Author
General (scope, time limits)
The Netherlands has a border procedure applicable to asylum applicants applying at airports and ports.[1] The border procedure in the Netherlands proceeds as follows: the decision on refusal or entry to the Netherlands is suspended for a maximum of 4 weeks and the asylum applicant stays in detention (see Detention of Asylum Applicants). During this period, the IND may reject the claim as:[2]
- Not considered, due to the application of the Dublin Regulation;[3]
- Inadmissible;[4] or
- Manifestly unfounded.[5]
If the IND is not able to stay within the time limits prescribed by the short asylum procedure i.e. 6 days, it can continue the border procedure if it suspects it can reject the asylum application based on the Dublin III Regulation, or declare it inadmissible or manifestly unfounded.[6] The maximum duration of the border procedure is 4 weeks.[7] However, if the examination takes longer than 4 weeks or another ground of rejection is applicable, the detention measure is lifted, the asylum applicant is allowed to enter the Netherlands and the assessment of the protection claim is continued in the regular procedure.[8]
A number of assessments take place prior to the actual start of the asylum procedure, including a medical examination, a nationality and identity check and an authenticity check of submitted documents. The legal aid provider prepares the asylum applicant for the upcoming interviews by explaining what to expect and investigating whether relevant documents could be collected (see section Regular Procedure: Legal Assistance for the appointment of the legal aid provider). These investigations and the preparation take place prior to the start of the asylum procedure. The AC at Schiphol Airport is a closed centre. The asylum applicant is subjected to border detention to prevent them from entering the country de jure. During the first steps of the asylum procedure, the asylum applicant remains in the closed AC at Schiphol.
In these stages, the border procedure more or less follows the steps of the short asylum procedure described in the section on Regular Procedure. One example of a difference between the regular procedure and the border procedure is the possibility for the decision-making authorities to shorten the rest and preparation period.[9] As previously mentioned, the Dutch Aliens Decree was amended on 25 May 2021, which has altered certain aspects of the Regular Procedure that also apply to the border procedure. For example, the abolishment of the first interview. One of the most significant changes concerns the registration interview. During this interview, the asylum applicant will now also be asked to state the grounds for asylum.[10] These procedural changes are discussed more in detail in the section on the Regular Procedure.
The following groups are exempted from the border procedure; they follow the general asylum procedure without being subjected to detention measures:
- Unaccompanied children;[11]
- Families with children where there are no counter-indications such as a criminal record or family ties not found real or credible,[12] as the Netherlands does not detain families with children at the border.[13] Instead of being put in border detention, families seeking asylum at Amsterdam Schiphol Airport are now redirected to the application centre in Ter Apel where they can await their asylum procedure in liberty. If further research needs to be done as to the relationship between the child and the grown-up they will be redirected to a closed family reception centre in Zeist (see Detention of Vulnerable Applicants);
- Persons for whose individual circumstances border detention is disproportionately burdensome;[14] and:
- 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.[15]
In the following situations the IND will, after the first hearing, conclude that the application cannot be handled in the border procedure and therefore has to be channelled into the Regular Procedure:[16]
- If, after the registration interview, the identity, nationality and origin of the asylum applicant has been sufficiently established and the asylum applicant is likely to fall under a temporary ‘suspension of decisions on asylum applications and reception conditions for rejected asylum applicants’ (Besluit en vertrekmoratorium);
- If, after the registration interview the identity, nationality and origin of the asylum applicant has been sufficiently established and the asylum applicant originates from an area where an exceptional situation as referred to in Article 15(c) of the recast Qualification Directive is applicable;
- If, after the registration interview, the identity, nationality and origin of the asylum applicant has been sufficiently established and there are other reasons to grant an asylum permit.
