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Adequate support during the interview
Article 3.108b of the Aliens Decree sets out the obligation to provide adequate support to the applicant where he or she needs procedural guarantees as per Article 24 of the recast Asylum Procedures Directive and Article 29 of its preamble. The notion of “adequate support” (passende steun) is further elaborated in the IND Work Instruction 2015/8, also citing Work Instruction 2010/13, which provides a non-exhaustive list of special guarantees such as:[1]
- Attendance of a person of confidence or family members in the interview;[2]
- Attendance of the lawyer in the interview;
- Additional breaks during interviews, including splitting the interview in several days;
- Additional explanation about the interview;
- The opportunity for an applicant with physical impairment such as back aches to walk in the interviewing room during the interview;
- Leniency from the interviewing officer on small inconsistencies and contradictions;
- Postponement of the interview to a later date.
Further adjustments to the interview could be that a female employee of the IND will conduct the interview in cases of a female asylum seeker who has suffered sexual violence.
In 2021, two new Work Instructions came into effect, WI 2021/09 and WI 2021/12,[3] dealing with the issue of ‘special procedural guarantees’ and with ‘medical issues concerning the interview and decision-making process in asylum cases’. They are a conformation and continuation of the previous Working Instructions mentioned in the previous chapter, which had been into effect for several years.
According to preamble Article 29 and Article 24 of the recast Asylum Procedures Directive, some applicants may be in need of special procedural guarantees on the grounds of, inter alia, their age, sex, sexual orientation, gender identity, disability, serious illness, mental illness or as a result of torture, rape or other serious forms of psychological, physical or sexual violence. Member States should endeavour to recognise applicants with those special procedural guarantees as such before a decision is taken at first instance.
The IND did not establish specialised units dealing with vulnerable groups. However, since 2012, every caseworker has to follow the EUAA training module on Interviewing Vulnerable Persons.[4] In cases in which many new IND hearing and decision officers were recruited and involved for the first time in the interviewing and decision process, it was observed by either local volunteers of the DCR assisting asylum seekers with their procedure, or by their legal representatives in individual cases, that IND caseworkers often lacked the required training to deal with asylum seekers with special needs. When there are clear signs that the special procedural guarantees that have to be granted in asylum interviews have not been met, this can be used as a legal argument to appeal the negative outcome of the asylum decision by the IND in court. However, a certain threshold need to be met in order for courts to recognize the wrongdoings and impose a sanction. The Work Instruction 2021/13 on the asylum interview establishes that every IND hearing and decision officer is obliged to take several EUAA training courses,[5] such as the above-mentioned training on interviewing vulnerable persons. The Council of State had ruled, on 3 October 2017,[6] that the sole circumstance that a hearing officer did not follow the relevant course, does not automatically mean that the interview did not meet due diligence requirements.
The asylum seeker cannot appeal the refusal to recognise their right to special procedural guarantees, as the refusal is not considered as a decision that can be subjected to an appeal. Instead, the asylum seeker can object being denied such right in the appeal against the negative decision on the asylum application.
In a 2020 judgment, the Council of State confirmed that the Secretary of State should have investigated appropriate forms of information gathering, taking into account the medical history of the asylum seeker. The file showed that the asylum seeker could not be interviewed by the IND for medical reasons, which should have led the Secretary of State to involve the Medical Advice Office (Bureau Medische Advisering). The Secretary of State could not fulfil its obligations simply asking the asylum seeker to demonstrate his need for international protection in an alternative manner.[7]
Exemption from special procedures
In the regular procedure (“Track 4”), all asylum seekers are channelled in the short asylum procedure. This implies that even asylum seekers who are victims of rape, torture or other serious forms of psychological, physical or sexual violence, will initially access this procedure, regardless of the fact that in most of these cases more investigation is needed (for example, a medical report had yet to be prepared). In such cases, the application will be referred to the extended procedure which could last up to 6 months before a decision in first instance needs to be taken.
