Author
Making and registering the application
Expressing the wish to apply for asylum does not mean that the request for asylum has officially been lodged. Asylum applications can be lodged at the border or on Dutch territory. Any person arriving in the Netherlands and wishing to apply for asylum must report to the IND.
If an asylum seeker from a non-Schengen country arrives in the Netherlands by airplane or boat, the application for asylum is to be made before crossing the Dutch external (Schengen) border, at the Application Centre at Schiphol Airport (AC). The Royal Military Police (KMar) is primarily responsible for the registration of those persons who apply for asylum at the international airport.[1] The KMar refuses the asylum seeker entry to the Netherlands if they do not fulfil the necessary conditions, and the asylum seeker will be detained in the Border Detention Centre (Justitieel Complex Schiphol, JCS).[2] In recent years, no problems have been reported by asylum seekers as regards the fact that the KMar did not recognise their claim for international protection as an asylum request. The IND takes care of the transfer of the asylum seeker to the AC, where further registration of the asylum application takes place. The AC is a closed centre. It sometimes happens that an application cannot be registered immediately, for instance when no interpreters are available. In this situation, an asylum seeker can be detained in the JCS.
If an asylum seeker enters the Netherlands by land, they have to lodge their asylum request at the Central Reception Centre (Centrale Ontvangstlocatie, COL) in Ter Apel (nearby Groningen, north-east of the Netherlands), where the registration takes place.
If an asylum seeker is already on Dutch territory, they are expected to express the wish for asylum to the authorities as soon as possible after arrival in the Netherlands, which is, according to jurisprudence, preferably within 48 hours.[3] Asylum requests lodged within 48 hours after arrival are deemed to be lodged ‘promptly’ (onverwijld). The IND can negatively weigh the circumstance that an asylum request is not lodged within 48 hours, but this cannot on its own justify a negative decision.[4]
As a rule, after registration at the AC, asylum seekers immediately go to the COL. After the registration procedure in the COL, they are transferred to a Process Reception Centre (Proces Opvanglocatie, POL).
The application/registration procedure in the COL takes three days. The Aliens Police (AVIM, Vreemdelingenpolitie) takes note of personal data such as name, date of birth and country of origin. Data from Eurodac and the Visa Information System (VIS) are consulted and AVIM registers the application in Eurodac. The asylum application is formally lodged at the Immigration and Naturalisation Service (IND). Every asylum seeker must complete an extensive application form at the start of the registration procedure, containing questions regarding their (1) identity; (2) place and date of birth; (3) nationality, religious and ethnic background; (4) date of leaving the country of origin; (5) arrival date in the Netherlands; (6) earlier stays in one or more third countries if applicable; (7) identity cards and/or passport; (8) itinerary; (9) schooling/education; (10) military services; (11) work/profession; and (12) living environment and family.[5]
Subsequently, the IND conducts a registration interview (Aanmeldgehoor). During the registration interview, questions can be asked about identity, nationality, travel route and family members. This is mainly to establish whether the asylum seeker is the person they claim to be. Additionally, the IND briefly questions the asylum seeker as to their reasons for requesting asylum, in order to assess the complexity of the case, to better prepare for subsequent steps to be taken during the rest of the procedure, and to determine whether the asylum seeker is in need of specific procedural guarantees.[6]
The Aliens Decree on the Regular Procedure (“Track 4”) was amended and entered into force on 25 June 2021.[7] Consequently, amongst other changes, the registration procedure, including the registration interview, was formally laid down in the Aliens Decree. Since the amendment, the immigration officer explicitly asks the asylum seeker,about the reasons for fleeing their country of origin. This also applies to unaccompanied minors. This change was criticised by the Dutch Council for Refugees, given that during the registration procedure, the asylum seeker does not benefit from legal assistance and is not entitled to recieve individualised information. As a result, the asylum seeker is not be informed about the impact of their statements regarding reasons for fleeing their country of origin. It should be noted that asylum seekers receive several brochures from the IND at the start of the registration procedure. However, the brochures just provide general information about the asylum procedure in the Netherlands, and cannot be considered a substitute for individualised assistance. On 25 February 2022, the Regional Court of Zwolle agreed with the asylum seeker that due to their explicit request for legal assistance at the start of the application procedure not being addressed, the State Secretary had violated the principle of due care.[8]
Due to the extensiveness of the registration form and its follow up registration interview, the first (verification) interview on day 1 of the Regular Procedure has been abolished.
