An asylum application can be declared inadmissible when the asylum seeker has been recognised as refugee in a third country and can still receive protection in that country, or can enjoy sufficient protection in that country, including protection from refoulement, and will be re-admitted to the territory of that particular third country (Article 30a(1)(b) Aliens Act). 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 scarcely used in practice. Often, the (general) third country concept (see under 2. Safe third country) is used. In 2021, there was only one case about a first country of asylum concerning Peru. Regional Court Amsterdam decided that the IND should further investigate the residential status of the Yemeni asylum seeker in Peru.
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 This is because it is assumed that the international protection status can only be actively withdrawn and cannot simply expire.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, Courts have 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 beneficiary of protection. However, case law with regard to the particular vulnerability is also very strict. For example, the Council of State does not automatically recognise families, single parents and status holders with PTSD as particularly vulnerable. In an internal information message of the IND, it is stated that for particular vulnerability it is important to assess whether someone is self-sufficient. Moreover, that individual guarantees should be requested for particular vulnerable beneficiaries of protection from Greece, Bulgaria and Hungary, given that protection beneficiaries returned to these Member States are in principle assumed to be at risk of facing a situation of extreme material poverty, as stated in the Ibrahim ruling.
Most EU-status holders that apply for asylum in the Netherlands come from Greece. On 28 July 2021, the Council of State finally ruled that protection beneficiaries from Greece cannot be sent back without the State Secretary motivating better that there is no breach of Article 3 ECHR upon their return. In response, the State Secretary announced that it would start a new investigation into the situation of beneficiaries of international protection in Greece, thereby extending the decision term for 9 months for these cases of BIPs as of 1 October 2021 on the ground of being a complex factual and legal matter. Cases in which the decision term had already expired by 1 October were handled in the national procedure without declaring the requests inadmissible. The letter in which the investigation was announced also resulted in suspending at least one of the two cases of beneficiaries of protection from Greece who applied for asylum in the Netherlands pending at the ECHR.
On 11 December 2020, an article in the Volkskrant mentioned some ‘unexpected statuses’ from Greece. The article reported on the cases of many asylum seekers that reached the Netherlands after their entrance in the EU from Greece, where they did not receive a status, being instead only registered as asylum seekers in the country. Upon request by the IND many of these asylum seekers had been granted a status in Greece, without being informed, while residing in the Netherlands. In such a case, the IND still declares the application inadmissible. This practice is particularly interesting when looking at the blocking of Dublin transfers to Greece by the Council of State (see Dublin (“Track 1”)).
Regarding Hungary and Bulgaria, case law results more favourable for status holders. 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. The State Secretary appealed against the case. At the end of 2020, the Council of State ruled that the situation for protection beneficiaries in Bulgaria, while difficult, does not meet the threshold of the Ibrahim judgment and as such, the State Secretary does not need to further investigate their situation in the country.
In February 2021, the CJEU answered prejudicial questions of the Council of State 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. The Court ruled that the Return Directive does not preclude a Member State from placing in administrative detention a protection beneficiary residing illegally on its territory, in order to carry out the forced transfer to the Member State in which that person holds a protection status. That applies for cases in which the person refused to comply with the order to move to the Member State having issued their status, and it is not possible to issue a return decision.
 Article 30a(1)(b) Aliens Act.
 Regional Court Amsterdam, Decision Number NL21.18983, 24 December 2021.
 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:2021:1626 and ECLI:NL:RVS:2021:1627, 28 July 2021.
 KST 32317, No 719, 30 September 2019. The extension of the decision term is done by declaring the cases on to be of a complex factual and legal matter (Article 42(4)(a) Aliens Law 2000).
 ECtHR, 52334/19, D. and others has been suspended until further notice, ECtHR, 31007/20, Alaa ASAAD is also likely to be suspended, but this has not been confirmed.
 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, ECLI:NL:RVS:2021:2857, 16 December 2021.
 CJEU, C‑673/19 (M.), 24 February 2021.