Regular procedure

Netherlands

Author

Dutch Council for Refugees - VluchtelingenWerk Nederland

General (scope, time limits)

As mentioned in the section on Overview of the Procedure, the asylum procedure is divided into a short asylum procedure and an extended asylum procedure. The assessment of each asylum application starts in the short asylum procedure. During this procedure the IND can decide to refer the case to the extended asylum procedure. Before the start of the actual asylum procedure the asylum seeker is granted a rest and preparation period in which several enquiries as well as medical examinations take place.

The short asylum procedure

A rejection of an asylum application in the short asylum procedure has to be issued within eight working days. In exceptional cases, this deadline may be extended by six days. These extensions are not frequent in practice. According to paragraph C1/2.3 of the Aliens Act Implementations guidelines C1/2.3, the IND is reticent regarding extension of the deadline of the short asylum procedure. Therefore, the total length of the 'short' asylum procedure is 14, 16 or 22 days depending on the grounds for extending the short procedure.1

For a clear understanding of the short asylum procedure it is important to indicate what happens during these eight days. In short: on the odd days the asylum seeker has contact with the IND and on the even days with his legal advisor/counsellor:








Day 1

Start of the actual asylum procedure with first interview

On the day of the official lodging of the asylum application, the IND conducts the first interview with the asylum seeker to ascertain the asylum seekers’ identity, nationality, and travel route from their country of origin to the Netherlands. The first interview does not concern the reasons for seeking asylum. A lawyer is automatically appointed from day 1.

 

Day 2

Review of the first interview and preparation of the second interview

The asylum seeker and the appointed lawyer review the first interview after which corrections and additions to the first interview may be submitted which happens generally due to interpretation problems, where a misunderstanding easily occurs. The second day also focuses on the preparation of the second interview.

 

Day 3

Second interview by the IND

 

In the second and more extensive interview, the asylum seeker is questioned by the IND about his reasons for seeking asylum.

 

Day 4

Review of the second interview and corrections and additions

The lawyer and the asylum seeker review the report on the day after the second interview. During this stage, the asylum seeker may submit any corrections and additions to the second interview.

 

After day 4, the IND makes an assessment of the asylum application. It may decide to grant asylum. If not, the IND chooses either to continue the examination in the short asylum procedure or to refer to the extended procedure.

 

Day 5

The intention to reject the asylum application

In case the IND decides to reject the asylum application it will issue a written intention (Voornemen). The intention to reject provides the grounds and reasons for a possible rejection.

 

Day 6

Submission of the view by the lawyer (Zienswijze)

 

After the IND has issued a written intention to reject the asylum application, the lawyer submits their view in writing with regards to the written intention on behalf of the asylum seeker.

 

Day 7/8

The decision of the IND (Beschikking)

After submission of the lawyer’s view in writing, the IND may decide either to grant or refuse asylum. It may also still decide to continue the examination of the asylum application in the extended asylum procedure.

When the IND cannot assess the asylum claim and cannot make a decision within the time frame of the short asylum procedure the IND has to refer the case to the extended asylum procedure. A decision is taken by the IND on the basis of the information that stems from the first and second interviews, and information from official reports and other country information. A decision to reject the asylum application must be motivated and take into account the lawyer's view in writing.2

The extended asylum procedure

In case the IND, after the second interview and the submission of corrections and additional information in the short asylum procedure, decides to continue examination of the asylum application in the extended asylum procedure, the asylum seeker is relocated from a POL to a centre for asylum seekers (Asielzoekerscentrum, AZC).

The asylum seeker and his lawyer are given four weeks to submit a viewpoint in writing in response to the intention of the IND to reject the asylum application.3 The IND has to issue a new intention to reject the asylum application if it changes its grounds for rejecting the claim substantially.

If the IND is not able to decide on a request for asylum within the time frame of the short asylum procedure, the examination of the asylum application is referred to the extended asylum procedure.4 There are no specific conditions under which the IND can refer a case to the extended asylum procedure, but in general the IND needs more time to investigate the identity of the asylum seeker or their reasons for seeking asylum. This reference cannot be appealed.

