Regular procedure

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General (scope, time limits)

The general asylum procedure (Track 4) is divided into a Regular Procedure (Algemene Asielprocedure) of 6 days and an Extended Procedure (Verlengde Asielprocedure). The assessment of each asylum application starts in the Regular Procedure. During this procedure, the IND can decide to refer the case to the Extended Procedure. There is also the option to extend the regular procedure with a number of days, without referring an applicant to the Extended procedure. This is called the Regular Procedure Plus, or AA+. In practice, this limited extension is not applied often. In an Evaluation report of the IND published in March 2023, only 0.6% of 34,576 cases were found to have been referred to the AA+.[3]

The laws, rules and policies regarding the Asylum Procedure are included in the Aliens Act, the Aliens Decree, the Aliens Regulation and the Aliens Circular.

Regular Procedure (Algemene Asielprocedure)

A decision on an asylum application in the Regular Procedure currently has to be issued within 6 working days.^[4] This deadline may be extended.

The asylum procedure is preceded by a registration phase (see Making and registering the application). Firstly, an asylum seeker has to fill out a registration form containing questions regarding their nationality, identity, travel route and documentation.^[5] The completed form is followed by a registration interview (Aanmeldgehoor). During the registration interview, questions can be asked regarding an asylum seeker’s identity, nationality, travel route and family members. Since the formal introduction of the registration interview, the IND will also briefly inquire about the reasons for seeking asylum. The completed form and interview play an essential part in the asylum procedure. During the registration phase, the asylum seeker does not benefit from legal assistance and does not obtain (individualised) information from the Dutch Council for Refugees. As a result, the asylum seeker will not be informed about the impact of his statements regarding reasons for fleeing his country of origin or other statements he makes, for example regarding his identity and/or nationality. As Amnesty International concluded in its report ‘Bewijsnood, Wanneer nationaliteit en identiteit ongeloofwaardig worden bevonden’, once the State Secretary (IND) establishes that the identity or nationality of the asylum seeker is not credible, it will be very difficult for them to refute this evaluation.^[6] In addition, failure to provide sufficient evidence of the nationality and/or identity can lead to the IND not assessing the need for protection itself.^[7] The Council of State has consistently judged that this practice is permitted, as the motives for requesting asylum only hold value against the background of the identity, nationality and origin of a person.^[8]

Seeing the extensiveness of the form and its follow up registration interview, the verification interview, which was taken on the first day of the short asylum procedure, has been abolished since the amendment of the Aliens Decree regarding the Regular Procedure.^[9]

After the registration phase, the asylum seeker is given time to rest and prepare for the asylum procedure. In theory this rest and preparation period (RVT) lasts a minimum of 6 days.^[10] In practice, it can last several months. On one of the last days of the RVT, the asylum seeker meets their lawyer. This is called ‘Day -1’, because the Regular Procedure starts in the following days. The asylum seeker and the lawyer discuss the statements made during the registration interview, and prepare for the Regular Procedure and more specifically, the detailed interview. After this meeting the RVT ends, and the Regular Procedure starts.

For a clear understanding of the current Regular Procedure, it is important to indicate what happens during these 6 days. In short, on the odd days the asylum seeker is in contact with the IND and on the even days with their legal advisor / lawyer:^[11]

The IND takes a decision based on the information stemming from the registration interview and the detailed interview and information from official reports and other country information. An intended decision to reject the asylum application must be motivated and take into account the lawyer’s view in writing.^[13]

Extension of the Regular Procedure (Algemene Asielprocedure+ or AA+)

In the past, the Regular Procedure could be extended during the procedure up to 14, 16 or 22 days. Since 25 June 2021, when the amendments to the Aliens Decree regarding the Regular Procedure came into force, the 6 days of the asylum procedure can be extended before the start or during the procedure. When the IND decides to extend the procedure before its start, for example due to medical reasons, if the asylum seeker is not able to be interviewed or there are indications that the assessment of the asylum claim cannot take place within the 6 days of the Regular Procedure, the procedure is extended by 3 days.^[14]  In these cases, the Regular Procedure takes 9 days.^[15]

When the IND decides to extend the Regular Procedure during the procedure, for example when more time is needed to assess the identity or nationality of the asylum seeker or the asylum seeker did not show up for their detailed interview the Regular Procedure can be extended by 12, 14 or 20 days.^[16]

When there is a combination of grounds from Article 3.115(1) and (2) Aliens Decree then the Regular Procedure could be extended up to 21, 23 or 29 days.^[17]

Extended Procedure (Verlengde Asielprocedure)

When the IND is not able to assess the asylum claim and issue a decision within the time frame of the (extended) Regular Procedure, it has to refer the case to the Extended Procedure. Cases of minors under the age of 12 years and cases of asylum seekers who, due to medical reasons, cannot be interviewed are also referred to the Extended Procedure.^[18] When the case is referred to the Extended Procedure, the asylum seeker is relocated from a POL to a centre for asylum seekers (Asielzoekerscentrum, AZC).

