Author
There is no definition of “vulnerability” in Dutch law. In order to meet the obligations arising from Article 24 of the recast Asylum Procedures Directive and Article 29 of its preamble, Article 3.108b of the Aliens Decree provides that the IND shall examine from the start of the asylum procedure, until the end of this procedure, whether the individual applicant needs special procedural guarantees. However, unaccompanied children are, by definition, considered as a vulnerable group in Dutch policy.
Screening of vulnerability
Before the start of the General asylum procedure in Track 4, therefore not in Tracks 1 and 2, a medical examiner from MediFirst examines, at least in theory, every asylum seeker, to assess whether they are mentally and physically able to be interviewed (see Registration). MediFirst is a private company working on behalf of the IND to provide medical advice in asylum procedures. In 2021, MediFirst took over this role from the FMMU organisation. MediFirst’s medical advice forms an important element in the decision as to how the asylum application will be handled. However, it should be noted that MediFirst is not an agency that identifies vulnerable asylum seekers as such; it solely gives advice to the IND as to whether the asylum seeker can be interviewed and, if so, what special needs they need in order to be interviewed, or what kind of limitations by the asylum seeker should be taken into account by the IND. MediFirst cannot be seen as a ‘product’ of the Istanbul Protocol, because its examination is solely limited as to whether the asylum seeker is physically and mentally able to be interviewed based on physical and/or mental limitations. The purpose of the medical advice is to:
- Identify any functional limitations which arise from medical problems that could impede the applicant from giving accurate, coherent statements regarding their asylum story;
- Advise the IND on how to address these limitations during the interviews and throughout the decision-making process on asylum applications.
Participation of the asylum seeker with MediFirst’s role as an advisory body is on a voluntary basis. Even though the IND is not obliged to offer the possibility to obtain medical advice by Medifirst to asylum seekers other than the ones in track 4, the possibility to receive it in case of need exists but is offered in limited cases and the question whether or not an asylum seeker outside of track 4 should have received a medical advice due to the overall signs of need, can be subject of litigation when an asylum claim has been rejected.
From the start of the asylum procedure, until the end of the decision-making process, the IND will have to keep examining whether the asylum seeker is vulnerable and in need of special care. In order to meet the obligations of Article 24 of the recast Asylum Procedures Directive, the State Secretary has implemented this provision in the Aliens Decree.[1]
The IND decides whether the way the interview is conducted for regular cases should be adapted based on MediFirst advice and remarks. The IND bases its decision to conduct and how to conduct a further interview on the medical advice from MediFirst itself, its own observations and those of other participants in the asylum procedure, like the asylum lawyer, the legal aid worker and the asylum seeker themselves. Important documents in this context have been the IND Work Instructions 2010/13 and 2015/8.[2] Work Instruction 2015/8 contains a long list of indications, based on which it may be concluded that the asylum seeker is a vulnerable person. This list is divided in several categories, for instance physical problems (e.g. pregnancy; being blind, deaf or handicapped) or psychological problems (traumatised, depressed or confused). It is explicitly noted that this is not an exhaustive list. Work Instructions 2021/9, on ’special procedural guarantees’[3] and instruction 2021/12 on the issue of ‘existing medical problems relating to the question of being able to conduct the interview and being able to take a decision’ were introduced in 2021.[4] They mark a confirmation and continuation of the previous Work Instructions above-mentioned that had been into effect for several years.
Age assessment of unaccompanied children
Designating an asylum seeker as an adult or a minor has several consequences for the asylum procedure. For example, it is relevant for determining which Member State is responsible for examining the asylum application [see for instance Article 8 of the Dublin Regulation]. In addition, the Asylum Procedures Directive (APD) obliges member states to guarantee additional procedural guarantees for unaccompanied minor asylum seekers [see Article 25 APD]. The question of whether or not the asylum seeker is a minor is relevant for access to reception facilities for minors and assistance from the guardianship institution of Nidos. The determined age of the asylum seeker is also important within the asylum procedure for the substantive assessment of the asylum story. For example, minors may fear child-specific forms of persecution and the asylum seeker’s frame of reference, for which age is relevant, must be taken into account when assessing credibility.
