The applicant was initially hosted in an regular reception centre. On the night of 25-26 July 2022, he violated reception centre rules by causing a disturbance and consuming alcohol. When confronted by security, he reacted violently. Due to this incident and prior problematic behaviour, the Central Agency for the Reception of Asylum Seekers (COA) transferred him to an Extra Enforcement and Supervision location (Handhavings- en Toezichtlocati, HTL) on 26 July 2022. On 29 July 2022, the applicant absconded from the HTL, leading to the dismissal of his asylum application. He reappeared at the application centre in Ter Apel on 2 October 2022, and was again transferred to the HTL on 10 October 2022 due to the previous incident and insufficient behavioural improvement. On the same day, the State Secretary for Justice and Security imposed a measure restricting his freedom, confining him to the HTL premises in Hoogeveen. The applicant appealed both the transfer and the freedom-restricting measure. The lower court upheld the transfer and found it did not amount to a deprivation of liberty under Article 5 of the ECHR. The applicant subsequently appealed before the Council of State.

In its assessment, the Council of State referenced relevant case law on the restriction and deprivation of liberty, such as: CJEU judgment in FMS and Others v. Országos Idegenrendeszeti Főigazgatóság (C-924/19 and C-925/19, 14 May 2020), which examined whether conditions in transit zones amounted to detention or merely restriction of movement; the ECtHR judgment in Ilias and Ahmed (Bangladesh) v. Hungary (Application no. 47287/15, 21 November 2019), which considered whether asylum seekers had a realistic possibility to leave a transit zone; and the ECtHR judgment in R.R. and Others v. Hungary (Application no. 36037/17, 2 March 2021), which addressed whether prolonged confinement in transit zones, combined with inadequate options for leaving, constituted a deprivation of liberty.

The council acknowledged that transfers to the HTL impose significant restrictions on a person's freedom of movement, including mandatory reporting twice daily, participation in a structured daily program involving activities and evaluations, restricted visitation requiring prior permission, and confinement to the HTL premises. However, based on the referenced case law, the council determined that these restrictions did not reach the threshold for deprivation of liberty.

In support of this, the council noted that residents have a genuine opportunity to the HTL at any time, and the COA facilitates this process. As a matter of fact, the applicant himself had previously left the HTL voluntarily without legal repercussions or adverse effects on their asylum process. Foreign nationals who leave the HTL prematurely do not commit a criminal offense, and the Minister will lift any freedom-restricting measures, such as confinement, imposed under Article 56 of the Dutch Aliens Act at the request of the COA if the foreign national expresses a desire to leave. The council clarified that leaving the HTL does not affect future reception, and if the applicant returns to the COA, they will be provided shelter again, as occurred in this case. It also specified that leaving the HTL does not affect asylum processing. The Minister does not dismiss an asylum application solely because a foreign national left the HTL; dismissal is based on failure to meet reporting obligations.

Moreover, the council noted that the maximum stay at the HTL is thirteen weeks, and residents can influence their departure by improving their behaviour to advance to less restrictive phases. The COA reviews behaviour weekly and can shorten the stay if progress is made. Although stays can be extended if residents are placed in a so-called ROV room (Reglement onthouding verstrekkingen kamer, Regulation deprivation of benefits in kind) due to incidents, this does not result in indefinite confinement, as the duration in the ROV is also subject to a maximum limit. Regarding the degree of isolation in the HTL, the council acknowledged the COA's explanation that residents can move freely within the HTL, receive visitors, and use available facilities, albeit with certain restrictions.

The council found the appeal concerning the lower court's decision on the transfer to the HTL unfounded and dismissed it. It also denied the request for a preliminary ruling, which the applicant had based on the compatibility of the HTL with EU law. Finally, the council determined that it did not have jurisdiction to review the lower court's decision on the measure restricting liberty.