In general, the detailed interview takes place in the Regular Procedure, but both the detailed interview and an (optional) additional interview can also take place in the Extended Procedure. If there is an intention to reject the request during the Extended Procedure, the asylum seeker and their lawyer are given 4 or 6 weeks to submit an opinion on the intended decision.^[19] The IND has to issue a new intended decision if it changes its grounds for rejecting the claim substantially from the written intention in the Regular Procedure.^[20]

If an asylum application is examined in the Extended Procedure, the maximum time limit for deciding is 6 months. According to Article 42(4) of the Aliens Act, transposing Article 31(3) of the recast Asylum Procedures Directive, this time limit can be extended by 9 months if, for example, the case is complex or there is an increased number of asylum applications at the same time. This last reason has been used by the Dutch government to extend the time limit for deciding by 9 months for all asylum requests submitted after 27 September 2022. This extension was also issued for the entirety of the year 2023.^[21] On 19 December 2023 it was announced that this measure was also imposed for asylum requests made during 2024.^[22] The Council of State has submitted preliminary questions to the European Court of Justice regarding the interpretation of this provision since it is a transposition of article 31(3)(b) Asylum Procedures Directive (see Legal penalties).^[23] In addition to the 9-month prolongation, the time limit can be extended by another 3 months according to Article 42(5) of the Aliens Act. In no case may the maximum time limit of 21 months be exceeded.^[24]

In March 2023, the statistics on processing times showed that it takes 43 weeks when the Regular asylum 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.^[25] 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.^[26] This means that on average, the detailed interview takes place almost one year after the asylum request.

Prioritised examination and fast-track processing (“Tracks 3 and 5”)

Track 3 foresees a fast-track procedure for applicants who are prima facie likely to be granted protection, for instance applicants from countries such as Syria and Yemen. Track 5 applies to the same cases, where nationality or identity documents have not been submitted yet. There is no prioritised examination and fast-tracking processing in practice, as neither Track 3 nor Track 5 have been applied in previous years. For now, asylum seekers from these countries are handled in Track 4.

Personal interview

The law requires the IND to organise a personal interview for all asylum seekers.^[27] Every asylum seeker undergoes a detailed interview with the exception of applications handled in the Dublin Procedure (Track 1) and the Accelerated Procedure (Track 2). The registration interview is designed to clarify nationality, identity and travel route. It became less exhaustive in 2019 following the introduction of an extensive form and a follow-up interview at registration stage. In the detailed interview, the asylum seeker is given the opportunity to explain the reasons for fleeing their country of origin.^[28]

Interviews are always conducted separately, meaning family members that apply for asylum together are interviewed individually. This is to ensure that everyone has the chance to tell their individual reasons for requesting asylum. Children under the age of 15 that request asylum as part of their parents’ asylum requests, are in principle not interviewed. However, in some cases this may occur, for example if the child requests this or if the child has individual reasons for requesting asylum. The interview will take place separate from the parents’ interviews. Children over the age of 15 request asylum independently (so not linked to the parents’ asylum request). As a result, the IND will interview them, separately. Unaccompanied minors between the ages of 6 and 12 (not included) are interviewed in special rooms designed to be safer and more comfortable for children. The interview takes place with the Nidos guardian present. If an interview is difficult to conduct, other solutions will be explored.^[29] There is no extensive training and specialisation when it comes to interviewing children.^[30]

Exceptionally, family members or other people lending support can be present at an asylum seeker’s interview. This only occurs if their presence is ‘necessary fitting support’, and has to be supported with medical documentation.^[31]

Vulnerable Persons

The asylum seeker can express the wish to be interviewed by an employee of the IND of theirown gender; this includes the interpreter. This may make it easier for an asylum seeker to present claims related to sensitive issues, such as sexual violence.^[32]

In the past, there have been concerns regarding the questions asked during interviews with persons persecuted due to their sexual orientation. These persons had been questioned, for example, on their sexual behaviour and their personal feelings.^[33] In a judgment of 2 December 2014, the CJEU clarified the methods which national authorities may use to assess the credibility of the declared sexual orientation of applicants for international protection.^[34] As a result, the Council of State established that the fact that asylum seekers cannot showcase sufficient proof regarding their connection to the LGBTQI+ community (be it in the Netherlands or in their country of origin) cannot be considered a decisive element to determine  the lack of credibility of their asylum claim.^[35]

The IND’s Work Instruction 2015/9 was followed by new IND Work Instructions: 2018/9 and 2019/17. Work Instruction 2019/17 is currently in force and lays down the elements that have to be taken into account while assessing the credibility of one’s sexual orientation. These include the following: the private life of the asylum seeker; their current and previous relationships and contacts with LGBTQI+ communities in their country of origin and in the Netherlands, and discrimination, repression and persecution in the country of origin. The emphasis is put on the personal experiences of the asylum seeker. However, the State Secretary stressed that the new Work Instructions 2018/9 and 2019/17 do not entail a new assessment framework compared to Work Instruction 2015/9. This has been confirmed in Council of State judgments.^[36]

