The applicant is an Indian national. He requested asylum on 25 November 2023 upon arrival at Schiphol Airport and was detained the same day by the State Secretary for Justice and Security. On 4 December 2023, his asylum application was rejected as manifestly unfounded. The applicant appealed this decision. A hearing against the deprivation of liberty was held on 12 December 2023. The appeal was upheld by the District Court of the Hague, seating in Amsterdam, which ordered the measure depriving the applicant of his liberty to be lifted from the date of the judgment. The State Secretary appealed against this decision to the Council of State.

At the time of the judgment of the district court, it had already been decided that a hearing against the rejection of the asylum application would take place on 9 January 2024. The district court noted that in accordance with article 83b (3) of the Aliens Act 2000, the time limit to rule on an asylum appeal is four weeks since the lodging of the appeal. However, the decision was scheduled for five weeks following the lodging of the appeal and the district court ruled that the measure was no longer justified. Therefore, it ordered the measure for deprivation of liberty to be lifted to ensure that it would not last longer than necessary. The State Secretary argued that article 6(3) of the Aliens Act 2000 does not lay down a maximum duration for a measure depriving a person of his liberty, and referred to a previous judgment in which the Council of State ruled that a deprivation of liberty measure that was in place for six weeks until an appeal on an asylum decision was heard was not considered to be taken for longer than necessary, in light of article 9(1) of the recast Reception Conditions Directive.

 In its judgment, the Council of State considered whether exceeding the period within which the court must rule on the appeal against the asylum decision, had consequences for the lawfulness of the measure depriving the applicant of liberty.

The Council referred to the CJEU judgment of 8 November 2022, C, B and X v State Secretary for Justice and Security (Joined Cases C-704/20 and C-39/21). According to the CJEU judgment, detention is only permissible in compliance with the rules laid down in the recast Reception Conditions Directive. Border detention is subject to the requirements set out in Article 8 (3)(c) in the recast Reception Conditions Directive, which provides that an applicant may be detained in order to take a decision on the right to enter the territory in the context of a procedure, following an individual assessment of the case and if no other less coercive measures can be applied effectively. As per article 9(1) of the recast Reception Conditions Directive, detention must be for as short a period as possible and only for as long as the reasons set out in article 8(3) of the recast Reception Conditions Directive apply. The CJEU also noted detention cannot be prolonged due to delays in administrative procedures which are outside of the applicant’s control.

The Council of State noted that there was no delay in the administrative procedure relating to the ground for deprivation of liberty referred to in Article 8(3) and 9(1) of the recast Reception Conditions Directive. The delay established by the district court arose in legal proceedings rather than administrative ones. The Council elaborated that it is the right to enter the territory that is the basis for the deprivation of liberty, and not the asylum procedure. For the assessment of whether the applicant has been detained for the shortest possible time period, the Council considered that there are two important factors which need to be assessed. The first is that the State Secretary has taken a timely decision on the asylum application, which the Council affirmed the State Secretary did in the present case. The second is that an appeal is heard within the foreseeable future. Noting that the applicant was in border detention for six and a half weeks at the time of the scheduled hearing, the council concluded that the deprivation of liberty had not been prolonged unnecessarily, contrary to article 9 (1) of the recast Reception Conditions Directive. The Council also noted that the district court was wrong in its consideration that the deprivation of liberty was no longer justified after weighing the interests of the applicant and the interest of border control.

In light of the above, the Council ruled that the appeal was well founded.