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 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, 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. 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 needs in order to be interviewed. 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 hearing 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.
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 Secretary of State 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 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.[2] 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; 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 have been into effect for several years.
Age assessment of unaccompanied children
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.
The age assessment procedure is governed by Paragraph C1/2.1 and C1/2.2 of the Aliens Circular and elaborated on in IND Work Instruction 2018/19 [6]. 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).[7] This means that officers from the KMar, the immigration police (AVIM) and/or the IND assessing whether the asylum seeker is evidently over or under the age of 18 or assessing the given age when there are reasons to doubt it and ability to conduct a conversation.
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 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 following aspects about the asylum seeker should be evaluated in the age inspection of the applicant:
- Appearance;
- Behavior;
- 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 report, the conclusion of the IND is included in the report of the IND Application Interview. As described in the Work Instruction 2018/19, it is not sufficient to conclude that someone is clearly over or under the age of 18, or that there are doubts. The official report and the report of the IND Application Hearing must also contain the 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.[8] If there is no unanimity, by definition then there is doubt and probably further assessment needed.
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, that carries 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.[9] In April 2022 the ACVZ presented a report on ‘the human dimension in migration policy’. [10]. 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, 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.[11] Often it is virtually impossible to refute a majority of age registration in a Member State, as both the Secretary of State 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.[12]
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.[13]
For the moment, however, no pre-judicial questions on whether the current practice with accepting the age registration in the other Member State, disregarding indicative evidence and declarations is in line with EU law were submitted to the EU Court of Justice. In June 2022, the lower District Court of Den Bosch rrequested 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. [14] This Court had presented similar questions before, but they had to be withdrawn in March 2022 as the IND withdrew the contested decision in the main proceeding.. The outcome of these questions can 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.[15]
On 2 November 2022 the Council of State[16] ruled in favour of the Secretary of State’s policy on the choice of a specific date of birth at multiple minor and adult age registrations in other EU Member States. Based on the ‘interstate trust principle, the ‘Secretary of State 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 Secretary of State must research whether there are certain age registrations where identifying source documents were used. The Secretary of State 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, providing provided the registration has taken place in a careful manner, which can be subject to litigation.
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.[17] 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 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
The age assessment is carried out according to the ‘Protocol Age Assessment’,[18] 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.[19] 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. With a mature collarbone, a bottom age of 18 years is now assumed as of 1 October 2022.[20]
It is the responsibility of the IND to ensure the examination has been conducted by certified professionals and is carefully performed.[21] The age assessment has to be signed by the radiologist. The whole process is described in Work Instruction 2018/19. 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,[22] which is also illustrated by the – at times very technical – discussions among radiologists referred to in the case law over the years.[23] 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.[24] 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.[25]
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.[26]
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: http://bit.ly/1NANE76; IND Work Instruction 2015/8 Procedural guarantees, 20 July 2015, available in Dutch at: http://bit.ly/1S0RQAU.
[3] IND Work instruction 2021/9 on ’special procedural guarantees’, 25 June 2021.
[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.
[5] EASO. Practical guide on age assessment, second edition, March 9, 2018.
[6] IND Work Instruction 2018/19 Age assessment, 13 December 2018, available in Dutch at: https://bit.ly/3bSuErL
[7] IND Work Instruction 2018/19 Age assessment, 13 December 2018, available in Dutch at: https://bit.ly/3bSuErL
[8] 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.
[9] 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.
[10] 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
[11] ABRvS, 29 April 2019, 201901525/1.
[12] ABRvS, 26 november 2021, 202101306/1, ECLI:NL:RVS:2021:2659.
[13] ABRvS, 4 June 2021, 202000445/1, ECLI:NL:RVS:2021:1184.
[14] MK Rb Den Bosch, 15 June 2022, NL22.6989, ECLI:NL:RBDHA:2022:5724
[15] MK Rb Den Bosch, 4 October 2021, ECLI:NL:RBDHA:2021:10735.
[16] ABRvS, 2 November 2022, ECLI:NL:RVS:2022:3147
[17] Article 3.109d(2) Aliens Decree.
[18] Protocol leeftijdsonderzoek, IND, 16 november 2019
[19] Tweede Kamer, Report of the Committee on Age assessment, April 2012, available in Dutch at: http://bit.ly/2xIFvky, 7.
[20] WBV 2022/23, 1 October 2022
[21] Article 3.2 GALA.
[22] Tweede Kamer, Report of the Committee on Age assessment, April 2012, 7.
[23] 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.
[24] Tweede Kamer, Report of the Committee on Age assessment, April 2012, 16.
[25] 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.
[26] Article 25 (5)(c) Asylum Procedures Directive and Article 3.109d(3) Aliens Decree.