However, due to the high number of asylum applications and the ongoing capacity problems at the IND, the above described procedure has not always been followed in recent years. Instead, an alternative procedure has been introduced. Depending on both the capacity of the Aliens Police and the available accommodation at the COL in Ter Apel, either the regular registration phase as outlined above is followed, or temporary ‘waiting areas’ are installed for a period of time. From September 2022 to March 2023, asylum seekers travelling to Ter Apel were not registered immediately. Instead, they were only ‘pre-registered’ (voorregistratie), where only the asylum seeker’s identity, nationality and origin were noted. Following this pre-registration, asylum seekers were transported to a different location (the main one being Zoutkamp, some 100 kilometers north-west of Ter Apel). Whilst staying at Zoutkamp, asylum seekers had to wait for the confirmation of their appointment to register them in Ter Apel or Budel. This waiting period could take several weeks, up to four months. This pre-registration procedure was not used in the period following March 2023, as there was enough capacity at Ter Apel to register and accommodate arriving asylum seekers.
However, this pre-registration procedure was put in use again during the summer of 2023, due to the lack of capacity of the Aliens Police and lack of available accommodation. Different ‘pre-registration locations’ (voorportaallocaties) are in use at different times, dependent on the capacity every day. In weeks where the influx of asylum seekers is lower, it can be that they can be registered immediately after arrival in Ter Apel. In more busy weeks, people are temporarily transported to pre-registration locations across the country, for example in Assen, Amsterdam, Biddinghuizen, Leeuwarden and Stadskanaal.
In the first weeks of 2024, it was communicated that the backlog of asylum seekers still to be registered is decreasing. However, it is expected that the ‘pre-registration locations’ will remain open for the time being to accommodate the capacity problems[9] (see for more information Asylum Procedure – Short overview of the asylum procedure).
The rest and preparation period (RVT)
Exclusively in Track 4, the asylum seeker is granted a rest and preparation period. This starts when the registration interview has taken place and the registration phase has ended.[10] The rest and preparation period is designed to give first-time asylum applicants some days to cope with the stress of fleeing their country of origin and the journey to the Netherlands.
The rest and preparation period takes at least 6 days.[11] It is primarily designed to provide the asylum seeker some time to rest. Additionally, it provides the organisations involved time to undertake several preparatory actions and investigations. The main activities during the rest and preparation period are:
- Investigation of documents conducted by the KMar;
- Medical examination by an independent medical agency (MediFirst) which provides medical advice on whether the asylum seeker is physically and psychologically capable to be interviewed by the IND;
- Counselling by the Dutch Council for Refugees (VluchtelingenWerk Nederland); and
- Appointment of a lawyer and substantive preparation for the asylum procedure.
The rest and preparation period is not available to asylum seekers following the Dublin procedure (Track 1) or those coming from a safe country of origin or who receive protection in another EU Member State (Track 2). Furthermore, there is no rest and preparation period in the following situations:
- The asylum seeker constitutes a threat to public order or national security;[12]
- The asylum seeker causes nuisance in the reception centre;[13]
- The asylum seeker is detained on the basis of Article 59b Aliens Act;[14]
- The application is a subsequent application for asylum.[15]
The rest and preparation period takes at least 6 days, while no maximum number of days is indicated. During the entire rest and preparation period, asylum seekers have access to accomodation and medical aid. From 2018 onwards, this period has been considerably extended due to the IND’s delays, meaning it can last more than a year. This means asylum seekers often have to wait more than a year for the detailed interview, which marks the end of this stage.
