Dublin

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General

Dublin statistics for the full year 2021 were not available by the time of publication of the report.

It has been reported that, since the resumption of Dublin transfers in the summer of 2020 up until 20 November 2020, around 600 Dublin transfers took place, of which 270 forced Dublin transfers.[1] Most Member States require a negative PCR-test prior to a Dublin transfer. In 2021 (until 1 December), the time limit to carry out the Dublin transfer had passed in approximately 440 cases because the applicant refused to take a PCR-test.[2] As regards the impact of COVID-19 on transfers, see Suspension of transfers.

Statistics based on the years 2016 to 2020

Source: List of questions and answers budget statements Ministry of Justice and Security, 35925-VI, 16 November 2021. 

Requests refers to requests sent. Accepted refers to accepted requests.

Application of the Dublin criteria

As a result of the answers of the CJEU in the case of H. and R.[3], the Council of State concluded that an asylum seeker cannot rely on a Chapter III-criterion in case of take backs.[4] The exception to this rule is the situation described in Article 20(5) of the Dublin Regulation.[5] 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.

Eurodac and prior applications

According to the Council of State, the State Secretary may rely on the information in Eurodac when establishing which Member State is responsible for handling the asylum request.[6]  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 his or her 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.[7]

In case an unaccompanied child has a family member legally residing in another Member State, the IND assumes this country as responsible for the application. However, in specific cases this approach has been found incompatible with the best interests of the child.[8] According to the Council of State, it cannot always be assumed that being with a family member outweighs all other interests.[9]  The Council of State made clear that the IND may not, with reference to the principle of mutual trust, assume without further investigation that the authorities of the other Member State have investigated whether this takeover is in the best interests of the child.[10] In these cases, reference has been made to Article 6 of the Dublin Regulation and Work Instruction 2019/8. In the situation that a minor is accompanied by a family member, the Council of State made clear that the phrase “family member legally residing in another Member State,” as in Article 8 of the Dublin Regulation, does not refer to the situation after a possible Dublin transfer.[11]

Within the scope of age assessment, two officers from the Immigration Service and the Border Police will view an asylum seeker who claims to be a minor.[12] These officers indicate whether they can conclude the asylum seeker is evidently a minor or evidently an adult. Such a viewing does not take place, however, in case of an EU-VIS hit.  The Immigration Service will also conduct a search in Eurodac. Already in September 2016, taking into account the principle of mutual trust, the Council of State ruled that the registration in another Member State is assumed to be accurate. This is also the case when the asylum seeker has been registered numerous times with different data by the authorities of the other Member state.[13] An asylum seeker who claims to be an unaccompanied minor, but who has been registered as an adult in another Member State, has to substantiate this claim. Only when the asylum seeker has made plausible that he/she is a minor, the IND may be compelled to execute an age assessment. In general, authentic papers of identification are required. Supporting documents, such as a birth certificate, are considered insufficient proof of minority.[14] The jurisprudence of the Council of State since then demonstrates this has become settled case law.[15] In a report published on 30 November 2020, the Dutch Advisory Committee on Migration Affairs (Adviescommissie voor Vreemdelingenzaken, ACVZ) argues that it this practice makes it nearly impossible for (alleged) minors to prove they are minors in case another Member State has registered them as an adult.^[16] There has been some positive jurisprudence from Regional Courts regarding this issue,[17] but up until now, the Council of State still holds that the IND can rely on the registration in the other EU Member State.[18]

Lastly, according to the Council of State, the principle of mutual trust does not imply an obligation for the Immigration Service to adhere to the registration in the other Member State.[19]

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 has not mentioned his or her 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.[20] 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 State Secretary to investigate whether family unity and a stable relationship exist.[21] Family unity can also be established from circumstantial evidence.^[22]

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.[23] According to the Council of State, in view of the difficult position of the LGBTI community in Russia, the State Secretary should have asked more questions regarding the sustainability of the relationship between the asylum seeker and her female partner.

