Short overview of the asylum procedure

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Registration phase

Expressing the wish to apply for asylum does not mean that the request for asylum has officially been lodged. Asylum applications can be lodged at the border or on Dutch territory. Any person arriving in the Netherlands and wishing to apply for asylum must report to the IND. Asylum seekers from a non-Schengen country, arriving in the Netherlands by plane or boat, are refused entry to the Netherlands and are detained. In this case, the asylum seeker needs to apply for asylum immediately before crossing the Dutch (Schengen) external border, at the Application Centre at Amsterdam Airport Schiphol (Aanmeldcentrum Schiphol, AC).

When an asylum seeker enters the Netherlands by land, or is already present on the territory, they must report immediately to the Central Reception Centre (Centrale Ontvangstlocatie, COL) in Ter Apel (nearby Groningen, north-east of the Netherlands), where registration takes place (fingerprints, travel- and identity documents are examined). After registration activities in the COL have been concluded the asylum seeker is transferred to a Process Reception Centre (Proces Opvanglocatie, POL). Third country nationals detained in an aliens’ detention centre can apply for asylum at the detention centre.

The application/registration procedure in the COL takes three days. During this procedure the asylum seeker has to complete an extensive application form. Fingerprints are taken and the asylum seeker is interviewed regarding their identity, family members, travel route and profession. This is called the registration interview (aanmeldgehoor). Data from Eurodac and the Visa Information System (VIS) are consulted. From all this information the IND may conclude that, according to the Dublin Regulation, another Member State is responsible for examining the asylum application. In case of a “hit” in Eurodac the IND can already submit a request to another Member State to assume responsibility for the asylum application under the Dublin Regulation.

However, due to the high number of asylum applications and the ongoing capacity problems at the IND, said procedure has not always been followed in recent years. Instead, an alternative procedure was introduced:  depending on both the capacity of the Aliens Police and the available accommodation at the COL in Ter Apel, either the regular registration phase as outlined above is followed, or temporary ‘waiting areas’ are installed for a period of time. This was notably the case between September 2022 and March 2023, and now again since summer of 2023. In the first weeks of 2024, it was communicated that the backlog of asylum seekers still to be registered is decreasing. However, it is expected that the ‘pre-registration locations’ will remain open for the time being to accommodate the capacity problems^[1] (for detailed information see Making and registering the application).

Procedural tracks

The IND applies a “Five Tracks” policy, whereby asylum seekers are channelled into a specific procedure track (spoor) depending on the circumstances of their case.^[2]  Track 1 and 4 have always been part of the IND’s practice. Track 2 has been applied since 1 March 2016 and tracks 3 and 5 have not been applied (yet). The tracks are only applicable when the asylum application has been lodged on the territory, not when it was lodged at the border.

Amendments Aliens Decree regarding Regular Procedure (“Track 4”)

The Aliens Decree was amended on 25 June 2021.[6] This amendment entails the following:

• the registration procedure is formally laid down in the Aliens Decree;
• during the registration interview the asylum seeker is briefly questioned about their reasons for fleeing their country of origin;
• cancellation of the first (verification) interview on day 1 of the Regular Procedure, which results in a shortening of the Regular Procedure from 8 to 6 working days;
• more grounds for extending the Regular Procedure.

Rest and preparation period

With the exception of Tracks 1 and 2, the asylum seeker is granted a rest and preparation period which starts once the registration phase has ended.^[7] 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.^[8]

The rest and preparation period lasts at least 6 days. It is intended to offer the asylum seeker time to rest and to provide the different organisations involved with 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 Royal Military Police (Koninklijke Marechaussee, KMar);
• Medical examination by an independent medical agency (MediFirst^[9]) 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.

After the rest and preparation period, the actual asylum procedure starts.

Regular procedure

At first instance, asylum seekers are channelled into the so-called Regular Procedure (Algemene asielprocedure) which is, as a rule, designed to last 6 working days. The Regular Procedure can be extended if more time is needed.

