Detention during appeal: The District Court of Haarlem Following the Gnandi judgement of the CJEU, ruled in 2018 that the current regulation does not allow to detain an asylum seeker at the border during the appeal procedure.  Detention based on Article 59 cannot be applied to asylum seekers during their asylum procedure or – as a consequence of the Gnandi judgment – while they are waiting for the result of their appeal.
Compatibility of detention on grounds of public order or national security: Dutch courts have referred questions to the CJEU regarding the compatibility of the grounds for detention of asylum seekers with the Charter of Fundamental Rights. The Council of State referred a preliminary question to the CJEU on the compatibility of detention on grounds of public order or national security, which was affirmed by the Court in J.N. v. Staatsecretariat van Veiligheid en Justitie in 2016.
J.N. relates to a third country national who entered the Netherlands in 1995. After the rejection of his third asylum claim in 2014, he was ordered to leave the territory of the EU, with a 10-year entry ban. He had been convicted a number of times for criminal offences, mainly for theft, and was sentenced to terms of imprisonment and fines. In January 2015 he was arrested for theft and for breach of the entry ban and was sentenced to a term of imprisonment, during which he made a fourth asylum claim. After serving his sentence he was placed in detention as an asylum seeker under domestic law transposing Article 8(3)e) of the recast Reception Conditions Directive (RCD), on the basis that this was required for the protection of national security or public order. J.N. challenged his detention. As a result, the matter came before the Raad van State. The Dutch Council of State referred question to the CJEU on the validity of Article 8(3) e) RCD in light of Article 6 of the EU Charter.
The CJEU considered that Article 8(3)(e) was a limitation on the right to liberty guaranteed by Article 6 of the Charter (which had the same meaning and scope as Article 5 ECHR). It emphasised the legitimate interest and objective of detaining persons to protect national security and public order, which also contributed to protecting the rights and freedoms of others, noting that Article 6 also guaranteed the right to security.
The Court considered that there were a number of limitations which strictly regulated the use of detention under Article 8(3)(e). The court stated that detention could only be imposed in the following: – when ‘required’ to protect national security and public order: – detention grounds must be laid down in national law; – Article 8(1) prevents detention solely on the ground of having lodged an application for international protection; -and Article 8(2) requires detention to be ordered only where necessary, on the basis of an individualised assessment, and where no less coercive measures could be effectively applied. Further limitations and procedural safeguards are set out in Article 9.
The CJEU concluded that the EU legislature had struck the correct balance between the right to liberty of the applicant and the requirements of protection national security and public order. Detention in this case was proportionate given the offences committed by J.N. and that he had been issued an entry ban of over 5 years, meaning that national authorities had already deemed his individual behaviour to constitute a threat to public order, public safety or public security according to Article 11 of the Return Directive.
The effectiveness of the objectives pursued by the Return Directive required that if return procedures were suspended due to the lodging of application for international being lodged, they should be continued from the point of interruption after such application is dismissed, rather than starting return proceedings again. With regard to the ECtHR ruling in Nabil v. Hungary, the CJEU found that this judgment did not rule out the possibility for a Member State to detain a third country national against whom a return decision with an entry ban had already been taken prior to his/her lodging an application for international protection. Pending asylum proceedings did not preclude that detention was for the purpose of deportation, as a rejection could lead to implementation of a deportation order that had already been ordered, so return proceedings were still ‘in progress’ according to Article 5(1) f) ECHR.
As such Article 8(3) e) RCD was considered to be valid in the light of Article 6 of the Charter. After the CJEU ruling, the Council of State ruled in the same case that, while Article 59b(d) of the Aliens Act is valid, the public order or national security ground may only be fulfilled where there is a “genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.” The J.N. ruling also gave rise to a change of jurisprudence of the Council of State: a subsequent asylum application only suspends the return decision rather than annulling it.
Detention and Dublin transfer: Relating to detention of asylum seekers subject to a transfer under the Dublin Regulation under Article 59a of the Aliens Act, there must be a concrete indication that the asylum seeker can be transferred based on the Dublin Regulation. Asylum seekers in Dublin procedures are not systematically detained but they may be detained when there is a significant risk of absconding. According to Article 5.1b(2) of the Aliens Decree, a “significant risk” is demonstrated in the context of the Dublin Regulation when at least two grounds for detention are applicable, of which at least one is “severe”. The “severe” grounds can be found in Article 5.1b(3) of the Aliens Decree, while the “light” grounds are set out in Article 5.1b(4). A significant risk of absconding may already be determined, for example, when the person concerned has not entered the Netherlands lawfully (a “severe” ground) and does not possess sufficient resources (“light” ground).
Compatibility of the grounds of identity / nationality: A question on the compatibility of the grounds of identity / nationality and acquisition of information necessary for the assessment of the application was referred by the Hague District Court, and the CJEU clarified in K. v. Staatsecretariat van Veiligheid en Justitie that their application was in line with the Charter.
On 14 September 2017, the CJEU ruled in case C-18/16 K., which concerned the validity of the first subparagraph of Article 8(2)(a) and (b) of the Receptions Conditions Directive in the light of Article 6 of the Charter of Fundamental Rights. It concurred with the Opinion of Advocate General Sharpston that the proper interpretation of these provisions is in line with the safeguards under Article 6 CFR.
The CJEU found that the detention of an applicant in order to determine or verify his or her identity or nationality is necessary to ensure the proper functioning of the Common European Asylum System, namely to contribute to preventing secondary movements. Moreover, under that Directive, detention is subject to compliance with a series of conditions and is only justified under a circumscribed framework. Therefore, the CJEU concluded that the EU legislature struck a fair balance between, on the one hand, the applicant’s right to liberty and, on the other, the requirements relating to the identification of that applicant which are necessary to the functioning of the Common European Asylum System. Finally, the Court found that the request by the referring Dutch court does not contain elements allowing it to be concluded that the facts at issue are covered by Article 5(1)(f) ECHR, since the applicant in the main proceedings was not subject to a return decision.
Even prior to the K case, the Council of State had found that the CJEU findings in J.N. were also applicable to the ground for detention to determine the main elements of the claim, concluding that it is also valid.
Author: Shabnam Tautan
 Read more about the Gnandi judgment: http://asyluminthenetherlands.nl/2019/06/effective-remedy/