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.[24]  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.^[25]

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.[26] 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.[27]

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.[28] 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.[29] 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.[30]

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.[31]

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.[32]

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 review the application of the discretionary clause of Article 17 of the Dublin III Regulation with reticence. 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.[33] 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 State Secretary against the requirements set by the law. The Courts should refrain from substituting their own judgment for that of the State Secretary.[34]

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.[35] 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.[36] 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.[37]

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.[38] 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[39] and in the case of a woman and her children who had already been staying in the Netherlands for multiple years.[40]

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.[41]

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 2021.

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.[42] Refusal to be fingerprinted can be considered as lack of sufficient cooperation during the procedure, which can in turn lead to a rejection of the asylum application.[43]

The IND, in cooperation with the Dutch Council for Refugees, has drafted brochures that provide asylum seekers information on the Dublin procedure in 13 languages. These brochures are available in Arabic, Armenian, Chinese, Dari, English, Farsi, French, Mongolian, Russian, Servo-Croatian, Somali, Tigrinya and Armenian.

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” as explained in the Overview of the Procedure. In this procedure, the asylum seeker is not granted a rest and preparation period and is not medically examined by MediFirst.[44] 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.[45]

Within a few days after filing the application, the asylum seeker takes part in a reporting 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.[46]

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. The whole procedure lasts approximately a week from the moment it officially starts until the decision to not handle the asylum application.

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.[47]

In 2018, the Secretary of State submitted a Bill providing a legal basis for apprehending and detaining asylum seekers who have a lawful residence in the Netherlands, such as asylum seekers awaiting their Dublin transfer. The Bill was passed in February 2019.[48] It amended the Aliens Act 2000 and provided a legal basis for stopping and transferring asylum seekers awaiting transfer to another Member State, for the purpose of detention.

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, he or she has 4 weeks to do so.[49] 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.[50]

The IND does not register the average duration of the procedure, from the moment a request is accepted until the transfer takes place. However, the average duration a Dublin case was part of the caseload of DT&V (Repatriation and Departure Service of the Ministry of Security and Justice) and was of 17 weeks in 2021 (until September), which gives some indication regarding the actual duration of the procedure.[51] The actual time lapse until the execution of the transfer to the responsible Member State within the fixed term of 6 months depends on whether an appeal against the Dublin transfer decision has been submitted.

General remarks concerning video/audio recording, interpreters, accessibility and quality of the interview also apply to the Dublin procedure. The whole procedure takes approximately a week from the moment it officially starts until the IND decision not to process the asylum application.

Personal interview

During the application procedure, the IND conducts a reporting interview that solely 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.[52]

In the case of an asylum seeker who, during the reporting 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.[53]

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”.[54] The asylum seeker may appeal this decision before the Regional Court.[55] The appeal has no automatic suspensive effect and must be filed within a week after the decision not to handle the asylum application.[56]

Beginning of January 2021, a request for a preliminary ruling was made by the Regional Court Haarlem.[57] The court was faced with the question whether an asylum seeker has the right to bring an effective legal remedy against the rejection to take him/her over based on Article 8, second paragraph, of the Dublin Regulation. While some Member States offer such an effective remedy to the applicant, some other Member States, others such as the Netherlands do not. The Court decided to bring this issue before the EU Court of Justice. The hearing at the CJEU took place on 11 January 2022.

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.[58]

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.[59] 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 Tarakhel v. Switzerland judgment,[60] a specific procedure was developed regarding transfers of vulnerable asylum seekers to Italy. Reference was made to Circular letters from the Italian authorities, issued on 8 June 2015, 15 February 2016, 12 October 2016 and 4 July 2018, in which several SPRAR locations were earmarked as being suitable for the accommodation of vulnerable asylum seekers, including families with minor children. According to the Council of State, the Secretary of State could rely on the guarantees given by the Italian authorities in these Circulars, notably the fact that families with minor children would be accommodated in one of the listed Protection System for Asylum Seekers and Refugees (SPRAR) locations.[61]