Work Instruction 2021/9 outlines the policy regarding asylum seekers in need of special procedural needs. The medical check by MediFirst, which occurs during the rest and preparation period, determines whether procedural needs are necessary, for example for people having experienced traumatic experiences in the past, human trafficking or sexual violence in country of origin or during the trip to the Netherlands. Procedural guarantees can consist of more time taken to conduct the interview, more breaks, less focuses on exact dates (in case of head trauma), the presence of a third person, or a written interview instead of an oral interview.^[37] IND personnel must constantly be vigilant whether the asylum seeker is in need of any special measures. This is not limited to the period leading up to the detailed interview. If a medical examination did not show any need for procedural measures, but during the interview the asylum seeker seems distressed, unwell, nervous, tired or even suicidal, the IND must provide further assistance, which could mean stopping the interview and requesting a medical examination.^[38] This was for example ruled so recently by the Council of State, where it was also emphasised that in every Track the IND has the responsibility to be on the lookout for the special needs of asylum seekers.^[39]

Bespoediging Afdoening Asiel (‘BAA’)

In the last years, the IND has experimented with various measures and methods of hearing and deciding on asylum cases in order to try to decrease the backlog of cases. Multiple of these ‘pilots’ have been implemented, adopted and/or abolished. The subsections below will outline the main pilots used in the last years. Most of these pilots focus on Syrian and Yemeni, and to a lesser extent Turkish cases. This is due to the fact that these nationalities have a high probability of receiving international protection.

In March/April of 2023, the IND announced its intention to start a project in order to speed up the decision-making process for 13,000 Syrian and Yemeni cases. This project is called the ‘Bespoediging Afdoening Asiel’, or ‘speeding up handling asylum cases’ (not an official translation). The project officially started on 1 May 2023 and concerned asylum requests lodged between 1 May 2022 and 1 May 2023.^[40] On 19 December 2023, it was announced that the project required more time to process the 13,000 cases, due to a Parliamentary decision to stop the use of the written interview in asylum cases. The end date was moved to 1 August 2024.^[41] On 1 November 2023, 5,510 decisions had been taken.^[42]

The project itself is made up of different experimental methods, most of them already used in previous years:

• Written interview;
• Interviews at location;
• Combination interview.

In the announcement of the project, other methods were also considered, but in practice they have not been utilised.

Participation in the project is voluntary. In the invitation letter indicating the start of the procedure, it is stated that the request can be considered within one of the methods in the project.

Written interview

Written interviews were first introduced in 2021,[43] as a measure to accelerate the backlog clearing. Asylum seekers were asked to personally fill in a form at the IND. The written interview was limited to asylum seekers with the following nationalities: Syrian, Yemenite, Eritrean, Turkish and Iranian, as they are considered as more likely to be granted international protection.

After the conclusion of this pilot project ‘written interviews’ (schriftelijk horen), in October 2022 the IND started with a further pilot, offering written interviews to Syrian, Turkish and Yemenite nationals. The pilot involves nationals of the above-mentioned countries based on the likelihood of receiving protection. It was renamed to the ‘Paper & Ink procedure’, or PIP. During the project, the decision was made to exclude Turkish nationals from the project, as their asylum requests were too complicated to take a decision based on the written interview.[44]

The invitation to partake in a written interview was sent one week before the start of the written interview, which was deemed insufficient by lawyers. To determine who is eligible for the PIP, the IND screened asylum seekers and excluded those who are illiterate, in need of special medical guarantees, or people suspected of being a danger to public order and security. If based on the written interview the IND cannot take a positive decision on the asylum application, the asylum seeker will be referred to the Regular Procedure.^[45] The asylum seeker had the option to partake in the PIP or follow the regular procedure. However, in practice many asylum seekers chose to partake in the PIP regardless, because they were worried that otherwise it will take even longer for an interview to take place. The written interviews were referred to two external partners, Eiffel and Brunel, who advised on whether on the basis of the written interview the asylum seeker could be given an asylum permit. The IND always took the final decision. If the external partners could not give a positive opinion, the asylum seeker had to be heard in person in an additional interview. No statistics are available regarding the number of written interviews concluded in the PIP, and the IND did not evaluate the PIP. At the end of 2023, the Legal Aid Board conducted a survey with lawyers regarding the PIP.^[46] The results of this survey are not publicly available, but in general lawyers were pleased with the procedure for Syrians and Yemenites, provided that the screening takes place diligently. The role of the lawyer was generally conceived quite positively, as there was less preparation needed and the procedure was predictable. In addition, their clients received their decision earlier. A negative point was the rigidity of the written interview, as there was little room to ask for details and specifics about a case, or to clear up ambiguities.

With the start of the project BAA, it was announced that the written interview would be an important tool to reach the desired 13,000 cases. However, on 10 October 2023, a parliamentary motion was adopted to abolish the use of the written interview, due to fears of asylum permits being granted wrongfully and on the basis of negligent research.^[47] The decision to cancel the written interviews within the BAA project was finalised on 19 December 2023.^[48]

COVID-19:  interviews via videoconference

In order to minimise physical contact during the COVID-19 pandemic, the IND started conducting videoconference interviews in April 2020. The interviews by videoconference took place via a secure link for video conferencing. Via this link, the asylum seeker was able to speak with the IND staff members working from Zevenaar, Den Bosch, Schiphol or Ter Apel. Lawyers could use these facilities too. Unaccompanied minors and asylum seekers with medical problems were excluded from videoconference interviews.^[49] Initially, videoconference interviews were used for nationals of Syria, Türkiye and Yemen. This was later extended to nationals of other countries.^[50]

Since the resumption of in-person interviews due the end of the pandemic, interviews via videoconference have not been used frequently. In April 2021, the IND evaluated the use of interviews via videoconference, and stated they were looking into the possibility of further application of the instrument to future procedures.^[51] However, in the years following the pandemic, no additional documents have been published and it is uncertain whether any steps are being taken in view of a more extensive use of remote interviews. The only mentions of interviews conducted via videoconference occur in detention cases.^[52] No information is published by the IND or in court judgments as to whether in asylum cases this method is still in use.