There is no EU-wide practice in the field of age determination. Partly because of the differences between Member States in the implementation of age determination, the EU Commission requested the European Asylum Office (EASO) to update the guidelines in the context of age determination. In March 2018, EASO produced a practical manual containing guidelines, key recommendations and tools for the implementation of the best interests of the child in age assessment from a multidisciplinary and holistic approach.[5] The manual is not legally binding, but can be regarded as a reference tool for the interpretation and implementation of the EU acquis. The report contains information about the different methods used in the EU Member States and new methods that are being investigated. EASO recommends that age assessment should have a multidisciplinary approach, as there is (as yet) no scientific method to determine the exact age of a person.
In July 2021, EASO published a follow-up report on the age assessment process in EU+ countries.[6] The report includes information from more than 20 EU+ countries on recent developments in ways to determine age; documents that must be provided during the determination procedure; the involvement of youth protection authorities, etc. The report also provides information about the impact of the age determination in the Dublin procedure.
According to the DCR, the age assessment procedure in the Netherlands does not adopt a presumption of minority and the methods of age assessment are insufficiently holistic and multidisciplinary, which indicates a lack of implementation of the EASO Practical Guide on age assessment.
The age assessment procedure in the Netherlands is governed by Paragraph C1/2.1 and C1/2.2 of the Aliens Circular and elaborated on in IND Work Instruction 2023/6.[7] The age assessment procedure starts with an age inspection.
Age inspection (leeftijdsschouw)
If an asylum seeker, who claims to be an unaccompanied minor and does not have documents to support this claim, lodges an asylum application in the Netherlands, the Royal Police (KMar) and/or the IND can conduct an age inspection (leeftijdsschouw).[8] This involves officers from the KMar, the immigration police (AVIM), and/or the IND determining whether the asylum seeker is clearly above or below the age of 18. They also assess the provided age when doubts arise, considering the individual’s ability to engage in conversation. This age inspection is not required if the asylum seeker’s visa is listed in the EU visa information system EU-VIS (a so-called ‘EU-VIS hit’), if an age inspection has already taken place no more than six months ago, or if there is no doubt whatsoever about the fact that they are dealing with a child under the age of 12 years.
The age inspection is conduted in two sessions:
- One session with one Kmar/AVIM official and one session with two IND employees, or;
- One session with two Kmar/AVIM officials and one session with one IND employee.
This means that the governmental employees mentioned above see the asylum seeker separately from each other and draw their own conclusion. To guarantee the independence of both parties involved, it is not possible in the governmental electronic systems for one party to read the official report of the other party before conducting their own age inspection.
The age inspection of the applicant should evaluate the following aspects about the asylum seeker:
- Appearance;
- Behaviour;
- Statements;
- Any other relevant circumstances.
The age inspector also includes external/physical characteristics in the age inspection report, which may – among other factors – include the presence or absence of:
- Wrinkles (around eyes, forehead, corners of the mouth, hands);
- Receding hairline;
- Aboundant facial/body hair;
- Grey hair;
- Visible Adam’s apple.
The conclusion of the Kmar/AVIM employees is noted in an official police report, the conclusion of the IND is included in the report of the IND Application Interview. As described in the Work Instruction 2023/06, it is not sufficient anymore to conclude that someone is clearly over or under the age of 18 or if there are doubts about their age. The official police report and the report of the IND Application Hearing must also contain the specific reasons behind the decision. There must ultimately be a unanimous judgment to reach a conclusion regarding the obvious majority or minority of age of the applicant. In addition, officials cannot establish that the person is an adult solely based on appearance.[9] If there is no unanimity, by definition then there is doubt and probably further assessment needed.
