Author
General
Children are considered to be unaccompanied if they travel without their parents or their guardian and their parents or guardian are not already present in the Netherlands. One is considered as a “child” (underage) when under the age of 18. However, an underage mother aged 16 or more can request the Juvenile Court to be emancipated in order to raise and care for one’s child.[1]
In principle, the same conditions apply to unaccompanied children and adults when it comes to eligibility for a residence permit. However, unaccompanied minors seeking asylum are considered as particularly vulnerable compared to adult asylum seekers and therefore specific guarantees apply. As a general rule, unaccompanied asylum-seeking minors are interviewed by employees of the IND who are familiar with their special needs.[2] The IND employees conducting these interviews have followed the EUAA course on interviewing vulnerable persons, but this is not prescribed by law.[3] As other applicants, UAMs will be screened by MediFirst in order to determine if there are special needs for the interview (see Screening of vulnerability).
Unaccompanied children may lodge an asylum application themselves. However, in the case of unaccompanied children younger than the age of 12, their legal representative or their guardian has to sign the asylum application form on their behalf.
A guardian is assigned to every unaccompanied child. Nidos, the independent guardianship and (family) supervision agency, is responsible for the appointment of guardians for unaccompanied asylum seeking children in a reception location.[4] Under the Dutch Civil Code, all children must have a legal guardian (a parent or court appointed guardian).[5] For unaccompanied children, Nidos will request to be appointed as guardian by the juvenile court.[6] Even though formal guardianship is assigned to the organisation, individual professionals, called “youth protectors”, carry out the tasks.
There is no time limit for the appointment of a legal guardian to an unaccompanied child.
The guardian takes important decisions on behalf of the child, with consideration to their future, inter alia, regarding their education, where the unaccompanied child can find the best housing and what medical care is necessary. Thus, the purpose of guardianship can be divided into legal and pedagogical.
On their arrival in the Netherlands, children under the age of 15 are placed in a foster family, which provides initial reception. After a few days, the child and the guardian go to Ter Apel to lodge the asylum application. While the child is staying with this first family, Nidos looks for a permanent home for them. Children over the age of 15 years old live in small-scale housing units with other children.
Campus reception is only advised if the child is able to live independently in a large-scale setting. Children who arrive at Schiphol airport are transferred to the application centre in Ter Apel and are not detained in AC Schiphol.
Normally, unaccompanied children do not stay in Ter Apel for a long period of time after lodging their application for international protection. In 2022 and 2023, however, there have been several instances where children had to stay in Ter Apel for multiple days or even weeks. The conditions in Ter Apel in the fall of 2022 were harrowing: children staying there had to sleep on plastic chairs and did not have access to sanitary facilities.[7] The Ombudsperson for Children has raised concerns on multiple occasions, stating that the situation in Ter Apel constitutes a severe violation of children’s rights.[8] The situation for children in Ter Apel had become so worrisome that Nidos decided to evacuate 150 of them, even though it was not their legal obligation to provide shelter for the children. The situation improved in 2023, however, there were still too many unaccompanied minors at the reception centre in Ter Apel. Formally, there is room for 55 unaccompanied minors in a special area of the reception centre with additional guidance and security. At some moments in 2023, there were more than seven times as many unaccompanied minors staying in Ter Apel.[9] COA and Nidos have called on municipalities to create more reception locations for minors. Although unaccompanied minors did not have to sleep on the floor in 2023, they have had to move from one temporary reception centre to another, which is unbeneficial for their wellbeing.[10]
Age assessment
In case the IND doubts whether an asylum seeker is a child and the child is unable to prove their identity, an age assessment examination can be initiated. Within the scope of age assessment, two officers from the Immigration Service and the Border Police assess the physical characteristics and the behaviour of an asylum seeker who claims to be a minor.[11] These officers indicate whether they can conclude the asylum seeker is evidently a minor or evidently an adult. Such an assessment does not take place, however, in case of an EU-VIS hit. The Immigration Service will also conduct a search in Eurodac. 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 nearly impossible for (alleged) minors to prove they are minors in case another Member State has registered them as an adult.[12] For more information, please see the Age assessment of unaccompanied children section above.
One of the issues that unaccompanied minors face when they are registered as an adult in another Member State, is that they will be transferred to a reception centre for adults when the immigration service changes their age based on the registration in the other Member State. On 4 November 2022, the Regional Court of Den Bosch ruled that a minor could not be transferred to an adult reception centre until the age of the applicant was properly examined.[13]
Return decisions for unaccompanied minors
On 14 January 2021, the CJEU published its landmark judgment in the case of TQ v Staatssecretaris van Justitie en Veiligheid (C-441/19).[14] The case concerned a minor (TQ) who applied for asylum in the Netherlands when he was 15 years old. The IND rejected his asylum request, a decision that automatically entails a return decision in accordance with Dutch law. TQ appealed the decision and argued that he does not know where his family lives and that he would not be able to recognise his parents upon return to Guinea. The IND followed Dutch policy, which stipulates that minors who are over 15 years of age at the date of their asylum request receive a return decision without examining whether there are adequate reception facilities in the country of return. For minors under 15 years of age, there is the option of granting a special residence permit in case there are no adequate reception facilities.[15] The Regional Court of Den Bosch referred preliminary questions to the CJEU concerning the case of TQ The Regional Court submitted various questions: whether a return decision could be taken against a minor without investigating if there are adequate reception facilities. Whether a Member State is permitted to make distinctions on the basis of the age of a minor (15-/15+), and whether it is permitted under Union law to adopt a return decision against a minor, but not undertake any action to remove the applicant until he turns 18.[16]
The CJEU ruled that a Member State must ascertain – before adopting a return decision – that an unaccompanied minor returns to adequate reception facilities. Furthermore, a Member State may not differentiate based on the age of the minor and once the Member State adopts a return decision, the return must actually be carried out. The CJEU also makes it very clear that Member States are under the obligation to apply the principle of the best interests of the child at all stages of the procedure. This ruling shows that the Dutch policy relating to unaccompanied children who receive a return decision is not in line with EU law.
