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06/12/2022

NL: The Council of State clarified that an administrative penalty is not applied to the asylum procedure for the failure to adopt a decision in a timely manner.

A third country national submitted an appeal against the failure of the State Secretary to take a timely decision on his application for asylum. The State Secretary granted asylum by decision of 17 September 2021 and the Court of the Hague, by decision of 22 April 2022, rejected as inadmissible the appeal against the failure to timely decide on the asylum application and partly annulled the State Secretary decision only for the failure to impose an administrative penalty for the delay. The State Secretary appealed the decision and argued that Article 1 of the Temporary Act excludes the State Secretary from the obligation to forfeit a penalty when it does not take a timely decision in an asylum application. The State Secretary mentioned that the asylum procedure is particular by nature, that the State Secretary has the obligation to cooperate, which is unique to the asylum procedure, and which means that the State Secretary has the duty to hear the applicant several times and to conduct further investigations.

The Council of State annulled the Court of the Hague judgement and ruled that excluding the administrative penalty in asylum cases is not contrary to EU law and to the principle of effective legal protection. The Council stated that Article 1 of the Temporary Act, as amended on 11 July 2021, is non-binding, and does not apply to asylum decisions as provided in Article 28(1) of the Aliens Act 2000. An administrative court also has jurisdiction in asylum procedures, and if the appeal against the decision is well-founded in the sense that no decision has been taken by the State Secretary, than the administrative court may order that the State Secretary will still take a decision within a certain period of time and it can add a further penalty to be paid by the State Secretary for each day of failure to comply with the decision. There is already the possibility for the administrative court to determine in asylum procedures that, if or as long as the State Secretary does not comply with a ruling, it will forfeit a judicial penalty to be determined in the ruling. Consequently, there is no need to forfeit an administrative penalty too.

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06/12/2022

NL: The Council of State ruled that a judicial penalty is an effective mean of ensuring trough a court decision that the State Secretary fulfils its obligation to timely decide on asylum applications

The case concerned the type of penalties that can be imposed against the State Secretary for delays in deciding on asylum applications. On 21 April 2022 the State Secretary granted asylum to an applicant but did not establish an administrative penalty to be paid to the applicant for the determining authority delay in processing and taking a decision.

The Court of the Hague, by decision of 22 April 2022, allowed the appeal of the applicant, considered that the State Secretary did not take a decision on time and established an administrative penalty of 1442 euro, ordered the State Secretary to take a decision within 8 weeks and failure to which a judicial penalty of 100 euro per each day of delay is imposed, with a maximum of 7,500 euro.

The Court of the Hague considered that it derives from the history of the drafting of the Penalties and Penalty Payments Act that the judicial penalty payment is a financial incentive to take a decision and that the legislator has specifically included in the law the possibility to submit effective appeals against late decision. The Court of the Hague stated that without a judicial penalty or an alternative injunctive measure, that appeal is insufficient to comply with the principle of effective legal protection enshrined in Article 47 of the EU Charter.

The State Secretary contested the decision, and the applicant has also submitted explanations. The case mainly concerns whether the court rightly established that the State Secretary forfeited an administrative penalty and also imposed a judicial penalty.

The Council of State ruled that the abolition of the judicial penalty in asylum cases is contrary to European law. The Administrative Jurisdiction Division of the Council of State stated that it is excluded that the Temporary Penalty Penalties Suspension Act is non-binding for the possibility of imposing a judicial penalty in asylum cases is excluded. Such a situation would be contrary to the principle of effective legal protection. The Council of State further underlined that it is important for legal certainty and confidence in the government that the State Secretary decides on asylum applications in good time. It gave the example of an asylum applicant who is granted asylum and can start integrating as quickly as possible and an asylum applicant who is not granted international protection and can return to his country of origin as soon as possible. The Temporary Act excludes the possibility of imposing a judicial penalty in the asylum procedure and does not replace it with any other effective legal remedy. The Council of State considered that without a judicial penalty, a third country national would have no effective means of persuading the State Secretary to take a decision in time because the administrative court does not have the means to enforce its ruling while the legislator intended to assign the legal protection of a third country national within the framework of Asylum Law exclusively to the administrative court and thus to concentrate the legal protection with it.

The principle of effective legal protection, as enshrined in Article 47 of the EU Charter means that rights deriving from EU law can be enforced before courts. The administrative court must be able to protect the right to an effective remedy as it follows from Article 46(1) of the Asylum Procedures Directive.

The Council of State confirmed the lower court statements that an appeal against the failure to take a decision in time without the possibility of a judicial penalty or alternative injunctive measure is insufficient to comply with the principle of effective legal protection enshrined in Article 47 of the EU Charter. Without a judicial penalty, the foreign national has no option to force the State Secretary to comply with the decision of the court, in which the court, after having established that the State Secretary has failed to act within the limits set in Articles 42 and 43 of the Aliens Act 2000.

The Council of State mentioned the CJEU judgment of 14 March 2013, Aziz, ECLI:EU:C:2013:164, paragraphs 59 to 61. The Council of State confirmed that Article 1 of the Temporary Act is contrary to Article 47 of the EU Charter, insofar as this article excludes the possibility of the administrative court imposing a judicial penalty in an asylum procedure.

As for an administrative penalty, the Council of State ruled that the Court of the Hague wrongly considered that the State Secretary should have forfeit an administrative penalty because the asylum procedure is based on the EU law and is not comparable to a national administrative procedure where an administrative body would forfeit an administrative penalty when it does not take a decision timely. For this aspect, the Council of State annulled partly the lower court decision. It also mentioned a case ruled on the same day on the topic of administrative penalty in asylum procedure.

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