Dublin (“Track 1”)
Dublin statistics for the full year 2020 were not available by the time of publication of this AIDA report (March 2021). 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. As regards the impact of COVID-19 on transfers, see Suspension of transfers.
Application of the Dublin criteria
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. 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.
As to the application of Article 12, paragraph 4 of the Dublin III-Regulation, the Council of State gave a ruling 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 the above-mentioned phrase refers to the duration of a visa. According to the Council of State there is no reason to submit preliminary questions on this matter to the CJEU.
As to the application of Articles 6 and 8 of the Dublin III Regulation on unaccompanied children, the State Secretary for Security and Justice informed the House of Representatives on 2 September 2013 about the consequences and the change in policy concerning unaccompanied children, who have already applied for asylum in another Member State, in order to comply with the CJEU’s M.A. judgment. The Council of State ruled end of September 2013 that the IND should not have refused to examine the asylum request of an unaccompanied minor who does not have any family members legally residing in the EU. The IND still applies this policy.
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. According to the Council of State, it cannot always be assumed that being with a family member outweighs all other circumstances. 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 Swedish authorities, in agreeing to the takeover request, have investigated whether this takeover is in the best interests of the child. 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.
Within the scope of age assessment, an asylum seeker who claims to be a minor will be viewed by two officers from the Immigration Service and the Border Police. 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. 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. The jurisprudence of the Council of State since then demonstrates this has become settled case-law. 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.
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. 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. Family unity can also be established from circumstantial evidence.
On 27 September 2017, the Council of State requested the CJEU for a preliminary ruling. The case concerned an asylum seeker who had previously lodged an application for international protection in Germany. The IND submitted a take back request to the German authorities and decided not to examine the application for international protection. According to the IND, the asylum seeker was not entitled to rely on Article 9 of the Dublin III Regulation in order to establish the responsibility of the Netherlands on account of her husband’s presence there, since a take back situation rather than a take charge situation was at issue. As a result of the answers of the CJEU (H. and R. judgment), the Council of State concluded that, in case of a take back situation, an asylum seeker can in principle not rely on a Chapter III-criterion, including Article 9 of the Regulation. However, the exception to the rule is in case a situation as in Article, 20, paragraph 5, of the Dublin III Regulation applies.
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. 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.
The dependent persons and discretionary clauses
Dependent persons: Article 16 Dublin Regulation
It has become settled case-law that, in order to conclude that a situation of dependency exists, the asylum seeker has to demonstrate, with objective documents, what concrete assistance his or her family member offers him or her. In 2019, in the case of an asylum seeker who has objectively shown that her mother benefits from her care, the Council of State ruled that a situation of dependency does not exist. According to the Council of State the asylum seeker had failed to make plausible that she is the only person capable of giving her seriously ill mother the help and care she needs, as her brothers are also present and there is the option of home care. In 2018 the Council of State ruled on a case in which an asylum seeker 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 – in which it is laid down that the asylum seeker’s presence is indispensable to his mother and his brother – is not sufficient to demonstrate the existence of a dependency relationship, as regulated in Article 16 of the Dublin III Regulation. Moreover, it had not been shown what specific help the asylum seeker provided his mother and brother; nor that the necessary care could only be delivered by him.
The Council of State has become stricter when it comes to the motivation of refusals: the IND has to motivate every case where it refuses to apply Article 16.
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 has 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. 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.
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. 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 allows the application of Article 17 of the Dublin III Regulation. 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. Some regional courts have found this approach incompatible in certain situations. According to the regional Haarlem Court, the IND needs to motivate more extensively why the situation of an asylum seeker, who has been the most important educator and caregiver to his sister, does not lead to the application Article 17 of the Dublin III Regulation. In 2019, the Council of State ruled only once that the IND needed to motivate more extensively why Article 17 of the Dublin III Regulation had not been applied. The case concerned two brothers who had been actively searching for each other for the past 16 years.
The Council of State ruled at the end of November 2015 that the Secretary of State cannot claim, without further investigating the situation for Dublin returnees after their transfer to Hungary, that they will not find themselves in a situation contrary to Article 3 ECHR. At the moment the discretionary clause is applied in cases where it has been established that Hungary is the responsible Member State and the time frame for transferring the asylum seeker under Article 29 of the Dublin III Regulation has expired. In 2019, the IND has continued this course of action (see below for more information).
