WILLEMSTAD - The judges in the court of appeal agree with a Venezuelan who has meanwhile fled from the immigration barracks. He should not have been held for so long – he managed to escape after 11 months of detention – and the minister should have decided on his protection request earlier.
The verdict explains that the man illegally arrived on the island with a boat, was subsequently arrested and imprisoned on 15 October 2020 for his deportation in the foreigners' barracks. After his arrest, he filed a protection request on November 27. He is said to be a deserted soldier and he fled to Curaçao for fear of reprisals by the Venezuelan regime or the army.
In principle, his capture was lawful. The ruling refers to the European Convention on Human Rights (ECHR), which states that everyone has the right to liberty and security and that no one may be deprived of their liberty, except (among other things) if someone has entered the country illegally.
The Court also ruled that the detention according to the National Ordinance on Admission and Deportation was lawful in principle, even if a protection request was submitted.
According to the Revised instruction to the Lieutenant Governors (HIG), there is no legal maximum term for detention, but detention may not last longer than is necessary to actually remove the foreign national. The basic principle is that if no removal has taken place after six months, it may be assumed that there is no prospect of deportation. The detention must then be lifted. A foreign national can only be detained for longer if he or she knowingly frustrates the investigation into his or her identity or if it appears that the foreign national can be removed shortly after the expiry of the six months.
"Obviously, when submitting a protection request, the Minister must once again form a picture of the other possible obstacles to removal, such as closing the borders of the country of origin, the lack of air connections and the like," the Court admits. And, it continues, it must be emphasized that detention should not lead to a hasty decision on a protection request.
However, this does not mean that the minister should not exercise diligence in this regard. On the contrary, the interest in the shortest possible duration of the deprivation of liberty means that the minister must take a prompt decision on the application for protection in order to keep the duration of detention as limited as possible.