If an asylum application is examined in the extended asylum procedure the maximum time limit for making a decision is six months. According to Article 42, paragraph 4, of the Aliens Act (similar to Article 31 paragraph 3 of the Asylum Procedures Directive (APD), this time limit can be prolonged by 9 months if, for example, the case is complex or there is an increased number of asylum applications at the same time. Above the 9 months prolongation the time limit can be extended by another  3 months according to Article 42 paragraph 5 Aliens Act.

Since the 11th of February 2016, the government in general extended the statutory time-limit according to Article 42 paragraph 4 sub b of the Aliens Act (similar to Article 31 paragraph 3 sub b of the recast Asylum Procedures Directive) with a maximum period of 9 months by publishing Wijzigingsbesluit (WBV) 2016/3. This was due to the increased number of asylum applications in the Netherlands in 2015. In its judgment of 8 December 2016, the Council of State ruled that the State Secretary was able to extend the asylum procedure in general by publishing WBV 2016/3.5 According to the Council of State, the State Secretary did not and does not have to inform each asylum seeker individually by letter/written notice when he extends the time limit.

Prioritised examination and fast-track processing

There is no prioritised examination and fast-tracking processing.

Personal Interview

The law provides for an obligation to organise a personal interview for all asylum seekers.6 Every asylum seeker is interviewed at least twice, with the exception of applications dealt with in track 1 and track 2. The first interview is designed to clarify nationality, identity and travel route. In the second interview the asylum seeker is able to explain the reasons for fleeing his country of origin.7

The National Ombudsman has made recommendations concerning the possibilities for civilians to record conversations with governmental institutions.8 One of the recommendations is that a governmental institution should not, in principle, refuse the wish of a civilian to make recordings of a hearing or conversation with a governmental institution. This recommendation is also explicitly applicable in relation to asylum seekers and the IND. The Dutch Council for Refugees has started a pilot on 1 December 2016 at AC Zevenaar which entails that there is a possibility to record the interview.9

The asylum seeker is to be interviewed in a language which he may reasonably be assumed to understand.10 This means that in all cases an interpreter is present during the interviews, unless the asylum seeker speaks Dutch.11 The IND may only use certified interpreters by law.12 However, in certain circumstances the IND may derogate from this rule, for example, when in urgent situations there is a need for an interpreter or if an asylum seeker speaks a very rare dialect.13 Interpreters are obliged to perform their duties honestly, conscientiously and must render an oath.14 The IND uses its own code of conduct which is primarily based on the general code of conduct for interpreters.15 The Legal Aid Board arranges for an interpreter in order to facilitate the communication between asylum seekers and their lawyer. They are allowed to make use of the 'interpreter telephone'. This service is provided by Concorde16 and paid by the Legal Aid Board.17

The asylum seeker can express the wish to be interviewed by an employee of the IND of his own gender (this includes the interpreters as well). This may make it easier for an asylum seeker to speak about issues such as sexual violence.

In the past there have been concerns about questioning in cases of persecution related to grounds of sexuality. Persons with LGBTI (Lesbian, Gay, Bisexual, Transgender and Intersex) asylum claims were for instance questioned about sexual conduct and what kind of feelings this raised.18 However, the IND has changed this practice and stopped asking such questions. Recent examples of such inappropriate questions are therefore not known to the Dutch Council for Refugees.19

Besides that the Council of State has raised preliminary questions to the Court of Justice of the European Union (CJEU) asking which limits are set by Article 4 of the Qualification Directive in assessing the credibility of alleged sexual orientation and if with this assessment different thresholds apply compared to the assessment of the credibility of the other grounds of persecution.20 These questions have been answered in the CJEU’s judgment of 2 December 2014.21 The Court clarifies the methods by which national authorities may assess the credibility of the declared sexual orientation of applicants for international protection. The Dutch government had stated that this judgment is in line with Dutch policy on assessing the credibility of homosexual asylum seekers except on the point that the conclusion of a lack of credibility cannot solely be reached if an applicant cannot furnish information about the gay scene (in the  Netherlands or in their country of origin). In some cases the IND based its judgment too predominantly on the fact that an applicant could not give details about the gay scene. Following A, B and C, however, this is no longer possible according to the Council of State in a judgment of 8 July 2015,22 and the Secretary of State had to further clarify how the credibility examination of LGBTI claimants takes place. The IND has issued a Work instruction which stresses the relevance of questions about the personal experience (including awakening and self-acceptance) of the asylum seeker concerning his/her sexual orientation.23 The Council of State has accepted this Work instruction as a solid base for assessing the credibility of the sexual orientation in LGBTI asylum claims.24