If it becomes clear on the fourth day of the Regular Procedure that the IND will not be able to take a well-founded decision on the asylum application within these 8 days, the application is further assessed in the Extended Procedure (Verlengde Asielprocedure). In this extended asylum procedure the IND has to take a decision on the application within 6 months. This time limit can, in certain cases, be extended by 9 months, and another 3 months if in a specific case more time is necessary to form a well-founded decision.^[10] Because of the IND’s capacity problems and the large influx of asylum seekers in recent years, the time limit for deciding for all asylum requests has been extended to 15 months until at least 1 January 2025.^[11].

There is only one asylum status (éénstatusstelsel)  in the Netherlands, meaning that both asylum permits issued on grounds of refugee status and subsidiary protection give the same rights regarding for example validity, family reunification, and accommodation. However, there are two different grounds on which this asylum status may be granted (besides family reunification).^[12] These two grounds are: refugee status (A-status); and subsidiary protection (B-status). In addition to the grounds of Article 15 of the recast Qualification Directive, trauma suffered in the country of origin, as a result of which it is not reasonable to require the asylum seeker to return to their country of origin, falls within the scope of Article 29(1)(b) of the Aliens Act (B-status).^[13]

The IND must first examine whether an asylum seeker qualifies for refugee status, before examining whether they should be granted subsidiary protection.^[14] This means that an asylum seeker may only qualify for subsidiary protection in case they do not qualify as a refugee under Article 1A of the Refugee Convention. In case an asylum seeker is granted subsidiary protection, they cannot appeal in order to obtain refugee status.^[15] This is because, regardless of the ground on which the permit is granted, the asylum permit entitles the status holder to the same rights regarding social security (see Content of International Protection).

Return decision

In the Netherlands, a negative asylum decision is in general automatically accompanied by a return decision.^[16] A (new) return decision is not issued if, for example:

• A return decision had already been issued and the asylum seeker has not yet fulfilled the obligation following from that return decision;
• The asylum seeker has already received international protection in another EU Member State.^[17]

If an (onward) appeal has automatic suspensive effect, the obligations following from a return decision are suspended.^[18] As outlined below, this is not the case for Dublin cases or asylum seekers from ‘a safe country of origin’. For most cases processed in a Track 4, the appeals have automatic suspensive effect.

Appeal

Asylum seekers whose application is rejected may appeal this decision before a Regional Court (Rechtbank). In the procedures of Track 4, as well as Tracks 1 and 2, this appeal should be submitted within one week of the negative decision. The appeal has automatic suspensive effect, except for cases falling in Tracks 1 and 2 or cases in Track 4 in which the IND discontinues to examine the asylum application because, for example, the asylum seeker fails to provide (sufficient) relevant information according to the IND. ^[19] This means that the asylum seeker can be expelled before the court’s decision. To prevent expulsion the asylum seeker (or in practice the legal representative) should request that the Regional Court or the Council of State (depending on the procedure) issue a provisional measure to suspend removal pending the appeal. This must be done immediately after the rejection in order to prevent possible expulsion from the Netherlands.

After a rejection of the asylum request in the regular procedure the asylum seeker is, as a rule, entitled to accommodation for a period of four weeks regardless of whether they lodge an appeal and whether this appeal has suspensive effect due to a granted provisional measure.^[20] Depending on the grounds for refusal, an appeal against a negative decision in the “extended procedure” can have automatic suspensive effect. Also depending on the grounds, the appeal must be submitted within one or four weeks.^[21] The asylum seeker is entitled to accommodation during this appeal.

