A stateless Palestinian applied for asylum at Schiphol airport on 6 July 2026. He was placed in border detention on the basis of Article 6(3) of the Aliens Act 2000. On 17 July 2026, the Minister for Asylum and Migration granted the asylum application, lifted the border detention and allowed the person to access the Netherlands.

In a judgement pronounced on 17 July 2026, The District Court of the Hague, seated in Amsterdam, found the working method of the Minister included in Work Instruction 2026/23 on the asylum border procedure, to be in violation of Article 10(3) of the 2024 Reception Conditions Directive (RCD), according to which detention should be applied following an individual assessment, and only when other less coercive measures cannot be applied. The court considered the border detention unlawful because the minister failed to substantiate why the border detention was necessary since he did not provide further reasons as to why the asylum border procedure was applied, and he did not sufficiently investigate whether an alternative to detention could be applied or provided adequate reasons why the border detention was not disproportionately onerous.

The minister submitted an onward appeal before the Council of State, which disagreed with the lower court.

The council began by examining the first ground of the appeal, concerning the non-compulsory application of the asylum border procedure and the need for border detention.

The council held that the fact that the minister applied the asylum border procedure on a non-compulsory basis under Article 43(1)(a) of the Asylum Procedure Regulation (APR) did not mean that he was required to provide additional reasons for choosing that procedure in the individual case. It noted that Article 43(1)(a) allows Member States to apply the asylum border procedure where an application is lodged at an external border crossing point or in a transit zone. Under Article 44(1), the procedure may result in a decision on the admissibility of an application under Article 38 or on its merits in the circumstances specified in Article 42. The council further noted that Article 3(3) of the Aliens Act 2000 requires applications lodged at the border to be assessed under the border procedure in the cases covered by the relevant provisions of the APR. The national legislature had therefore exercised the discretion granted by EU law to apply the procedure in all eligible cases, and this did not require further justification in each individual case.

Regarding border detention, the council agreed with the lower court that Article 10(2) of the 2024 RCD requires detention to be based on an individual assessment and to be necessary. However, it disagreed that the minister had created the necessity for detention simply by choosing to apply the asylum border procedure. The council considered that the minister was also required to safeguard the Netherlands' external borders under the Schengen Borders Code and noted that the parties did not dispute that the applicant had failed to meet the entry conditions under Article 6 of that Code. In light of the importance attached to border control under the Code, the court held that the interest in border control could be considered sufficiently necessary to justify deprivation of liberty under Article 10(2) of the RCD.

The council consequently found that the minister was not required to provide further justification for the necessity of detention, such as demonstrating a risk of absconding. It clarified that this differed from cases in which an applicant is detained under Article 52 of the APR to determine which Member State is responsible for examining the application, for which the relevant provisions of the AMMR apply. It therefore upheld the minister's first ground of appeal and concluded that the lower court had erred in requiring additional reasons for applying the asylum border procedure.

Turning to the second ground, the council assessed whether the minister was allowed to process the application in the asylum border procedure. It found that the minister rightly argued that an investigation is necessary to determine whether it is possible to take a decision on the application as referred to in Article 44(1) of the APR, so that the application can be processed in the asylum border procedure. The council held that the minister's working method aligns with recital 64 of the APR which stipulates that the border procedure should no longer be applied once it becomes clear that the grounds for rejecting the application as inadmissible or processing the application in an accelerated manner do not apply. In the present case, noting that the person was detained on 6 July 2026, and the detention order was lifted on 17 July 2026, the council found that the minister had processed the application sufficiently expeditiously. It held that the minister fulfilled its obligation to lift the border detention once it appeared that the applicant did not fulfil the requirement to be processed in the border asylum procedure, as well as his obligation under Article 11(1) of the RCD to ensure that the border detention lasts as short amount of time as possible. It therefore upheld the minister's complaint in this regard.

The council noted that research is necessary to understand whether the asylum border procedure should be applied in an individual's case, such as the applicant's case. In this regard, it held that the aim of border detention is to detain applicants whose applications are ultimately rejected in the asylum border procedure, so that they can then be placed in border detention on another basis and deported without ever gaining access to the Schengen area. The applicant's cooperation in this procedure is irrelevant.

Furthermore, the council found that, in the absence of suitable accommodation facilities, a reporting obligation is not possible in Schiphol's international lounge during the asylum border procedure. The council further noted that it cannot grant access to the territory to allow for a reporting obligation to be applied, as this decision is irreversible and the applicant can no longer be placed in border detention with a view to deportation on the basis of Article 6(1) and (2) of the Aliens Act 2000. Where no realistic alternative to detention are put forward, the council considered that the assessment of whether the minister should have applied lighter measures can only cover the question whether the minister should have refrained from applying the border detention at all after assessing whether detention would be disproportionately onerous for the applicant. On another note, as there was no longer a decision and departure moratorium for Gaza in place, the minister did not have to refrain from border detention for that reason. Hereto, it noted that the highest degree of indiscriminate violence in Gaza is assumed by the determining authority, and the minister granted international protection to the applicant.

Finally, the court considered that by inquiring about the medical circumstances of the applicant, his family circumstances and presenting him with the opportunity to put forward other circumstances, the minister sufficiently investigation whether the border detention was disproportionately onerous for the person concerned.

For the sake of completeness, the council found of its own motion that the deprivation of liberty measure addressed both the fact that the asylum application of the person concerned is being processed in the asylum border procedure and that it concerns deprivation of liberty in connection with the screening. However, it held that these conditions cannot coexist. It referred to Article 1(a) of the Screening Regulation which stipulates that that applicants who apply for international protection at the external border are screened before they are referred to an appropriate procedure. Nevertheless, the council found that there were no reasons to consider the deprivation of liberty measure unlawful, as Article 6(3) of the Aliens Act 2000 serves as basis for both border detention during the screening and during the asylum border procedure.

In light of the above, the decision of the lower court was set aside.