THE BOTTOM LINE
- Availability is Non-Negotiable: An individual can be legally considered to have absconded even if they remain at their designated location. The key factor is whether they deliberately make themselves unavailable for a scheduled official action.
- The Onus to Communicate is on You: The burden of proof lies with the individual or company to proactively inform authorities of any legitimate reason (e.g., illness) for their unavailability. Authorities are not required to investigate the absence during a scheduled transfer.
- Procedural Errors Can Be Costly: A flawed government decision can be cured during legal proceedings, meaning the outcome stands. However, the initial error may still require the state to cover the opposing party’s legal costs, highlighting the importance of precise initial justifications.
THE DETAILS
This case concerned an asylum seeker scheduled for transfer from the Netherlands to France under the EU’s Dublin Regulation, which dictates which member state is responsible for an asylum claim. Such transfers must occur within a standard six-month window. When the individual was not present at the designated pick-up time, Dutch authorities extended the transfer deadline to 18 months, arguing that he had absconded. The individual challenged this, claiming he was on-site at the asylum center the entire time but had fallen ill on the morning of the transfer and was unable to travel.
The District Court of The Hague clarified a crucial point of law: absconding is not limited to physically disappearing to an unknown location. Citing established case law, the court defined it as any act where a person deliberately evades the reach of national authorities to prevent a transfer. The claimant knew the exact date and time of his transfer (5:00 AM). By failing to answer his door or proactively communicate his illness to the authorities before they arrived, he created a situation where officials could reasonably conclude he was intentionally avoiding them. His subsequent claim of illness did not retroactively absolve him of his responsibility to be available.
Interestingly, the court found the government’s initial written decision was flawed because it incorrectly stated the claimant had left for an “unknown destination.” However, it chose not to nullify the decision on this technicality. Instead, it applied a provision of Dutch administrative law (Article 6:22 Awb) to cure the defect, as the government provided a more accurate and legally sound justification during the hearing. While the appeal was ultimately dismissed, the court still ordered the government to pay the claimant’s legal fees due to the initial procedural error. This serves as a reminder for all parties that while the final outcome may be upheld, sloppy administrative work has financial consequences.
SOURCE
Source: Rechtbank Den Haag
