In this judgment the court noted that the Netherlands are facing various challenges in ensuring reception conditions of asylum applicants meet the requirements set in the recast Reception Conditions Directive. Namely, after the maximum occupancy rate of regular accommodation was reached, (crisis) emergency shelters had to be built, in which, as in overcrowded regular accommodation, the basic needs, health and safety of asylum applicants cannot be safeguarded. This includes inter alia a lack of a place to sleep and of privacy, limited access to drinking water, sanitation facilities, food, healthcare and education for children.
These poor reception conditions, acknowledged by all parties to this case, particularly affect unaccompanied minors and vulnerable persons. The Refugee Work Netherlands Foundation (hereinafter ‘VWN’) issued many calls for the Dutch State and the Central Agency for the Reception of Asylum Seekers (hereinafter ‘the Agency’) to end this unlawful situation. In August 2022, the State adopted measures aimed at improving the reception conditions of asylum applicants, including mandatory support by Municipalities and the design of a plan to reshape the asylum policy and system altogether. However, the court noted that this was deemed insufficient by national bodies, civil society organisations and the Council of Europe Commissioner for Human Rights, who observed the consequences of inadequate reception conditions on the ground.

In September 2022, VWN brought an action against the State and the Agency, demanding that they rapidly implement changes in accommodation facilities to meet the requirements of the recast Reception Conditions Directive. VWN also demanded the same treatment be provided to Ukrainian asylum applicants and to asylum applicants from other countries, arguing that the State is in violation of the principle of equality since the adoption of a specific legal framework for Ukrainian asylum applicants on 1 April 2022 and because reception conditions of Ukrainian asylum applicants are noticeably better than that of others on the ground.

The State, however, questioned the existence and content of minimum standards for reception conditions in the recast Reception Conditions Directive. It argued it only had a legal obligation to respect asylum applicants’ human dignity, in line with article 20 of said Directive. The State also argued that the difference in treatment between Ukrainian and other asylum applicants was justified by their falling under the Temporary Protection Directive, which renders the recast Reception Conditions Directive inapplicable to them.
In its decision of 6 October 2022, the Court of The Hague stated that non-compliance with EASO’s 2016 Guidance on reception conditions constitutes an unlawful act, thus making this Guidance the minimum standard. The Court of The Hague also largely acceded to VWN’s requests for changes in the facilities but provided for an extended period for implementation. Finally, it ruled that asylum applicants from Ukraine and from other countries were not in a similar situation, and that it could not intervene regarding the application by the State of emergency law to all asylum applicants because it would require political consideration.

The State and the Agency appealed against this decision. They rejected the Court of The Hague’s argument that EASO Guidance on reception conditions is legally-binding and constitutes the minimum standard on the matter. Besides, they asked for most interim measures requiring alterations to accommodation facilities and in the treatment of asylum applicants to be confirmed and/or clarified.
VWN stated that it was not concerned with the application of emergency law for all asylum applicants but merely with ensuring all receive an equal treatment. It added that the Court of the Hague was indeed in a position to make a decision on the issue even if new legislation would be required as a consequence and repeated its argument that the conditions of reception of Ukrainian asylum applicants were unjustifiably better than those of asylum applicants from other countries.

The Court of Appeal of The Hague stated that the recast Reception Conditions Directive contains minimum standards in its articles 17 and 18, that of “a standard of living that guarantees [asylum seekers’] livelihoods and protects their physical and mental health” therefore superior to merely safeguarding human dignity. It added that while EASO Guidance on the matter is not legally-binding, it contains ‘benchmarks’ Member States shall strive to achieve.
The Court of Appeal of The Hague confirmed most interim measures imposed on the State and the Agency in first instance, setting aside the limitation to asylum applicants ‘currently’ residing in (crisis) emergency shelters which accompanied some of them. A few measures were adapted from the contested decision but retained the essence.
The Court of Appeal of the Hague noted that under article 3(3) of the recast Reception Conditions Directive, the content of the Directive does not apply where a State announced a state of emergency. Instead, the State is free to apply its own regulations concerning the group for which the state of emergency was declared. In this case, the content of the Reception Directive and of the Dutch regulation concerning Ukrainian asylum applicants are not fundamentally different, so Ukrainians are not legally entitled to better reception conditions. However, it was noted that in practice they do enjoy better conditions, notably stemming from the fact that municipalities are responsible for their accommodation rather than the Agency. The Court ruled that the State did act unlawfully towards asylum applicants from countries other than Ukraine, who cannot access reception conditions of the same quality, without an objective justification for it, and referred to the rest of its decision on changes to implement to meet the standards of the recast Reception Conditions Directive for remedies.