In 2020, the Council of State ruled on the question whether there may be indirect refoulement by transferring an asylum seeker to the responsible Member State. According to the Council of State, the fact that Dutch and Swiss policy, regarding protection against refoulement for illegally traveling Eritreans, differs does not mean that the State Secretary cannot rely on the principle of mutual trust concerning Switzerland. Since the illegally traveled Eritrean has failed to demonstrate that he will be forcibly deported by the Swiss authorities, the Council of State considers that there is no risk of indirect refoulement by transferring him to Switzerland. 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.
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 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.
In a recent judgment, the Council of State ruled that the State Secretary did not substantiate enough in his decision why Article 17 of the Dublin Regulation had not been applied in the case of an asylum seeker for whom France is the responsible Member State. The applicant wants her asylum request to be handled by the Dutch authorities, as her ailing sister resides there. According to the Council of State the State Secretary, in his balancing of interests, has insufficiently weighed the fact that the applicants’ sister very seriously ill, as well as the statements made by the applicant, her sister and her sisters daughters.
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 2020.
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. 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.
The IND, in cooperation with the Dutch Council for Refugees, has drafted brochures for asylum seekers with information about 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 has a (strong) indication to believe 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 FMMU. The Dutch Council for Refugees has not received any specific signals or proven impact of this difference in procedure in 2020.
Within a few days after filing the application, the asylum seeker has a reporting interview with the IND (see below for more information). After this 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.
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, from the moment it officially starts until the decision to not handle the asylum application, takes about a week.
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.
In a judgment of 2 May 2018, the Council of State ruled that the IND’s refusal to conduct an interview with an asylum seeker prior to his pre-removal detention under the Dublin procedure is not in accordance with the CJEU’s jurisprudence. This practice of the IND is a consequence of an earlier judgment of 1 November 2016 in which the Council of State had ruled that Article 50 of the Aliens Act does not provide a legal basis for apprehending and detaining asylum seekers who are awaiting their Dublin transfer as they are legally staying in the Netherlands. In fact, according to Article 50 of the Aliens Act, this is only possible for asylum seekers who are staying irregularly in the Netherlands. As a result, the Secretary of State has submitted a Bill which provides 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. 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. 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.
The IND does not register the average duration of the procedure, from the moment a request is accepted until the transfer takes place. 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.
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.
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 the Italian authorities about these corrections.
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”. The asylum seeker may appeal this decision before the Regional Court. The appeal has no automatic suspensive effect and must be filed within a week after the decision not to handle the asylum application.
Beginning of January 2021, a request for a preliminary ruling was made by the Regional Court Haarlem (full bench panel). 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. Some Member States offer such an effective remedy to the applicant, some other Member States, such as the Netherlands, do not. The Court decided to bring this issue before the EU Court of Justice.
In Dublin cases (“Track 1”), the right to free legal assistance differs from the regular procedure (“Track 4”). Instead of being appointed 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.
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. It remains unclear whether the lawyer concerned then has power of attorney to represent the case. The Dutch Council for Refugees has not received any specific signs or proven impact of this difference in the procedure in 2019.
Suspension of transfers
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, if possible, be continued. 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. 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.
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.
Dublin transfers were 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. Also, the number of countries imposing such additional conditions has increased since September 2020. The State Secretary expects that the requirement to show a negative COVID-19 test can lead to a significant additional influx of asylum seekers into the Dutch asylum procedure as she expects that as a result of this additional requirement deadlines for Dublin transfers may not be met. In a case where the receiving Member State stated that transfer could only take place 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 weigh more heavily than the interests of the asylum seeker in avoiding quarantine. At the moment it is not clear what the consequence will be in case an asylum seeker refuses to take a Covid-19 test if required to do so for transfer to be able to take place.
In a general position statement of 8 April 2020, the State Secretary pointed out that the current exceptional situation as a result of Covid-19 will jeopardize deadlines for carrying out Dublin transfers. After all, exceptional circumstances do not allow for deadlines for transfers to be exceeded. According to the Secretary of State it is therefore logical to grant suspensive effect to an appeal, as the time limit for the implementation of the transfer starts with the decision on appeal. It is therefore clear that the State Secretary takes the position that she does not oppose granting suspensive effect in cases where the asylum seeker has appealed the decision of the Immigration Service not to handle his/her asylum request. In most cases, however, lawyers withdrew their request for suspensive effect pending the appeal.
Time limits for transfer under the Dublin Regulation
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 appeal against the decision not to handle the asylum request.
