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, Article 3.108b of the Aliens Decree provides that the IND shall examine from the start of the asylum procedure whether the individual applicant needs special procedural guarantees. However, unaccompanied children are generally considered as a vulnerable group in policy.
Screening of vulnerability
Before the start of the short asylum procedure in Track 4, therefore not in Tracks 1 and 2, a medical examiner from FMMU examines every asylum seeker as to whether he or she is mentally and physically able to be interviewed (see Registration). FMMU is an independent agency, working on behalf of the IND to provide medical advice. FMMU’s medical advice forms an important element in the decision as to how the application will be handled. However, it should be noted that FMMU 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 he or she has in order to be interviewed. FMMU cannot be seen as a ‘product’ of the Istanbul Protocol, because its examination is limited to the question as to whether the asylum seeker is able to be interviewed based on physical and/or mental capacity.
From the start of the asylum procedure, the IND will examine 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 Secretary of State has implemented this provision in the Aliens Decree.
The IND decides whether the way the interview is conducted should be adapted as a result of FMMU advice. The IND bases its decision on the medical advice, its own observations and those of the lawyer and asylum seeker him or herself. Important documents in this context are the IND Work Instructions 2010/13 and 2015/8. Work Instruction 2015/8 contains a list of indications on the basis of 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; blind or handicapped) or psychological problems (traumatised, depressed or confused). It is explicitly noted that this is not an exhaustive list.
Age assessment of unaccompanied children
The age assessment procedure is governed by Paragraph C1/2 of the Aliens Circular and starts with an age inspection.
Age inspection (leeftijdsschouw)
If an asylum seeker, who claims to be an unaccompanied minor, lodges an asylum application in the Netherlands, the Royal Police (KMar) and/or the IND can conduct an inspection (leeftijdsschouw). This means that officers from the KMar and/or the IND assess whether the asylum seeker is evidently over or under 18 based on his or her appearance and discussion with him or her. This is usually done in cases where it seems evident that the asylum seeker is an adult. The opposite is possible too, however: when an asylum seeker claims he or she is of age, an inspection can follow if the authorities suspect they are dealing with a minor.
This method has been criticised in recent Dutch case law. As a result, the Secretary of State made some adjustments to the leeftijdsschouw in 2016. The policy on age assessment was amended as of 1 January 2017. Currently, three officers from the IND, the KMar or the Border Police (AVIM) have to conduct the inspection independently from one another. There must ultimately be a unanimous judgment to conclude obvious majority or minority of the applicant. In addition, officials cannot establish that the person is an adult solely based on appearance.
Medical age assessment
If the officers from IND, AVIM or KMar cannot conclude that the asylum seeker is evidently over 18 years of age and he or she cannot prove his or her minority, an age assessment takes place. This is carried out on the basis of X-rays of the clavicle, the hand and wrist. Radiologists examine if the clavicle is closed. When the clavicle is closed the asylum seeker is considered to be at least 20 years old according to some scientific experts. It is the responsibility of the IND to ensure the examination has been conducted by certified professionals and is carefully performed. The age assessment has to be signed by the radiologist.
It should be noted that the methods which are used in the medical age assessment process are controversial which is also illustrated by the sometimes very technical discussions among radiologists referred to in the case law. The X-rays will be examined by two radiologists, independently from each other. When one radiologist considers that the clavicle is not closed, the IND has to follow the declared age of the asylum seeker. 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.
The Dutch Council for Refugees intervened together with ECRE and the AIRE Centre in the case of Darboe and Camara v. Italy, drawing attention to the fact that no existing medical method can reliably determine the age of an individual. The interveners state that medical age assessments have been criticised by medical experts.
Until 2016 a special commission, the Medico-ethical Commission (Medisch-ethische Commissie) supervised the practice of age assessment. Now this has been assigned to the Inspectie voor Veiligheid en Justitie.
Article 3.108b Aliens Decree.
IND Work Instruction 2010/13 Treatment of medical advice, 29 October 2010, available in Dutch at: http://bit.ly/1NANE76; IND Work Instruction 2015/8 Procedural guarantees, 20 July 2015, available in Dutch at: http://bit.ly/1S0RQAU.
Paragraph C1/2 Aliens Circular.
In one case, the Court allowed an appeal against an age assessment decision on the ground that the age inspection had not been carried out by experts on the matter: Regional Court of Amsterdam, Decision No 16/13578 of 13 July 2016. See also critiques of the age inspection by: Regional Court of Arnhem, Decision No 16/10627 of 16 June 2016; Regional Court of Haarlem, Decisions No 16/5615 of 19 April 2016 and No 16/833 of 12 February 2016.
Tweede Kamer, Reply by the Secretary of State 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.
Article 3.109d(2) Aliens Decree.
Article 3.2 GALA.
Tweede Kamer, Report of the Committee on Age assessment, April 2012, 7.
See e.g. Regional Court Amsterdam, Decision No 10/14112, 18 December 2012. See also the pending case before the ECtHR, Darboe and Camara v. Italy, Application No 5797/17.
Tweede Kamer, Report of the Committee on Age assessment, April 2012, 16.
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.