On day 2 and 4 of the short regular procedure the asylum seeker and his lawyer have the possibility to submit any corrections and additions they wish to make regarding the interview that took place the day before. On day 6, after and if the IND has issued a written intention to reject the asylum application, the lawyer submits his view in writing with regards to the written intention on behalf of the asylum seeker. If the lawyer's view is not submitted on time (i.e. by day 6 of the general procedure), the IND may make a decision without considering that view.25  

Appeal

After the first instance decision of the IND the law does not provide for an interview.

The short asylum procedure

An asylum seeker whose application for asylum is rejected within the framework of the short asylum procedure has one week to lodge an appeal.26 This appeal has suspensive effect except in case the rejection is, for example, based on:

  • The Dublin Regulation;


  • Inadmissibility (except third country objection);


  • Manifestly unfounded claim (except illegal entrance; extending residence unlawfully or not promptly reported to the authorities);


  • Not-processing the application; and


  • In case of a subsequent application in the sense of the GALA and only in the situation that another Member State is responsible for assessing the asylum application according the Dublin Regulation.27

In these cases the lawyer has to request a provisional measure pending the appeal. In case the request for a provisional measure is granted the appeal has suspensive effect, which means that the right to accommodation is retained and the asylum seeker may remain in COA accommodation.   

The extended asylum procedure

An appeal after a rejection of the asylum claim (decision of the IND) in the extended asylum procedure has to be – depending on the grounds for rejection – lodged within one or four weeks.  Depending on the grounds for rejection the appeal has suspensive effect.28

The intensity of the judicial review conducted by regional courts (administrative judges) has changed in 2016. According to the Council of State in its judgment of 13 April 2016, Article 46(3) of the Asylum Procedures Directive does not impose a general intensity of judicial review under administrative law in asylum cases in general and thus also not in cases regarding the credibility of an asylum seeker's statements in particular. In the Dutch context the regional court is not allowed to examine the overall credibility of the statements of the asylum seeker intensively (full). This is, according to the Council of State, due to the fact that the IND has specific expertise to verify statements of the asylum seeker and is therefore in general in a better position to examine the credibility of the claim. An administrative judge can never substitute its own opinion on the credibility of the asylum seeker’s statements for that of the authorities. Where contradictory or inconsistent statements are made by the asylum seeker, the review can, however, be more intensive (this is different than it used to be). The other elements - not the credibility of the statements - for assessing whether the asylum seeker qualifies for international protection (de zwaarwegendheid) have always been reviewed intensively by regional courts.

Furthermore, when assessing the appeal the regional court takes into consideration all the new facts and circumstances which appear after the decision issued by the IND. This is the so called ex nunc examination of the appeal.29

After a decision in the short and extended asylum procedure is made by the regional court, either the asylum seeker and/or the IND may appeal against the decision of the regional court to the Council of State.30 The IND makes use of this possibility especially in matters of principle. For example if a court judges that a particular minority is systematically subjected to a violation of Article 3 ECHR. This procedure does not have any suspensive effect. The Council of State carries out a marginal ex tunc review of the (judicial) judgment of the district court and does not examine the facts of the case.31 A provisional measure from the president of the Council of State is needed to prevent expulsion before the verdict of the Council.32 A provisional measure is only granted in case the departure date is set. A granted provisional measure gives a right to reception facilities. In the extended asylum procedure the right to accommodation ends after the verdict of the court, or in the case of onward appeal and this appeal has suspensive effect, after the verdict of the Council. But, in most cases only in a very late stage the departure date and time is set so in general there are no reception facilities during the onward appeal.