The Accelerated Procedure (“Track 2”) is not applicable to unaccompanied minors. This was not regulated in the Aliens Decree or Circular. The implementation of Work Instruction 2021/14 (as of 25 June 2021),[8] however, excludes underage unaccompanied minors from the Track 2 procedure, in what can be described as a good practice.
Track 2 is primarily intended for asylum seekers who have limited chances of being granted international protection in the country, as in the case of asylum seekers from safe countries of origin, asylum seekers that have already received international protection in another European country or are EU citizens. In practice, the aspect of being an underage unaccompanied minor takes precedence over the other Track 2 elements.
From 20 July 2015, the Netherlands introduced a border procedure in the national asylum legislation. The border procedure concerns – briefly said – the procedure at the border (or in a transit zone) in which decisions are taken on the asylum application from a foreign national who expressed at the ‘Schengen external EU border’ a wish
to submit an asylum application and does not meet the conditions for granting access to the Netherlands.
Given that it takes place in detention, the Border Procedure is not applicable to:
- Unaccompanied children (minors);[9]
- Families with children, where there are no counter-indications such as a criminal record or family ties not found real or credible;[10]
- Persons for whose individual circumstances border detention is disproportionately burdensome;[11]
- Persons who are in need of special procedural guarantees on account of torture, rape or other serious forms of psychological, physical and sexual violence, for whom adequate support cannot be ensured.[12]
For the cases of applicants in need of special procedural guarantees or for whom detention at the border would be disproportionately burdensome, the new IND Work Instruction 2022/15 clarifies that vulnerability does not automatically mean that the applicant will not and can not be detained at the border.[13] The central issue remains whether detention results into a disproportionately burdensome situation for the asylum seeker as mentioned in Article 5.1a (3) of the Aliens Decree in view of his or her “special individual circumstances”. Whether there are such “special individual circumstances” must be assessed on a case-by-case basis and can be derived for instance from a (MediFirst) medical report or from a ‘signalinglist’ handed it by the aliens lawyer when there are clear signs of physical or psychological burdens. The previous IND Work Instruction provides two examples of such circumstances: where a medical situation of an asylum seeker leads to sudden hospitalisation for a longer duration, or where the asylum seeker suffers from a serious mental disorder.[14]
The decision establishing detention at the border has to list the reasons for which the IND, while taking into account the individual and special circumstances produced by the asylum seeker, is of the opinion that the asylum seeker can be detained; for example, where the IND is of the opinion that the border security interest should prevail over individual circumstances.
If during detention at the border special circumstances arise which are disproportionately burdensome for the asylum seeker concerned, the detention will end and the asylum seeker will be placed in a regular reception centre (see examples under Detention of vulnerable applicants). The insurgence of such circumstances should thus be monitored. However, given the fact that, from the perspective of national authorities, granting easy access to the country’s territory could undermine internal security and public order interests, even in cases of vulnerable people requiring special procedural guarantees this opportunity is generally not granted. Incidentally, it is possible for the State to transfer the foreign national to a specialised psychiatric institution (‘Veldzicht’) during the border procedure, without them being considered as having gained legal access to Dutch territory.
Human trafficking victims
Special measures, not limited to the asylum procedure, also exist for victims of human trafficking. Trafficking in human beings is intended as the recruitment, transport, transfer, reception or housing of people, with the use of coercion (in a broad sense) and with the aim of exploiting those people. It does not have to happen across borders. The (intended) exploitation is the core of human trafficking. It is therefore a regarded as a crime against the person. The Human Trafficking Coordination Centre and the Health Coordinator are the entities that are responsible for a safe reception and daily accompaniment of these victims.[15] The IND employees are also trained to recognise victims of human trafficking.[16]
In short, the Residence Scheme for Trafficking in Human Beings consists of a possibility to stay on temporary and on non-temporary humanitarian grounds. The conditions for granting stay are described in 3.48 Vb (Aliens Decree) jo. B8 and B9 Vc (Aliens Circular). These are all regular, non-asylum, residence permits, the applications of which are processed by the so-called ‘gender units’ of the IND. This application procedure can run in parallel with the asylum procedure.