Backlog
In March 2020, 15,350 asylum applications lodged before 1 April 2020 were passed on to a newly established Task Force, with the aim of clearing the backlog before the end of 2020. The Task Force did succeed in doing so.[16] In June 2021, the Task Force was dissolved; afterwards, the remaining 1,520 cases were transferred to another department.[17]
Although the Task Force took over the backlog from the IND, due to an increase of applications, a new backlog of 6,400 applications arose in the last months of 2021. The objective to clear it during the first quarter of 2022 was not met, and the backlog continues to grow rapidly.[18] At the end of 2022, the total backlog of asylum cases (first and subsequent asylum requests, excluding family reunification requests) was 32,370. This number grew to 44,030 at the end of November 2023.[19]
In March 2023, statistics on the processing time shows that it takes 43 weeks, when the Regular Procedure starts, for a decision to be taken. When the application is referred to the extended procedure, on average, 48 weeks pass before a decision is taken.[20] In recent months, the IND has not published the average time taken for a decision, but they have published the average waiting times for the interviews. For Dublin Procedures (Track 1), asylum seekers have to wait seven weeks before their first interview. Asylum seekers from a safe country of origin or already benefiting from international protection in another member state (Track 2) have to wait on average eight weeks before they meet with the IND. In the Regular Procedure (Track 4) it takes on averages 14 weeks before the registration interview takes place (note that theoretically, this interview should happen on the third day after the asylum request). After this interview, another 37 weeks elapse on average before the detailed interview takes place.[21] This means that on average, the detailed interview takes place almost one year after the asylum request. However, after the detailed interview, the IND can also take several weeks or months to reach a decision, leading to a large amount of asylum seekers waiting for more than 15 months before a decision is issue. As the statistics show, the number of cases that have not been decided upon after 15 months has grown from 1,610 in November 2022 to 5,490 in November 2023.[22]
Legal penalties
In 2019, the IND was obliged to pay a large sum in legal penalties (dwangsommen)[23] to asylum seekers whose application had not been decided upon within the legal time frame of 6 months.[24] On 31 January 2020, around 8,900 individual cases had not been dealt with within the legal time limit of 6 months.[25] Therefore, the ‘Temporary Act on suspension of penalties for the IND (Tijdelijke wet opschorting dwangsommen IND)’ was passed by the Dutch Parliament and entered into force on 11 July 2020.[26] Under the Temporary act, asylum seekers were excluded from giving the IND a notice of default,[27] going to the regional court and receiving a legal penalty in cases where the IND does not decide upon their application in time. The Temporary Act did not apply to cases in which the legal time frame had already passed and the IND had been given notice of default by the asylum seeker. On 11 July 2021, one year after its entry into force, the Temporary Act expired. However, one of the Act’s articles stipulated that if a proposal for a new act was submitted before the expiration of the Temporary Act, that would entail its extension for the duration of one year.[28] Under the Temporary Act that entered into force on 11 July 2022 the possibility of receiving legal penalties was still suspended.
However, on 30 November 2022 the Council of State ruled, in two separate cases, that the Temporary Act was partially not in accordance with European Law.[29] Regarding the judicial penalty (rechterlijke dwangsom), the Council of State judged that by suspending the ability of receiving judicial penalties, asylum seekers did not have an effective way of forcing the IND to take a decision regarding their asylum application. Therefore, the Temporary Act was deemed incompatible with the right to an effective remedy stemming from article 47 of the Charter of Fundamental Rights of the European Union, preventing asylum seekers from being able to exercise their rights.[30] Following this judgment, the IND published a new Information Message outlining the new policy that for any ongoing and future cases, judicial penalties would be forfeited.[31]
Regarding the administrative penalty (bestuurlijke dwangsom), which is automatically forfeited after two weeks from the submission of the notion of default, the Council of State evaluated that its abolition under the Temporary Act conformed to the existing legal framework. The main reasoning for this is the administrative penalty is a measure that goes beyond the minimum rules dictated by the recast Asylum Procedures Directive. Considering that asylum seekers would still be able to enjoy their rights by receiving only the corresponding amount from a judicial penalty, abolishing the administrative penalty in asylum cases was deemed legal.[32] As a result, in ongoing and future asylum cases, no administrative penalties will be forfeited.