With the coming into force of the Salvini Decree, it was argued that particularly vulnerable asylum seekers who are to be transferred to Italy will no longer have access to suitable reception locations. Nevertheless, according to the Council of State transfer to Italy of not particularly vulnerable asylum seekers is in conformity with Article 3 ECHR.[62]  At the beginning of 2019, the Council of State was still holding to this decision.[63] In June 2019, the Council of State ruled that also in case of particularly vulnerable asylum seekers the principle of mutual trust still applies.[64] Following this judgement by the Council of State, multiple particularly vulnerable asylum seekers lodged a complaint at the ECtHR arguing that a transfer to Italy would breach their rights under Article 3 ECHR. Over the course of 2019, the ECtHR has granted several interim measures to prevent the transfer of particularly vulnerable applicants to Italy. [65]

On 23 March 2021, the ECtHR ruled in the case of M.T. v the Netherlands. The Court ruled that the Dublin transfer of a single mother and her two minor children to Italy would not pose a risk of treatment in violation of Article 3 ECHR.[66] The Court concluded that, in view of the legislative changes made by the Italian authorities concerning the reception system, the applicants would have access to adequate reception conditions. Following this judgement, all interim measures (that had been in place since 2019) have been lifted and all complaints that were still pending were declared inadmissible by the ECtHR. Following the ECtHR judgement, the Council of State has also confirmed that the principle of mutual trust applies to Italy for particularly vulnerable applicants.[67] Some of the applicants had applied for asylum in 2018 already. Now, almost 4 years later, it is confirmed that they should return to Italy. Some Regional Courts have held that the best interests of the minor children should be taken into account when deciding if it is reasonable to expect these families to return to Italy.[68]

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.[69] 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.[70] In 2019, several Dublin claims were submitted to Greece. 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 will result in a violation of Article 3 ECHR, unless the asylum seeker is guaranteed legal assistance during the asylum procedure by the Greek authorities.[71] Until now, no new transfer to Greece under the Dublin Regulation has been realised.

Malta: On 15 December 2021, the Council of State ruled that the principle of mutual trust no longer applies to Malta.[72] 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.[73] 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.

Switzerland: On 4 November 2020, the Council of State ruled that the fact that there is a difference in protection against refoulement between the Netherlands and Switzerland for Eritreans who have left Eritrea illegally does not mean that the Netherlands cannot rely on the principle of mutual trust. According to the Council of State, the applicant did not fear indirect refoulement (from Switzerland to Eritrea) since the applicant had not made it plausible that he would be forcibly deported to Eritrea after his Dublin transfer to Switzerland.[74] According to the Council of State this concerns an acte clair, as a result of which it is not necessary to submit a preliminary question to the European Court of Justice. According to the Council of State, it follows from CJEU case law that any shortcomings must reach a particularly high threshold of seriousness, in order to assume a risk of (indirect) refoulement exists.

Denmark: The Regional Court of Den Bosch has prevented a Dublin-transfer of Syrian applicants from the Netherlands to Denmark.[75] Their asylum permit has been withdrawn in Denmark and the Regional Court wants to await the prejudicial questions that were referred to the CJEU by Italian Courts, regarding indirect refoulement (C-297/21&C-254/21). The prejudicial questions regard Afghan asylum seekers who face a transfer to a different member state, but the Regional Court found they also apply to the case at hand. At the moment, all other Regional Courts have ruled that there is no risk of indirect refoulement. So far, there is no ruling by the Council of State, but a hearing took place on 1 March 2022.

It is also worth mentioning that 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.[76] Furthermore, the Regional Court of Zwolle referred questions regarding the interpretation to be accorded to Article 6 of Directive 2004/81/EC (Human Trafficking Directive) and to the guarantees (such as a reflection period or a residence permit linked to trafficking), which that article offers to third-country nationals who claim to have been victims of human smuggling.[77]

Hungary: Following a Council of State ruling in November 2015,[78] 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 the Dutch authorities, Hungary is responsible for the asylum application in both situations, but the Hungarian authorities generally refused these requests. Therefore, the Dutch State Secretary initiated a conciliation procedure with the European Commission.[79] 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.[80] 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. [81]  This was still the case in 2021.