In 2023, various lower courts raised the question of whether the age assessment used in Dutch practice has a scientific basis and whether the results of the assessment can be regarded as a result of careful research.[10] Hereby, lower courts also more regularly question the extent to which the aspects of the asylum seeker’s appearance, behaviour and statements noted by the AVIM/KMar/IND can actually lead to the conclusion of doubt about one’s age or lead to the conclusion of adulthood.[11] Various lower courts have also pointed out the occasional contradictions between the observations of the AVIM/KMar on the one hand and the IND on the other, for example the presence of ‘striking’ crow’s feet and wrinkles according to the AVIM but not according to the IND. According to various courts, these inconsistencies lead to additional doubts about the accuracy of the inspection methods and the scientific basis of the age inspection. [12]
So, if there is still doubt between the parties concerned regarding the age of the (alleged) minor, further investigation will take place. In practice, this investigation is often carried out by the Dublin Unit and consists generally first contacting other EU units that carry out research of (age) registrations in other EU Member States. In case of an Eurodac or EU-VIS ‘hit’ in which the (alleged) minor is registered as an adult in another Member State, the (alleged) minor will be registered as an adult by the IND and/or AVIM. In a report published on 30 November 2020, the Dutch Advisory Committee on Migration Affairs (Adviescommissie voor Vreemdelingenzaken, ACVZ) argued that this practice makes it near impossible for (alleged) minors to prove their minority in case another Member State has registered them as an adult.[13] In April 2022 the ACVZ presented another report on ‘the human dimension in migration policy’.[14] It dealt with imbalance in the possibility to present evidence – for migrants and the government respectively – useful to determine the nationality and identity (including age) in relation to the principle of ‘equality of arms’. In concrete terms, this means, according to the ACVZ, there should be some form of a balance between the parties in regarding the possibility to provide evidence.
Case law of the Dutch highest Administrative Court, the Council of State, as well as lower courts, has shown over the years that, even in cases in which an asylum seeker was registered in a Member State as both a minor and as an adult, the IND may consider this asylum seeker to be an adult.[15] Often it is virtually impossible to refute a majority of age registration in a Member State, as both the State Secretary and Council of State require an ´official identifying document´ to prove that the asylum seeker is a minor. Most of the presented documents in Dublin cases, such as baptism certificates or school records, are not regarded as ´official identifying documents´. The burden of proof rests entirely with the asylum seeker.[16]
In recent case law however, the Council of State adopted a more nuanced approach, which might open to the possibility of evaluating whether the decision establishing the majority of age without motivating on the accuracy of age registration in another Member State harms the individual concerned. This consideration implies that an unmotivated choice regarding the date of birth – determining whether the applicant is considered to be an adult or a minor – will no longer be accepted by the Council of State. In particular, the court questioned whether the current practice in dealing with age registration in Member States, in which indicative evidence and statements by the parties are not taken into account, is in line with EU law.[17]
In June 2022, the lower District Court of Den Bosch asked the EU Court whether in Dublin-cases the ‘duty of cooperation between the State and the asylum seeker’ as stated in Article 4 of the Qualification Directive applies.[18] This Court had presented similar questions before, but they had to be withdrawn in March 2022 as the IND had withdrawn the contested decision in the main proceeding. The outcome of these questions would be extremely relevant for Dublin cases in which age assessment plays a major role, but it is yet to be seen if the CJEU will rule on the matter.[19] On July 13 2023, the Advocate-General de la Tour’s conclusions were published.[20] They dealt mainly with the question whether or not the ‘mutual trust principle between Member States’ was divisible or indivisible. They also discussed the duty of cooperation between the State and the asylum seeker and tailoring its risk assessment to the individual. However, the EU court decision, which is necessary for full comprehension of the state of the law, is still pending.
On 2 November 2022 the Council of State[21] ruled in favour of the State Secretary’s policy on the choice of a specific date of birth between multiple minor and adult age registrations in other EU Member States. Based on the ‘interstate trust principle, the ‘State Secretary ’can assume age registrations in other Member States to be correct if the Dutch age registration does not give an unequivocal answer as to whether the foreign national is clearly over or under the age of 18. The Council of State highlighted however that an exception should be made in the case of multiple age registrations in a member state; for such cases, the State Secretary must research whether there are certain age registrations where identifying source documents were used. The State Secretary may, in case of different age registrations, accept the registration of the applicant as an adult, if taken into account how the other state had come to the conclusion, provided the registration has taken place in a careful manner, which can be subject to litigation.