A request for a provisional measure that has been granted during a procedure challenging the way the actual transfer will be carried out,  is a request that falls under Article 27, third paragraph of the Dublin Regulation. In those cases the transfer period is suspended and will start again after the courts ruling. The question arose whether 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. Most regional Courts that have considered this issue concluded that it is not, and that such a provisional measure therefore does not suspend the transfer period. This issue has been submitted to the Council of State. On 17 September 2020, the Council of State submitted a number of questions on this subject to the parties concerned. No judgment has yet been made by the Council of State.
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, the State Secretary clarified Dutch policy on the interpretation of Article 29, second paragraph, of the Dublin Regulation. 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. 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). 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. 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.
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. 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.
On 19 March 2019 the CJEU ruled in the Jawo case on the transfer of an asylum applicant to the Member State responsible for processing the asylum application if there is a serious risk that the applicant will be subjected to inhuman or degrading treatment. The CJEU first ruled that, according to its case law, an asylum applicant may not be transferred under the Dublin III Regulation to the Member State responsible for processing their application, if the living conditions would expose them to a situation of extreme material poverty amounting to inhuman or degrading treatment within the meaning of Article 4 CFR. In this regard, the Court held that the threshold was only met where such deficiencies, in light of all the circumstances of the individual case, attained a particularly high level of severity beyond a high degree of insecurity or a significant degradation of living conditions. Correspondingly, national courts had the obligation to examine, on the basis of information that is objective, reliable, specific and properly updated and having regard to the standard of protection of fundamental rights guaranteed by EU law, whether there was a real risk for the applicant to find himself in such situation of extreme material poverty. Dublin cases in which a plea to this judgment have been made have as yet not been brought before the Council of State.
As to the subject of the suspension of transfers, Dutch case law and practice concerning some particular Member States is worth mentioning more extensively.
Poland: according to the full bench panel (three judges) 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 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.
Croatia: according to the Regional Court Den Bosch (full bench panel) the principle of mutual trust no longer stands. There is abundant evidence from non-governmental organizations that (violent) pushbacks take place at the border with Serbia. The State Secretary acknowledges that pushbacks take place and that the Croatian authorities in doing so act in violation of Article 3 ECHR and Article 4 of the Charter. Moreover, the Croatian authorities still deny pushbacks take place . According to the Court it is not clear why the applicant should be able to rely on the faithful implementation of the Dublin Regulation by the Croatian authorities. After all, it concerns the same Croatian authorities that allow violent pushbacks to be carried out.
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. 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. In a press release and a letter of 24 May 2018 addressed to the House of Representatives, the Dutch Council for Refugees has expressed its concerns regarding transfer of asylum seekers to Greece.
In 2019, several Dublin claims were submitted to the Greek authorities. 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. The 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, in two recent judgments, 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. Until now, the Dutch authorities have not transferred asylum seekers to Greece under the Dublin Regulation.
Hungary: Following a Council of State ruling in November 2015, 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.
Also, 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. 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. 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.  This was still the case in 2020.
Bulgaria: The Council of State suspended three Dublin transfers to Bulgaria in 2016, 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. In 2017, however, the Council of State found that the principle of mutual trust could be upheld vis-à-vis Bulgaria including in one case concerning a family with children. This led the State Secretary to conclude that the special attention previously paid to vulnerable applicants was no longer necessary for Bulgaria. 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. In a judgment of 28 August 2019, the Council of state confirmed that the principle of mutual trust applies to Bulgaria.
Italy: Following the Tarakhel v. Switzerland judgment, 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 will be accommodated in one of the listed Protection System for Asylum Seekers and Refugees (SPRAR) locations. In the case of a pregnant woman, the Council of State ruled that the reference to the Italian Circular Letter was not sufficient, as the latter only concerns families with minor children but not pregnant women.
As to the scope of the Tarakhel judgment, the Council of State ruled in December 2015 that the judgment does not only concern families with minor children, but also those asylum seekers who can be designated as belonging to a potential particularly vulnerable group. Gender, age and medical circumstances are important factors in designating an asylum seeker as particularly vulnerable.
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. The asylum seeker did not demonstrate that the decree would lead to shortcomings in reception nor that there would be such a structural deterioration of reception conditions that there would be a violation of Article 3 ECHR. At the beginning of 2019 the Council of State was still holding to this decision. Some six months later – in June 2019 – the Council of State ruled that also in case of particularly vulnerable asylum seekers the principle of mutual trust still applies.
On 6 September 2019, the ECtHR indicated to the Dutch authorities, under Rule 39, in the case of a single mother and her children, that they should not be removed to Italy. In the following months, six more interim measures were granted to families with minor children who were to be transferred to Italy. Recently, in two of these cases the interim measure has been lifted. Both cases concerned asylum seekers who had previously been awarded a “special protection” permit in Italy. Also, in these two cases an individual guarantee as to the specific location of reception had been awarded. Perhaps these circumstances lead to the interim measure being lifted. As to the other five cases, the interim measures have been extended indefinitely. The asylum seekers involved are still awaiting a ruling of the Court.
