Criteria and restrictions to access reception conditions

Netherlands

Author

Dutch Council for Refugees - VluchtelingenWerk Nederland

The regime of reception conditions for asylum seekers has been laid down in a number of legislative instruments, of which the Central Agency Act for the Reception of Asylum Seekers (Wet Centraal Orgaan opvang Asielzoekers) is the most important. The 2005 Regulation on benefits for asylum seekers (Regeling verstrekkingen asielzoekers 2005) is based on this Act and it is of greatest importance in practice. This Regulation defines who is entitled to reception conditions and who is exempt from this right. The organisation responsible for the reception of asylum seekers is the COA. This is an independent administrative body that falls under the political responsibility of the Secretary of State of Security and Justice.

The Secretary of State is also entitled to exclude certain categories of asylum seekers from reception conditions when there is an emergency in terms of capacity. The COA only provides reception to the categories of people listed in the 2005 Regulation on Benefits for asylum seekers. The system is based on the principle that all asylum seekers are entitled to material reception conditions. However, according to Dutch legislation only asylum seekers who lack resources are entitled to material reception conditions.1 During the whole asylum procedure the COA is responsible for the reception of asylum seekers.

During the preparation period an individual is already considered an asylum seeker under the 2005 Regulation on benefits for asylum seekers because this person has lodged an application for asylum. So already during the preparation period an individual is entitled to reception.

When the asylum application is rejected during the regular asylum procedure, the asylum seeker continues to be entitled to reception facilities until four weeks after the negative decision of the IND.2 After those four weeks, the asylum seeker has to leave the reception centre. To avoid this precarious situation an asylum seeker can make a request for an 'immediate' provisional measure as soon as it is clear that the court will not decide within this four week period.3 Making such a request for a provisional measure ensures that after the four week period the asylum seeker is still entitled to stay in the reception centre while the appeal is still pending.

Asylum seekers who receive their negative decision in the asylum procedure are in principle granted a four week period to appeal this decision at the court. During these four weeks they are entitled to reception conditions. If the asylum seeker makes use of the possibility to appeal the first instance decision within these four weeks the right to reception conditions continues until four weeks after the verdict of the court.4

When an asylum seeker wishes to lodge a subsequent asylum application they have to fill in a separate form. For more information see section on Subsequent application.

After a subsequent asylum application has been rejected in the extended asylum procedure, no voluntary departure period is granted.5 An appeal against a negative decision for subsequent applications has no suspensive effect.6 Since the asylum seeker who submitted a subsequent application in principle has to leave the territory immediately after a negative decision there is no right to reception conditions.7 Of course there is still an opportunity to appeal and request a provisional measure. Only after this appeal or provisional measure has been granted can the asylum seeker benefit from reception conditions once again.8

In theory reception facilities can be withdrawn or refused if asylum seekers have resources of their own. In practice this rarely happens but it is a possibility.  For instance, it has recently come to the attention of the Dutch Council for Refugees that the COA considers asylum seekers that have a derived refugee status (based on their relationship with a refugee) and that now want to get a divorce and lodge their own asylum application, as still having enough resources. According to the COA, these people are to be regarded as spouses of people who have a right to housing in the municipality, even when they filed for divorce, and as such they can be considered as asylum seekers with enough resources of their own. They are therefore not entitled to reception facilities.

There is no specific assessment to determine whether the asylum seeker is destitute. But there are more or less some guarantees that asylum seekers do not become destitute. For instance, if an asylum seeker has financial means of a value higher than the maximum resources allowed in order to benefit from the social allowance system (around €6,000 for a single person), the COA is allowed to reduce the provision of reception conditions accordingly but with a maximum of the economic value equivalent to the reception conditions provided. 9

Asylum seekers are entitled to material reception conditions after they have shown their wish to apply for asylum. This can be done by registering themselves in the Central Reception Centre COL in Ter Apel. The actual registration of the asylum application will happen after spending at least six days (three weeks for minors) at a reception location. During this time the asylum seeker is entitled to reception conditions stipulated in Article 9(1) of the 2005 RBA.10 The organ responsible for both material as well as non-material reception of asylum seekers is the COA, according to the Wet COA.11

The material reception conditions are not tied to the issuance of any document by the authorities but the IND will issue a temporary identification card (W document) to asylum seekers while their asylum application is still in process. The asylum seeker can use this W document to prove their identity, nationality and their lawful stay in the Netherlands.12 If such a document is not issued, the asylum seeker can apply for this. The law makes it clear that the asylum seeker is entitled to such document.13 There are no reports indicating that asylum seekers are unable to access material reception conditions or that there are any obstacles which prevent asylum seekers from accessing material reception conditions in practice if they are entitled to it.

  • 1. Article 2(1) Regulation on benefits for asylum seekers.
  • 2. From this moment the asylum seeker officially falls under the scope of the 2005 Regulation on benefits for asylum seekers.
  • 3. District Court Den Bosch, 11/25103, Judgment 1 September 2011.
  • 4. Article 5 Regulation on benefits for asylum seekers.
  • 5. Article 62(2)(b) Aliens Act.
  • 6. Article 82(2)(b) Aliens Act.
  • 7. Article 62 Aliens Act.
  • 8. Article 3(3)(a) Regulation on benefits for asylum seekers.
  • 9. Article 20(2) Regulation on benefits for asylum seekers.
  • 10. Article 9(1) Regulation Benefits asylum seekers.
  • 11. Article 3(1) Regulation on benefits for asylum seekers.
  • 12. Accessible at: http://bit.ly/1PLOnXD.
  • 13. Article 9 Aliens Act.

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