Making and registering the application
If an asylum seeker enters the Netherlands by land, he or she has to apply at the Central Reception Centre (Centraal Opvanglocatie, 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 has arrived in the Netherlands by plane 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 mainly responsible for the registration of those persons who apply for asylum at the international airport. 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). As far as known 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.
As a rule, after registration at the AC, asylum seekers immediately go to the COL. After the three-day period in the COL, they are transferred to a Process Reception Centre (Proces Opvanglocatie, POL).
In January 2019 the State Secretary of Justice introduced a new policy which means that at the start of the registration procedure every asylum seeker has to complete an extensive form containing questions about 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.
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. Questions about asylum motives are currently explicitly avoided in the registration interview, but the completed form and interview play an essential part in the asylum procedure nonetheless. During the registration procedure, the asylum seeker does not benefit from legal assistance and does not obtain information from the Dutch Council for Refugees.
Seeing the extensiveness of the form and its follow up registration interview, the first interview during the general asylum procedure is now less extensive. It has become a so-called verification interview. This practice has not been formally regulated. However, on 20 October 2020, the Secretary of State presented a draft proposal to amend the Aliens Decree. The proposed amendment would not only formally establish the registration phase and the registration interview, it would abolish the first interview in the asylum procedure altogether. This also entails that asylum seekers will be asked about their asylum motives during the registration interview, when they do not benefit from any legal assistance yet and when they have not had a rest and preparation period.
The proposal further entails an amendment to the Regular Asylum Procedure and proposes to shorten the procedure from eight to six days. In addition, a possibility is created to extend the General Asylum Procedure in certain situations, for example when asylum seekers change their statements on an essential point. This proposal will likely enter into force in 2021, drastically changing the registration phase of the Regular Procedure.
The rest and preparation period
Exclusively in Track 4, the asylum seeker is granted a rest and preparation period. This starts from the moment the asylum application is formally lodged by signing an application form. The rest and preparation period grants 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. It is designed, on the one hand, to offer the asylum seeker some time to rest, and on the other hand, to provide the time needed 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 (FMMU) 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 falling in 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;
- the asylum seeker causes nuisance in the reception centre;
- the asylum seeker is detained on the basis of Article 59b Aliens Act;
- the application is a subsequent application for asylum.
The rest and preparation period takes at least six days, there is no maximum number of days. During the entire period asylum seekers have access to reception and medical aid. From 2018 onwards, this period has been considerably extended due to delays on the side of the IND. The rest and preparation period can currently take up to several months, sometimes even years. In March 2020, 15,350 asylum applications of people who applied for asylum 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. On 18 November 2020, asylum seekers received a letter from the IND which stated that its Task Force would not meet its goal and that the Task Force will continue to decide on the remaining applications in 2021. The aim is to complete these by mid-2021. By 31 December 2020 the Task Force had decided upon 8,200 applications, meaning that over 7,000 applications have been postponed to 2021.
Because the Task Force has taken over the backlogs from the IND, the IND should be able to process new applications in time. However, in a letter dating 18 November 2020, the Dutch Secretary of State states that two-thirds of the asylum applications submitted between 1 April 2020 and 1 November 2020 had not been decided upon yet. Further delays therefore seem inevitable.
Because of the delays, the IND had to pay a large sum of legal penalties (dwangsommen) to asylum seekers whose application had not been decided upon within the legal time frame. The total sum of legal penalties the IND is expected to pay over the years 2020 and 2021 amounts to 43.5 million euros.
Because of these legal penalties, 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. Under the Temporary act, asylum seekers are excluded from receiving a legal penalty in cases where the IND does not decide upon their application in time. The Temporary act does not apply to cases in which the legal time frame had already past and the IND had already been given notice of default by the asylum seeker. As the name suggests, the Temporary act will expire one year after its entry into force. However, a draft bill has been published on 15 October 2020 which would stipulate that foreign nationals will be excluded from these legal penalties altogether.
In a letter dated 15 May 2020 the Secretary of State stated that, due to the ongoing pandemic and its effects on the examination of asylum cases, the statutory decision period for asylum applications would be extended by six months. The Secretary of State referred to the European Commission’s Guidance, which mentioned that Article 31(3)(b) of the Asylum Procedures Directive allows Member States to extend the six months period for concluding the examination of applications. The statutory decision period was extended by six months on 20 May 2020; on 16 December 2020, the Council of State ruled that this extension is not unreasonable and not contrary to Union law.
Impact of COVID-19 Measures on access to the procedure and registration
Due to the measures relating to the COVID-19 pandemic, the asylum procedure has been suspended from 15 March 2020 up to 28 April 2020. During this period, the registration of asylum seekers had been limited to the of taking fingerprints to search the Dutch and European databases, frisking, searching luggage and taking possession of documents. This process is carried out in the application centre in Ter Apel by the Aliens Police, Identification and Human Trafficking Division (AVIM). After the registration and before they were able to lodge the official application for asylum, asylum seekers were taken to an emergency accommodation in Zoutkamp. They could not freely leave this accommodation. The emergency location was closed on 12 May 2020.
Article 3(3) Aliens Act.
 Council of State, Decision ABKort 1999.551, 20 September 1999.
Article 3.109 Aliens Decree, paragraph C1/2.1 Aliens Circular and IND Work instruction 2018/15 Aanmeldgehoren en Verificatie eerste gehoren.
See also: Dutch Advisory Committee on Migration Affairs (Adviescommissie voor Vreemdelingenzaken, ACVZ), Advies over het regelen van de aanmeldfase en het vervallen van het eerste gehoor in de algemene asielprocedure, December 2020, available in Dutch at: https://bit.ly/3ixVwOR.
Article 3.109 Aliens Decree.
This occurs from practice and has not been enshrined in the law.
Article 3.109(7)a Aliens Decree.
Article 3.109(7)a Aliens Decree, for the definition of ‘nuisance’ see paragraph C1/2.2 Aliens Circular.
Article 3.109(7)a Aliens Decree.
Article 3.118b Aliens Decree.
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.
Article 4:17 GALA, Regional Court Arnhem, decision no NL19.22847, 14 November 2019, Regional Court Amsterdam, decision no NL19.18215, 13 September 2019.
Dutch Parliament, No 19637-2621, 18 November 2020, available in Dutch at: https://bit.ly/3nUcsjX, this letter specifies that a total of 11.5 million euros had already been paid from January 2020 up to and including October 2020 and that approximately 32 million would still have to be paid over the years 2020 and 2021.
Council of State, Decision No 202005098/1, ECLI:NL:RVS:2020:3020, 16 December 2020.