expected to investigate further.[90]
The situation of Dublin returnees
If an asylum seeker is transferred to the Netherlands under the Dublin Regulation, Dutch authorities are responsible for examining the asylum request and will follow the standard asylum procedure.
In the Netherlands, the IND is responsible for all asylum applications, including asylum applications lodged by asylum seekers who are transferred (back) to the Netherlands. The asylum seeker can request asylum in the Netherlands at the COL in Ter Apel or at the AC of Schiphol airport (see Border Procedure).
In the case of a “take back” (terugname) procedure where the asylum seeker has previously lodged an application in the Netherlands, the asylum seeker may file a new request if there are new circumstances. This is dealt with as a subsequent application, with the exception of previous applications that were implicitly withdrawn. In “take charge” (overname) procedures the asylum seeker has to apply for asylum if they want international protection.
As mentioned in this report, there have been significant issues with Registration and reception of asylum seekers throughout 2022. Many of these problems still remain. When an asylum seekers is transferred (back) to the Netherlands on the basis of the Dublin Regulation, they will encounter the same problems all other asylum seekers in the Netherlands encounter.
[1] CJEU, C-582/17 and 583/17, Staatssecretaris van Veiligheid en Justitie v. H. And R., 2 April 2019.
[2] Council of State, ECLI:NL: RVS:2019:3672, 31 October 2019.
[3] Regulation (EU) No 604/2013 of the European Parliament and the Council of 26 June 2013 Establishing the Criteria and Mechanisms for Determining the Member State Responsible for Examining an Application for International Protection Lodged in one of the Member States by a Third-Country National or a Stateless Person (recast) [2013] OJ L 180/31 (Dublin Regulation).
[4] Council of State, ECLI:NL: RVS:2016:2441, Council of State, ECLI:NL: RVS:2015:3012.
[5] CJEU, C-648/11, MA and Others v Secretary of State for the Home Department, 6 June 2013.
[6] Council of State, ECLI:NL: RVS:2020:1281, 27 May 2020; Council of State, ECLI:NL: RVS:2020:3043, 21 December 2020.
[7] Regional Court of Amsterdam, NL22.19633 and NL22.19634, 28 October 2022.
[8] Regional Court, The Hague, Decisions No 17/591 and NL.1428, 17 August 2017.
[9] Regional Court Amsterdam, NL19.30086, 12 February 2020.
[10] Regional Court Middelburg, NL19.28911, 9 January 2020.
[11] Council of State, ECLI:NL: RVS:2020:2261, 21 September 2020.
[12] Source: Eurostat. Not accounting for transfers labelled as ‘legal provision unknown’.
[13] Council of State, ECLI:NL: RVS:2019:2508, 23 July 2019; Council of State, ECLI:NL: RVS:2019:2486, 23 July 2019.
[14] Council of State, ECLI:NL:RVS:2021:1873, 25 August 2021; CJEU case number C- 568/21.
[15] Council of State, Decision No 201701137/1, 20 March 2017; see also Regional Court Middelburg, Decision No 17/540, 30 January 2017.
[16] Council of State, Decision No 201403670/1, 5 February 2015.
[17] Council of State, ECLI:NL:RVS:2020:2296, 30 September 2020.
[18] Council of State, ECLI:NL: RVS:2019:834, 13 March 2019.
[19] Council of State, Decision No 201706799/1/V3, 8 October 2018.
[20] Regional Court Den Bosch, ECLI:NL:RBDHA:2021:10025, 14 September 2020; Regional Court Haarlem, ECLI:NL:RBDHA:2020:8698, 3 September 2020.
[21] Regional Court Zwolle, ECLI:NL:RBDHA:2021:13167, 30 November 2021; CJEU case number C-725/21.
[22] Council of State, Decision No 201806712/1, 10 October 2018.
[23] Council of State, ECLI:NL: RVS:2020:545.
[24] Council of State, Decision No 201507801/1, 9 August 2016.
[25] Council of State, Decision No 201505706/1, 19 February 2016.
[26] Council of State, Decision No 201505706/1, 19 February 2016.
[27] Council of State, Decision No ECLI:NL:RVS:2022:1671, 13 June 2022.
[28] Council of State, Decision No 20181004/1, 13 May 2019.
[29] Council of State, ECLI:NL:RVS:2020:2455, 16 October 2020.
[30] Council of State, ECLI:NL:RVS:2021:1256, 17 June 2021.
[31] Paragraph C2/5 Aliens Circular.
[32] Paragraph A2/10.1 Aliens Circular.
[33] Article 3.109c(1) Aliens Decree.
[34] Regional Court of Rotterdam, ECLI:NL:RBDHA:2021:4036, 20 April 2021.
[35] Paragraph C2/5 Aliens Circular.
[36] IND, Asylum processing times, available at: https://bit.ly/3IJt8rW.
[37] Regional Court Amsterdam, Decision NL18.8386, 8 June 2018.
[38] Article 62c(1) Aliens Act.
[39] Council of State, Decision 201701623/1/V3, 10 August 2017.
[40] CJEU, Case C-63/15 Ghezelbash, Judgment of 7 June 2016.
[41] Council of State, Decision No 201700595/1, 6 July 2018.
[42] Article 30(1) Aliens Act.
[43] Article 62(c) Aliens Act.
[44] Articles 69(2)(b) and 82(2)(a) Aliens Act.
[45] Regional Court Haarlem, ECLI:NL:RBDHA:2020:12927, 17 January 2021; CJEU case number C-19/21.