On April 26 2023 the Council of State[22] ruled that an asylum seeker can also use indicative documents to demonstrate that the date of birth registered in another Member State is incorrect. The policy on copying age registrations from other Member States was therefore changed as a result of these Council of State Rulin, resulting in Work Instruction 2023/6. Based on this new Working Instruction, lower courts regularly ruled that, due to the statements or documents provided by the asylum seeker, the age registration in another Member State cannot be assumed to be an genuine adult age registration. This includes, among other things, statements by the asylum seeker about inadequacies in the age registration in the other Member State, or about the reasons why an age of majority was stated there.[23]
Case law has also confirmed that indicative documents, such as birth certificates, extracts from population registers, or school reports indeed have evidentiary value.[24]
Medical age assessment
If the officers from IND, AVIM or KMar cannot conclude that the asylum seeker is evidently over 18 years of age, they cannot prove their minority of age, and there is no EU-Vis or Eurodac ‘hit’, a medical age assessment can take place.[25] This can be done also when the result is relevant for the evaluation of which Member State is responsible for examining the application for a fixed-term asylum residence permit or the question whether the foreign national is eligible for reception conditions of the COA.
Article 25 (5) from the EU Asylum Procedures Directive states that, if there is any doubt about the age of an unaccompanied minor foreign national, the Member States can determine the age by means of a medical examination. This article in the Procedures Directive obliges Member States to guarantee additional procedural guarantees when it comes to an unaccompanied minor.
According to Work Instruction 2023/6,[26] if the IND has not yet received clarity about the age based on the inspection or any age registration in another Member State, the IND will ask MediFirst for a referral for a medical age assessment. The MediFirst doctor themself carries out an examination to determine the age, comparable to an age inspection (leeftijdsschouw). If the referring doctor themself concludes that the asylum seeker is clearly a minor or adult, this conclusion will be assumed and no (further) medical age assessment will be offered.
The medical age assessment is carried out according to the ‘Protocol Age Assessment’,[27] in which the entire procedure and technique can be read. This medical examination carried out on the basis of X-rays of the clavicle, the hand and wrist.[28] Two radiologists examine if the clavicle is closed. If that is the case, the asylum seeker is considered to be at least 20 years old according to some scientific experts. A recent literature review by the Netherlands Forensic Institute (NFI) has shown that the youngest individuals with a fully matured collarbone are all at least 18 years old, where previously it was considered to be 20 years. Since 1 October 2022, with a mature collarbone, a minimum age of 18 years of the asylum seeker is assumed.[29]
It is the responsibility of the IND to ensure the examination has been conducted by certified professionals and is carefully performed.[30] The age assessment has to be signed by the radiologist. The whole process is described in Work Instruction 2023/6. The age examination is carried out on behalf of the IND by the Netherlands Forensic Institute (NFI), the X-rays are made at the company ‘Diagnostiek voor U’(Diagnostics for you).
It should be noted that the methods used in the medical age assessment process are still considered as controversial,[31] which is also illustrated by the – at times very technical – discussions among radiologists referred to in the case law over the years.[32] Two radiologists, independently from each other, examine the X-rays. When one radiologist considers that the clavicle is not closed, the IND has to follow the declared age of the asylum seeker.[33] This method is criticised by the temporary Dutch Association of Age Assessment Researchers (DA-AAR). These researchers conclude that it is undesirable to base age assessment exclusively on four X-ray images; especially as various researchers have expressed serious doubts about these images that have not yet been the subject of public scientific discussion. If age assessment is necessary, it should at least be performed by a multidisciplinary team using various methods, under the leadership of an independent child development expert.[34]
Until 2016 a special commission, the Medico-ethical Commission (Medisch-ethische Commissie) supervised the practice of age assessment. Afterwards, such role was assigned to the governmental Inspectorate for Security and Justice (Inspectie voor Veiligheid en Justitie). Furthermore, the Authority for Nuclear Safety and Radiation Protection supervises the use of ionizing radiation (without medical purpose).
A medical age assessment should be seen as a tool of last resort, in order to minimize the exposure of possible minors to X-rays. Possible minors should also be well informed, with the help of an interpreter, about the method, purpose, consequences, risks and the procedures of the age assessment. The information should be provided in a manner appropriate to the level of age and developmental background of the possible minor, in a language that they have indicated understanding or which it can reasonably be assumed they understand, and in such a way that ultimately there is a situation of informed consent on the part of the possible minor.
