The applicant arrived at Schiphol from Taipei on 1 January 2025 and requested international protection there. The Minister for Asylum and Migration placed him in border detention under Article 6(3) of the Aliens Act 2000, to be carried out at the Schiphol Judicial Complex (JCS). The applicant challenged that measure before the District Court of The Hague, seated in Amsterdam, which conducted an on-site inspection at the JCS pursuant to Article 8:50 of the General Administrative Law Act (Awb). The court concluded that the JCS was not a specialised detention facility, rendering the applicant's border detention unlawful. Accordingly, on 31 January 2025, it upheld the appeal and ordered the lifting of the detention measure. The minister appealed to the Council of State on three grounds, all concerning whether the JCS, as a detention location, complied with the requirements of the recast Reception Conditions Directive (recast RCD).

In the first ground of appeal, the minister challenged the District Court's finding that the JCS has a penitentiary character and questioned whether the restrictions imposed on foreign nationals there were necessary. The council noted that, although the concept of a “specialised detention facility” in Article 10(1) of the recast RCD is not defined in that Directive, it was interpreted by the CJEU in its judgment in K v Landkreis Gifhorn (C-519/20, 10 March 2022), which concerned Article 16(1) of the Return Directive, a similar provision to Article 10 of the recast RCD. According to the council, the guidance provided in that judgment applies by analogy when assessing whether the JCS constitutes a specialised detention facility within the meaning of Article 10(1) of the recast RCD. The council rejected the District Court's view that the assessment under the recast RCD could be stricter than that under the Return Directive on the ground that the foreign national concerned was an asylum applicant. It clarified that the status of the third-country national concerned, whether detained under the recast RCD as an asylum applicant or under the Return Directive as an irregular migrant, is not relevant for the assessment of detention conditions. The council then proceeded to analyse whether the detention of foreign nationals in the JCS was penitentiary in nature. It acknowledged that the layout of the JCS departments where foreign nationals are accommodated is identical to that of departments used for criminal detainees, but found this insufficient to conclude that the JCS is not a specialised detention facility. The council emphasised that the restrictions imposed on foreign nationals and criminal detainees in the JCS do in fact differ. For example, criminal detainees spend a maximum of approximately 43.5 hours per week outside their cells, whereas foreign nationals, under normal locking-in times, spend approximately 98 hours per week outside their cells. In addition, while criminal detainees are entitled to only one hour of outdoor exercise per day, foreign nationals may use the outdoor exercise area between 8:00 and 21:30, with access granted at their request by a prison officer. The council clarified that, although it may occur that no prison officer is available, meaning that foreign nationals cannot go outside at every moment they wish, such organisational limitations do not render the regime applicable to foreign nationals equivalent to that applicable to criminal detainees. It further affirmed that restrictions imposed on foreign nationals in border detention, including those aimed at safeguarding safety, must not go beyond what is strictly necessary for the purpose of border detention. It agreed with the lower court that night-time locking-in is not the only means of ensuring safety and that safety could also be achieved through increased staffing; at the same time, it held that the minister was entitled, within this framework, to consider night-time locking-in of foreign nationals necessary. The council also considered that the minister was entitled to regard as necessary the requirement that foreign nationals may only go outside or move to other parts of the complex, such as the medical service or visiting area, under escort by a prison officer, as well as the confiscation of foreign nationals' mobile phones in order to protect JCS staff. By contrast, with regard to the restriction of internet access, the council found that the minister had not concretely explained how that restriction related to the purpose of border detention or to the protection of the safety of foreign nationals or staff. Overall, the council held that the restrictions imposed on foreign nationals in the JCS, taken together, were not penitentiary in nature and did not go beyond what was necessary; however, it noted that limited internet access constituted a point of concern, for which the minister must provide a solution within a reasonable time.

The council then examined the second ground of appeal, concerning the separation in the JCS between foreign nationals and criminal detainees. It considered credible the Minister's explanation that JCS staff strictly ensure that foreign nationals and criminal detainees do not encounter each other in corridors, stairwells, or waiting areas, and that any such encounter would occur only in the event of failed supervision. The council held that even if such an encounter were to occur, this would be insufficient in itself to conclude that the JCS is not a specialised detention facility. It further held that the fact that foreign nationals and criminal detainees can hear each other over a wall in the exercise areas does not lead to a different conclusion, as hearing sounds from the other side of a high wall does not amount to communication.

The third ground of appeal concerned the lack of separation between women and men on one department in the JCS. The council found that, by not placing men and women together in the same cell, the Minister complied with the requirement in Article 11(5) of the recast RCD that men and women must be accommodated separately, unless they are family members who consent to not being accommodated separately. It clarified that Article 11(5) of the recast RCD does not require that men and women may not reside on the same closed department, and that it allows men and women to use common areas for recreational purposes.

In conclusion, the council found that the JCS constitutes a specialised detention facility within the meaning of Article 10(1) of the recast RCD. It therefore upheld the appeal and set aside the judgment of the District Court.