As a result of these seven interim measures, in cases concerning transfer of families with minor children to Italy, especially those with medical problems, some Regional Courts decided to award suspensive effect to the appeal.  However, most Regional Courts followed the case law of the Council of State, concluding that no guarantees were necessary prior to transfer of (particularly vulnerable) asylum seekers to Italy. In two judgments made on the same day, the Council of State perpetuated its case law in 2020 and concluded that no guarantees from the Italian authorities were necessary prior to transfer regarding a single mother and her baby and a psychologically particularly vulnerable man. Worth noting is that the Regional Court Haarlem does not follow the case law of the Council of State regarding the interpretation of the Tarakhel judgment. Contrary to the Council of State, the Court considers the requirements set by the ECtHR in Tarakhel relevant as to the question whether the reception conditions in Italy are adequate, given the special vulnerability of the asylum seeker and her son.
The situation of Dublin returnees
If an asylum seeker is transferred to the Netherlands under the Dublin Regulation, the 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.
Kamerbrief 8 januari 2020. 19637, nr. 2690, available in Dutch at: https://bit.ly/3rlMEzs
Council of State, ECLI:NL:RVS:2016:2441, Council of State, ECLI:NL:RVS:2015:3012.
Council of State, ECLI:NL:RVS:2019:2508, 23 July 2019; Council of State, ECLI:NL:RVS:2019:2486, 23 July 2019.
Letter of the State Secretary for Security and Justice concerning case C-648/11 of the CJEU, 2 September 2013. See also para C2/5 Aliens Circular.
Council of State, Decision 201205236/1, 5 September 2013.
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.
Council of state, ECLI:NL:RVS:2020:3043, 21 December 2020.
Council of state, ECLI:NL:RVS:2020:1281, 27 May 2020.
Council of State, Decision No 201905956/1, 26 August 2019.
Work Instruction 2018/19, 13 December 2018.
Council of State, Decision No 201901529/1, 28 June 2019.
Council of State, ECLI:NL:RVS:2019:653, 27 February 2019.
Council of State, ECLI:NL:RVS:2019:2984, 2 September 2019; Council of State, ECLI:NL:RVS:2019:2957, 28 August 2019.
Council of State, Decision No 201807010/1, 30 April 2019
Regional Court, The Hague, Decisions No 17/591 and NL.1428, 17 August 2017.
Regional Court Amsterdam, NL19.30086, 12 February 2020.
Regional Court Middelburg, NL19.28911, 9 January 2020.
Council of State, ECLI:NL:RVS:2017:2571, 27 September 2017.
CJEU, C-582/17 and 583/17, Staatssecretaris van Veiligheid en Justitie v. H. And R., 2 April 2019.
Council of State, ECLI:NL:RVS:2019:3672, 31 October 2019.
Council of State, ECLI:NL:RVS:2020:2261, 21 September 2020.
Council of State, Decision No 201403670/1, 5 February 2015.
Council of State, ECLI:NL:RVS:2019:834, 13 March 2019.
Council of State, Decision No 201706799/1/V3, 8 October 2018.
Council of State, Decision No 201701137/1, 20 March 2017; see also Regional Court Middelburg, Decision No 17/540, 30 January 2017.
Council of State, Decision No 201806712/1, 10 October 2018.
Council of State, ECLI:NL:RVS:2020:545.
Council of State, Decision No 201507801/1, 9 August 2016.
Council of State, Decision No 201505706/1, 19 February 2016.
Council of State, Decision No 201505706/1, 19 February 2016.
Regional Court Haarlem, NL18.11120, 10 July 2018 and see also Regional Court Amsterdam, NL18.23502, 14 December 2018.
Council of State, Decision No 20181004/1, 13 May 2019.
Council of State, Decision No 201507248/1, 26 November 2015.
Council of State, ECLI:NL:RVS:2020:2592, 4 November 2020.
Paragraph C2/5 Aliens Circular.
Council of State, ECLI:NL:RVS:2020:2455, 16 October 2020.
Paragraph A2/10.1 Aliens Circular.
Paragraph C2/7.9 Aliens Circular.
Article 3.109c(1) Aliens Decree.
Paragraph C2/5 Aliens Circular.
Regional Court Amsterdam, Decision NL18.8386, 8 June 2018.
