Dutch Council of State / Raad van State, 202002809/1/V2, 2021

Dutch Council of State / Raad van State, 202002809/1/V2, ECLI:NL:RVS:2021:738, 7 April 2021

Netherlands: Council of State rules assessment of Mongolia as a safe country of origin for LGBTI persons inadequate

On 7 April 2021, the Dutch Council of State issued its judgment in the case of a Mongolian national who had applied for international protection in the Netherlands after being assaulted and threatened in Mongolia due to identifying as an LGBTI person. While the appellant maintained that the Mongolian authorities had not provided him with sufficient protection, the State Secretary of Security and Justice (‘the State Secretary’) designated Mongolia as a safe country of origin in 2016 and upheld this finding in its reassessments of 2018 and 2020. The State Secretary rejected the appellant’s application for international protection on the ground that he did not make it plausible that Mongolia in general, for the LGBTI community or for him personally, could not be regarded as a safe country of origin. The State Secretary was also of the opinion that a ‘quick reassessment’ is sufficient to assess whether a country of origin remains safe, as opposed to a more substantive first assessment. In his appeal to the Council of State, the appellant questioned the manner in which the State Secretary reassessed the situation in countries designated as ‘safe countries of origin’ and sought the reassessment of his application for international protection.

In its judgment, the Council of State focused on the question of whether the manner of reassessment of Mongolia by the State Secretary complied with Dutch law, having ruled in a previous decision on how the State Secretary must conduct its investigation when designating a country of origin as a safe country for the first time. On the general considerations, the Council of State held that as the concept of ‘safe country of origin’ must always be interpreted as consistently as possible, a reassessment investigation must meet the same requirements as the investigation prior to the designation of a country as a safe country of origin. In light of this, the State must conduct a reassessment at least once every two years to ensure that it identifies any deterioration as soon as possible, so that countries do not continue to be wrongly designated as safe countries of origin. The State Secretary must also provide sound reasons as to why it believes that no significant changes have taken place in the country in question in order for foreign nationals to litigate about this and for administrative courts to review the decision.

On the specific case of Mongolia, the Council of State held that the reassessment of the situation in Mongolia did not, from the point of view of due diligence, satisfy the requirements set out in Dutch law. As the State Secretary had inadequately and disproportionately relied on general information about the possibilities for protection in Mongolia and had not conducted further investigation into the question of whether the appellant could still be expected to seek protection from the authorities for the specific problems he faced, the grounds for the refusal to grant international protection were inadequate. It concluded that the State Secretary had not sufficiently substantiated its view that Mongolia was a safe country of origin for the appellant personally and must make a new decision on the appellant’s application.

Based on an unofficial translation by the EWLU team.

[Source: ELENA Weekly Legal Update – 30 April 2021]