Legal representation of unaccompanied children

Netherlands

Country Report: Legal representation of unaccompanied children Last updated: 30/11/20

Author

Dutch Council for Refugees Visit Website

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 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.[2]

 

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.[3]

 

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, the tasks are carried out by individual professionals, called “youth protectors”.

 

There is no time limit for the appointment of a legal guardian to an unaccompanied child. However, no instances have been reported where the period between entry into the Netherlands and the appointment of a guardian was unreasonably long.

 

Children from the age of 13 to 18 years are accommodated in a specific Process Reception Centre (POL). After their stay in the POL they are transferred to foster families or small-scale housing. 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 if their minority is not disputed. Children under the age of 15 are not immediately sent to Ter Apel but are placed in a foster family straight away. After a few days the child and the guardian go to Ter Apel to lodge the asylum application.

 

The guardian takes important decisions on behalf of the child which are taken with consideration to his or her future, inter alia, which education fits, 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.

 

When an asylum application is rejected the child may be granted a specific permit, which is not an asylum permit. However, there are many conditions that have to be met in order to qualify for this specific permit.[7] As a result, as far as the author is aware, no permit on this ground has been granted yet.

 



[1]Articles 1.233 and 1.253ha, Dutch Civil Code.

[2]Article 3.109d (2) Aliens Law 2000; Work Instruction 2018/19, 13 December 2018.

[3]Section C1/2.11 Aliens Circular.

[4]Article 1. 302 (2) Dutch Civil Code.

[5]Article 1.245 Dutch Civil Code.

[6]Article 1.256 (1) Civil Code.

[7]Conditions to be met are laid down in policy Paragraph B8/6 Aliens Circular.

 

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of the main changes since the previous report update
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection
  • ANNEX I – Transposition of the CEAS in national legislation