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 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 General asylum procedure in Track 4, therefore not in Tracks 1 and 2, a medical examiner from MediFirst examines every asylum seeker as to whether he or she is mentally and physically able to be interviewed (see Registration). MediFirst is an independent organisation working on behalf of the IND to provide medical advice in asylum procedures. In 2021, MediFirst took over this role from the FMMU. MediFirst’s medical advices forms an important element in the decision as to how the asylum application will be handled. However, it should be noted that the organisation 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. MediFirst cannot be seen as a ‘product’ of the Istanbul Protocol, because its examination is solely limited to the question 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 these limitations in the hearing- and 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 get a medical advice by Medifirst to asylum seekers other than the ones in track 4, the possibility is there to get a medical advice first if the situation asks for one.
From the start of the asylum procedure, till 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.
The IND decides whether the way the interview normally is conducted should be adapted based on MediFirst advice and remarks. The IND bases its decision on the medical advice, its own observations and those of the lawyer, the legal aid worker and the 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, 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; blind 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’ 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. They mark a confirmation and continuation of the previous Work Instructions above-mentioned that have been into effect for several years.
Age assessment of unaccompanied children
The age assessment procedure is governed by Paragraph C1/2.2 of the Aliens Circular and elaborated on in IND Work Instruction 2018/19 . The 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 always conduct an age inspection (leeftijdsschouw). This means that officers from the KMar and/or the IND assess whether the asylum seeker is evidently over or under the age of 18 based on his or her appearance and discussion with him or her.
This method has been criticised in Dutch case law. As a result, the State Secretary made some adjustments to the age inspection in 2016. The policy on age assessment was amended as of 1 January 2017 and Work Instruction 2018/19 was introduced in December 2018. 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 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.
If there is still doubt 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 of research into (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) argues 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.
Case law of the Dutch highest Administrative Court, the Council of State, 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 an adult, the IND may consider this asylum seeker to be an adult. 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´.
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.
Questioning whether the current practice concerning dealing with age registration in Member States, in which indicative evidence and statements by the parties are left out, is in line with EU law. As of that moment, however, no pre-judicial questions were submitted to the EU Court of Justice. The lower District Court of Den Bosch recently has 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 would be in place. The outcome of these questions can be of relevant for Dublin cases in which age assessment plays a major role.
Medical age assessment
If the officers from IND, AVIM or KMar cannot conclude that the asylum seeker is evidently over 18 years of age, he or she cannot prove his or her minority, and there is no EU-Vis or Eurodac ‘hit’, a medical age assessment can take 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. The whole process is described in Work Instruction 2018/19.
It should be noted that the methods used in the medical age assessment process are still considered to be controversial, which is also illustrated by the – at times very technical – discussions among radiologists referred to in the case law. 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. 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 2017 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 governmental Inspectie voor Veiligheid en Justitie. A medical age assessment should be seen as a tool of last resort, in order to minimize the exposure of minors to X-rays. Possible minors should also be well informed about the risks and the procedures. 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, a counter report by an expert is possible, but difficult to arrange.
 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.
 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.
 ABRvS, 29 april 2019, 201901525/1.
 ABRvS, 4 June 2021, 202000445/1, ECLI:NL:RVS:2021:1184.
 MK Rb Den Bosch, 4 October 2021, ECLI:NL:RBDHA:2021:10735.
 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.