Since the transposition of the recast Asylum Procedures Directive in July 2015, the Netherlands has a formal border procedure.
The Dutch Council for Refugees strongly objects to the use of the border procedure in light of the individual interests of the asylum seeker.1 The Committee of Human Rights (Comité voor de Mensenrechten) has also published advice to the Dutch government in which the Committee concludes that it is unnecessary to always detain asylum seekers at the border, especially children.2 According to the Committee the detention of all asylum seekers at the border without weighing the interest of the individual asylum seeker in relation to the interests of the state is not in line with European regulations and human rights standards.
The border procedure in the Netherlands proceeds as follows: the decision on refusal or entry to the Netherlands is suspended for a maximum of 4 weeks and the asylum seeker stays in detention. During this period, the IND has to decide on which of the grounds the application will be rejected. If the examination takes longer than 4 weeks or another ground of rejection is applicable, the detention is lifted, the asylum seeker is allowed to access the Netherlands and the treatment of the application is continued in a regular asylum procedure.3 In 2016 there was an influx of 240 aliens detained at the border.4
Since 1 September 2014, the Netherlands no longer detains families with children at the border.5 Instead of being put in border detention, families seeking asylum at Amsterdam Schiphol airport are now redirected to a closed reception centre in Zeist.6
A number of assessments take place prior to the actual start of the asylum procedure, including a medical examination, a nationality and identity check and an authenticity check of submitted documents. The legal aid provider prepares the asylum seeker for the entire procedure. These investigations and the preparation take place prior to the start of the asylum procedure. The AC at Schiphol airport is a closed centre. The asylum seeker is subjected to border detention to prevent them entering the country de iure. During the first steps of the asylum procedure, the asylum seeker remains in the closed Application Centre at Schiphol. In these stages the border procedure more or less follows the steps of the short asylum procedure described in the section on the regular procedure. One example of a difference between the regular procedure and the border procedure is the possibility for the decision-making authorities to shorten the rest and preparation period.7
In the following situations the IND will, after the first hearing, conclude that the application cannot be handled in the border procedure and therefore has to be channelled into the regular asylum procedure:8
If, after the first hearing, the identity, nationality and origin of the asylum seeker has been sufficiently established and the asylum seeker is likely to fall under a temporary ‘suspension of decisions on asylum applications and reception conditions for rejected asylum seekers’ (Besluit en vertrekmoratorium);
If after the first hearing the identity, nationality and origin of the asylum seeker has been sufficiently established and the asylum seeker originates from an area where an exceptional situation as referred to in Article 15(c) of the recast Qualification Directive is applicable;
If after the first hearing, the identity, nationality and origin of the asylum seeker has been sufficiently established and there are other reasons to grant an asylum permit.
If the IND is not able to stay within the time limits prescribed by the short asylum procedure (e.g. 8 days) it can continue the border procedure if the IND suspects it can reject the asylum application based on Article 30 (Dublin applicability), Article 30a (inadmissible) or Article 30b of the Aliens Act (manifestly unfounded).9 The maximum duration of the border procedure is four weeks.10
The same rules and obstacles as in the asylum procedure are applicable.
According to Article 93 of the Aliens Act the asylum seeker is entitled to lodge an appeal at any moment the asylum seeker is detained on the basis of Article 6 or 6a of the Aliens Act. Furthermore, there is an automatic review by a judge (regional court) of the decision to detain. If the court is convinced that the detention is unreasonably burdensome because the decision-making authorities did not sufficiently take into account the interests of the alien, detention can be lifted.11
However, the appeal is not suspensive. The decision to suspend the entry to the Dutch territory remains applicable.12
The first judicial review examines the lawfulness of the grounds for detention – whether the conditions for detention were fulfilled – whereas further appeals against immigration detention review the lawfulness of continued detention.13
Exactly the same rules and obstacles as in the regular procedure are applicable to border procedures.
- 1. See https://www.vluchtelingenwerk.nl/wat-wij-doen/standpunten/standpunt-gren....
- 2. The Committee for Human Rights, Advies: Over de Grens, Grensdetentie van asielzoekers in het licht van mensenrechtelijke normen, May 2014, accessible at: http://bit.ly/1YeuUBM.
- 3. Articles 3 and 6 Aliens Act.
- 4. Questions and Answers on the adapting of the budget for the ministry of Security and Justice of 2017 (25 November 2016), 34550 VI 11.
- 5. Aliens Circular, A1/7.3.
- 6. See Section Detention.
- 7. Article 3.109b(2) Aliens Decree.
- 8. Section C1/2 Aliens Circular.
- 9. Article 3.109b Aliens Decree.
- 10. Article 3(7) Aliens Act.
- 11. Article 94(5) Aliens Act. For more information, see Section Detention.
- 12. Article 93 Aliens Act.
- 13. Article 96 Aliens Act.