The possible minor must also be informed of the possibility of any refusal to cooperate in this investigation and its consequences. Member States may not base the rejection of the application for asylum solely on the fact that the possible minor has not cooperated in the age assessment. If the individual involved agrees, they must give written permission for the investigation.[35]
Minors are represented by their legal guardians, like the organisation NIDOS. Their guardianship only ends if the outcome of the age assessment is that the applicant is evidently of age. If the subject of the age assessment disagrees with its outcome, presenting a counter report realised by an expert is possible, but very difficult to arrange in practice. First of all, it is the asylum seeker’s responsibility to contact a counter expert. When the asylum seeker calls in a counter expert, the IND will temporarily make the CD-ROM with X-ray images available to the counter expert.
Case law made clear over the years that not every counter-expert assisting the asylum seeker will be recognised as suitable for the role. The question arose whether there are sufficient counter-experts to be found in Dutch practice who have the required specific radiological expertise to act as a counter-expert in a legal proceeding. In 2016, parliamentary questions were put to the then Secretary of State about the possibility of having a counter-expertise carried out in age assessment procedures. The Secretary of State replied that the State is in consultation with the National Forensic Institute (NFI) and the IND to ensure that the actual availability and willingness of counter-experts is sufficiently guaranteed. To date, the outcome of these consultations is not known to the authors of the report.
[1] Article 3.108b Aliens Decree.
[2] IND Work Instruction 2010/13 Treatment of medical advice, 29 October 2010, available in Dutch at: https://bit.ly/48zBFaB; IND Work Instruction 2015/8 Procedural guarantees, 20 July 2015, available in Dutch at: https://bit.ly/42W9GRp.
[3] IND Work instruction 2021/9 on ’special procedural guarantees’, 25 June 2021, available in Dutch at: https://bit.ly/4bQyGNK.
[4] IND Work instruction 2021/12 on ’existing medical problems relating to the question of being able to conduct the interview and being able to take a decision’, 25 June 2021, available in Dutch at: https://bit.ly/3SVE2yF.
[5] EASO, EASO Practical guide on age assessment, second edition, 9 March 2018, available at: https://bit.ly/3Sv8yPP.
[6] EASO, Age assessment practices in EU+ countries: updated findings, 1 September 2021, available at: https://bit.ly/42Dgnr9.
[7] IND, Work Instruction Age Determination, 8 June 2023, available in Dutch at: https://bit.ly/3HU3WxO.
[8] IND, Work Instruction 2018/19 Age assessment, 13 December 2018, available in Dutch at: https://bit.ly/3uYoa6q.
[9] Tweede Kamer, Reply by the State Secretary for Security and Justice to a parliamentary question on age assessment of unaccompanied children, 7 November 2016, available in Dutch at: http://bit.ly/2glbqMT. See also Paragraph C1/2.2, ad b Aliens Circular.
[10] Regional Court of Roermond, ECLI:NL:RBDHA:2023:195, 21 February 2023, available in Dutch at: https://bit.ly/3SyS7Sr; Regional Court Amsterdam, ECLI:NL:RBDHA:2023:3351, 10 March 2023, available in Dutch at: https://bit.ly/48cA8XG; Regional Court Zwolle, ECLI:NL:RBDHA:2023:15164, 15 September 2023, available in Dutch at: https://bit.ly/3P0l6xv.
[11] Regional Court the Hague, 21 June 2023, ECLI:NL:RBDHA:2023:9097, available in Dutch at: https://bit.ly/42CyLRc; Regional Court Arnhem, 4 September 2023, ECLI:NL:RBDHA:2023:13712, available in Dutch at: https://bit.ly/3SNEzTb; Regional Court Zwolle, 15 September 2023 ECLI:NL:RBDHA:2023:15164, 15 September 2023, available in Dutch at: https://bit.ly/3P0l6xv; Regional Court Zwolle, 3 October 2023, ECLI:NL:RBDHA:2023:15158, available in Dutch at: https://bit.ly/3OEBgwx; Regional Court Zwolle, 3 October 2023, ECLI:NL:RBDHA:2023:15145, available in Dutch at: https://bit.ly/49a6Gmr.
[12] Regional Court Zwolle, 3 October 2023, ECLI:NL:RBDHA:2023:15158, available in Dutch at: https://bit.ly/3OEBgwx; Regional Court Zwolle, 3 October 2023, ECLI:NL:RBDHA:2023:15145, available in Dutch at: https://bit.ly/49a6Gmr.
