The Netherlands is not allowed to return asylum seekers to Italy for now

State Secretary Eric van der Burg is not currently allowed to return asylum seekers to Italy, the Administrative Law Division of the Council of State ruled in two separate cases on Wednesday. Based on the Dublin Regulation, the two asylum seekers should actually be sent back to Italy, but because the Italian authorities do not offer shelter to these so-called “Dublin claimants,” returning them right now is a violation of human rights, the highest administrative court in the Netherlands ruled.

According to the Dublin Regulation, the asylum procedure must be completed in the country where an asylum seeker first arrives. Due to Italy’s lack of reception facilities, there is a “real risk” that the two asylum seekers will be deprived of basic necessities such as shelter, food and running water. The consequence of the ruling is that the Netherlands must process the asylum applications itself, according to the Council of State.

It concerns a Nigerian man and a man who says he is from Eritrea. The Nigerian first applied for asylum three times in Italy and then again in the Netherlands. The other man entered Europe via Italy, but did not apply for asylum there.

Van der Burg, the Cabinet’s representative for asylum policy, wanted to send the two men back to Italy on the basis of the Dublin Regulation. In principle, European Union member states may assume that the situation in another member state does not violate human rights, but exceptions are possible, according to the Council of State. That is now the case in Italy.

Since the end of last year, the Italian authorities have indicated several times that the transfer of asylum seekers under the Dublin Regulation should be temporarily suspended due to a lack of reception facilities. It is unclear when these problems will be resolved and when asylum seekers can be returned to Italy.

“This is of no help,” said Van der Burg in response to the ruling. Speaking before the weekly meeting of Cabinet members, he said this decision does not help to contain the flow of asylum seekers in the Netherlands, and does not comply with implementation of the Dublin Regulation.

Last week, his Italian counterpart told Van der Burg that there is currently a very high influx of asylum seekers still waiting to be processed. “I think countries should keep to the agreement, including Italy,” said Van der Burg.

“But yes, what the Council of State has now said overrules my position.” The state secretary said he will study the ruling.