First country of asylum
An asylum application can be declared inadmissible when the asylum seeker has been recognised as refugee in a third country and can still receive protection in that country, or can enjoy sufficient protection in that country, including protection from refoulement, and will be re-admitted to the territory of that particular third country. This inadmissibility clause is an implementation of Article 33 (2) (b) and Article 35 Procedure Directive.
As stipulated in Paragraph C2/6.2 of the Aliens Circular, the IND assumes that the asylum seeker will be re-admitted in the third country in case:
- The asylum seeker still has a valid permit for international protection in the third country;
- The asylum seeker has a valid permit or visa and he or she can obtain international protection;
- There is information from the third country from which it can be deduced that the asylum seeker already has been granted international protection or that he or she is eligible for international protection;
- Statements of the asylum seeker that he or she has already been granted protection in a third country and this information has been confirmed by the third country.
In the situations mentioned above, the IND assumes that the asylum seeker will be re-admitted to the third country, unless the asylum seeker can substantiate (make it plausible) that he or she will not be re-admitted to the third country. The first country of asylum concept is barely used in practice. Often, the (general) third country concept is used. However, there are a few cases concerning Uganda as the first country of asylum.
EU Member States
An asylum application will be declared inadmissible if the asylum seeker has international protection in another EU Member State (Article 30a (1) under a of the Aliens Act). Even if the residence permit has expired, the asylum application will be declared inadmissible. This is because it is assumed that the international protection status can only be actively withdrawn and cannot simply expire.
Asylum seekers have often argued that their return to another Member State would be contrary to Article 3 ECHR. However, this is hardly ever accepted by the courts. Since the Ibrahim judgment, the focus of the general situation in the Member State seems to have shifted to the particular vulnerability of the foreign national. But the case law with regard to the special vulnerability is also very strict. For example, families, single parents and status holders with PTSD are not automatically seen as particularly vulnerable by the Council of State.
There are two EU-member states to which the case law for status holders is a bit more positive: Hungary and Bulgaria. The Council of State ruled in 2020 that the State Secretary must provide further reasons why the status holder and her minor children, due to their special vulnerability, would not end up in a state of material deprivation as described in the Ibrahim judgment, in violation of Article 3 ECHR after their return to Hungary. The country information included by the Council of State showed that conditions in Hungary are extremely difficult for status holders. The Council also considered that the Hungarian authorities have not been willing to assist status holders and even actively oppose them. With regard to Bulgaria, the Regional Court of Den Bosch ruled in 2020 that the State Secretary must make sure that the status holders will not end up in a situation of material deprivation as described in the Ibrahim judgment, after their return to Bulgaria. Individual guarantees in that regard needs to be obtained. This will not be easy, given the ‘catch 22’ situation in Bulgaria regarding the requirement to have identity papers for housing and vice versa.
In September 2019, the Council of State asked prejudicial questions about the detention of EU status holders. The question was whether the Return Directive prevents EU status holders from being detained on national grounds, given that with such detention, removal to another Member State and for that reason an order was given to leave for the territory of that Member State but no return decision has subsequently been taken. In its Opinion, the AG states that the Return Directive does not prevent foreign nationals from entering custody.
Most EU-status holders that apply for asylum in the Netherlands come from Greece. The Council of State has repeatedly assessed the situation in Greece as not in breach of Article 3 ECHR. On 11 December 2020 an article in the Volkskrant mentioned some ‘unexpected statuses’ from Greece. The article describes that there have recently been many asylum seekers who have entered the EU via Greece and left for the Netherlands without receiving a status or having had asylum interviews. Once in the Netherlands they apply for asylum, but they might need to wait because of the delays in the asylum procedure. After some (sometimes a very long) time, the IND investigates whether Greece might have granted them a status – even though in EURODAC it is stated that they only have fingerprints or an asylum request. The investigation subsequently showed that Greece granted them a status while they were already residing in the Netherlands. In such a case, the IND still declares the application inadmissible. This practice is particularly interesting because of the blocking of Dublin transfers to Greece by the Council of State (see Dublin (“Track 1”)).
Article 30a(1)(b) Aliens Act.
Regional Court Arnhem, ECLI:NL:RBDHA:2020:7946, 19 August 2020 and Council of State, ECLI:NL:RVS:2018:1083, 29 March 2018.
Council of State, ECLI:NL:RVS:2017:1253, 7 December 2017.
CJEU, C-297/17, C-318/17, C-319/17 en C-438/17, 19 March 2020.
Council of State, ECLI:NL:RVS:2020:1102, 22 April 2020 (single parents are not particularly vulnerable), Regional Court Middelburg, Decision No NL20.15979, 24 November 2020 (PTSD on its own does not lead to particular vulnerability).
Council of State, ECLI:NL:RVS:2020:1088, 22 April 2020.
Regional Court Den Bosch, ECLI:NL:RBDHA:2020:10437, 19 October 2020.
Council of State, 4 September 2019, ECLI:NL:RVS:2019:3053.
Advocate General Szpunar, C‑673/19, 20 October 2020.
Council of State, ECLI:NL:RVS:2018:1795, 30 May 2018.