Cessation and review of protection status

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Dutch Council for Refugees Visit Website

Grounds for cessation of status

Article 32 of the Aliens Act provides the grounds for revocation of temporary asylum status. This article applies to recognised refugees as well as to beneficiaries of subsidiary protection. It states that temporary asylum status can be revoked, and the request to extend the period of validity can be denied, in case the legal ground for granting protection status has ceased to exist. The temporary asylum status of a recognised refugee will be revoked in case any of the grounds of Article 32 Aliens Act applies,^[1] as will be the case for temporary asylum status of a beneficiary of subsidiary protection.^[2]

Revocation of refugee status or subsidiary protection is further explained in Paragraph C2/10.4 of the Aliens Circular.

Within the Dutch system, there is no distinction between the cessation and the withdrawal of asylum status. Moreover, the Dutch system does not differentiate between an asylum status and the asylum permit. Therefore, revocation of the asylum permit means that the status is automatically revoked.

* In 2022, a total of 360 asylum statuses/permits were revoked, it is unknown how many temporary or permanent statuses this number entails.

The grounds of revocation from Article 32 Aliens Act are:

1. False information
2. Danger to public order or national security
3. Ceased circumstances
4. [Change of main residence outside the Netherlands]*
5. End of the family bond (for family reunification statuses – not discussed further)

* Article 32(1)(d) of the Aliens Act provides that, where the beneficiary of international protection changes their main residence outside the Netherlands, temporary asylum status can be revoked. This is not in accordance with the limitative grounds for revocation in the recast Qualification Directive. It remains a revocation ground by law for regular migration permits, but can no longer be used for asylum permits. This is also reflected in the Aliens Circular, which states that moving the main residence outside the Netherlands does not constitute a ground for withdrawal of asylum statuses.^[5] Given this policy, this revocation ground is no longer used in practice. Nevertheless, when a beneficiary of international protection moves their main residence outside the Netherlands, according to policy, the Dutch authorities assess whether the legal ground for granting protection has ceased to exist. This is laid down in paragraph C2/10.5 of the Aliens Circular.

False information

The withdrawal ground of false information is applicable to both temporary (article 32 Aliens Act) and permanent statuses of international protection (article 35 Aliens Act). This means that this ground can be invoked as a reason of withdrawal even after living over 20 years in the Netherlands.^[6]

After receiving reports of fraud, the IND started to reassess statuses from homosexual status holders from Uganda in 2018.^[7] The IND had reasons to believe that there were organisations helping the Ugandans to get asylum in the Netherlands. Of the 253 inspected cases, one status was withdrawn, while 35 cases were still pending as of November 2020. There was no public serious follow up on these cases.

On 25 January 2023, th Council of State ruled that not all ommissions of facts lead to revocation. Asylum permits do not have to be withdrawn if incorrect identity details, were provided, if they were not decisive for granting asylum.^[8] Subsequently, on August 2 2023, the Council of State ruled that the State Secretary, in revocations based on ‘false information’ (that was decisive for granting asylum), must examine within the revocation decision whether the person is entitled to a new permit.^[9] It is not allowed to simply refer to the possibility of a subsequent asylum request. What the start date of the new permit would be is still unclear.

Danger to public order or national security

The withdrawal ground of being a danger to public order or national security is applicable to both temporary (article 32 Aliens Act) and permanent statuses of international protection (article 35 Aliens Act). This means that this ground can be used for withdrawal even after living over 20 years in the Netherlands.