Interviews at location

In 2022, the IND started interviewing certain asylum seekers at their accommodation, as opposed to the asylum seekers making an appointment and visiting the IND themselves.^[53] This instrument was introduced informally, and there is no official IND policy as regards to where these interviews are conducted. The IND has so far conducted interviews at different locations, mainly the emergency shelter locations such as boats which are not regularly used as accommodation, but because of the ongoing reception crisis many different places have been used to provide temporary shelter (see Access and forms of reception conditions). Due to the lack of an official policy on this matter, it is difficult to make sure all necessary steps in the procedure – regarding, for example, the provision of healthcare and legal support – are being followed. In addition, the IND only interviewed people of certain nationalities, which led to a high level of uncertainty for applicants, who could not know when they would be interviewed.  Apart from the fact that this method is being used, no more public information is available on this project.

With the start of the BAA project, it was announced that ‘interviewing at location’ would also be utilised. Dependent on the situation, the IND can visit a location and conduct the interview there. This could also happen in combination with another ‘pilot’, such as the written interview or the combination interview. Prerequisite for this method is the availability of a suitable location for the interviews.^[54]

Combination interview

In February 2023, the IND conducted 50 combination interviews with Syrian nationals in Ter Apel. The combination interview is one interview consisting of the questions asked during the registration and detailed interview. The registration interview is condensed to the core questions regarding identity, nationality and travel route. Afterwards, questions originating from the detailed interview are asked regarding the reasons for requesting international protection. The lawyer meets with the asylum seeker before the interview. No medical examination takes place before the interviews.^[55]

The combination interview is also used within the BAA project. The asylum seeker receives a letter inviting them to either a (shorter) Regular Procedure, a written interview or a combination interview. Unaccompanied minors are all subjected to combination interviews in Den Bosch.^[56] Unfortunately, no further information is available regarding the quantity of these interviews being conducted.

Interpretation

The asylum seeker is to be interviewed in a language that they may reasonably be assumed to understand.^[57] This means that in all cases an interpreter is present during the interviews, unless the asylum seeker speaks Dutch.^[58] The IND may only use certified interpreters by law.^[59] However, in certain circumstances the IND may derogate from this rule. For example, if there is a need for an interpreter in an urgent situation or if an asylum seeker speaks a very rare dialect.^[60] Interpreters are obliged to perform their duties honestly, conscientiously and must swear an oath.^[61] The IND uses its own code of conduct, which is primarily based on the general code of conduct for interpreters.^[62] The Legal Aid Board (Raad voor Rechtsbijstand) takes the necessary steps to ensure the presence of an interpreter facilitating the communication between asylum seekers and their lawyer. Interpreters may also provide their services via phone instead of in person through the ‘interpreter telephone’. This service is provided by AVB Vertaaldiensten and Global Talk and paid for by the Legal Aid Board.^[63]

Recording

The National Ombudsperson made recommendations in 2014 concerning the possibilities for civilians to record conversations with governmental institutions.^[64] The Ombudsperson recommended, inter alia, that a governmental institution should not refuse the wish of a civilian to record a hearing or conversation with a governmental institution. Said recommendation is also explicitly applicable in relation to asylum seekers and the IND. The Dutch Council for Refugees started a pilot project on 1 December 2016 at AC Zevenaar, providing asylum seekers with the opportunity to record the interview. Since 2017, the possibility to record interviews is provided to all asylum seekers in all applications centres. Asylum seekers must give notice of the wish to record the interview in advance. In practice, however, interviews are rarely recorded.^[65]

On day 2 and 4 of the  Regular Procedure, the asylum seeker and their 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 an intended decision to reject the asylum application, the lawyer submits their  view in writing with regards to the intended decision on behalf of the asylum seeker. If the lawyer’s view is not submitted on time (i.e. by day 6 of the Regular Procedure), the IND may decide without considering that view.^[66]  However, if the view is received by the IND prior to the publication of the decision, the IND has to consider it in their decision.^[67]

Appeal

Appeal before the Regional Court

In the Regular Procedure, an asylum seeker whose application for asylum is rejected on the merits within the framework of the Regular Procedure has one week to lodge an appeal before the Regional Court (Rechtbank).^[68] In the Extended Procedure, an appeal after a rejection of the asylum claim has to be – depending on the grounds for rejection – lodged within 1 or 4 week(s). Appeal against applications rejected as manifestly unfounded, dismissed as inadmissible, or rejected following implicit withdrawal or abandonment have to be lodged within one week.

