The Bottom Line
- The state’s procedural errors are not a get-out-of-jail-free card. A Dutch court has ruled that the immigration authority’s failure to conduct a mandatory pre-removal risk assessment does not automatically render a detention unlawful.
- The judiciary steps in to fill the gap. The court affirmed its own duty to perform the risk assessment if the state fails to do so, effectively creating a judicial ‘safety net’ to prevent releases on purely procedural grounds.
- Substance over form prevails. This decision signals a pragmatic approach that prioritizes the substantive merits of a case—in this instance, the actual risk to the individual—over administrative missteps, a notable trend for any business navigating regulatory compliance.
The Details
The case involved an Algerian national held in immigration detention pending his removal from the Netherlands. His legal team argued that his continued detention was unlawful, citing a recent Court of Justice of the European Union (CJEU) judgment in Ararat. This ruling mandates that immigration authorities must conduct a fresh, up-to-date risk assessment to ensure the principle of non-refoulement (not returning someone to a country where they face a real risk of serious harm) is respected just prior to removal. The Dutch immigration authority had neglected to perform this specific, updated assessment.
In a surprising turn, the District Court of The Hague acknowledged the state’s failure but refused to declare the detention unlawful on that basis. The court reasoned that while the Ararat judgment places a clear obligation on the administrative authority, another CJEU precedent (Adrar) empowers and indeed obliges the reviewing court to step in. The court held that if the state fails its duty, the judiciary must conduct the necessary non-refoulement assessment itself. This prevents a situation where a procedural error by an administrative body automatically overrides the substantive grounds for a decision.
Applying this principle, the court performed its own updated risk assessment. It reviewed the appellant’s file, noting that his asylum claim had previously been rejected in a final decision and that he had failed to present any new, credible evidence of risk upon return to Algeria. His unsubstantiated claims of medical issues and other challenges were also dismissed. Since the court’s own assessment concluded there was no real risk of serious harm, and a clear prospect of removal existed, the underlying detention was deemed lawful despite the state’s procedural shortcoming.
Source
District Court of The Hague