Due to the large number of cases received over the last year and the arrival of a large number of asylum seekers from Afghanistan and people fleeing from Ukraine, in September 2022 the IND decided to extend the time limit for deciding to 9 months in all cases where the 6-months time limit had not yet expired on 27 September 2022. In addition, for all asylum applications lodged after 27 September 2022, the time limit was pre-emptively extended by 9 months, meaning that the IND can take a maximum of 15 months to decide on asylum applications lodged after 27 September and before 1 January 2023.[33] For some asylum seekers, this means that the IND can take the maximum number of months (21) to decide on their asylum application. On 3 February 2023, it was announced that this measure would also be in place for asylum requestions lodged between 1 January 2023 and 1 January 2024.[34] On 19 December 2023, the decision to extend this measure for asylum requests lodged during 2024 was announced.[35] The IND can thus take at least 15 months to decide on asylum requests lodged until at least 1 January 2025.
On 23 November 2022, the Regional Court of Den Bosch ruled in favour of the (first) general extension of the time limit for deciding.[36] On the contrary, on 6 January 2023, the Regional Court of Amsterdam issued a judgement declaring the time limit extension unlawful.[37] The IND argued that, due to the numerous new arrivals – especially regarding Afghan and Ukrainian nationals, but also many individuals later channelled into the Dublin procedure – it was impossible to manage the existing caseload. Despite this, the Court maintained that, even though there was an increase in the amount of asylum applications, it was not of such magnitude that the threshold included in art. 42(4)(b) Aliens Act was reached. In the months that followed, numerous other courts followed the judgment of the Regional Court of Den Bosch. However, the State Secretary submitted an onward appeal with regards to the judgment of the Regional Court of Amsterdam, meaning the Council of State had to look into the issue. On 8 November 2023, the Council of State ruled that European Law was too ambiguous to determine whether the general extension of the time limit for deciding was legal. As a result, it referred preliminary questions to the Court of Justice of the European Union, asking for clarification regarding the definitions of ‘a large number of third-country nationals’, ‘simultaneously’ and ‘very difficult’ as laid down in Article 31(3)(b) of the Recast Asylum Procedures Directive.[38] These questions have been referred to the CJEU vis-à-vis the first extension, but the answers are also relevant for the second extension in 2023 (WBV 2023/3) and the last extension (2023/26) concerning 2024. Until the CJEU answers these questions, the IND holds on to the time limit of 15 months.
[1] KMar, Taken Marechaussee, available in Dutch at https://bit.ly/3OUzJCG.
[2] Article 3(3) Aliens Act.
[3] Council of State, Decision ABKort 1999.551, 20 September 1999.
[4] See for example: Regional Court of Den Bosch, Decision No NL21.10091, 9 May 2022.
[5] Article 3.109 Aliens Decree, paragraph C1/2.1 Aliens Circular and IND Work instruction 2018/15 Aanmeldgehoren en Verificatie eerste gehoren.
[6] IND, Working Instruction 2021/8, Aanmeldgehoren, available in Dutch at: https://bit.ly/3vFivz8.
[7] Amendment Aliens Decree, In verband met het regelen van de aanmeldfase en het vervallen van het eerste gehoor in de algemene asielprocedure, Staatsblad 2021, 250, available in Dutch at: https://bit.ly/3rb1rhJ.
[8] Regional Court Zwolle, ECLI:NL:RBDHA:2022:2666, 25 February 2022, available in Dutch at: https://bit.ly/3SXMbmp.
[9] The information above follows from meetings with the IND, COA, AVIM and the Dutch Council for Refugees. The IND website at time of writing also mentions the possibility of a ‘pre-registration’ at https://bit.ly/47rYv3m.
[10] Article 3.109 Aliens Decree.
[11] This occurs from practice and is not regulated by the law.
[12] Article 3.109(7)a Aliens Decree.