The appeal against a negative in-merit decision in the Regular or Extended Procedure has automatic suspensive effect, except for situations where the claim is deemed manifestly unfounded for reasons other than irregular presence, unlawful extension of residence or not promptly reporting to the authorities.^[69]

The concept of “manifestly unfounded” (kennelijk ongegrond) is defined in Article 30b(1) of the Aliens Act as encompassing the following situations:

1. The applicant has raised issues unrelated to international protection;
2. The applicant comes from a safe country of origin;
3. The applicant has misled the Minister by providing false information or documents about his or her identity or nationality or by withholding relevant documents which could have a negative impact on the application;
4. The applicant has likely in bad faith destroyed an identity or travel document;
5. The applicant has presented manifestly inconsistent and contradictory statements or false information, rendering the claim clearly unconvincing;
6. The applicant has lodged an application only to postpone or delay the execution of a removal order;
7. The applicant has lodged an admissible subsequent application;
8. The applicant has irregularly entered or resided in the Netherlands and has not reported to the authorities as soon as possible to apply for international protection, without valid reason;
9. The applicant refuses to be fingerprinted;
10. There are serious grounds to consider that the applicant poses a risk to national security or public order;
11. The applicant has been expelled for serious reasons of public security or public order.

In cases where the appeal has no automatic suspensive effect, a provisional measure can be requested. 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 Central Agency for the Reception of Asylum Seekers (COA) accommodation.

The judgment of the CJEU of 19 June 2018 in the case Gnandi has led to a major discussion in Dutch case law regarding the suspensive effect of appeals in asylum cases.^[70] In the Netherlands, the judgment of the Court is especially relevant for cases in which the appeal does not have suspensive effect. In those cases, the asylum seeker can request a provisional measure, but while a decision on this request has not yet been taken, the asylum seeker may be placed in detention on the basis of Article 59(1)(a) of the Aliens Act. Additionally, the asylum seeker is not entitled to visitors once the departure period has expired.

According to the Council of State, detention was no longer possible on the basis of Article 59(1)(a) of the Aliens Act in cases where the asylum seeker is awaiting a decision on the request for a provisional measure.^[71] The Council of State concluded in this case that an asylum seeker could legally remain in the Netherlands during the period for lodging an appeal and during the appeal itself.^[72] The asylum seeker concerned had been detained in a removal detention centre after his asylum application was rejected as manifestly unfounded. The removal detention was subsequently considered illegal and the measure was lifted. Previously, the Council of State had put preliminary questions to the CJEU.^[73] The CJEU indicated that Directives 2008/115 and 2013/32 should be interpreted as precluding an asylum seeker, whose application has been rejected as manifestly unfounded, from being held in detention for the purpose of expulsion while he legally remains in the Netherlands until judgment is given on his request for a provisional measure.^[74] Should the State Secretary want to detain asylum seekers during this period, which is only possible based on the provisions of the Reception Directive, the law will have to be amended.

It was initially unclear whether the Gnandi judgment was applicable in cases in which an asylum seeker makes a second or subsequent application. However, the Council of State concluded that, in a case involving a fourth asylum application with the asylum seeker having been placed in detention, the Gnandi judgment did apply.^[75] As a result, the legal effects of the return decision were suspended.

According to the Council of State the Gnandi judgment is also applicable in case the asylum application was rejected in the border procedure.^[76] The Aliens Act, in particular Article 82, has still not been adjusted to incorporate the Gnandi judgment.

Scope and intensity of review

The intensity of the judicial review conducted by Regional Courts (administrative judges) changed in 2016. According to the Council of State’s judgment of 13 April 2016, Article 46(3) of the recast Asylum Procedures Directive does not impose a general intensity of judicial review under administrative law in asylum cases and thus 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 review). 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 their own opinion on the credibility of the asylum seeker’s statements to the authorities’. Where the asylum seeker makes contradictory or inconsistent statements, the review can be more intensive. Before 2016, the other elements – not the credibility of the statements – for assessing whether the asylum seeker qualifies for international protection (de zwaarwegendheid) had always been reviewed intensively by Regional Courts.

Regional courts thus rule whether the grounds of a decision of the IND are valid, taking into account the grounds for appeal from the asylum seeker and the arguments of the IND. When the grounds are not valid, the IND has to take a new decision.

Furthermore, when assessing the appeal, the Regional Court takes into consideration all new facts and circumstances which appear after the decision issued by the IND. This is the so-called ex nunc examination of the appeal.^[77]

Onward appeal before the Council of State

After the Regional Court issues a judgment regarding the IND’s decision, both the asylum seeker and  the IND may appeal the decision of the Regional court to the Council of State.^[78] The IND makes use of this possibility especially in matters of principle, for example if a Regional Court concludes that a particular minority is systematically subjected to a violation of Article 3 of the European Convention on Human Rights (ECHR). The Council of State carries out a marginal ex tunc review of the Regional Court’s judgment and does not examine the facts of the case.^[79]

In April 2017, the Council of State referred preliminary questions to the CJEU on whether an onward appeal in asylum cases should have automatic suspensive effect. The Council of State in doing so referred to the Return Directive, the Asylum Procedures Directive and Article 47 of the EU Charter on the right to an effective remedy. On 26 September 2018, the CJEU ruled that it cannot be derived from these European legal instruments that an onward appeal in asylum cases has automatic suspensive effect.^[80] Following this judgment, the Council of State ruled on 20 February 2019 that an onward appeal does not have automatic suspensive effect.^[81] As a result, a provisional measure from the President of the Council of State is needed to prevent expulsion.