The Dutch Council for Refugees strongly objects to the use of the border procedure in light of the individual interests of the asylum applicant.[17] According to the Dutch Committee for Human Rights, the detention of all asylum applicants at the border without weighing the interest of the individual asylum applicant in relation to the interests of the state is not in line with European regulations and human rights standards.[18]
On 26 March 2024, the Council of State ruled that third country nationals with visa-free travel to the Netherlands and that wish to apply for asylum are not exempted from the border procedure. The Council of State found such persons, by applying for asylum, are in fact requesting legal stay of more than 90 days in the sense of Article 6 (1) Schengen Borders Code. Therefore, they do not have legal stay and may be subject to the border procedure if they apply for asylum at the border.[19]
On 30 October 2024, the Council of State ruled that Ukrainian asylum applicants are not allowed to be subjected to the border procedure. This is due to the fact that border detention in the Netherlands is an implementation of Article 8(1)(c) Reception Conditions Directive, and that subparagraph 3 of this Article provides that this Directive is not applicable if the applicant is subject to the Temporary Protection Directive.[20]
During 2019, 920 asylum applicants filed applications at the border. In 2020, only 550 asylum applicants filed an application at the border. The 40% decline compared to 2019 was due to the corona restrictions. In 2021, 1,120 asylum applicants filed an application at the border.[21] In 2022, 1,550 asylum applicants filed an application at the border.[22] In 2023, this number was 1,400. No statistics on applications at the border during 2024 were available at the moment this report was drafted.
Personal interview
The same rules and obstacles as in the Regular Procedure: Personal Interview apply.
Appeal
In the border procedure, the IND may reject an asylum application on the basis of the Dublin Regulation or as inadmissible or manifestly unfounded. Depending on the type of decision issued, the rules described in the Dublin Procedure: Appeal, Admissibility Procedure: Appeal or Regular Procedure: Appeal apply.
On 5 June 2019, the Council of State ruled that the border detention of asylum applicants who appealed their decision in the asylum procedure was not in line with EU law as clarified in the Gnandi case[23].[24] In response to this decision, a bill was presented to adjust the basis for detention of asylum applicants at the border in the Aliens Act. Detention of asylum applicants who have appealed the rejection of their asylum request will be based on the Reception Conditions Directive (Article 8 (3)(c) RCD) instead of the Return Directive (Article 6(3) Aliens Act).[25] This bill came into effect on 22 April 2020.[26]
Legal assistance
The same rules and obstacles as in the Regular Procedure: Legal assistance apply.
[1] IND, Work Instruction 2021/10, available in Dutch at: https://bit.ly/3dCOkj8. It was issued in June 2021 and entails instructions concerning the border procedure. It covers the information, which is mentioned in this report.
[2] Article 3.109b(1) Aliens Decree. See also IND, Work Instruction 2017/1 Border procedure, 11 January 2017, available in Dutch at: http://bit.ly/2wa4v3o, 7.
[3] Article 30 Aliens Act.
[4] Article 30a Aliens Act.
[5] Article 30b Aliens Act.
[6] Article 3.109b(1) Aliens Decree.
[7] Article 3(7) Aliens Act.
[8] Articles 3 and 6 Aliens Act. See also IND, Work Instruction 2017/1 Border procedure, available in Dutch at: https://bit.ly/3SXji9I, 6.
[9] Article 3.109b(2) Aliens Decree.
[10] Article 3.108d(4) Aliens Decree.
[11] Article 3.109b(7) Aliens Decree.
[12] Paragraph A1/7.3 Aliens Circular.
[13] Paragraph A1/7.3 Aliens Circular.
[14] Article 5.1a(3) Aliens Decree.
[15] Article 3.108 Aliens Decree.
[16] Paragraph C1/2 Aliens Circular.
[17] Dutch Council for Refugees, Standpunt: asielprocedure, available in Dutch at: https://bit.ly/3joFDin.
[18] Committee for Human Rights, Advies: Over de Grens, Grensdetentie van asielzoekers in het licht van mensenrechtelijke normen, May 2014, available in Dutch at: https://bit.ly/3cqcGuy.
[19] Council of State, ECLI:NL:RVS:2024:1228, 26 March 2024, available in Dutch at: https://bit.ly/3DMMmwI.
[20] Council of State, ECLI:NL:RVS:2024:4292, 30 October 2024, available in Dutch at: https://bit.ly/4abBftr.
[21] Ministry of Justice and Security, De Staat van Migratie 2022, available in Dutch at: https://bit.ly/3hLODxJ.
[22] Ministry of Justice and Security, De Staat van Migratie 2023, available in Dutch at: https://bit.ly/3RUo0FO.
[23] CJEU, Grand Chamber, case C-181/16 Gnandi, of 19 June 2018, para 45; available here.
[24] Council of State, ECLI:NL:RVS:2019:1710, 5 June 2019, available in Dutch at: https://bit.ly/49ucBmd.
[25] Explanatory Memorandum, KST 35 271, nr. 3.
[26] Stb. 2020, nr. 136.