Netherlands, Council of State, 17 February 2021, 202004036/1/V3
Case overview
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Deciding body (English)
Deciding body (Original)
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Instance
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Link to the full text of the decision
General Summary
An appeal was issued by the State Secretary to the Council of State against a first instance decision of suspension of a quarantine order towards a foreigner who was refused entry into the country because of anti-Covid-19 restrictions but could not return to her country of origin (Barbados) due to a lack of flights. The main question involved in the decision concerned whether her entry could still be refused even after the quarantine period after which the foreigner did not show any sign of infection. The Court partially opposed the lower Court’s argument stating that the rejection was lawful since it was based on a legitimate entry ban and it was a non-essential journey. Furthermore, the applicant (foreigner) did not have the right to enter the country even if she showed no signs of infection after quarantine because she still could represent a threat to public health. Indeed, according to the Court, the entry ban was a generic measure and was not based on an individual health check of incoming travelers. Furthermore, the Court had no doubts about the lawfulness of the quarantine measure imposed on the foreigner while waiting for a flight back to Barbados: it was a necessary measure to safeguard border security interests (protection of public health). However, the Court rejected the appeal stating that the State Secretary unlawfully extended the quarantine after the standard period of fourteen days.
Facts of the case
In order to prevent the spread of Covid-19, temporary travel restrictions were in place from March 2020 for people who wanted to travel to the Netherlands from third countries. In accordance with the EU Recommendation, there were exceptions to the restrictions for specific categories of travelers. A foreigner from Barbados (for which the entry ban was still applicable at the time of the decision) was refused entry into the Netherlands, because, according to the aforementioned restriction, she represented a threat to public health. Since no return flight to Barbados was available a custodial measure (two-week quarantine) was also imposed on her. The foreigner challenged these measures to the District Court of The Hague because allegedly it infringed her fundamental rights as an immigrant. The Court upheld the claim and lifted the custodial measure. The State Secretary appealed this decision to the Council of State.
Type of measure challenged
Measures, actions, remedies claimed
Individual / collective enforcement
Type of procedure
Reasoning of the deciding body
Unlike the first instance Court, the Council of State was of the opinion that the circumstance that the foreigner did not show signs of infection after the period of quarantine did not in itself mean that the legal basis for the refusal of entry had lapsed. After all, the entry ban was not about the threat that an individual traveler poses. Indeed, the purpose of the restrictions was to prevent large traveler flows in order to prevent the further spread of Covid-19 and protect public health. The entry ban was, thus, a generic measure that was not based on an individual health check of incoming travelers. For these reasons, the entry request could still be rejected even after the quarantine period. To make sure that the custodial quarantine period did not represent an arbitrary and unconstitutional deprivation of freedom, it was necessary to check whether the measure complied with the principles of proportionality and subsidiarity, namely by assuring that the measure was suitable and strictly necessary to achieve its intended purpose. According to the Court, the applied measure complied with these first requirements, since it was intended to avoid illegal entries into the country and to prepare the person for the return to the country of origin. However, these measures could be completely justified and, thus, considered proportional, only if applied for a reasonable period of time. According to the Court a reasonable time in this case should have been intended as a period of time not exceeding fourteen days (standard quarantine period), since the entry ban due to Covid-19 was the only reason why the entry request was refused. Therefore, according to the Council of State, even if the first instance Court wrongly declared that the foreigner had the right to enter the country after the quarantine period, it was correct in its consideration that the quarantine measure was unlawful after the fourteenth day. Thus, the second-instance Court rejected the appeal and declared the quarantine measure to be disproportional and unlawful.
Conclusions of the deciding body
The Court, after declaring the rejection of the entry request and the application of the custodial quarantine measure as legitimate, confirmed the appealed lower-instance decision, rejecting the State Secretary’s appeal and stating that the applied quarantine measure exceeding the standard period of fourteen days was disproportional and, thus, unlawfully restricted the foreigner’s freedom.
Fundamental Right(s) involved
- Freedom of movement of people, goods and capital
- Right to bodily integrity
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
- Article 4, Schengen Borders Code: fundamental rights
- Article 6, Schengen Borders Code: entry conditions for third-country nationals
- Article 14, Schengen Borders Code: Refusal of entry
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
- Health v. freedom of movement of persons
- Health v. immigrants’ fundamental rights
General principle applied
Balancing techniques and principles (proportionality, reasonableness, others)
The Court applied the principle of proportionality in balancing the different interests involved in the decision: immigrants’ fundamental rights and freedom of movement and, on the other hand, public interest in protecting the population’s health and lives. According to the Court the custodial quarantine measure, applied to the foreigner who was refused entry into the country, was suitable and necessary to the aim of preventing unlawful entry and of protecting public health. However, the measure was considered disproportionate, because it exceeded the reasonable period of time set at 14 days. Thus, the restriction of freedom due to the application of the measure could not be justified.
Impact on Legislation/Policy
The governmental measure was upheld.
