A third country national arrived at Schiphol Airport on 28 March 2023 and she submitted an asylum application the next day. The State Secretary for Justice and Security postponed the decision on her entry to the Netherlands and by decision of 29 March 2023, the State Secretary imposed a custodial measure for the duration of the processing of her asylum application in the border procedure (Article 6, third paragraph, of the Aliens Act 2000). The applicant appealed against the border detention.

In a ruling of 25 April 2023, the District Court of The Hague, seated in Amsterdam, upheld the appeal and awarded damages as it considered that the State Secretary had acted too slowly. According to the court, the State Secretary should have carried out the screening no later than the day after the registration interview and not only three days after the registration hearing.

The State Secretary appealed against this ruling, arguing that the court raised ex officio, in the procedure regarding the legality of border detention, the issue of including the day on which the third country national was screened in the procedure. At the request of the Council of State, the State Secretary provided written information about its policy regarding screening in the border procedure. It noted that in February 2023, it was determined that in practice the policy was not acted upon in all cases and the implementation practice was subsequently changed to ensure that the border procedure is applied correctly. The State Secretary submitted that the registration interview and the subsequent screening were parts of the and that the protocol to conduct this investigation within four weeks is detailed in Work Instruction 2022/15. The State Secretary further submitted that during the processing of the asylum application, it is continuously assessed whether the application can still be processed in the border procedure and that the border procedure will not be terminated until after the registration interview and the screening. Furthermore, the State Secretary noted that a basic principle is that the screening takes place as soon as possible after the registration interview, in any case within the rest and preparation period, and that the time of the screening depends on the influx of persons, the capacity of employees and other unforeseeable circumstances such as system failures. The State Secretary opted for a working method in which the assessment of whether the processing of the application is still suitable for the border procedure is always made on the third day of the rest and preparation period and this implementation practice has been tightened since June 2023, so that now it is also checked on the first and second day of the rest and preparation period whether screening results are known, so that this assessment can be made earlier if necessary.

The Council of State declared the appeal well-founded and annulled the ruling of the District Court of The Hague. It held that in this case, by hearing the third country national on the third day after submitting her asylum application and then screening on the third day of the rest and preparation period, the State Secretary acted expeditiously to ensure that the border detention lasted as short as possible.