Initially, a provisional measure could only be requested in case of urgency, such as imminent deportation, detention or termination of reception, but this condition no longer applies. The Council of State changed its course as a result of the ECtHR judgment in A.M. v. The Netherlands of 5 July 2016.^[82] According to the ECtHR, onward appeal to the Council of State, in its existing form, did not qualify as an effective remedy. The Council of State made clear that it is no longer necessary to wait for an expulsion date to be set. An asylum seeker can now submit a request for a provisional measure at the time of appeal.^[83] The Council of State also made clear that a request for a provisional measure preventing expulsion will be granted if the asylum request is considered to have an arguable claim in the sense of Article 3 ECHR.^[84] If granted, a provisional measure allows for reception facilities.

All decisions of the Courts and Council of State are public and some are published.^[85] 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 and other details, but if they have specific questions they can address them to the Dutch Council for Refugees. The legal representatives of the asylum seekers are responsible for the submission of the appeal.

Legal assistance

Every asylum seeker is entitled to free legal assistance.^[86] To ensure this right, the following system discussed in the next subsection was designed.

Free legal assistance at first instance

 An asylum seeker can only register their asylum request at an Application Centre (AC). There are lists at the Application Centres where asylum lawyers note their availability for that day. For instance, if five asylum lawyers are scheduled on a Monday, they are responsible for all the asylum requests that are made that day. Those lawyers are also physically present at the centre all day. The Legal Aid Board (Raad voor Rechtsbijstand), a state-funded organisation, is responsible for defining timetables and making sure that sufficient lawyers are available on a particular day. In this way, every asylum seeker is assigned a lawyer from the start of their procedure. In case a large number of applications are lodged on one day, it may also happen that lawyers are forced to accept an excessive number of cases. The Legal Aid Board schedules a certain number of lawyers to handle the asylum requests that come in that day, to a maximum of three cases per day.^[87]

An appointed lawyer from the Legal Aid Board is free of charge for the asylum seeker. However, an asylum seeker may choose a lawyer independently. If the Legal Aid Board recognises the self-appointed lawyer as an official asylum lawyer, it will pay for the costs. This happens in the vast majority of cases. There are no limitations regarding the scope of the assistance of the lawyer as long as they are paid. 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 under this system.

The Dutch Council for Refugees also provides legal assistance. During the rest and preparation period (see Registration), the Dutch Council for Refugees offers asylum seekers information about the asylum procedure. Asylum seekers are informed about their rights and obligations, as well as the different steps and stages of the procedure. Counsel 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 their lawyer. The Dutch Council for Refugees has offices in most of the reception centres.

Free legal assistance on appeal

Free legal assistance is also provided if an asylum seeker decides to appeal a negative decision.^[88] Every asylum seeker has access to free legal assistance under the same conditions. However, the lawyer can decide not to submit any written opinion – on day 6 of Regular Procedure – if they think the appeal is unlikely to be successful. In this scenario, the lawyer has to report to the Legal Aid Board and the asylum seeker can request a “second opinion”, meaning that another lawyer takes over the case.^[89] 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 does not submit a written opinion, this would be considered as ‘malpractice’ because submitting a written viewpoint is part of 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, this 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.

Limited financial compensation for lawyers representing asylum seekers can be an obstacle, as some lawyers consider the compensation they obtain in exchange for the time spent preparing a case insufficient. This means that some lawyers are underpaid in comparison to the time spent on a case, or that some cases are not prepared with sufficient care. Additionally, due to the economic crisis, more cutbacks had to be made within the state-funded legal aid system. As a result asylum lawyers’ salaries have decreased, leading to a structural problem of underpayment. To counter this, the Dutch government is raising the amount received per point that an asylum lawyer receives after the completion of a case.^[90] A point corresponds to the amount of time allocated to a specific case, meaning that for more difficult and time-intensive cases, lawyers will receive more money, more realistically reflecting the amount of time spent on the case.

^{[1] IND, Jaarcijfers 2023, Track 4 – first time applicants, repeated applicants, applicants whose application needs to be reassessed after a court decision, applicants who changed Track and resettled applicants, available in Dutch at: https://bit.ly/3TTfeJw.}

^{[2] The average length of the procedure is not available. However, as of 19 January 2024, the average waiting period for the registration interview is 18 weeks, and thereafter another 43 weeks for the detailed interview. IND, ‘Asiel: Laatste ontwikkelingen’, available in Dutch at: https://bit.ly/3tMTVyZ.}

^{[3] IND, Evaluatie Wijzigingen Algemene Asielprocedure, 9 June 2023, available in Dutch at: https://bit.ly/3T82Ft8.}

^{[4] Article 3.110(1) Aliens Decree.}

^{[5] Article 3.109 Aliens Decree, paragraph C1/2.1 Aliens Circular and IND Work instruction 2021/8, available  in Dutch at: https://bit.ly/3uTF7yV.}

^{[6] Amnesty International, Bewijsnood, Wanneer nationaliteit en identiteit ongeloofwaardig worden bevonden, 19 November 2020, available in Dutch at: https://bit.ly/34zOlCW.}