Following the decision of the CJEU answering the questions of the Council of State and the Gnandi judgment of the CJEU, the Council of State concluded that an asylum seeker has the right to remain legally in the Netherlands during the period of the appeal regarding a case in which the asylum application was rejected as manifestly unfounded. The State Secretary also stated that Dutch national law is in general in accordance with European Union law.^[22]

Both the asylum seeker and the IND may lodge an appeal against the decision of the Regional Court to the Council of State (Afdeling Bestuursrechtspraak van de Raad van State, ABRvS). This procedure does not have suspensive effect, unless the Council of State issues a provisional measure. In case the Council of State denies this provisional measure, the asylum seeker is no longer entitled to accommodation. In September 2018, the CJEU ruled that an onward appeal does not have a suspensive effect in itself.^[23] Following this judgment the Council of State ruled on 20 February 2019 that an onward appeal does not have automatic suspensive effect.^[24]

^{[1] The information above follows from meetings with the IND, COA, AVIM and the Dutch Council for Refugees. The IND website at time of writing also mentions the possibility of a ‘pre-registration’ at https://bit.ly/47rYv3m.}

^{[2] Decree WBV 2016/4 of 26 February 2016 amending the Aliens Circular 2000, available in Dutch at: http://bit.ly/2fp4K0z.}

^{[3] Article 3.109c Aliens Decree.}

^{[4] Article 3.109ca Aliens Decree.}

^{[5] Article 3.115 (3) Aliens Decree.}

^{[6] Amendment to the Aliens Decree, In verband met het regelen van de aanmeldfase en het vervallen van   het eerste gehoor in de algemene asielprocedure, Staatsblad 2021, 250, 25 June 2021, available in Dutch at http://bit.ly/3yxsSpU.}

^{[7]  When it is assumed that the asylum application will be rejected in accordance with the Dublin Regulation (Article 3.109c Aliens Decree) due to the fact that the safe country of origin concept applies or if the asylum seeker already received international protection in a Member State of the European Union (Article 3.109ca Aliens Decree), the asylum seeker will not be granted a rest and preparation period, including the medical examination by MediFirst.}

^{[8] Article 3.109 Aliens Decree.}

^{[9] In 2021, MediFirst substituted the Forensic Medical Society Utrecht (FMMU).}

^{[10] See Article 42(4)(5) Aliens Act, which derives from Article 31 (3) APD.}

^{[11] Amendment to the Aliens Circular, Besluit van de Staatssecretaris van Justitie en Veiligheid van 26 januari 2023, nummer WBV 2023/3, houdende wijziging van de Vreemdelingencirculaire 2000, available in Dutch at: https://bit.ly/3vHsqHq.}

^{[12] Article 29 Aliens Act.}

^{[13] The trauma policy used to have its own ground: Article 29(1)(c) Aliens Act (C-status) before 1 January 2014. Nowadays the policy is set out in: Previous confrontation with atrocities (“Eerdere confrontatie met wandaden”). Former specific groups which qualified for a residence permit under the ‘c-ground’ (e.g. Unaccompanied Afghan women) are now eligible for international protection under Article 29(1)(b) of the Aliens Act. Other groups, like Westernised Afghan school girls, can attain a regular residence permit instead of a permit under Article 29(1)(c) as was the case before.}

^{[14] Paragraph C2/2 Aliens Circular.}

^{[15] Council of State, Decision No 20010591481, 28 March 2002.}

^{[16] Article 45(1) (2) Aliens Act.}

^{[17] Article 62a(1) Aliens Act.}

^{[18] Article 45(3) Aliens Act.}

^{[19] Article 30c Aliens Act.}

^{[20] Article 82(2) Aliens Act.}

^{[21] Article 69(1) (2) Aliens Act.}

^{[22] 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; CJEU, Case C-181/16, Sadikou Gnandi vs Belgium, 19 June 2018, available at: https://bit.ly/3wi2O4e.}

^{[23] CJEU, Case C-175/17, X  v Belastingdienst/ Toeslagen, 26 September 2018, available at: https://bit.ly/497dyRv.}

^{[24] Council of State, Decision No 201609659/1/V2 and 201609659/4/V2, 20 February 2019, available in Dutch at: https://bit.ly/49sYwFH.}