Council of State, Decision No 201801240/1/V3, 2 May 2018.
Council of State, Decision No 201605964/1, 1 November 2016.
 Stb. 2019, 75.
Article 62c(1) Aliens Act.
Council of State, Decision 201701623/1/V3, 10 August 2017.
 CJEU, Case C-63/15 Ghezelbash, Judgment of 7 June 2016.
Council of State, Decision No 201700595/1, 6 July 2018.
Article 30(1) Aliens Act.
Article 62(c) Aliens Act.
Articles 69(2)(b) and 82(2)(a) Aliens Act.
Regional Court Haarlem, ECLI:NL:RBDHA:2020:12927, 17 January 2021.
Article 3.109c(1) Aliens Act. This is due to the lack of a rest and preparation period.
Regional Court Haarlem, Decision NL17.9768; Regional Court Den Bosch, Decision No 17/3849, 13 March 2017; Regional Court Roermond, Decision No 17/4719, 28 March 2017; Regional Court Utrecht, Decision NL17.2072, 1 June 2017.
KST 32317, nr. 625, 19 June 2020.
Letter of the Ministry of Justice to the House of Representatives, 8 January 2021.
 Council of State, ECLI:NL:RVS:2020:1032, 8 April 2020.
Letter of the Ministry of Justice to the House of Representatives, 8 January 2021.
Regional Court Arnhem, ECLI:NL:RBDHA:2020:6250.
Article 72, third paragraph, Aliens Act.
Council of state, Decision No. 201907936, 24 February 2020.
See for instance Regional Court Roermond, NL20.4699, 1 July 2020, Regional Court, NL19.26819, 20 March 2020.
CJEU, ECLI:EU:C:2019:21, 19 maart 2019.
WBV 2020/22, 27 October 2020.
Regional Court Groningen, NL19.25608, 6 March 2020.
Council of State, ECLI:NL:RVS:2018:4131, 19 December 2018.
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.
Council of State, ECLI:NL:RVS:2019:3138.
CJEU, Case C-578/16, C. K. and Others v Republika Slovenija ,16 February 2017.
Council of State, Decision 201901380/1, 22 August 2019; Council of State, Decision 201709136/1, 16 January 2019.
CJEU, C-163/17, Jawo, 19 March 2019.
Regional Court Haarlem, 12 November 2020, ECLI:NL:RBDHA:2020:11769.
Regional Court Den Bosch, ECLI:NL:RBDHA:2020:17088.
Paragraph C2/5.1 Aliens Circular. See also Council of State, Decision No 201009278/1/V3, 14 July 2011.
For more information, see: https://bit.ly/2C7oAc6.
Council of State, Decision No 201904035/1/V3, 23 October 2019; Council of state, Decision No 201904044/1/V3, 23 October 2019
Council of State, Decision No 201507248/1, 26 November 2015.
State Secretary, Letter TK 2017-2018, 19 637, No 2355, 27 November 2017.
KST 19637, No. 2374, 22 March 2018.
KST 19637, No 2374, 22 March 2018.
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.
Council of State, Decision No 201604780/1, 25 November 2016.
Council of State, Decision No 201604481/1, 4 April 2017.
Council of State, Decision No 201603754/1, 19 July 2017.
State Secretary, Letter TK 2017-2018, 32 317, No. 492, 5 October 2017.
Council of State, Decision No 201707643/1/V3, 24 August 2018.
Council of State, Decision No 201810397/1, 28 August 2019.
ECtHR, Tarakhel v. Switzerland, Application No 29217/12, Judgment of 4 November 2014.
Council of State, Decision No 201506164/1/V3, 7 October 2015.
Council of State, Decision No 201507918/1, 6 January 2017.
Council of State, Decision No 201504479/1, 3 December 2015.
Council of State, Decision No 201808522/1/V3, 19 December 2018.
Council of State, Decision No 201810366/1, 29 January 2019.
Council of State, Decision No 201809552/1, 12 June 2019; Council of State, Decision No 201901495/1/V3, 8 April 2019.
ECtHR, M.T. t. Netherlands, No. 46595/19, 6 September 2019.
See for example Regional Court Den Bosch, NL20.8146, 4 May 2020, Regional Court Den Haag, NL20.2325, 19 February 2020, Regional Court Zwolle, NL19.24467, 14 February 2020.
Council of State, ECLI:NL:RVS:2020:987, 8 April 2020 and Council of State, ECLI:NL:RVS:2020:986, 8 April 2020.
Regional Court Haarlem, 18 December 2020, ECLI:NL:RBDHA:2020:13014.