The case concerns an appeal against the Dutch authorities for not taking a decision in time on the applicant's asylum procedure. The court ruled in favour of the applicant and ordered the authorities to issue a decision on the application within eight weeks of the day on which the ruling is sent. Moreover, the court rejected the authorities' argument according to which the applicant was subject to a departure moratorium according to the law for Russian conscripts, given that it was apparent from the record that the authorities assumed that the applicant was stateless.
National law:
- Articles 6:1, 6:12, 8:54, 8:72, 8:55 Algemene wet bestuursrecht
- Article 29, 42, 43 Vreemdelingenwet
- National Act Temporary Suspension of Penalties
- Work instruction IND 2022/20
Directive 2013/32/EU
The applicant, an asylum applicant in the Netherlands, lodged an appeal against the Dutch authorities (the State Secretary for Justice and Security) as, according to Dutch law, an appeal can be lodged if the decision on the asylum application has not been issued within a certain time period. The maximum time limit foreseen in national law is six months and may be extended to a maximum of 21 months.
The applicant submitted his application for asylum on 20 March 2022. According to national law, the authorities should have issued a decision by 20 September 2022. The applicant served the authorities with a notice of default on 6 October 2022, as provided for in law. The applicant requests the court to order the authorities to issue a decision on his application for asylum within a two-week period and to impose a penalty payment. The applicant further requests the court to fix the periodic penalty payments already forfeited.
In the Statement of Defense, the authorities (the State Secretary for Justice and Security) first take the position that the applicant is subject to the decision and departure moratorium referred to in national law for Russian conscripts. This moratorium applies to all Russian males aged 18 to 27 who fear having to perform their military service or who have already fulfilled military service and no longer wish to do so.
As the national Highest Court has held, in asylum cases the judge takes into account the fact that the authorities must have dealt with applications within a reasonable time. In determining the further time limit, it is important that the diligence of the decision-making process weighs heavily. Thus, the court does not set a further time limit for which it is established in advance that the administrative body cannot proceed with due diligence. According to the Highest Court case law, a period of eight weeks for holding an initial hearing and a period of eight weeks thereafter for issuing a decision on the application is appropriate (the 8+8-week model). The court notes that on 31 May 2022, a notification hearing and on 3 October 2022, a further hearing were conducted of the applicant. No further hearing of the applicant is apparent. The court therefore ordered the authorities to issue a decision to the applicant within eight weeks of the day on which the ruling is sent. Moreover, the court held that, given the Highest Court ruling of 30 November 2022, even in asylum proceedings, where the appeal against the failure to issue a decision on time is well-founded and no decision has yet been published, the administrative court will order the authorities to issue a decision within the period it has set and will attach a further penalty to its ruling for each day that the authorities fail to comply with the ruling.
Moreover, regarding the authorities' argument according to which the applicant was subject to a departure moratorium according to the law for Russian conscripts, the court held that, according to the record, the authorities assumed that the applicant was stateless. The court therefore does not follow the authorities' argument.
The judge found in favour of the applicant and gave the authorities eight weeks to issue a decision and requests them to be clear about the nationality status of the applicant. In view of this, the court will order that the authorities forfeit a penalty payment for each day of failure to comply with this ruling in the amount of €100 per day with a maximum of €7,500.
ECLI:NL:RVS:2020:1560
ECLI:NL:RVS:2022:3353