Bulgaria: The Council of State suspended three Dublin transfers to Bulgaria in 2016,[82] and found in another case – which concerned an asylum seeker suffering from a psychological illness – that concrete indicators provided in the AIDA Country Report Bulgaria were questioning the principle of mutual trust and thus that the IND should have conducted further investigation.[83] In 2017, however, the Council of State found that the principle of mutual trust could be upheld vis-à-vis Bulgaria,[84] including in one case concerning a family with children.[85] This led the State Secretary to conclude that the special attention previously paid to vulnerable applicants was no longer necessary for Bulgaria.[86] In a judgment of 24 August 2018 the Council of State ruled that the mere circumstance that the Bulgarian authorities have accepted the “take back” request under Article 18(1)(d) of the Dublin Regulation does not ensure that the asylum seeker will not be placed in detention after being transferred.[87] In a judgment of 28 August 2019, the Council of state confirmed that the principle of mutual trust applies to Bulgaria.[88] This was confirmed by the Regional Courts of Haarlem and Roermond on 21 September 2021 and 27 October 2021, respectively.[89]

Poland: according to 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 for believing that every asylum seeker runs a real risk that his fundamental right to an independent court will be violated. The court finds that the principle of mutual trust regarding Poland still stands.^[90] In 2021, the Regional Courts of Amsterdam[91], Groningen[92] and Den Bosch[93] 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 Secretary of State did not appeal these judgments, hence the Council of State has not yet ruled on this 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.[94]

Croatia: The Council of State ruled that the principle of mutual trust is still upheld for transfers to Croatia.[95] The widespread practise of pushbacks in Croatia and the fact that the applicant himself was a victim of pushbacks did not lead the Council of State to conclude otherwise, because it was not shown that the applicant would fear pushbacks as a Dublin returnee.

COVID-19

In 2020, Dublin transfers were temporarily suspended due to COVID-19. In a letter to the House of Representatives on 20 March 2020, the State Secretary reported that the Netherlands would temporarily suspend all incoming and outgoing transfers of asylum seekers under the Dublin Regulation. The State Secretary added that administrative processes regarding Dublin procedures would be continued when possible. From a letter to the House of Representatives of 19 June 2020, it became clear that the State Secretary called to the EU Council Secretariat for the possibility of applying longer transfer periods on the basis of the force majeure doctrine.[96] However, the EU Council Secretariat, like the Commission, came to the conclusion that the Dublin Regulation does not allow for the application of force majeure. As a result, the State Secretary acknowledges that there are no possibilities to extend the transfer deadlines because of COVID-19. The State Secretary concludes that in cases where the deadline has been exceeded the asylum application will be processed by the Dutch authorities. As a result, approximately 1,500 Dublin cases for which the Netherlands was in first instance not the responsible Member State will be processed in the Dutch asylum procedure.[97]

According to the Council of State COVID-19 is a temporary, de facto impediment to the transfer of the asylum seeker to the responsible authorities, which does not alter the determination of (in this case Italy as) the responsible Member State.[98]

Dublin transfers eventually resumed in July 2020. It has become clear that several Member States impose additional conditions on accepting Dublin transfers to their territory, such as the submission of a recent negative COVID-19 test. The number of countries imposing such additional conditions has increased since September 2020. In a case where the receiving Member State stated that a transfer could only take place only under the condition that the asylum seeker would be quarantined on arrival, the Regional Court ruled that the interests of the State Secretary in implementing the Dublin Regulation surpassed the asylum seeker’s interest in avoiding quarantine.[99]

Most Member States require a negative PCR-test prior to a Dublin transfer. In 2021 (until 1 December), the time limit to carry out the Dublin transfer was exceeded in approximately 440 cases because the applicant refused to take a PCR-test.[100]

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.[101]

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,[102] is a request that falls under Article 27, third paragraph of the Dublin Regulation.[103] In those cases, the transfer period is suspended and will restart after the court ruling.

