Author
Making and registering the application
If an asylum seeker enters the Netherlands by land, he or she has 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. The Aliens Police (Vreemdelingenpolitie, AVIM) 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).
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 he or she does 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 is already on Dutch territory, he or she is 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]
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).
In January 2019, the Secretary of State of Justice introduced a new policy, that requires every asylum seeker to complete an extensive form at the start of the registration procedure, containing questions on 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) remains/stay in one or more third countries when appropriate; (7) identity cards or passport; (8) itinerary; (9) schooling/education; (10) military services; (11) work/profession; and (12) living environment and family.[4]
The completed form is followed by a registration interview (Aanmeldgehoor). During the registration interview, questions can be asked about identity, nationality, travel route and family members. Additionally, the IND briefly questions the asylum seeker as to their reasons for requesting asylum, in order to judge the complexity of the case, to better prepare for subsequent steps to be taken during the rest of the procedure, and to assess whether the asylum seeker is in need of specific procedural guarantees.[5]
The Aliens Decree on the Regular Asylum Procedure (“Track 4”) was amended and entered into force on 25 June 2021.[6] Consequently, amongst other changes, the registration procedure, including the registration interview, is formally laid down in the Aliens Decree. Since the amendment, the immigration officer explicitly questions the asylum seeker, during the registration interview, 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 obtain individualized information. As a result, the asylum seeker will not be informed about the impact of their statements regarding reasons for fleeing his country of origin. It should be noted that asylum seekers receive a brochure from the IND at the start of the registration procedure; however, the brochure just provides general information about the asylum procedure in the Netherlands, and cannot be considered as 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 Secretary of State had violated the principle of due care.[7]
Due to the extensiveness of the registration form and its follow up registration interview, the first (verification) interview on day 1 of the regular asylum procedure has been abolished.
At the beginning of 2023, asylum seekers arriving at Ter Apel were once again registered according to the regular registration procedure, meaning they do not have to travel to the temporary shelter location at Zoutkamp. However, in February 2023 many people were only pre-registered again, and had to travel to Zoutkamp for accommodation and to wait for official registration. On 1 March 2023, the Zoutkamp location was closed, meaning all asylum seekers arriving at Ter Apel will once more be officially registered at the moment the asylum application is lodged.
The rest and preparation period
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 procedure has ended.[8] 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.[9] 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;[10]
- The asylum seeker causes nuisance in the reception centre;[11]
- The asylum seeker is detained on the basis of Article 59b Aliens Act;[12]
- The application is a subsequent application for asylum.[13]
The rest and preparation period takes at least six days, while no maximum number of days is indicated. During the entire rest and preparation period, asylum seekers have access to reception and medical aid. From 2018 onwards, this period has been considerably extended due to the IND’s delays.
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 backlogs before the end of 2020. The Task Force has not succeeded in doing so. A new aim was to clear the backlog by mid-2021. In October 2021, there were 500 applications still to be assessed.[14] The Task Force used the following measures: (1) interviews via videoconference, (2) written interviews, (3) recruitment of (around) 250 new employees mainly from employment agencies and (4) outsourcing activities.[15] In June 2021, the Task Force was dissolved; afterwards, the remaining 1,520 cases were transferred to another department.[16]
The Dutch Council for Refugees has monitored the activities of the Task Force and the measures, which were created to clear the backlog. At the end of 2020, a first analysis was realised and the findings were published in November 2020,[17] while a follow up to the monitoring report was published in July 2021.[18] One of the main findings was that the new employees of the Task Force, mainly recruited by employment agencies, lacked the expertise necessary to conduct detailed interviews and assess complex asylum cases (e.g. regarding LGBTI and religious conversion claims). In these complex cases, a process was introduced to overcome this problem: more experienced immigration officers of the IND became involved and more applications were referred to the extended asylum procedure.[19] Another relevant point addressed in the report was that the written intentions to reject an application and the decisions, which were taken by the Task Force, lacked quality. In case the IND decides to reject an asylum application, it will issue a written intention providing the grounds and reasons for a possible rejection. The written intention is sent to the lawyer and/or handed over to the applicant. Furthermore, an observation was that the written interviews did not help speed up the processing time of the applications. The applications were still referred to the extended procedure.