All decisions of the appeal body are public and some are published. There are no obstacles in practice with regard to the appeals in asylum cases. However, asylum seekers are not generally informed about their possibility to appeal, time limits etc. but if they have specific questions they can address them to the Dutch Council for Refugees. The representatives of the asylum seekers are responsible for the submission of the appeal.

Legal Assistance

Every asylum seeker is entitled to free legal assistance.33 To ensure this right the following system has been designed:

For making the actual asylum application the asylum seeker has to go to an application centre. These application centres have schedules on which an asylum lawyer can subscribe. For instance if five asylum lawyers are scheduled on a Monday they are responsible for all the asylum requests which are made that day. Those lawyers are also physically present at the centre all day. The Legal Aid Board (Raad voor de Rechtsbijstand), a state funded organisation, is responsible for this schedule and makes sure that on every day sufficient lawyers are enlisted on the schedules.  Therefore every asylum seeker is automatically appointed a lawyer from the day they apply for asylum.  On the other hand, in case there are too many applications on one day, it may also happen that lawyers are forced to take on too many cases.

An appointed lawyer from the Legal Aid Board is free of charge for the asylum seeker.  However, an asylum seeker may choose a lawyer himself. If this self-chosen lawyer is recognised by the Legal Aid Board as an official asylum lawyer, the Legal Aid Board will pay for the costs. This happens in the vast majority of cases. There are no limitations to the scope of the assistance of the lawyer as long as they get paid.

The Dutch Council for Refugees also provides legal assistance. During the rest and preparation period, the Dutch Council for Refugees offers asylum seekers information about the asylum procedure. Asylum seekers are informed about their rights and duties, as well as what they might expect during the asylum procedure. Counselling may be given either individually or collectively. During the official procedure, asylum seekers may always contact the Dutch Council for Refugees, in order to receive counselling and advice on various issues. In addition, representatives of the Dutch Council for Refugees may be present during both interviews at the request of the asylum seeker or his lawyer. The Dutch Council for Refugees has offices in most of the reception centres. Lawyers are paid for eight hours during the procedure at first instance. The Dutch Council for Refugees has criticised the fact that the contact hours between lawyers and their clients are limited in this system.

At the appeal stage of the asylum procedure asylum seekers continue to have access to free legal assistance. No merits test applies.34 Every asylum seeker has access to free legal assistance under the same conditions. However, the lawyer can decide not to submit any written viewpoint (day six regular asylum procedure), if they think the appeal is likely to be unsuccessful. In this scenario the lawyer has to report to the Legal Aid Board and the asylum seeker can request for a 'second opinion', meaning that another lawyer takes over the case.35 This only happens in exceptional cases. On the one hand, the intention of the legislator is that the same lawyer will represent the asylum seeker during the whole procedure, on the other hand, if the lawyer will not submit a written viewpoint, this would be considered as “malpractice” because writing a written viewpoint is actually the core of the lawyer’s job during the whole procedure. Even if the lawyer is strongly of the opinion that a written viewpoint will not be of any use it may not be the case in future circumstances, for example in case of a subsequent application. Only after several recognised 'malpractices' can an asylum lawyer be penalised. The gravest penalisation is disbarment.

The amount of financial compensation for lawyers who represent asylum seekers can be an obstacle. Some lawyers consider the amount of time to prepare a case (and therefore the compensation they get) as too little. This means that it is possible that some lawyers spend more work on a case than they get paid for or that some cases are not prepared thoroughly enough. Alongside this, due to the economic crises, more cutbacks had to be made within the state funded legal aid. Firstly the Secretary of State initially reduced the compensation when a case is dealt by the Courts without a hearing.36 The reasoning behind this reduction was that those cases would have been easily decided or perhaps required no proceedings at all. According to asylum lawyers this may be true for several disciplines in law but is not a workable criterion in asylum cases due to the nature of such cases. 95% of asylum cases in onward appeal are dealt without a hearing while in other disciplines of law this percentage is much lower (15%).37