^{[7] ACVZ, Naar een gelijker speelveld bij vaststelling nationaliteit en identiteit van migranten, 11 April 2022, available in Dutch at: https://bit.ly/3jPH7T9.}

^{[8] Council of State, ECLI:NL:RVS:2015:4061, 24 December 2015, available in Dutch at: https://bit.ly/3HPCIs9.}

^{[9] Amendment Aliens Decree, In verband met het regelen van de aanmeldfase en vervallen van het eerste gehoor in de algemene asielprocedure, Staatsblad 2021, 250 available in Dutch at: https://bit.ly/3ra1ZEH.}

^{[10] Article 3.109 Aliens Decree.}

^{[11] Article 3.112-3.115 Aliens Decree.}

^{[12] See also Work instruction 2021/13, Nader gehoor, available in Dutch at: https://bit.ly/48tRhfQ.}

^{[13] Article 42(3) Aliens Act.}

^{[14] Article 3.115 (1) Aliens Decree.}

^{[15] Article 3.115 (1) and Article 3.115 (3) Aliens Decree.}

^{[16] Article 3.115 (2) and Article 3.115 (3) Aliens Decree.}

^{[17] Article 3.115 (3) Aliens Decree.}

^{[18] Article 3.113 (7) and Article 3.113 (8) Aliens Decree.}

^{[19] Article 3.116 (2) Aliens Decree.}

^{[20] Article 3.119 Aliens Decree.}

^{[21] Stcrt 2023, nr. 3235, available in Dutch at: https://bit.ly/3vHsqHq.}

^{[22] Parliament letter, 19 December 2023, available in Dutch at: https://bit.ly/48Y2J43.}

^{[23] Council of State, ECLI:NL:RVS:2023:4125, 8 November 2023, available in Dutch at: https://bit.ly/3SRLqMH.}

^{[24] Article 43 (1) Aliens Act.}

^{[25] IND, Doorlooptijden asielaanvraag, 4 January 2023, available in Dutch at: https://bit.ly/3vH7HQX.}

^{[26] IND, Asiel: Laatste ontwikkelingen, available in Dutch at: https://bit.ly/3tMTVyZ.}

^{[27] Article 3.112 Aliens Decree.}

^{[28] Article 3.113 Aliens Decree.}

^{[29] Paragraph C1/2.1 Aliens Circular.}

^{[30] Stephanie Rap, ‘“A Test that is about Your Life”*: The Involvement of Refugee Children in Asylum Application Proceedings in the Netherlands’, Refugee Survey Quarterly, 2022(41), 306.}

^{[31] Article 3.108b Aliens Decree.}

^{[32] Paragraph C1/2.11. Aliens Circular.}

^{[33] Lieneke Luit, Pink Solution, inventarisatie van LHBT asielzoekers (Inventory of LGBTI asylum seekers), available in Dutch at: https://bit.ly/3wdRN47.}

^{[34] CJEU, Joined Cases C‑148/13, C‑149/13 and C‑150/13 A, B and C, Judgment of 2 December 2014, available at: https://bit.ly/49vlcVE.}

^{[35] Council of State, ECLI:NL:RVS:2015:2170, 8 July 2015 available in Dutch at: https://bit.ly/3T8HkQk.}

^{[36] See: Council of State, ECLI:NL:RVS:2020:1885, 12 August 2020, available in Dutch at: https://bit.ly/3SwsX7a.}

^{[37] Work Instruction 2021/9, paragraph 3.5, available in Dutch at: https://bit.ly/4bQyGNK.}

^{[38] Work Instruction 2021/9, paragraph 3 and annex, available in Dutch at: https://bit.ly/4bQyGNK.}

^{[39] Council of State, ECLI:NL:RVS:2023:3365, 6 September 2023, available in Dutch at: https://bit.ly/48b7oyz.} 

^{[40] KST 19637, nr. 3156, 13 July 2023, available in Dutch at: https://bit.ly/3Hjowas.}

^{[41] KST 19637, nr. 3184, 19 December 2023, available in Dutch at: https://bit.ly/3tR0alp.}

^{[42] Ministry of Justice and Security, Motie afschaffen schriftelijk horen voor kansrijke asielzoekers, 19 December 2023, available in Dutch at: https://bit.ly/3U2kRW1.}

^{[43] 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.}

^{[44] This was communicated by the IND in a meeting with the Dutch Council for Refugees.}

^{[45] IND, Asiel: Laatste ontwikkelingen, available in Dutch at: https://bit.ly/3VIITCH.}

^{[46] Legal Aid Board (Raad voor Rechtsbijstand), AC Signalering nr. 17 2023, 15 December 2023.}

^{[47] Ministry of Justice and Security, Motie afschaffen schriftelijk horen voor kansrijke asielzoekers, 19 December 2023, available in Dutch at: https://bit.ly/3U2kRW1.}

^{[48] KST 19637, nr. 3184, 19 December 2023, available in Dutch at: https://bit.ly/3tR0alp.}

^{[49] IND, Procesbeschrijving Telehoren, 8 May 2020, available in Dutch at: https://bit.ly/3wCdVFi.}  

^{[50] EASO, Asylum Report 2021, 2021, available at: https://bit.ly/3NjoEKi, 119.}