In the course of 2021, the Council of State has 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);[104] 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);[105] and whether the Secretary of State can request suspensive effect in the onward appeal stage (case C-556/21).[106] All cases are still pending in front of the CJEU.

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,[107] the State Secretary clarified Dutch policy on the interpretation of Article 29, second paragraph, of the Dublin Regulation.[108] The State Secretary 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 his destination, or
• in case the asylum seeker does not appear at the time of transfer

Several Regional Courts have ruled on this matter.[109] There is as yet no case law on this subject by the Council of State.

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).[110] 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.[111] 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.[112]

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.[113] This CJEU judgment has been invoked several times. The Council of State has made clear that not only does the asylum seeker needs 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.[114]

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.

So far, no issues regarding access to the asylum procedure or reception conditions were registered among Dublin returnees.

[1] Letter of the Secretary of State, Parliamentary Document 19637, nr. 2690, 8 January 2020, available in Dutch at: https://bit.ly/3rlMEzs.

[2] Answer to Parliamentary Questions nr. 805, Secretary of State, 5 November 2021, available in Dutch at: https://bit.ly/3G4zHRY.

[3] CJEU, C-582/17 and 583/17, Staatssecretaris van Veiligheid en Justitie v. H. And R., 2 April 2019.

[4]  Council of State, ECLI:NL: RVS:2019:3672, 31 October 2019.

[5] 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).

[6]  Council of State, ECLI:NL: RVS:2016:2441, Council of State, ECLI:NL: RVS:2015:3012.

[7] CJEU, C-648/11, MA and Others v Secretary of State for the Home Department, 6 June 2013.

[8] Council of State, Decision No 201905956/1, 26 August 2019; Regional Court Haarlem, NL19.25372, 21 November 2019; Regional Court Haarlem, NL19.22926 and NL19.22928, 21 October 2019; Regional Court The Hague, NL19.12394 and NL19.12397, 29 August 2019. Also see Work Instruction 2019/8.

[9] Council of state, ECLI:NL: RVS:2020:3043, 21 December 2020.

[10] Council of state, ECLI:NL: RVS:2020:1281, 27 May 2020.

[11] Council of State, Decision No 201905956/1, 26 August 2019.

[12] Work Instruction 2018/19, 13 December 2018.

[13] Council of State, Decision No 201901529/1, 28 June 2019.

[14] Council of State, ECLI:NL: RVS:2019:653, 27 February 2019.

[15] Council of State, ECLI:NL: RVS:2019:2984, 2 September 2019; Council of State, ECLI:NL: RVS:2019:2957, 28 August 2019.

[16] Dutch Advisory Committee on Migration Affairs (Adviescommissie voor Vreemdelingenzaken, ACVZ), Nadeel van de Twijfel, 30 November 2020, available in Dutch at: https://bit.ly/2LFImUh.

[17] See, for example: Regional Court Groningen, NL21.17799, 24 November 2021.

[18] As confirmed by: Council of State, ECLI:NL:RVS:2021:2659, 26 November 2021.

[19]  Council of State, Decision No 201807010/1, 30 April 2019

[20] Regional Court, The Hague, Decisions No 17/591 and NL.1428, 17 August 2017.

[21] Regional Court Amsterdam, NL19.30086, 12 February 2020.

[22] Regional Court Middelburg, NL19.28911, 9 January 2020.

[23] Council of State, ECLI:NL: RVS:2020:2261, 21 September 2020.

[24] Council of State, ECLI:NL: RVS:2019:2508, 23 July 2019; Council of State, ECLI:NL: RVS:2019:2486, 23 July 2019.

[25] Council of State, ECLI:NL:RVS:2021:1873, 25 August 2021; CJEU case number C- 568/21.

[26] Council of State, Decision No 201701137/1, 20 March 2017; see also Regional Court Middelburg, Decision No 17/540, 30 January 2017.

[27] Council of State, Decision No 201403670/1, 5 February 2015.

[28] Council of State, ECLI:NL:RVS:2020:2296, 30 September 2020.