In 2019, the status and residence permit of 30 persons with international protection had been revoked, in 2020 there were also 30 revocations and in 2021 and 2022 there were 20 revocations.^[10]

Article 3.86 Aliens Decree gives a number of ‘sliding scales’. The article establishes a link between the duration of the irrevocable punishment for a crime and the duration of lawful residence in the Netherlands. Although the matter is highly complex, in short, the longer the foreign national legally resides in the Netherlands, the heavier the penalty must be in order to reject the application for extension or to terminate the legal residence.^[11]

However, the ‘sliding’ scale only applies if a minimum threshold of ‘(particularly) serious crimes’ is reached. The asylum status and permit of a refugee can be revoked when the refugee commits a ‘particularly serious crime’ (article 14(4)(b) QD). In Dutch policy, a crime is considered ‘particularly serious’ when the refugee received a prison sentence for at least 10 months. On 6 July 2023, the CJEU ruled on a preliminary reference by the Council of State on 15 June 2022,^[12] about the interpretation of ‘particularly serious crimes’.^[13] The CJEU ruled firstly that the degree of seriousness cannot be attained by a combination of separate offences, none of which constitutes per se a particularly serious crime by itself. Secondly, while it is in particular open to the Member States to establish minimum thresholds intended to facilitate the uniform application of that provision, such thresholds must necessarily be consistent with the degree of seriousness and must not, under any circumstances, make it possible to automatically establish that the crime in question is ‘particularly serious’ without the competent authority having carried out a full examination of all the circumstances of the individual case concerned.  In response to this ruling, the policy (Aliens Circular) has been adjusted.^[14] However, the Aliens Circular still states that the assessment of ‘a (particularly) serious crime’ is based on whether the total sum of imposed sentences is at least the applicable norm. Additionally, the 10-month prison sentence for a particularly serious crime is still being applied.

The asylum status and permit of persons with subsidiary protection can be revoked if a ‘serious crime’ (article 17(1)(b) QD) is committed. In Dutch policy, a crime is considered ‘serious’ when the person received a prison sentence of more than 6 months.

Moreover, unique in the public order policy, only for subsidiary protection statuses also suspended sentences have to be calculated.^[15]

Ceased circumstances

While considering whether a temporary asylum status – granted to a recognised refugee or a beneficiary of subsidiary protection – will be revoked because the legal ground for granting status is no longer applicable, Dutch authorities shall have regard to whether the change of circumstances is of such significant and non-temporary nature that the fear of persecution or the real risk of serious harm can no longer be regarded as well-founded.^[16] The legal basis for granting protection status has not ceased to exist if the beneficiary can state compelling grounds arising out of previous persecution or former serious harm, to refuse to request protection of the country of their nationality or their former place of residence.^[17] It will be stated in the country-based asylum policy whether the IND considers a change of circumstances in the overall situation in (a particular area of) a certain country to be significant and non-temporary for the purposes of cessation.^[18]

If the IND finds that the legal ground for granting a temporary asylum status has ceased to exist, and the change of circumstances is of a significant and non-temporary nature, it investigates in any case:^[19]

• Whether at the time of granting temporary asylum status another legal ground for granting protection status, provided for in Article 29(1) or (2) of the Aliens Act, applied;
• Whether at the time of review of the temporary asylum status another ground for granting protection status, as provided for in Article 29(1) or (2) of the Aliens Act, applies;
• Whether the status holder can state compelling grounds arising out of previous persecution or former serious harm to refuse to return to their country of origin.

If at least one of these conditions applies, the IND does not revoke temporary asylum status.

If the status holder has a permanent status of international protection, ceased circumstances do not lead to the revocation of the status.^[20]

In January 2020, the IND decided that it would no longer consider certain parts of Sudan to be in a conflict that reaches the Article 15c QD-standards. At the same time, the IND announced starting a reassessment of all subsidiary protection statuses that were granted in line with the country policy stating that there was a 15c-situation in some parts of Sudan. The IND announced that around a hundred statuses were going to be reassessed because they believed that the change of circumstances in Sudan had such a significant and non-temporary nature that the fear of persecution or the real risk of serious harm could no longer be regarded as well-founded within the meaning of article 3.37g Aliens Regulation.^[21] The reassessment project terminated in 2021. According to the Evaluation of the IND, the reassessment resulted in 0 revocations on the ground of ceased circumstances.^[22] Most of the status holders kept their permits on other grounds as many groups were considered to be at risk in Sudan.

