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. 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:
- Attendance of a person of confidence or family members in the interview;
- 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.
The IND does not have specialised units dealing with vulnerable groups. However, every caseworker has to follow the European Asylum Support Office (EASO) training module on Interviewing Vulnerable Persons since 2012. In one case concerning an LGBTI applicant, the Regional Court of Zwolle accepted an appeal on the basis that the IND caseworker who had interviewed the applicant had not followed the training module on Interviewing Vulnerable Persons. In another case, where the Regional Court of Arnhem considered that it was unclear whether the asylum case worker had followed the training module, it ordered the IND to ensure that the caseworker would have received the relevant training if the LGBTI applicant concerned had to be interviewed again.
The asylum seeker cannot appeal the refusal to grant him or her special procedural guarantees, as the refusal is not considered to be an appealable decision. The asylum seeker is able to make objections regarding the refusal of the IND to grant him or her special procedural guarantees in the appeal against the negative decision on the asylum application
Exemption from special procedures
In the regular procedure (“Track 4”), all asylum seekers start their procedure within 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 firstly will be processed within this procedure. However, generally, in most of these cases more investigation is needed, for example a medical report has to be drawn up. In such cases the application will be referred to the extended procedure which lasts 6 months.
The Accelerated Procedure (“Track 2”) is not applicable to unaccompanied children. This is not regulated in law but happens in practice. Due to the fact that it takes place in detention, the Border Procedure is not applicable to:
- Unaccompanied children;
- Families with children, where there are no counter-indications such as a criminal record or family ties not found real or credible;
- Persons for whose individual circumstances border detention is disproportionately burdensome;
- 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.
For the cases of applicants in need of special procedural guarantees or for whom detention at the border would be disproportionately burdensome, IND Work Instruction 2017/1 clarifies that vulnerability does not automatically mean that the applicant will not be detained at the border. The central issue remains whether the 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 from a FMMU medical report. The 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 has serious mental conditions.
The decision to detain at the border has to contain the reasons why the IND, though taking into account the individual and special circumstances produced by the asylum seeker, is of the opinion to detain the asylum seeker concerned; for example where the IND is of the opinion that the border security interest should prevail above individual circumstances.
If during the 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. This means that during the detention it has to be monitored whether such circumstances arise.
Special measures also exist for victims of human trafficking but technically this has nothing to do with the asylum procedure. 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. The IND employees are also trained to recognise victims of human trafficking. Victims of trafficking who have been refused asylum can be granted a temporary permit on a regular ground. During a time frame of 3 months the asylum seeker has to consider whether he lodges a complaint or cooperate with the authorities 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.
IND Work Instruction 2015/ Special procedural guarantees, 20 July 2015, 6.
This was confirmed as a form of adequate support in Council of State, Decision No 201609551/1, 3 August 2017.
Tweede Kamer, 2013-2014, Aanhangsel 636.
Regional Court Zwolle, Decision No 16/1743, 28 March 2017.
Regional Court Arnhem, Decision No 17/5771, 24 July 2017.
Article 3.109b(7) Aliens Decree.
Paragraph A1/7.3 Aliens Circular.
Article 5.1a(3) Aliens Decree.
Article 3.108 Aliens Decree.
IND, Work Instruction 2017/1 Border procedure, 11 January 2017, 5.
Section B/9 Aliens Circular.