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]
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.[3] Under the Dutch Civil Code, all children must have a legal guardian (a parent or court appointed guardian).[4] For unaccompanied children, Nidos will request to be appointed as guardian by the juvenile court.[5] 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, 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 were harrowing: children staying there had to sleep on plastic chairs and did not have access to sanitary facilities.[6] The Ombudsman for Children has raised concerns on multiple occasions, stating that the situation in Ter Apel constitutes a severe violation of children’s rights. They further stated: ‘Almost all of these children receive a residence permit, so the way we receive them in our society is harmful. You can destroy so much in the weeks that you let these children languish.’[7] 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. At that point, some of the unaccompanied minors had not eaten for multiple days and felt very unsafe due to the living conditions they were subjected to.[8]
Age assessment
In case the IND doubts whether an asylum seeker is a child and the child is unable to prove its identity, an age assessment examination can be initiated. Within the scope of age assessment, two officers from the Immigration Service and the Border Police will assess the physical characteristics and the behaviour of an asylum seeker who claims to be a minor.[9] 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. Already in September 2016, taking into account the principle of mutual trust, the Council of State ruled that the registration in another Member State is assumed to be accurate. Only when the asylum seeker has made plausible that they are a minor, the IND may be compelled to execute an age assessment. In general, authentic papers of identification are required. Supporting documents, such as a birth certificate, are considered insufficient proof of minority.[10] In a report published on 30 November 2020, the Dutch Advisory Committee on Migration Affairs (Adviescommissie voor Vreemdelingenzaken, ACVZ) argues that it 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.[11] On 2 November 2022, the Council of State ruled that the Secretary of State’s policy regarding age registration is not unreasonable.[12] The Council of State emphasises that the Secretary of State does not simply rely on the principle of interstate trust when referring to the age that is registered in another Member State, but also takes into account documents, statements and the way the other Member State came to the conclusion that the asylum seeker is an adult.[13] In practice, however, the age often appears to have been determined on the basis of declarations in the other Member State.[14]
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.[15] Furthermore, according to the Council of State, the principle of mutual trust does not imply an obligation for the Immigration Service to adhere to the registration realised in another Member State.[16]
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).[17] 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 recognize 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.[18] The Regional Court of Den Bosch referred prejudicial 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.[19]
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.[20] The Secretary of State appealed the judgement, and the Council of State published its ruling on this onward appeal on 8 June 2022.[21]
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 rules 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. This period can be extended if the unaccompanied minor does not cooperate with the research.[22] At the time of writing this report, it is early to evaluate how the research into adequate reception is carried out and how many unaccompanied minors will receive permits on national grounds.
[1] Articles 1.233 and 1.253ha, Dutch Civil Code.
[2] Section C1/2.11 Aliens Circular.
[3] Article 1. 302 (2) Dutch Civil Code.
[4] Article 1.245 Dutch Civil Code.
[5] Article 1.256 (1) Civil Code.
[6] NOS, ‘Situatie alleenstaande kinderen verslechterd’, 10 October. Available in Dutch at: https://bit.ly/3ZeiwaU.
[7] Kinderombudsman, ‘Nog steeds sprake van kinderrechtenschendingen Ter Apel’, 7 November 2022. Available in Dutch at: https://bit.ly/3Za7bZg.
[8] Nidos, ‘Nidos regelt buiten Ter Apel minimaal 150 plekken voor jongeren’, 2 September 2022. Available in Dutch at: https://bit.ly/3VSgLwR. BNNVARA, ‘Minderjarige asielzoekers geëvacueerd uit Ter Apel, sommige kinderen al dagen zonder eten’, 2 September 2022. Available in Dutch at: https://bit.ly/3VLcQSD.
[9] Work Instruction 2018/19, 13 December 2018.
[10] Council of State, ECLI:NL: RVS:2019:653, 27 February 2019.
[11] 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.
[12] Council of State, ECLI:NL:RVS:2022:3147, 2 November 2022.
[13] Council of State, ECLI:NL:RVS:2022:3147, 2 November 2022, paragraph. 4.
[14] See, for example: Regional Court of Roermond, ECLI:NL:RBDHA:2023:1535, 13 February 2023; Regional Court of Groningen, NL22.25237, 10 January 2023; Regional Court of Zwolle, NL22.16781, 20 December 2022; District Court of Den Bosch, NL22.2820, 6 December 2022.
[15] Regional Court of Den Bosch, ECLI:NL:RBDHA:2022:11809, 4 November 2022.
[16] Council of State, Decision No 201807010/1, 30 April 2019.
[17] CJEU, TQ v Staatssecretaris van Justitie en Veiligheid, C-441/19, 14 January 2021.
[18] 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.
[19] Regional Court Den Bosch, ECLI:NL:RBDHA:2019:5967, 12 June 2019; CJEU case number C-441/19.
[20] Regional Court Den Bosch, ECLI:NL:RBDHA:2021:2376, 15 March 2021.
[21] Council of State, ECLI:NL:RVS:2022:1530, 8 June 2022.
[22] IND, IB 2022/74, 29 July 2022. Available in Dutch at: https://bit.ly/3igKEcI.