Legal representation of unaccompanied children

Netherlands

Country Report: Legal representation of unaccompanied children Last updated: 08/04/22

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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 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, 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. However, no instances have been reported where the period between entry into the Netherlands and the appointment of a guardian was unreasonably long.

On their arrival in the Netherlands, children under the age of 15 are placed in a foster family, which provides initial reception straight away. 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.

The guardian takes important decisions on behalf of the child, 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.

Return decisions for unaccompanied minors

On 14 January 2021, the CJEU published its landmark judgment in the case of T.Q. v Staatssecretaris van Justitie en Veiligheid (C-441/19).[7] The case concerned a minor (T.Q.) 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. T.Q. 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.[8] The Regional Court of Den Bosch referred prejudicial questions to the CJEU concerning the case of T.Q. 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.[9]

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 has ruled in the case of T.Q. after the CJEU’s judgement and established that T.Q. must be granted a national residence permit.[10] The Secretary of State has appealed against the judgement; the case is still pending before the Council of State where a hearing took place on 23 September 2021. The Council of State informed that the final decision will be communicated only in the second quarter of 2022.

The Secretary of State announced that unaccompanied minors would receive a form of ‘postponement of removal’ as long as the investigation into adequate reception facilities is still ongoing.[11] The legal basis for this remains unclear; therefore, it also remains uncertain whether this provision will hold up in Court. There is no case law on the implementation of this form of postponement of removal for unaccompanied minors so far.

[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] CJEU, TQ v Staatssecretaris van Justitie en Veiligheid, C-441/19, 14 January 2021.

[8] 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.

[9] Regional Court Den Bosch, ECLI:NL:RBDHA:2019:5967, 12 June 2019; CJEU case number C-441/19.

[10] Regional Court Den Bosch, ECLI:NL:RBDHA:2021:2376, 15 March 2021.

[11] Section A3/6.1 Aliens Circular, as amended by WBV 2022/1 on 9 December 2021, available in Dutch at: https://bit.ly/3r8D6ZP.

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