The case concerned a Moroccan applicant, unaccompanied minor at the age of 15 years and 10 months old on 26 July 20202 when he applied for asylum and whose application for international protection was rejected by the State Secretary by decision of 15 March 2021.

The State Secretary assessed as credible the statements of the applicant regarding his identity, nationality and origin, as well as the threat posed to the applicant by neighbors and gang members. However, the asylum application was rejected because the State Secretary assessed Morocco as a safe country of origin for the applicant.

The State Secretary stated in the decision that the applicant will no longer lawfully reside in the Netherlands after the appeal period has expired but that the decision does not apply as a return decision because it will first be investigated whether adequate reception is available in the return country. Bu decision of 14 June 2021, the Court of the Hague allowed the appeal as well-founded, annulled that decision and ordered the State Secretary to take a new decision. The State Secretary has contested the decision before the Council of State.

First, the Council of State ruled on the question of whether Morocco is a safe country of origin for the applicant and under what conditions.

It found that the State Secretary conducted a reassessment of 6 May 2021 which forms a sound basis for the general legal presumption included in the asylum decision that third country nationals from Morocco do not need protection. According to the reassessment, the designation of Morocco as a safe country of origin is still valid, with the exception of journalists, activists and LGBTI people and with increased focus on those facing criminal prosecution. Although the applicant mentioned during the interview to have been threatened, mistreated and put under pressure by gang members, facts allegedly reported to the police, however, these statements do not show that the applicant belongs to one of the risk groups mentioned in the reassessment of 6 May 2021, thus Morocco is a safe country of origin for him. The Council of State ruled that with the reassessment of 6 May 2021, the State Secretary has carefully investigated and duly substantiated that Morocco is a safe country of origin in general and in the individual case of the applicant. 

On the fact that the applicant is an unaccompanied minor, the Council of State reiterated the findings of the CJEU judgement TQ v State Secretary for Justice and Security (Staatssecretaris van Justitie en Veiligheid), C-441/19, ECLI:EU:C:2021:9, 14 January 2021, and its judgement of 8 June 2022, in the follow up case of TQ at national level (State Secretary for Justice and Security (Staatssecretaris van Justitie en Veiligheid) v Applicant 1). It noted that the State Secretary may not take a decision on return until it has established that adequate reception facilities are available in the country of return, also in order to maintain the legal consequences of the asylum decision.

The Council of State ruled that the State Secretary must investigate adequate reception in the country of return as referred to in the TQ judgment, and for this purpose it should start as soon as possible. According to Article 24(3) of the recast Reception Directive, he must start tracing family members of the unaccompanied minor as soon as possible after an application for international protection has been submitted. In doing so, he must ensure that the safety of close relatives and the unaccompanied minor is not endangered.

According to Article 45 of the Asylum Law the rejection of an asylum application and the return decision have to be adopted simultaneously but the State Secretary can disapply this provision the State Secretary has not yet been able to determine during the asylum procedure whether adequate reception is available for the applicant due to the length of that investigation or because he has to use investigation methods that could lead to the identity or other data of the third country national whether his family members become known in the country of return. When such a situation arises, the State Secretary may take the asylum decision separately from the return decision, but it must, however, explain this explicitly in the asylum decision, and provide an estimate of how long that investigation will take.

The State Secretary is in fact obliged to act expeditiously, to keep the period in which the foreign national is in uncertainty about his residence status as short as possible and to guarantee the objective of the Return Directive to conduct an effective return and removal policy. The applicant is also obliged to cooperate with the investigation, which should result in either a return decision being taken, or a permit being granted under the no-fault policy, including the duration of the stated term. The Council of State considered that the period of three years previously used by the State Secretary after submission of the residence application to be too long.

If the third country national considers that the State Secretary acts insufficiently expeditiously during the investigation and possibly deviates from the indicative term given in the asylum decision, he or she can appeal to the court against the lack of a decision.

The Council of State rejected the appeal of the State Secretary against the Court of the Hague decision of 15 March 2021 because the State Secretary has failed to explain the reasons for its delay in the investigation into adequate reception in the country of return. Consequently, the State Secretary will have to re-examine the case and take a new decision.