Short overview of the asylum procedure

Netherlands

Country Report: Short overview of the asylum procedure Last updated: 18/03/21

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Registration: 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 Immigration and Naturalisation Service (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 Schiphol Amsterdam airport (Aanmeldcentrum Schiphol, AC).

When an asylum seeker enters the Netherlands by land, or is already present on the territory, he or she has to report immediately to the Central Reception Centre (Centraal Opvanglocatie, 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 who are 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 he or she is interviewed regarding his or her identity, family members, travel route and profession. 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.

Procedural tracks: The IND applies a “Five Tracks” policy, whereby asylum seekers are channelled to a specific procedure track (spoor) depending on the circumstances of their case.[1]  Track 1 and 4 had always been part of the IND’s practise. 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.

Track 1            Dublin Procedure. The asylum seeker is not entitled to a rest and preparation period nor a medical examination by the Forensic Medical Society Utrecht (FMMU).[2]

Track 2            Procedure for applicants from a Safe Country of Origin and applicants who have already received international protection in another Member State. The IND considers it unlikely that these applications will be granted. The assessment takes place in a fast-track procedure which takes place within a maximum of 8 days. The asylum seeker is not entitled to a rest and preparation period or a medical examination by FMMU.[3]

Track 3            Fast-track procedure for applications which are considered likely to be granted. The procedure is linked to track 5, but neither track has been applied yet.

Track 4            Regular Procedure (Algemene asielprocedure) of 8 days, with the possibility to extend this time limit by 6, 8 or 14 days.[4] In case the application cannot be thoroughly assessed within the Regular Procedure there is a possibility of assessing the application in the Extended Procedure (Verlengde asielprocedure).

Track 5            Procedure for applications that start in Track 3 and are likely to be granted, but where additional research must take place regarding identity and/or nationality.  Like Track 3, Track 5 has not been applied yet.

Rest and preparation period: With the exception of Tracks 1 and 2, the asylum seeker is granted a rest and preparation period starting from the moment the asylum application is formally lodged by signing an application form.[5] 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.[6]

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 Royal Military Police (Koninklijke Marechaussee, 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.

After the rest and preparation period, the actual asylum procedure starts. At first instance, asylum seekers are channelled into the so-called Regular Procedure (Algemene asielprocedure) which is, as a rule, designed to last 8 working days (“short asylum procedure”). The short asylum procedure may be extended by 6, 8 or 14 working days if more time is needed.

If it becomes clear on the fourth day of the short asylum procedure that the IND will not be able to take a well-founded decision on the asylum application within these eight days, the application is further investigated 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 be extended by 9 months, and another 3 months.[7]

There is only one asylum status in the Netherlands. However, there are two different grounds on which this asylum status may be granted (besides family reunification).[8] 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 his country of origin, falls within the scope of Article 29(1)(b) of the Aliens Act (B-status).[9]

The IND must first examine whether an asylum seeker qualifies for refugee status, before examining whether the asylum seeker should be granted subsidiary protection. This means that an asylum seeker may only qualify for subsidiary protection in case he or she does not qualify as a refugee under Article 1A of the Refugee Convention. In case an asylum seeker is granted subsidiary protection, he or she cannot appeal in order to obtain refugee status.[10] 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).

Appeal: Asylum seekers whose application is rejected may appeal this decision at 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 lacks to provide (sufficient) relevant information according to the IND. [11] This means that the asylum seeker can be expelled before the court’s decision. To prevent expulsion the legal representative (or in theory the asylum seeker) should request 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 short asylum procedure the asylum seeker is, as a rule, entitled to accommodation for a period of four weeks regardless whether he or she lodges an appeal and whether this appeal has suspensive effect due to a granted provisional measure.[12] 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.[13] 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.[14]

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 Raad van State, ABRvS). This procedure does not have suspensive effect, unless the Council of State issues a provisional measure. In case this provisional measure is denied by the Council of State, the asylum seeker is no longer entitled to accommodation. The Council of State ruled in 2016 that a request for a provisional measure preventing expulsion during the appeal shall be granted if the asylum request is considered to have an arguable claim in the sense of Article 3 of the European Convention on Human Rights (ECHR).[15]

However, in April 2017 the Council of State referred preliminary questions to the CJEU regarding the suspensive effect of an onward appeal against the rejection of an asylum application. In September 2018 the CJEU ruled that an onward appeal does not have a suspensive effect in itself.[16] Following this judgment the Council of State ruled on 20 February 2019 that an onward appeal does not have automatic suspensive effect.[17]

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

[2]Article 3.109c Aliens Decree.

[3]Article 3.109ca Aliens Decree.

[4]Article 3.115(6) Aliens Decree.

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

[6]Article 3.109 Aliens Decree.

[7]See Article 42(4)(5) Aliens Act.

[8]Article 29 Aliens Act.

[9]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.

[10]Council of State, Decision No 20010591481, 28 March 2002.

[11] Article 30c Aliens Act.

[12] Article 82(2) Aliens Act.

[13]Article 69(2) Aliens Act.

[14]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; CJEU, Case C-181/16, Sadikou Gnandi vs Belgium, 19 June 2018.

[15]Council of State (Judge for provisional measures), Decision 201609138/3/V2, 20 December 2016.

[16]CJEU, Case C-175/17, X  v Belastingdienst/ Toeslagen, 26 September 2018.

[17]Council of State, Decision No 201609659/1/V2 and 201609659/4/V2, 20 February 2019.

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of the main changes since the previous report update
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection
  • ANNEX I – Transposition of the CEAS in national legislation