No extension of the residence permit

The IND also assumes that the ground for cessation ‘ceased circumstances’ applies if the beneficiary of international protection has neither applied for an extension of the period of validity of his or her status nor for a permanent asylum residence permit (paragraph C2/10.4 Aliens Circular). This hypothetical policy exists since 2018.^[23] Before, if the beneficiary did not renew their residence permit on time, it would be possible they were not entitled to legal stay for a short time. This was problematic for certain allowances and for employment contracts. In practice, people who do not renew their residence permit timely are also often homeless, which means that they are treated as if they have left the Netherlands, see next paragraph.

Change of main residence outside the Netherlands

The IND also assumes that the revocation ground ‘ceased circumstances’ applies if the beneficiary of international protection has left the Netherlands. If the beneficiary is no longer registered in the Municipal Personal Records Database (BRP) it is assumed that they have  left the Netherlands. This is particularly worrying, given that people who become homeless are also unregistered from the BRP. A few cases concerning beneficiaries who became homeless and lost their asylum status and permit have been assessed by Regional Courts.^[24] Often, these people realised that their status had been revoked when it was already too late to apply for review and appeal. This means that the courts cannot decide on their cases and the revocation becomes final. One court decided that the Bahaddar-exception was applicable: an article 3 ECHR-risk was very clear, which made it possible to set the final terms for appeal aside.^[25] The court then ruled that the IND could not revoke the status merely because the person was unregistered from the BRP, rather the IND needed to assess whether a change of circumstances in the overall situation in (a particular area of) a certain country was applicable and was also significant and of non-temporary nature.

Voluntary return

The Aliens Circular stipulates that voluntary return to the country of origin is not a sufficient ground for the IND to revoke temporary asylum status. In case the IND finds that a recognised refugee or a beneficiary of subsidiary protection has, of their own free will, returned to their country of origin, the IND will conduct an interview concerning this journey. It is then up to the status holder to prove that they are still in need of protection.

Voluntary re-availing

Considering Article 1C of the 1951 Refugee Convention, it is stipulated that a temporary asylum status of a recognised refugee shall be revoked in case they request and receive a passport from the authorities of the country of origin. Temporary asylum status is not revoked in case the recognised refugee can prove that Article 1C of the Refugee Convention does not apply.^[26]

Cessation procedure

The Aliens Act provides that the intention procedure is applicable in case a temporary asylum status is revoked.^[27] Under the intention procedure, the status holder is informed in writing of the intention to revoke their temporary asylum status. The letter of intention will not be sent to the previous asylum lawyer, only to the status holder.^[28] Within 6 weeks, the status holder can put forward their view on the intention to revoke temporary asylum status.^[29] In case the IND still intends to revoke temporary asylum status, the status holder will be allowed an interview.^[30] During the interview, the status holder will be given the opportunity to react on the intention to revoke temporary asylum status and explain their view on this. The legal representative can attend the interview.

In the decision to revoke temporary asylum status, the IND considers on its own accord, on the basis of Article 3.6a of the Aliens Decree, whether the status holder can be granted a temporary regular residence permit, or whether there are sufficient grounds for granting delay of departure from the Netherlands on medical grounds.^[31]

The cessation decision states that there is an obligation to leave the country within 4 weeks.^[32] Within 4 weeks the status holder can appeal the decision to revoke the temporary asylum status before the Regional Court.^[33] In case a timely appeal has been made, the status holder retains their right to lawful residence in the Netherlands based on Article 8(c) of the Aliens Act. This means that the status holder retains their material rights, until the court’s decision, including the right to a residence permit. The status holder has a right to legal assistance during the procedure.

The IND can review protection status at any time. As the temporary asylum status is valid for 5 years, the refugee or beneficiary of subsidiary protection must apply to either extend the period of validity of their status or apply for a permanent asylum residence permit. At that time, the IND systematically reviews protection statuses.

