Netherlands, Administrative Jurisdiction Division of the Council of State of the Netherlands (Division), 8 April 2016 201507608/2/V3

Identification of the case

• Right to liberty and security (art. 6 CFREU)

• General Administrative Law Act, Aliens Act 2000

• TFEU, Directive 2013/32/EU, Directive 2013/33/EU, Directive 2008/115/EC

Summary of the case

J.N. is an asylum seeker and being held in detention. The deportation of J.N. from Dutch territory has been cancelled awaiting the outcome of the fourth asylum request. Directive 2013/33/EU article 8(3) heading and under (e) makes it possible to detain aliens without the purpose for their eventual deportation. The Division doubts whether this article agrees with article 6 of the CFREU. The interpretation of article 6 is in line with article 5 of ECHR. The European Court of Human Rights ruled on 22 September 2015 in Judgement Nabil and Others v. Hungary, no. 62116/12, that:

“29. Nevertheless, any deprivation of liberty will be justified only for as long as deportation or extradition proceedings are in progress. If such proceedings are not prosecuted with due diligence, the detention will cease to be permissible under Article 5 § 1 (f), and, 35. Lastly, the Court recalls that it has found violations of Article 5 § 1 (f) under its second limb on the basis that the applicants’ detention pending asylum proceedings could not have been undertaken for the purposes of deportation, given that national law did not allow for deportation pending a decision on asylum (see R.U. v. Greece, no. 2237/08, §§ 88-96, 7 June 2011; Ahmade v. Greece, no. 50520/09, §§ 142-144, 25 September 2012).”

• Administrative judicial enforcement

Following the ECJ judgement the Division rules that an asylum-seeker, pending the outcome of his repeated asylum request, may be kept in detention, even if deportation is not imminent. The return decision which provides the grounds to deport him, will no longer cease to exist automatically, but will only be suspended. The deportation procedure will be resumed in the event that the asylum request is rejected.

However, in point 73 the ECJ considers that it is necessary to verify that the principle of proportionality was strictly observed when such detention was ordered and that the reasons for the detention continue to be valid. The Division considers that in the case of J.N. the State Secretary did not sufficiently motivate his order to detain J.N. The appeal was well founded.

‘Is point (e) of the first subparagraph of Article 8(3) of Directive 2013/33 valid in the light of Article 6 of the Charter:

(1) in a situation where a third-country national has been detained pursuant to point (e) of the first subparagraph of Article 8(3) of that directive and, under Article 9 of Directive 2013/32, has the right to remain in a Member State until a decision on his asylum application has been made at first instance, and

(2) in view of the Explanations relating to the Charter that the limitations which may legitimately be imposed on the rights in Article 6 of the Charter may not exceed those permitted by the ECHR in the wording of Article 5(1)(f) thereof, and in the light of the interpretation by the European Court of Human Rights of the latter provision in, inter alia, Nabil and Others v. Hungary, no. 62116/12, § 38, 22 September 2015, according to which the detention of an asylum seeker is contrary to the aforementioned Article 5(1)(f) if such detention was not imposed with a view to removal?’

In judgement C-601/15 PPU of 15 February 2016, the ECJ ruled that: ‘Consideration of point (e) of the first subparagraph of Article 8(3) of Directive 2013/33/EU […] has disclosed no factor of such a kind as to affect the validity of that provision in the light of Articles 6 and 52(1) and (3) of the Charter of Fundamental Rights of the European Union.’

According to the ECJ an alien represents a threat to national security or public order if his individual conduct represents a genuine, present and sufficiently serious threat, affecting a fundamental interest of society.

Following the ECJ judgement the Division rules that an asylum-seeker, pending the outcome of his repeated asylum request, may be kept in detention, even if deportation is not imminent. The return decision which provides the grounds to deport him, will no longer cease to exist automatically, but will only be suspended. The deportation procedure will be resumed in the event that the asylum request is rejected.

However, in point 73 the ECJ considers that it is necessary to verify that the principle of proportionality was strictly observed when such detention was ordered and that the reasons for the detention continue to be valid. The Division considers that in the case of J.N. the State Secretary did not sufficiently motivate his order to detain J.N. The appeal is well founded.

Role of the Charter and role of the general principles on enforcement

The Charter is applicable according to Article 51(1) of the CFREU because the Alien Act 2000 is an implementation of Directives 2013/32/EU and Directive 2013/33/EU.

• Proportionality

Elements of judicial dialogue

• Dialogue among CJEU and ECtHR

• Direct dialogue between CJEU and National court (preliminary reference)
• Dialogue between high court - lower instance court at national level

• CJEU C-534/11, Arslan
• CJEU 314/85, Foto-Frost

• 22 September 2015, 62116/12, Nabil against Hungary
• 7 June 2011, 2237/08, R.U. against Greece, ECLI:CE:ECHR:2011:0607JUD000223708
• 25 september 2012,50520/09, Ahmade against Greece

Preliminary reference.

Validity question EU Directive in the light of Article 6 CHREU and Article 5 ECHR.

National Law is not affected.

Additional notes on the decision

Alien Law Act 2000, Arts. 8 and 59.

No impact as the grounds(s) for detention in the EU directive is valid.