[13] Dutch Advisory Committee on Migration Affairs (Adviescommissie voor Vreemdelingenzaken, ACVZ), Nadeel van de Twijfel, 30 November 2020, available in Dutch at: https://bit.ly/2LFImUh.
[14] Dutch Advisory Committee on Migration Affairs (Adviescommissie voor Vreemdelingenzaken, ACVZ), Naar een gelijker speelveld bij vaststelling van nationaliteit en identiteit bij migranten, 11 April 2022, available in Dutch at: https://bit.ly/3Igig3W.
[15] Council of State, 29 April 2019, ECLI:NL:RVS:2019:1395, available in Dutch at: https://bit.ly/3wd87Cf.
[16] Council of State, 26 November 2021, ECLI:NL:RVS:2021:2659, available in Dutch at: https://bit.ly/3SRzx9p.
[17] Council of State, 4 June 2021, ECLI:NL:RVS:2021:1184, available in Dutch at: https://bit.ly/3OHIzn1.
[18] Regional CourtDen Bosch, 15 June 2022, ECLI:NL:RBDHA:2022:5724, available in Dutch at: https://bit.ly/3wk1Lkj.
[19] Regional Court Den Bosch, 4 October 2021, ECLI:NL:RBDHA:2021:10735, available in Dutch at: https://bit.ly/3HUwHuc.
[20] CJEU, Conclusions of the Advocate General, ECLI:EU:C:2023:593, X. v. the Netherlands, 13 July 2023, available at: https://bit.ly/49xFY7j.
[21] Council of State, 2 November 2022, ECLI:NL:RVS:2022:3147, available in Dutch at: https://bit.ly/42w3f7f.
[22] Council of State, 26 April 2023, ECLI:NL:RVS:2023:1654, available in Dutch at: https://bit.ly/3OyyCII.
[23] Regional Court Zwolle, 3 October 2023, available in Dutch at: https://bit.ly/3OEBgwx; Regional Court Groningen, 6 September 2023, ECLI:NL:RBDHA:2023:13419, available in Dutch at: https://bit.ly/4bwHsAf; Regional Court Middelburg, 28 July 2023, ECLI:NL:RBDHA:2023:11536, available in Dutch at: https://bit.ly/49ugHe5.
[24] Regional Court Groningen, 6 September 2023, ECLI:NL:RBDHA:2023:13419, available in Dutch at: https://bit.ly/4bwHsAf; Regional Court Groningen, 1 August 2023, ECLI:NL:RBDHA:2023:11389, available in Dutch at: https://bit.ly/48cRe82; Regional Court Utrecht, 1 August 2023, ECLI:NL:RBDHA:2023:12970, available in Dutch at: https://bit.ly/3uuJ790; Regional Court Utrecht, 31 July 2023, ECLI:NL:RBDHA:2023:12621, available in Dutcht at: https://bit.ly/3URVyGz.
[25] Article 3.109d(2) Aliens Decree.
[26] IND, Work Instruction Age Determination, 8 June 2023, available in Dutch at: https://bit.ly/3uzRUq3.
[27] Protocol leeftijdsonderzoek, IND, 16 December 2019, available in Dutch at: https://bit.ly/3TfaVrE.
[28] Tweede Kamer, Report of the Committee on Age assessment, April 2012, available in Dutch at: http://bit.ly/2xIFvky, 7.
[29] WBV 2022/23, 1 October 2022, available in Dutch at: https://bit.ly/48xp8Vb.
[30] Article 3.2 GALA.
[31] Tweede Kamer, Report of the Committee on Age assessment, April 2012, available in Dutch at: http://bit.ly/2xIFvky, 7.
[32] See e.g. Regional Court Amsterdam, Decision No 10/14112, 18 December 2012. See also ECtHR, Darboe and Camara v. Italy, Application No 5797/17.
[33] Tweede Kamer, Report of the Committee on Age assessment, April 2012, available in Dutch at: http://bit.ly/2xIFvky, 16.
[34] Temporary Dutch Association of Age Assessment Researchers (DA-AAR), Age assessment of unaccompanied minor asylum seekers in the Netherlands, radiological examination of the medial clavicular epiphysis, May 2013.
[35] Article 25 (5)(c) APD and Article 3.109d(3) Aliens Decree.