[29] Council of State, ECLI:NL: RVS:2019:834, 13 March 2019.

[30] Council of State, Decision No 201706799/1/V3, 8 October 2018.

[31] Regional Court Den Bosch, ECLI:NL:RBDHA:2021:10025, 14 September 2020; Regional Court Haarlem, ECLI:NL:RBDHA:2020:8698, 3 September 2020.

[32] Regional Court Zwolle, ECLI:NL:RBDHA:2021:13167, 30 November 2021; CJEU case number C-725/21.

[33] Council of State, Decision No 201806712/1, 10 October 2018.

[34] Council of State, ECLI:NL: RVS:2020:545.

[35] Council of State, Decision No 201507801/1, 9 August 2016.

[36] Council of State, Decision No 201505706/1, 19 February 2016.

[37] Council of State, Decision No 201505706/1, 19 February 2016.

[38] Council of State, Decision No 20181004/1, 13 May 2019.

[39] Council of State, ECLI:NL:RVS:2020:2455, 16 October 2020.

[40] Council of State, ECLI:NL:RVS:2021:1256, 17 June 2021.

[41] Paragraph C2/5 Aliens Circular.

[42] Paragraph A2/10.1 Aliens Circular.

[43] Paragraph C2/7.9 Aliens Circular.

[44] Article 3.109c(1) Aliens Decree.

[45] Regional Court of Rotterdam, ECLI:NL:RBDHA:2021:4036, 20 April 2021.

[46] Paragraph C2/5 Aliens Circular.

[47] Regional Court Amsterdam, Decision NL18.8386, 8 June 2018.

[48] Stb. 2019, 75.

[49] Article 62c(1) Aliens Act.

[50] Council of State, Decision 201701623/1/V3, 10 August 2017.

[51] List of questions and answers budget statements Ministry of Justice and Security, 35925-VI, 16 November 2021. 

[52] CJEU, Case C-63/15 Ghezelbash, Judgment of 7 June 2016.

[53] Council of State, Decision No 201700595/1, 6 July 2018.

[54] Article 30(1) Aliens Act.

[55] Article 62(c) Aliens Act.

[56] Articles 69(2)(b) and 82(2)(a) Aliens Act.

[57] Regional Court Haarlem, ECLI:NL:RBDHA:2020:12927, 17 January 2021; CJEU case number C-19/21.

[58] Article 3.109c(1) Aliens Act. This is due to the lack of a rest and preparation period.

[59] Legal Aid Board (Raad voor Rechtsbijstand), AC Signalering nr. 17 2019, 20 September 2019.

[60] ECtHR, Tarakhel v. Switzerland, Application No 29217/12, Judgment of 4 November 2014.

[61] Council of State, Decision No 201506164/1/V3, 7 October 2015.

[62] Council of State, Decision No 201808522/1/V3, 19 December 2018.

[63] Council of State, Decision No 201810366/1, 29 January 2019.

[64] Council of State, Decision No 201809552/1, 12 June 2019; Council of State, Decision No 201901495/1/V3, 8 April 2019.

[65] See, amongst others: ECtHR, M.T. v the Netherlands, No. 46595/19, 6 September 2019.

[66] ECtHR, 23 March and amended on 15 April 2021, M.T. v the Netherlands, appl. no. 46595/19, ECLI:CE:ECHR:2021:0323DEC004659519.

[67] Council of State, Case No. 202107185/1, 29 November 2021.

[68] Regional Court Den Bosch, NL19.9215 and NL19.9217, 6 July 2021; Regional Court Amsterdam, NL19.23471; NL19.23472; NL19.23476, 18 October 2021; Regional Court Zwolle, NL19.5454, 15 December 2021.

[69] Paragraph C2/5.1 Aliens Circular. See also Council of State, Decision No 201009278/1/V3, 14 July 2011.

[70] 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.

[71] Council of State, Decision No 201904035/1/V3, 23 October 2019; Council of state, Decision No 201904044/1/V3, 23 October 2019.