  • 1. Article 3.110 Aliens Decree. An extension with six days is applied for instance in case an interpreter is not available or documents have to be analysed.
  • 2. Article 42(3) Aliens Act.
  • 3. Article 3.117 Aliens Decree.
  • 4. Paragraph C1/2.3 Aliens Circular.
  • 5. Council of State, 8 December 2016, 201606176/1.
  • 6. Article 3.112 Aliens Decree.
  • 7. Article 3.113 Aliens Decree.
  • 8. The National Ombudsman, 2014/166, report of 27 November 2014.
  • 9. Accessible at: http://bit.ly/1MjB3HJ.
  • 10. Article 38 Aliens Act.
  • 11. IND, Toelichting inzet tolken (Explanatory notes use of interpreters), (February 2013), 1, accessible at http://bit.ly/1l1J3Ui.
  • 12. Article 28.1 Law Sworn Interpreters and Translators.
  • 13. Article 28.3 Law Sworn Interpreters and Translators.
  • 14. Frits Koers et al, Best practice guide asiel: Bij de hand in asielzaken (Best Practice guide asylum) (Raad voor de Rechtsbijstand, Nijmegen 2012), 38.
  • 15. IND, Toelichting inzet tolken, 5.
  • 16. Concord’s website, accessible at: http://bit.ly/1l1K8eZ.
  • 17. Decision of the Secretary of State, 1 April 2013, nr. lNDVITI3-273, 110.
  • 18. Lieneke Luit, Pink Solution, inventarisatie van LHBT asielzoekers (Inventory of LGBTI asylum seekers), accessible at: http://bit.ly/1MyMHfE.
  • 19. De Volkskrant, 'Wat kunt u vertellen over de homoscene in uw land?', 26 February 2014. Rectified “De Volkskrant,” 27 February 2014.
  • 20. Council of State, 201110141/1/T1/V2, Judgment of 30 March 2013.
  • 21. CJEU, Joined Cases C‑148/13, C‑149/13 and C‑150/13 A, B and C, Judgment of 2 December 2014.
  • 22. Council of State, 201208550/1, 201110141/1 and 201210441/1, Judgment of 8 July 2015.
  • 23. Work Instruction 2015/9, October 2015, accessible at http://bit.ly/2k8Wl4x.
  • 24. Council of State, 201601800/1, Judgment of 16 June 2016 (et al.).
  • 25. Article 3:114 Aliens Regulation.
  • 26. Article 69(2) Aliens Act.
  • 27. Article 82 Aliens Act. The Aliens Act is a part of the GALA in the sense that the Aliens Act is the lex specialis and the GALA is the lex generalis. In theory it is therefore possible that in some cases an asylum request is rejected on the GALA instead of the Alien Act but it is very unlikely that this is going to happen in practice. See Article 4(6) GALA in relation to Dublin.
  • 28. Article 69 (2) Aliens Act.
  • 29. Article 83 Aliens Act.
  • 30. Article 70(1) Aliens Act.
  • 31. Tweede Kamer, Explanatory notes on the implementation of the recast Asylum Procedures Directive (Vergaderjaar 34 088, number. 3, 2014–2015), 22 and Chapter 8.5 GALA.
  • 32. Article 8:106 GALA.
  • 33. Article 10 Aliens Act.
  • 34. Circular payments legal aid in the new asylum procedure (Beleidsregel vergoedingen voor rechtsbijstand in de nieuwe asielprocedure), accessible at: http://bit.ly/1HS8gek.
  • 35. Article 12 Law on legal aid (Wet op de rechtsbijstand Wrb).
  • 36. Decision of the Secretary of State 10 September 2013, starting 1 October 2013 regarding the modification of decision on own contribution litigant and legal aid (Besluit aanpassingen eigen bijdrage rechtzoekenden en vergoeding rechtsbijstandverleners), Publication of the State (Staatsblad) 2013, 345.
  • 37. NJ Blog, Mies Westerveld and Marc Wijngaarden, 7 October 2013, accessible at: http://bit.ly/1Od3Uhy. On 20 November 2013, a debate took place in Parliament on this issue.

About AIDA

The Asylum Information Database (AIDA) is a database managed by the European Council on Refugees and Exiles (ECRE), containing information on asylum procedures, reception conditions, detenti