Author
Before a detention order is issued, or as soon as possible after this, the detainee has to be interviewed so that they can give their opinion about the (intended) detention.[1]
According to Article 93 of the Aliens Act, an asylum seeker is entitled to lodge an appeal at any moment they are detained on the basis of territorial detention or border detention.
There is also an automatic review by a judge of the decision to detain, regardless of whether it concerns border detention or territorial detention. According to Article 94 of the Aliens Act, the authorities have to notify the Regional Court within 28 days after the detention of a migrant is ordered, unless the migrant or asylum seeker has already lodged an application for judicial review themselves. The hearing takes place within 14 days after the notification or the application for judicial review by the migrant,[2] and the decision on the detention is taken within 7 days.[3] When the Regional Court receives the notification, it considers this as if the migrant or asylum seeker has lodged an application for judicial review.
The Council of State has referred a question for a preliminary ruling to the CJEU on the review of the migrant detention on 23 December 2020 (C-704/20).[4] The Council questioned whether judges are obliged to rule of their own motion upon all the conditions of detention, even when the detainee has not complained about certain conditions. In January 2021, the Regional Court of Den Bosch added some questions to the ones raised by the Council of State.
The CJEU ruled that it follows from CEAS provisions on detention, which give concrete form to the right to effective judicial protection safeguarded in Article 47 of the Charter, that Member States must provide for a ‘speedy’ judicial review, either ex officio or at the request of the person concerned, of the lawfulness of that detention.[5] Since the EU legislation requires, without exception, that supervision that the conditions governing the lawfulness of the detention are satisfied must be effected ‘at reasonable intervals of time’, the competent authority is required to carry out that supervision of its own motion, even if the person concerned does not request it.
The first judicial review examines the lawfulness of the grounds for detention – whether the conditions for detention were fulfilled – whether further appeals against immigration detention review the lawfulness of the continuation of detention.[6]
If the court is convinced that the detention is unreasonably burdensome because the decision-making authorities have not sufficiently taken into account the interests of the individual, detention can be lifted.[7]
Article 59c Aliens Act stipulates: “Our Minister shall only detain an alien on the basis of Article 59, 59a or 59b, insofar as no less coercive measures can be applied effectively” and “Detention of an alien is waived or terminated if it is no longer necessary with a view to the purpose of the detention”.
Paragraph A5/1 of the Aliens Circular states that the interests of the person need to be weighed against the interests of the government in keeping them available for the return procedure. This is stressed in the specific context of detention of asylum seekers.[8] The weighing of interests is not mentioned explicitly in policy with regard to border detention.
Detainees have the right to be informed about the reason for their detention; this is laid down in the Aliens Decree.[9] Usually this information is provided to the individual concerned by the government official who issues the detention order, or by a lawyer. In all cases, the detention order has to be given in writing and state the reasons for detention. More practical rules on how the information should be provided, are laid down in policy guideline Aliens Circular.[10]
[1] Article 59(2) Aliens Decree. The importance of this procedural condition was stressed in the following judgments: Council of State, Decision No 201506839/1/V3, 30 March 2016, available in Dutch at: https://bit.ly/4bteSQl; and Council of State, Decision No 201801240/1/V3, 2 May 2018, available in Dutch at: https://bit.ly/3uwCZNt. The Council of State referred to EU law, including to the CJEU’s judgment Mukarubega of 5 November 2014 (Case C-166/13).
[2] Article 94(2) Aliens Act.
[3] Article 94(5) Aliens Act.
[4] Council of State, ECLI:NL:RVS:2020:3061, 23 December 2020, available in Dutch at: https://bit.ly/3usJKjn.
[5] CJEU, Staatssecretaris van Justitie en Veiligheid v C, B (C‑704/20), and X v Staatssecretaris van Justitie en Veiligheid (C‑39/21), 8 November 2022, available at: https://bit.ly/3OCscIz.
[6] Article 96 Aliens Act.
[7] Article 94(5) Aliens Act.
[8] Paragraph A5/6.3 Aliens Circular.
[9] Article 5.3 Aliens Decree.
[10] Paragraph A5/6.6 Aliens Circular.