^{[51] IND, Vreemdelingenvisie 29, 22 April 2021, avalaible in Dutch at: https://bit.ly/3lLdRha.}

^{[52] See for example Regional Court of Groningen, Decision No NL23.39925, ECLI:NL:RBDHA:2024:63, 4 January 2024, available in Dutch at: https://bit.ly/42B4DoZ.}

^{[53] IND, Vreemdelingenvisie 37, 29 November 2022, available in Dutch at: https://bit.ly/3Zlt4oB.}

^{[54] Legal Aid Board (Raad voor Rechtsbijstand), AC Signalering nr. 16 2023, 18 October 2023.}

^{[55] Legal Aid Board (Raad voor Rechtsbijstand), AC Signalering nr. 2 2023, 26 January 2023.}

^{[56] Legal Aid Board (Raad voor Rechtsbijstand), AC Signalering nr. 15 2023, 4 October 2023.}

^{[57] Article 38 Aliens Act.}

^{[58] IND, Toelichting inzet tolken, March 2021, available in Dutch at: https://bit.ly/3qnP8PK and Work instruction 2020/5, (Samen) werken met een tolk, available in Dutch at: https://bit.ly/33gEmCd.}

^{[59] Article 28(1) Law on Sworn Interpreters and Translators.}

^{[60] Article 28(3) Law on Sworn Interpreters and Translators.}

^{[61] Frits Koers et al, Best practice guide asiel: Bij de hand in asielzaken, Raad voor de Rechtsbijstand, Nijmegen 2012, 38.}

^{[62] IND, Toelichting inzet tolken, March 2021, available in Dutch at: https://bit.ly/3qnP8PK.}

^{[63] Legal Aid Board, information on interpretation services, available in Dutch at: https://bit.ly/33vxctO.}

^{[64] Ombudsperson, Report 2014/166, November 2014.}

^{[65] This is an observation made by the writers of the Dutch Council for Refugees, who deal with lawyers and asylum cases on a daily basis. The IND also does not publish any more information about it.}

^{[66] Article 3.114 Aliens Regulation.}

^{[67] Article 3.114 (5) Aliens Regulation.}

^{[68] Article 69(2) Aliens Act.}

^{[69] Article 82(2)(c) Aliens Act, citing Article 30b(1)(h).}

^{[70] CJEU, Case C-181/16, Sadikou Gnandi vs Belgium, 19 June 2018, available at: https://bit.ly/33vxctO.}

^{[71] Council of State, ECLI:NL:RVS:2018:2828, 27 August 2018, available in Dutch at: https://bit.ly/3I03spD.}

^{[72] Ibid.}

^{[73] Council of State, ECLI:NL:RVS:2018:1307, 19 April 2018, available in Dutch at: https://bit.ly/3SQeioG.}

^{[74] CJEU, Case C-269/18, Staatssecretaris van Veiligheid en Justitie v C and J and S v Staatssecretaris van Veiligheid en Justitie, 5 July 2018, available at: https://bit.ly/3waFsO9.}

^{[75] Council of State, ECLI:NL:RVS:2020:244, 29 January 2020, available in Dutch at: https://bit.ly/3UzbRYE.}

^{[76] Council of State, ECLI:NL:RVS:2019:1710, 5 June 2019, available in Dutch at: https://bit.ly/49Mwe9t.}

^{[77] Article 83 Aliens Act.}

^{[78] Article 70(1) Aliens Act.}        

^{[79] Tweede Kamer, Explanatory notes on the implementation of the recast Asylum Procedure Directive, Vergaderjaar 34 088, number. 3, 2014–2015, 22 and Chapter 8.5 GALA.}

^{[80] CJEU, Case C-175/17 and C-180/17, X and Y v. Staatssecretaris van Veiligheid en Justitie, 26 September 2018, available at: https://bit.ly/3waFsO9.}

^{[81] Council of State, ECLI:NL:RVS:2019:457, 20 February 2019, available in Dutch at: https://bit.ly/49sYwFH.}

^{[82] ECtHR, A.M. v. the Netherlands, No. 29094/09, 5 July 2016, available at: https://bit.ly/3SwAPW1.}

^{[83] Council of State (Judge for provisional measures), ECLI:NL:RVS:2016:3350, 20 December 2016, available in Dutch at: https://bit.ly/42wCnEc.}

^{[84] Council of State (Judge for provisional measures), ECLI:NL:RVS:2016:3350, 20 December 2016, available in Dutch at: https://bit.ly/42wCnEc.}

^{[85] Decisions of the Regional Courts and Council of State may be found at: https://www.rechtspraak.nl/.}

^{[86] Article 10 Aliens Act.}

^{[87] J. Nijland and K. Geertsema, Wat verdient een sociale vreemdelingenadvocaat?, A&MR 2020, nr. 6-7, 361-370.}

^{[88] Circular on payments legal aid in the new asylum procedure, 1 July 2010, available in Dutch at: http://bit.ly/1HS8gek. Article 6(1)(a), Decree on Own Contribution to Legal Aid.}

^{[89] Article 12 Legal Aid Act.}

^{[90] J. Nijland and K. Geertsema, Wat verdient een sociale vreemdelingenadvocaat?, A&MR 2020, nr. 6-7, 361-370.}