Victims of trafficking who have been refused asylum can be granted a temporary permit on a regular non-asylum ground. During a reflection period of 3 months, the asylum seeker has to consider whether he/she reports a crime and/or wishes to cooperate with the authorities trying to prosecute the trafficker. During the reflection period, a victim has the right to receive a social security contribution, health insurance, legal support and housing, for example. After reporting the crime, if further prosecution is halted, or cooperation with the investigating authorities stopped, the temporary residence permit on regular grounds will be revoked. While a prosecution is being filed or in a lengthy criminal trial (>3 years), the victim of trafficking becomes eligible for a residence permit on non-temporary grounds.
In 2021, a new Working Instruction dealing with human trafficking in asylum cases (WI 2021/16)[17] was adopted. Human trafficking is considered as a serious crime and the IND contributes to tackling it. Being a victim of human trafficking can also be presented as the core of an asylum claim. In that context, apart from signalling, IND caseworkers have an additional role to play, namely the assessment of whether that motive is grounds for granting an asylum residence permit. In addition, an ex officio test of victimization from human trafficking is carried out in asylum cases.
In theory, being a victim of human trafficking can lead to being recognised as a refugee or being granted subsidiary protection status. However, for it to be the case, exploitation has to reach the (high) level of an act of persecution and be related to race, nationality, religion or political conviction of the foreign national. It is important to note that victims of human trafficking are in principle not seen as a ‘social group’ within the meaning of the Refugee Convention. In practise, not many asylum seekers are granted protection on the ground of being a victim of human trafficking.
Victims of human trafficking may also be eligible for subsidiary protection. In that case, there must be a real risk of serious harm upon return to the country of origin, combined with a lack of access to adequate protection. That might be the case when criminal trafficking networks against which the authorities cannot provide protection are active in the country of origin. However, applicants are not often granted subsidiary protection in such cases.
A new Work Instruction (2021/18, 12 October 2021) on the ‘assessment of the plausibility of the human trafficking account’ came into effect.[18] The Work Instruction is a manual for the assessment of applications for a humanitarian non-temporary residence permit based on special individual circumstances (after residence as a victim or victim-declarant of human trafficking).
[1] IND Work Instruction 2015/ Special procedural guarantees, 20 July 2015, 6.
[2] This was confirmed as a form of adequate support in Council of State, Decision No 201609551/1, 3 August 2017.
[3] IND Work instructions, 2021/9, 25 June 2021 and IND Work instruction 2021/12, 25 June 2021
[4] Tweede Kamer, 2013-2014, Aanhangsel 636.
[5] IND Work Instruction 2021/13, 25 June 2021.
[6] Council of State, ECLI:NL:RVS:2017:2692, 201702787/1, 3 October 2017.
[7] Council of State, Decision No 202001510/1, ECLI:NL:RVS:2020:2057, 26 August 2020.
[8] IND Work instruction, 2021/14, 25 June 2021.
[9] Article 3.109b(7) Aliens Decree.
[10] Paragraph A1/7.3 Aliens Circular.
[11] Article 5.1a(3) Aliens Decree.
[12] Article 3.108 Aliens Decree.
[13] IND Work Instruction 2022/15, 22 July 2022.
[14] IND, Work Instruction 2017/1 Border procedure, 11 January 2017, 5.
[15] Section B/9 Aliens Circular.
[16] IND, Work Instruction 2007/16 Victims of human trafficking in the asylum procedure, 18 December 2007, available in Dutch at: http://bit.ly/1MjGx5i.
[17] IND, Work Instruction 2021/16, Human trafficking in the asylum procedure, 14 July 2021, available in Dutch at: https://bit.ly/3KQIARi.
[18] IND, Work Instruction 2021/18 ‘assessment of the plausibility of the human trafficking account’, 12 October 2021.