The applicant is an Algerian national whose request for asylum was rejected by the State Secretary for Justice and Security on 6 April 2023 after he failed to appear for a further interview (after the registration interview) without prior notice. The State Secretary initiated a trial for a new working method in October 2022 at the Budel asylum center, informing asylum seekers that failure to attend interviews without valid reasons would result in their applications being assumed as unfounded or manifestly unfounded. According to the State Secretary, the invitation is translated into the languages ​​most commonly used in asylum procedures (English, French, Spanish, Turkish, Tigrinya, Farsi, Russian, Arabic). This method aimed to address the frequent non-appearance of asylum applicants, which caused delays and inefficiencies. In line with this new method, the State Secretary rejected the applicant’s asylum request as manifestly unfounded under Articles 31(1) and 30b(1) of the Aliens Act 2000.

The District Court of the Hague, seated in Amsterdam, upheld the applicant’s appeal on 24 May 2023. Following this, the State Secretary lodged an appeal against the decision of the district court before the Council of State.

The district court ruled that the State Secretary should not have rejected the asylum application as manifestly unfounded without a further interview, stating that the application should only be dismissed in such cases. The State Secretary argued that their method was supported by article 28 of the recast Asylum Procedures Directive and national legislation, allowing for rejection as manifestly unfounded if an applicant fails to appear for an interview.

The Council found no legal basis for rejecting applications as manifestly unfounded based on non-appearance for the further interview. The council argued that articles 31 and 30b of the Aliens Act 2000 and the recast Procedures Directive (specifically articles 14, 31, and 32) do not support this practice, as they require a personal interview to deem an application unfounded. The Council also made reference to article 28(1) of the recast Asylum Procedures Directive which regulates the consequences of implicit withdrawal or implicit abandonment of asylum applications. The council noted that under this provision, the failure to appear at a further interview may be regarded as an implicit withdrawal, allowing for either termination of the examination of the application, or a rejection of the application provided that the application is considered to be unfounded on the basis of a sufficient examination in accordance with Article 4 of the recast Qualification Directive. However, the Council stated that the Dutch legislature has only implemented the power to dismiss the case, not to reject it as unfounded. The council elaborated that the provisions under which the State Secretary rejected the application as manifestly unfounded, namely 31(1) and 30b(1) of the Aliens Act 2000 are not intended to implement article 28 of the recast Asylum Procedures Directive.

The court emphasized that implicit withdrawal of applications should only lead to dismissal, not rejection as manifestly unfounded. Pending the entry into force of relevant rules in the Asylum Procedure Regulation (Regulation (EU) 2024/1348), the Council stated that it is up to the legislator to fully implement Article 28(1) of the recast Asylum Procedures Directive if they desire to support the State Secretary’s new working method.

In conclusion, the appeal was unfounded, and the Council affirmed the decision of the district court.