[72] Council of State, ECLI:NL: RVS:2021:2791, 15 December 2021.

[73] 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.

[74] Council of State, ECLI:NL:RVS:2020:2592, 4 November 2020.

[75] Regional Court Den Bosch, ECLI:NL:RBDHA:2021:10001, 14 September 2021.

[76] Regional Court Den Bosch, ECLI:NL:RBDHA:2021:10735, 4 October 2021; CJEU case number: C-614/21.

[77] Regional Court Zwolle, ECLI:NL:RBDHA:2021:727, 28 January 2021; CJEU case number: C-66/21.

[78] Council of State, Decision No 201507248/1, 26 November 2015.

[79] State Secretary, Letter TK 2017-2018, 19 637, No 2355, 27 November 2017.

[80] KST 19637, No. 2374, 22 March 2018.

[81] KST 19637, No 2374, 22 March 2018.

[82] Council of State, Decision No 201608203/2, 18 November 2016; Council of State, Decision No 201606446/2, 25 October 2016; Council of State, Decision No 201606788/2, 13 October 2016.

[83] Council of State, Decision No 201604780/1, 25 November 2016.

[84] Council of State, Decision No 201604481/1, 4 April 2017.

[85] Council of State, Decision No 201603754/1, 19 July 2017.

[86] State Secretary, Letter TK 2017-2018, 32 317, No. 492, 5 October 2017.

[87] Council of State, Decision No 201707643/1/V3, 24 August 2018.

[88] Council of State, Decision No 201810397/1, 28 August 2019.

[89] Regional Court Haarlem, ECLI:NL:RBDHA:2021:10688, 21 September 2021; Regional Court Roermond, NL21.1188, 27 October 2021.

[90] Regional Court Haarlem, 12 November 2020, ECLI:NL: RBDHA:2020:11769.

[91] Regional Court Amsterdam, ECLI:NL:RBDHA:2021:11115, 29 July 2021.

[92] Regional Court Groningen, NL21.1431, 28 April 2021.

[93] Regional Court Den Bosch, NL.21.2550, 1 October 2021.

[94] Council of State, ECLI:NL:RVS:2021:1645, 29 July 2021.

[95] Dutch Council of State, 19 July 2021, ECLI:NL:RVS:2021:1563.

[96] KST 32317, nr. 625, 19 June 2020.

[97] Letter of the Ministry of Justice to the House of Representatives, 8 January 2021.

[98] Council of State, ECLI:NL: RVS:2020:1032, 8 April 2020.

[99] Regional Court Arnhem, ECLI:NL: RBDHA:2020:6250.

[100] Answer to Parliamentary Questions nr. 805, Secretary of State, 5 November 2021, available in Dutch at: https://bit.ly/3G4zHRY.

[101] Secretary of State, Letter to the House of Representatives no. 19637 2690, 8 January 2021. Available in Dutch at: https://bit.ly/3td58WS.

[102] Article 72, third paragraph, Aliens Act.

[103] Council of state, Decision No. 201907936, 24 February 2020.

[104] Council of State, ECLI:NL:RVS:2021:983; ECLI:NL:RVS:2021:984; ECLI:NL:RVS:2021:985, 19 May 2021.

[105] Council of State, ECLI:NL:RVS:2021:1124, 26 May 2021.

[106] Council of State, ECLI:NL:RVS:2021:1929, 1 September 2021.

[107] CJEU, ECLI:EU:C:2019:21, 19 March 2019.

[108] WBV 2020/22, 27 October 2020.

[109] Regional Court Groningen, NL19.25608, 6 March 2020.

[110] Council of State, ECLI:NL: RVS:2018:4131, 19 December 2018.

[111] 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.

[112] Council of State, ECLI:NL: RVS:2019:3138, 12 September 2019.

[113] CJEU, Case C-578/16, C. K. and Others v Republika Slovenija, 16 February 2017.

[114] Council of State, Decision 201901380/1, 22 August 2019; Council of State, Decision 201709136/1, 16 January 2019.