The applicants, Syrian nationals, three adults and one minor child, applied for international protection in the Netherlands but their applications were not considered because Denmark was the Member State responsible to process their application. They appealed against the decision before the Court o the Hague arguing that their transfer to Denmark would entail a violation of Article 3 ECHR and Article 4 EU Charter. Their appeal was rejected, and they further contested the decision before the Council of State.

The Council of State has clarified the principles to be applied and the assessment to be conducted for cases where an applicant argues that he indirectly runs a real risk of refoulement if he is transferred to another Member State. The basic principle is that the State Secretary may assume that effective and equivalent protection is offered in the responsible Member States against refoulement, even if protection policies differ between Member States. The applicant has the burden of proof to refute this presumption and in order to do this, an applicant must, in addition to an obvious and fundamental difference in a protection policy, to provide concrete elements of reference from which it appears that not only the administrative authority but also the courts in the responsible Member State will not protect him/her against refoulement. In such a case, the applicant has met the requirements for the burden of proof, and it is further up to the State Secretary to remove all doubts about a possible real risk of indirect refoulement. 

In the present case, the Council of State noted that the applicant has met the burden of proof by providing evidence that the policy in Denmark is to return Syrian applicants and that not only the determining authority applies this policy but it is endorsed by the Refugees Appeals Board in Denmark. The Council of State concluded that the applicant has made it evident that there is a fundamental difference in protection policy between the Netherlands and Denmark, and that it has made it plausible that the Danish court does not protect him against deportation to Syria. Consequently, the State Secretary has to conduct further investigation in order to eliminate any doubts about a possible real risk of violation of the ban on refoulement. The Council of State noted that the State Secretary did not conduct such assessment but considered that in Denmark there are no system-related shortcomings in the asylum procedure in general or in the procedure in which the relevant permits are withdrawn or not renewed and that it has become apparent that it is not possible to lodge a complaint with the ECtHR from Denmark. The Council of State considered the appeal of the applicants as well-founded and annulled the contested decision.