Appeal asylum reception – State of the Netherlands and COA violate the rights of asylum seekers

This morning, the Court of Appeals in The Hague rendered its judgment on the appeal in the summary proceedings brought by the Dutch Council for Refugees (VluchtelingenWerk Nederland; 'VWN') against the State of the Netherlands and the Centraal Orgaan opvang Asielzoekers ('COA') concerning insufficient and inadequate asylum reception locations in the Netherlands. The Court of Appeals upheld the core of the previous ruling, holding that the asylum reception currently does not meet the legal standards and is therefore harmful to thousands of asylum seekers. In addition, and contrary to the preliminary relief judge, the Court of Appeals held that that there is no justification for the unequal treatment between asylum seekers from Ukraine and other asylum seekers. The Court of Appeals upholds the orders issued by the preliminary relief judge in the ruling of 6 October 2022, which pertained to the protection of vulnerable persons, the provision of play facilities for children, access to education for children, the ban on sleeping outside in the facility in the town of Ter Apel and access to adequate health care. The Court of Appeal has furthermore extended the effect of these orders to apply to future asylum seekers. The Court of Appeals has not upheld the order to provide – within nine months – adequate reception locations and sanitary facilities nor did it uphold the order concerning unaccompanied minor migrants (in Dutch: AMVS).

The content of the judgement

In concrete terms, the Court of Appeals has ruled that the reception of asylum seekers in the Netherlands currently fails to meet the applicable legal standards on essential points that follow from the Reception Conditions Directive and other applicable standards. The Court  finds that, due to the circumstances in the current emergency reception locations and the crisis emergency reception locations, neither the State nor COA can guarantee the physical and mental health of the asylum seekers staying there. Amongst other things, the Court of Appeals points to the lack of privacy in many (crisis) emergency reception locations, noise nuisance and inadequate access to necessary health care. In addition, the Court of Appeals determined that the State put itself in the position in which it is currently not able to provide adequate reception locations, i.a. due to reducing its reception capacity from 2016 onwards. As such, the State cannot invoke force majeure.

The Court of Appeals prohibits the State and COA from placing vulnerable asylum seekers in emergency- or crisis emergency reception locations unless their special reception needs can be provided there. . They are also ordered to make every effort to provide all asylum seekers with a medical screening as much as possible before they are transferred from the Application Center ('AC') in Ter Apel to another reception location, especially if that other location is an emergency- or crisis emergency reception location, or in any case as soon as possible thereafter. After all, medical screening is necessary in order to be able to take the special reception needs of asylum seekers into account. Something to which the State is obliged.

The State and COA are also ordered to provide reception conditions for all current and future asylum seekers, in such manner that:

  1. asylum seekers in crisis emergency reception locations are provided with a weekly stipend in accordance with Article 14 Rva 2005;
  2. underaged children are provided with access to play facilities (a safe indoor play area and an open air play area, which may be in the building or location itself, or near the building in a public area) and education, which must be offered to underaged children no later than three months following the date on which they applied for asylum;
  3. access is provided to any form of necessary health care, which shall in any case include emergency treatment and the essential treatment of illnesses and serious mental disorders.

These orders had already been imposed by the preliminary relief judge. Because the terms set by the preliminary relief judge for this have now expired, the State and the COA must comply with these obligations immediately.

Furthermore, the Court of Appeals ordered the State and the COA to immediately provide every migrant who reports to the AC in Ter Apel or to any other AC in the Netherlands to register as an asylum seeker with a safe indoor sleeping place, food, water and access to hygienic sanitary facilities.

As mentioned, and contrary to the preliminary relief judge, the Court of Appeals also held that the State treats asylum seekers from Ukraine unequally compared to other asylum seekers when it comes to reception conditions, whilst the State should treat them equally. The Court considered it sufficiently plausible that generally speaking, Ukrainian asylum seekers receive better treatment than other asylum seekers and held that there is no objective justification for this. Nevertheless, the Court rejected VWN's claim on this point because it is up to the State to determine how it will comply with the obligation to treat regular asylum seekers and asylum seekers from Ukraine equally.  The Court of Appeals assumes that the State will act in accordance with this finding.

Despite the determination by the Court of Appeals (i) that, in more than incidental cases, the (crisis) (emergency) reception locations do not meet the legal requirements in terms of sleeping facilities and sanitary facilities and (ii) that the reception conditions of unaccompanied minors do not in all cases meet the legal requirements for accompaniment and suitable accommodation for minors, the Court of Appeals did not order the State and COA to comply with these requirements within a certain deadline. The Court of Appeals considered it sufficiently plausible that the State will not be able to meet these obligations within a short deadline (i.e. within a term pthat is concretely determinable in these preliminary relief proceedings and still meets the requirement of urgency that applies in these proceedings). This is therefore not an absolute impossibility. The Court of Appeals considered it impossible to set a deadline for the fulfilment of these obligations within the context of these preliminary relief proceedings. This however does not change the fact that the State and COA must do everything within their power to guarantee asylum reception conditions in accordance with the legal requirements.  

  • You can find VWN’s press release about the Court of Appeals' ruling here (available in Dutch)
  • You can find the Court of Appeals' judgment here (available in Dutch)

VWN is represented in this case by lawyers Tom de Boer and Thomas van der Sommen.

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