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.