Three Iranian applicants arrived at Schiphol on 4 April 2024 and applied for asylum. The Minister for Asylum and Migration subsequently imposed a measure depriving them of liberty under Article 6(3) of the Aliens Act 2000. On the same day, the Royal Netherlands Marechaussee (KMar) examined their mobile phones without consent. The applicants argued that this lacked a sufficient legal basis.

On 23 April 2024, the District Court of the Hague, seated in Haarlem, upheld the appeal of the applicants. It ruled that the mobile phones were examined not only for the asylum procedure but also in relation to the deprivation of liberty. It found that Article 59(8) of the Vw 2000 was insufficient as a legal basis for such an examination and concluded that the border detention was unlawful from the first day. The minister appealed the decision of the district court before the Council of State.

The minister argued that the examination was conducted for identification and registration in the asylum process, independent of border detention. The minister cited previous rulings of the council supporting his position and maintained that Article 55(2) of the Aliens Act 2000 provided a sufficient legal basis for examining documents, including those on mobile phones.

The council considered whether examining mobile phones without permission affected the legality of border detention. It disagreed with the argument of the minister, as it asserted that Article 55(2) did not specify conditions for mobile phone searches and failed to protect against arbitrary action, making it an insufficient legal basis.

The council found that the mobile phone search had no bearing on border detention and did not render the border detention unlawful. It concluded that the examination was carried out in the asylum process and was not dependent on the deprivation of liberty measures. The official reports confirmed that the mobile phones were examined before the deprivation of liberty measures were imposed, reinforcing that the search was not linked to border detention. The council ruled that the Minister’s documentation methods should not determine the lawfulness of detention and distinguished this case from an earlier ruling where a phone search directly impacted deportation.

Additionally, the applicants argued that they had not received sufficient information about their detention. The council acknowledged a procedural defect but ruled that this did not affect the lawfulness of their detention, as although the applicants did not receive in writing the reasons for the border detention in a language they understand, they had received oral explanations through an interpreter and had the opportunity to appeal. Their claim that they were not issued the detention measures was also dismissed.

The appeal was upheld, and the district court’s judgment was set aside. The council advised the legislator to elaborate Article 55(2) of the Aliens Act if it wants to allow the possibility for the examination of mobile phones without the consent of applicants.