^{[1] Article 3.105d Aliens Decree.}

^{[2] Article 3.105f Aliens Decree.}

^{[3] KST 36200-VI, no. 12, List of questions and answers for the determination of the budget of the Ministry of Justice and Security 2023, 2 November 2022, available in Dutch at: https://bit.ly/48aE0Zp. KST 36410-VI-27, no. 27, List of questions and answers for the determination of the budget of the Ministry of Justice and Security 2024, available in Dutch at: https://bit.ly/3P3eajd. These figures are partly based on questions answered by IND, received on 27 February 2024.}

^{[4] KST 36200-VI, no. 12, List of questions and answers for the of the budget of the Ministry of Justice and Security 2023, 2 November 2022, available in Dutch at: https://bit.ly/48aE0Zp. These figures are partly based on questions answered by IND, received on 27 February 2024}

^{[5] Paragraph C2/10.5 Aliens Circular.}

^{[6] For example Council of State, ECLI:NL:RVS:2020:2953, 14 December 2020, available in Dutch at: https://bit.ly/497ohvz (the applicant had an asylum status for over 14 years).}

^{[7] KST 19637, nr. 2670 and appendix, LGBTI in the asylum procedure.}

^{[8] Council of State, ECLI:NL:RVS:2023:248, 25 January 2023, available in Dutch at: https://bit.ly/3STiPGX.}

^{[9] Council of State, ECLI:NL:RVS:2023:2922, 2 August 2023, available in Dutch at: https://bit.ly/3UASEpQ.}

^{[10] Ministry of Justice and Security, De Staat van Migratie 2022, 7 July 2022, available in Dutch at: https://bit.ly/3Z6t8Zf, 135 and Ministry of Justice and Security, De Staat van Migratie 2023, available in Dutch at: https://bit.ly/3RUo0FO.}

^{[11] Work Instruction 2020/12 De toepassing van de glijdende schaal, available in Dutch at: https://bit.ly/3wiiym0.}

^{[12] Council of State, ECLI:NL:RVS:2022:1703, 15 June 2022, available in Dutch at: https://bit.ly/3w5JBmi; and CJEU, C-402/22, Staatssecretaris van Justitie en Veiligheid v M.A., 6 July 2023, available at: https://bit.ly/3STghbS.}

^{[13] CJEU, C-402/22, Staatssecretaris van Justitie en Veiligheid v M.A., 6 July 2023, available at: https://bit.ly/3STghbS.}

^{[14] WBV 2023/25, available in Dutch at: https://bit.ly/3S3k3Pi.}

^{[15] Paragraph C2/10.3 and C2/10.7 Aliens Circular.} 

^{[16] Article 3.37g Aliens Regulation.}

^{[17] Article 3.37g Aliens Regulation.}

^{[18] Paragraph C2/10.4 Aliens Circular.}

^{[19] Paragraph C2/10.4 Aliens Circular.}

^{[20] Article 35 Aliens Act.}

^{[21] Decree WBV 2020/1 of 12 January 2020, Stb. 2020, 3262, amending the Aliens Circular 2000, available in Dutch at: https://bit.ly/3i9r1yB.}

^{[22] Evaluatierapport Herbeoordelingen Soedan, October 2021, available in Dutch at: https://bit.ly/3VPy7uh, 21.}

^{[23] Decree WBV 2018/10 of 20 September 2018, Stb. 2018, 52887, available in Dutch at: https://bit.ly/38FLDLM.}

^{[24] Regional Court Den Bosch, 21 July 2021, Decision No NL20.18837 and Regional Court Utrecht, 14 September 2020, ECLI:NL:RBDHA:2020:9086, available in Dutch at: https://bit.ly/3wdJBRu.}

^{[25] Regional Court Den Bosch, 21 October 2021, Decision No NL20.22228.}

^{[26] Paragraph C2/10.4 Aliens Circular.}

^{[27] Article 38 Aliens Act and Article 41(1) Aliens Act.}

^{[28] The legality of this practice has been confirmed by the Council of State, ECLI:NL:RVS:2022:2203, 1 August 2022, available in Dutch at: https://bit.ly/3HWKWPb.}

^{[29] Article 3.116(2)(b) Aliens Decree.}

^{[30] Article 41(2) Aliens Act.}

^{[31] Article 64 Aliens Act.}

^{[32] Article 62(1) Aliens Act.}

^{[33] Article 69(1) Aliens Act.}