[13] Article 3.109(7)a Aliens Decree, for the definition of ‘nuisance’ see paragraph C1/2.2 Aliens Circular.
[14] Article 3.109(7)a Aliens Decree.
[15] Article 3.118b Aliens Decree.
[16] For further in-depth information about and analysis of the work of the task force, see previous updates to this country report available at: https://bit.ly/3SMHHji.
[17] AEF, Leren van de Taskforce Dwangsommen, toekomstgerichte evaluatie, 18 February 2022, available in Dutch at: https://bit.ly/3XfjoKB.
[18] Dutch Parliament, no 35476, nr H, 16 November 2021, available in Dutch at: https://bit.ly/3FiageD.
[19] IND, De IND in cijfers, 16 January 2024, available in Dutch at: https://bit.ly/48moKJP.
[20] IND, Doorlooptijden asielaanvraag, 4 January 2023, available in Dutch at: https://bit.ly/3vH7HQX.
[21] IND, Asiel: Laatste ontwikkelingen, available in Dutch at: https://bit.ly/3tMTVyZ.
[22] IND, De IND in cijfers, available in Dutch at: https://bit.ly/48moKJP.
[23] The Penalty Payments and Appeals for Failure to Make a Timely Decision Act, provides that a citizen can go to court when an administrative body does not take a timely decision and request a penalty payment. The Act entered into force in 2009, and has been applicable to the IND since October 2012. It foresees that an asylum seeker can receive a penalty payment following a non-timely decision.
[24] Article 4:17 GALA, Regional Court Arnhem, ECLI:NL:RBDHA:2019:12133, 14 November 2019, available in Dutch at: https://bit.ly/48gml2q; Regional Court Amsterdam, Decision No NL19.18215, 13 September 2019, not published on a publicly available website.
[25] KST 19637, nr. 2585, Doorlooptijden asielaanvragen IND en dwangsommen, 3 March 2020, available in Dutch at: https://bit.ly/3wqr5oU.
[26] Tijdelijke wet opschorting dwangsommen IND’, available in Dutch at: https://bit.ly/3bQlRql.
[27] This means that the lawyer concerned has to inform (in writing) the IND that it has exceeded the time limit of 6 months and has to request the IND to issue a decision within a maximum period of 2 weeks.
[28] Tijdelijke wet opschorting dwangsommen IND, available in Dutch at: https://bit.ly/3bQlRql, article 4.
[29] Council of State, ECLI:NL:RVS:2022:3353 and ECLI:NL:RVS:2022:3352, 30 November 2022, available in Dutch at: https://bit.ly/3HWrAcZ and https://bit.ly/3uhh4tK.
[30] Council of State, ECLI:NL:RVS:2022:3353, 30 November 2022, available in Dutch at: https://bit.ly/3HWrAcZ.
[31] IND, Information Message 2022/107 Afdelingsuitspraken d.d. 30 november 2022 inzake de Tijdelijke Wet dwangsom (3), 2 December 2022, no longer published on a publicly available website.
[32] Council of State, ECLI:NL:RVS:2022:3352, 30 November 2022, available in Dutch at: https://bit.ly/3uhh4tK.
[33] Amendment Aliens Circular, Besluit van de staatssecretaris van Justitie en Veiligheid, 26 September 2022, Staatscourant 2022, No 25775, available in Dutch at: https://bit.ly/3CsTDyj.
[34] IND, Information Message 2023/10 ‘Verlengen beslistermijn asiel’, available in Dutch at: https://bit.ly/3XLhL6U.
[35] WBV 2023/26, available in Dutch at: https://bit.ly/41XJwNl.
[36] Regional Court Den Bosch, Decision No. NL22.21366, 23 November 2022, available in Dutch at: https://bit.ly/49vETwS.
[37] Regional Court of Amsterdam, ECLI:NL:RBDHA:2022:12636, 6 January 2023, available in Dutch at: https://bit.ly/3w7jz29.
[38] Council of State, ECLI:NL:RVS:2023:4125, 8 November 2023, available in Dutch at: https://bit.ly/3SRLqMH.