[46] CJEU, Case C-19/21, 1 August 2022.
[47] Article 3.109c(1) Aliens Act. This is due to the lack of a rest and preparation period.
[48] Legal Aid Board (Raad voor Rechtsbijstand), AC Signalering nr. 17 2019, 20 September 2019.
[49] ECtHR, 23 March and amended on 15 April 2021, M.T. v the Netherlands, appl. no. 46595/19, ECLI:CE:ECHR:2021:0323DEC004659519.
[50] Council of State, Case No. 202107185/1, 29 November 2021.
[51] See, for example: Regional Court of Arnhem, NL22.25014, 23 January 2023; Regional Court Den Haag, NL22.25592, 12 January 2023.
[52] See, for example: Regional Court of Utrecht, NL22.25746, 13 January 2023; Regional Court Roermond, ECLI:NL:RBDHA:2023:1082, 3 February 2023.
[53] Paragraph C2/5.1 Aliens Circular. See also Council of State, Decision No 201009278/1/V3, 14 July 2011.
[54] Commission Recommendation of 8.12.2016 addressed to the Member States on the resumption of transfers to Greece under Regulation (EU) No. 604/2013, available at: https://bit.ly/2kLKs1L.
[55] Council of State, Decision No 201904035/1/V3, 23 October 2019; Council of state, Decision No 201904044/1/V3, 23 October 2019.
[56] Council of State, ECLI:NL: RVS:2021:2791, 15 December 2021.
[57] European Committee for the Prevention of Torture and Inhumane or Degrading Treatment or Punishment (CPT), Report to the Maltese Government, 10 March 2021, available via: https://bit.ly/3Jv7sgz.
[58] Council of State, ECLI:NL:ABRVS:2022:1862; ECLI:NL:ABRVS:2022:1863 and ECLI:NL:ABRVS:2022:1864, 6 July 2022.
[59] Council of State, Decision No 201507248/1, 26 November 2015.
[60] Secretary of State, Letter TK 2017-2018, 19 637, No 2355, 27 November 2017.
[61] KST 19637, No. 2374, 22 March 2018.
[62] KST 19637, No 2374, 22 March 2018.
[63] Regional Court Haarlem, 12 November 2020, ECLI:NL: RBDHA:2020:11769.
[64] Regional Court Amsterdam, ECLI:NL:RBDHA:2021:11115, 29 July 2021.
[65] Regional Court Groningen, NL21.1431, 28 April 2021.
[66] Regional Court Den Bosch, NL.21.2550, 1 October 2021.
[67] Regional Court Den Bosch, ECLI:NL:RBDHA:2021:10735, 4 October 2021; CJEU case number: C-614/21.
[68] Regional Court Den Bosch, ECLI:NL:RBDHA:2022:5724, 15 June 2022.
[69] Council of State, ECLI:NL:RVS:2021:1645, 29 July 2021.
[70] Council of State, ECLI:NL:RVS:2022:1042 and ECLI:NL:RVS:2022:1043, 13 April 2022.
[71] Secretary of State, Letter to the House or representatives no. 19673 3061, 20 January 2023, available in Dutch at: https://bit.ly/3XOwka8.
[72] Regional court of Utrecht, NL22.7820 and NL22.7821, 15 May 2022; Regional Court Haarlem, NL22.12598, 29 July 2022.
[73] Regional Court of Zwolle, NL22.3233 and NL22.3236, 5 March 2022, ; Regional Court of Amsterdam, NL22.3404, 15 March 2022; Regional Court of Amsterdam, ECLI:NL:RBDHA:2021:14245, 15 December 2021; Regional Courts of Haarlem, NL21.2036, 31 March 2021.
[74] Regional Court of Rotterdam, ECLI:NL:RBDHA:2023:1853, 20 February 2023.
[75] Secretary of State, Letter to the House of Representatives no. 19673 3010, 24 November 2022, available in Dutch at: https://bit.ly/3VLCtTx.
[76] Secretary of State, Letter to the House of Representatives no. 19637 2690, 8 January 2021, available in Dutch at: https://bit.ly/3td58WS.
[77] Secretary of State, Letter to the House of Representatives no. 19637 2834, 17 March 2022, available in Dutch at: https://bit.ly/3GfnQC6.
[78] Article 72, third paragraph, Aliens Act.
[79] Council of state, Decision No. 201907936, 24 February 2020.
[80] Council of State, ECLI:NL:RVS:2021:983; ECLI:NL:RVS:2021:984; ECLI:NL:RVS:2021:985, 19 May 2021.
[81] Council of State, ECLI:NL:RVS:2021:1124, 26 May 2021.
[82] Council of State, ECLI:NL:RVS:2021:1929, 1 September 2021.
[83] CJEU, ECLI:EU:C:2019:21, 19 March 2019.
[84] WBV 2020/22, 27 October 2020.
[85] Council of State, ECLI:NL:RVS:2022:3630, 14 December 2022.
[86] Council of State, ECLI:NL: RVS:2018:4131, 19 December 2018.
[87] Council of State, ECLI:NL: RVS:2019:2792, 19 July 2019; Council of State, ECLI:NL: RVS:2019:2042, 27 June 2019; Council of State, Decision No 201410601/1, 17 April 2015.
[88] Council of State, ECLI:NL: RVS:2019:3138, 12 September 2019.
[89] CJEU, Case C-578/16, C. K. and Others v Republika Slovenija, 16 February 2017.
[90] Council of State, Decision 201901380/1, 22 August 2019; Council of State, Decision 201709136/1, 16 January 2019.