Judicial review of the detention order

Netherlands

Country Report: Judicial review of the detention order Last updated: 18/03/21

Author

Dutch Council for Refugees Visit Website

Before a detention order is issued, or as soon as possible after this, the detainee has to be interviewed so that he can give his 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 he or she is 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 him or herself. 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 detention of aliens on 23 December 2020 (C-704/20).[4] The Council questions 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. The question follows from the Mahdi-case (C-146/14) in which the Council of State has not read this obligation before. However, some regional courts did rule of their own motion that – for example – the IND or DT&V had not acted expeditiously.

 

The first judicial review examines the lawfulness of the grounds for detention – whether the conditions for detention were fulfilled [5]

 

 

 

[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; and Council of State, Decision No 201801240/1/V3 , 2 May 2018. 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.

[5]Article 96 Aliens Act.

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of the main changes since the previous report update
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection
  • ANNEX I – Transposition of the CEAS in national legislation