The Regional Court of Den Bosch delivered its final judgement in the case of TQ on 15 March 2021.[17] The Secretary of State appealed the judgement, and the Council of State published its ruling on this onward appeal on 8 June 2022.[18] The Council of State established that there are three possible situations for unaccompanied minors who do not qualify for an asylum permit:
- There is adequate reception in the county of return. A return decision is issued.
- There is no adequate reception. The unaccompanied minor must be granted a residence permit on national grounds.
- Further research is needed. The unaccompanied minor will receive a rejection on the merit of the asylum claim; the decision also includes and explanation as to why extra time is needed to investigate adequate reception and how long the investigation will take. The asylum decision and the return decision are therefore separated. In this situation, the unaccompanied minor retains lawful residence on the basis of Article 8, preamble and under f, Aliens Act. The investigation can lead to two conclusions: either there is adequate reception, so that a return decision can be issued, or there is no adequate reception and the unaccompanied minor receives a residence permit on national grounds. The unaccompanied minor can appeal the decision stating that further research is needed.
The Council of State further ruled that the fact that the applicant is not a minor anymore does not mean that the Secretary of State can refrain from investigating whether they should have been granted a permit based on national grounds.
Following the Council of State judgment, the IND issued an internal information message in which it is stated that the period for further research into adequate reception will, in principle, be of one year.[19] This period can be extended if the unaccompanied minor does not cooperate with the research.[20] In 2023, the policy in the Aliens Circular was still not adjusted in accordance with the TQ-judgment. To DCR’s knowledge, no unaccompanied minors have received a permit on national grounds due to the fact that there is no adequate reception in their country of origin. However, there have been some cases in which unaccompanied minors did receive a permit, but it based on art. 8 ECHR (private life).
The most pressing issue at the moment is the State Secretary’s decision that the one year period to perform further research into the adequate reception will only start after the final decision on the asylum application. Due to the long waiting time in the asylum procedure, this can take more than a 1.5 year. This means that minors will remain for years in uncertainty about their residential status. There have been some judgements in first instance concerning this matter, however no final ruling by the Council of State has been pronounced yet.[21]
[1] Articles 1.233 and 1.253ha, Dutch Civil Code.
[2] Section C1/2.11 Aliens Circular.
[3] Practice based observation of the Dutch Council for Refugees, January 2024.
[4] Article 1.302 (2) Dutch Civil Code.
[5] Article 1.245 Dutch Civil Code.
[6] Article 1.256 (1) Civil Code.
[7] NOS, ‘Situatie alleenstaande kinderen verslechterd’, 10 October 2022, available in Dutch at: https://bit.ly/3ZeiwaU.
[8] Kinderombudsman, ‘Nog steeds sprake van kinderrechtenschendingen Ter Apel’, 7 November 2022, available in Dutch at: https://bit.ly/3Za7bZg.
[9] NOS, ‘351 alleenreizende minderjarigen in opvang Ter Apel, zeven maal te veel’, 21 September 2023, available in Dutch at: http://bit.ly/3UiHBS3.
[10] NOS, ‘Met spoed bijna 4700 extra opvangplekken nodig voor minderjarige asielzoekers’, 4 March 2023. Available in Dutch at: https://bit.ly/3vHKXDw.
[11] Work Instruction 2018/19, 13 December 2018, available in Dutch at: https://bit.ly/3T1OpAW.
[12] 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.
[13] Regional Court Den Bosch, ECLI:NL:RBDHA:2022:11809, 4 November 2022, available in Dutch at: https://bit.ly/3HVjIbw.
[14] CJEU, TQ v Staatssecretaris van Justitie en Veiligheid, C-441/19, 14 January 2021, available at: https://bit.ly/3HPP8jL.
[15] However, this permit is rarely granted. The Council for Refugees approximates that the permit has been granted in less than 10 cases since the introduction of the permit in 2012. Conditions are laid down in Section B8/6 Aliens Circular.
[16] Regional Court Den Bosch, ECLI:NL:RBDHA:2019:5967, 12 June 2019, available in Dutch at: https://bit.ly/3wiG4B7; CJEU, TQ v Staatssecretaris van Justitie en Veiligheid, C-441/19, 14 January 2021, available at: https://bit.ly/3HPP8jL.
[17] Regional Court Den Bosch, ECLI:NL:RBDHA:2021:2376, 15 March 2021, available in Dutch at: https://bit.ly/493Upjw.
[18] Council of State, ECLI:NL:RVS:2022:1530, 8 June 2022, available in Dutch at: https://bit.ly/496pDXb.
[19] Internal information messages are the lowest type of policy documents. These messages are directed at IND officers who carry out interviews and decide on asylum applications. However, it is possible to use these information messages in court, as the officers are obliged to follow the rules laid down in these messages.
[20] IND, IB 2022/74, 29 July 2022, available in Dutch at: https://bit.ly/3igKEcI.
[21] Regional Court Amsterdam, ECLI:NL:RBDHA:2023:21386, 4 July 2023, available in Dutch at: https://bit.ly/4bWhRRw.