On 22 November 2024, the Minister for Asylum and Migration detained an applicant who arrived at Schiphol airport from Casablanca, Morocco, the day before and applied for asylum. The applicant was placed in border detention on the basis of Article 6(3) of the Aliens Act 2000 in the Judicial Complex Schiphol (JCS). The applicant appealed this decision before the District Court of the Hague, seated in Amsterdam. The district court upheld the appeal on 11 December 2024 and ordered his release from detention. The minister appealed the judgment before the Council of State.

The council noted that in November 2024, there was a higher influx of asylum seekers arriving at Schiphol than usual, which subsequently resulted in a higher occupancy rate in the JCS. As a consequence, these asylum seekers were subjected to more restrictions in detention than normal due to understaffing. In this regard, applicants were locked in their cells between 16:30 pm and 08:00 am, instead of the typical hours of 09:30 pm until 07:30 am. Furthermore, unlike usual, they were required to consume their meals in their cells and allowed to access outdoor space for a maximum of one hour a day. The district court argued that the detention was unlawful because the JCS could not be regarded as a specialised detention facility within the meaning of Article 10 (1) of the recast Reception Conditions Directive (RCD) and in accordance with the CJEU ruling K v Landkreis Gifhorn (C-519/20) which concerns Article 16(1) of the Returns Directive which is a provision that is almost identical to Article 10(1) of the recast RCD and provides relevant guidelines. Moreover, the minister argued that the applicants lacked an effective procedure to complain about the conditions of their stay in JCS, as referred to in the national Border Accommodation Regime Regulation.

The council reached a different conclusion compared to the district court, finding that the JCS was also a specialised detention facility within the meaning of Article 10(1) of the recast RCD at the time of the district court’s decision and in line with the assessment set out in C-519/20 of the CJEU.

The council found that detained applicants were separated from criminal detainees, with both groups never having contact within the facility. It also found that the execution of border detention differed from those for criminal detention. Furthermore, the council highlighted that there were offices of the determining authorities and the Dutch Council for Refugees within the facility, as well as rooms which have been set up for the purpose of conducting interviews to process the asylum applications of the detainees. It also noted that staff of the JCS receive training in dealing with diverse nationalities. Additionally, the council found that even though the detained applicants were locked in their cells for longer hours than usual, they were still being locked for less time than criminal detainees. It ruled that the restrictions the applicants were subjected to did not go beyond what was strictly necessary, nor that the minister failed to prevent immigration detention from being equivalent to criminal detention. It declared that the mere fact that the same staff deployed in the JCS both for immigration and criminal detention to be an insufficient argument to justify the conclusion that the facility cannot be regarded as a specialised detention facility.

Finally, in line with Article 1(6)(b) of the General Administrative Law Act, the council ruled that the district court does not have jurisdiction to determine whether the enforcement of border detention at the JCS in a specific case violates the Border Accommodation Regime Regulation. Additionally, the district court is not authorized to assess the effectiveness of the complaints procedure established in that regulation.