The Inspector of the Ministry of Justice & Security who monitored the Task Force also concluded that the new caseworkers lacked expertise and that the decisions taken by the Task Force lacked quality. Processing time was more important than the quality and due diligence of the procedure.[20]
Although the Task Force took over the backlog from the IND, due to an increase of applications, a new backlog of 6,400 applications originated 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. [21] The IND has prognosed that the number of asylum seekers waiting for a decision is 31,400 at the start of 2023.[22] In March 2023, the numbers of the processing time show that it takes 43 weeks when the Regular asylum procedure starts before a decision is taken. When the application is referred to the extended procedure, on average, 48 weeks pass before a decision is taken.[23]
Legal penalties
The IND was obliged to pay a large sum in legal penalties (dwangsommen)[24] to asylum seekers whose application had not been decided upon within the legal time frame of 6 months.[25] The regular asylum procedure in 2019 took on average 27 weeks to assess the asylum claim, while in the extended asylum procedure it took 44.5 weeks.[26] 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.[27] Under the Temporary act, asylum seekers were excluded from giving the IND a notice of default,[28] 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.[29] 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.[30] 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 effectuate their rights.[31] 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.[32]
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 minimal 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 possible.[33] 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 with 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.[34] At the start of January 2023, it was uncertain whether this general extension of the decision-making period would be prolonged for asylum applications lodged after 1 January 2023. 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.[35]
On 23 November 2022, the Regional Court of Den Bosch ruled in favour of the 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 Ukrainan 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. As such, it is to be seen in coming months what the effect of this and other cases will be on the extension of the time limit for deciding. The Secretary of State submitted an onward appeal with regards to the judgment of the Regional Court of Amsterdam.
[1] IND, Voordat jouw asielprocedure begint – AMV, August 2015, available in Dutch at: http://bit.ly/2DChVcO.
[2] Article 3(3) Aliens Act.
[3] Council of State, Decision ABKort 1999.551, 20 September 1999.
[4] Article 3.109 Aliens Decree, paragraph C1/2.1 Aliens Circular and IND Work instruction 2018/15 Aanmeldgehoren en Verificatie eerste gehoren.
[5] IND, Working Instruction 2021/8, Aanmeldgehoren, available in Dutch at: https://bit.ly/3vFivz8.
[6] 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.
[7] Regional Court of Zwolle, Decision No NL21.19915, 25 February 2022.
[8] Article 3.109 Aliens Decree.
[9] This occurs from practice and is not regulated by the law.
[10] Article 3.109(7)a Aliens Decree.
[11] Article 3.109(7)a Aliens Decree, for the definition of ‘nuisance’ see paragraph C1/2.2 Aliens Circular.
[12] Article 3.109(7)a Aliens Decree.
[13] Article 3.118b Aliens Decree.
[14] Dutch Parliament, No 35476 H, 16 November 2021, available in Dutch at: https://bit.ly/3qlvzIc.
[15] Dutch Parliament, No 19637 2650, 7 September 2020, available in Dutch at: https://bit.ly/3foazKd.
[16] AEF, Leren van de Taskforce Dwangsommen, toekomstgerichte evaluatie, 18 February 2022, available in Dutch at: https://bit.ly/3XfjoKB.
[17] Dutch Council for Refugees, Quickscan Taskforce, 19 November 2020, available in Dutch at: https://bit.ly/39P1yH5.
[18] Dutch Council for Refugees, Monitor Taskforce, 1 July 2021, available in Dutch at: https://bit.ly/3zPJvx2.
[19] Dutch Parliament, No 35476, nr H, 16 November 2021, available in Dutch at: https://bit.ly/3qlvzIc.
[20] Secretary of State, 7 January 2021, information available in Dutch at: https://bit.ly/3zX8ZIT.
[21] Dutch Parliament, no 35476, nr H, 16 November 2021, available in Dutch at: https://bit.ly/3FiageD.
[22] IND, Aantal asielaanvragen neemt ook in 2023 toe, 4 November 2022, available in Dutch at https://bit.ly/3Xfl5Yt.
[23] IND, Doorlooptijden asielaanvraag), 4 January 2023, available in Dutch at: https://bit.ly/3vH7HQX.
[24] 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.
[25] Article 4:17 GALA, Regional Court Arnhem, decision no NL19.22847, 14 November 2019, Regional Court Amsterdam, decision no NL19.18215, 13 September 2019.
[26] IND, Doorlooptijden per asielspoor over 2019, Maart – December 2019 (data available per track on a monthly basis), available in Dutch at: https://bit.ly/34fTznw.
[27] Tijdelijke wet opschorting dwangsommen IND, available in Dutch at: https://bit.ly/3bQlRql.
[28] 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.
[29] Tijdelijke wet opschorting dwangsommen IND Article 4, available in Dutch at: https://bit.ly/3bQlRql.
[30] Council of State, case number 202203068/1 and 202203066/1, 30 November 2022.
[31] Council of State, case number 202203068/1, 30 November 2022.
[32] IND, Information Message 2022/107 Afdelingsuitspraken d.d. 30 november 2022 inzake de Tijdelijke Wet dwangsom (3), 2 December 2022, available in Dutch at: https://bit.ly/3Gm24N8.
[33] Council of State, case number 202203066/1, 30 November 2022.
[34] 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.
[35] IND, Information Message 2023/10 ‘Verlengen beslistermijn asiel’, available in Dutch at: https://bit.ly/3XLhL6U.
[36] Regional Court of Den Bosch, Decision No. NL22.21366, 23 November 2022.
[37] Regional Court of Amsterdam, Decision No. NL22.21969, 6 January 2023.