National protection statuses and return procedure

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Dutch Council for Refugees Visit Website

National forms of protection

In the Netherlands, there are several forms of national protection available for individuals who are unable to return to their countries of origin. Two of the key forms of protection include (a) the ‘no fault’ permit (buitenschuldvergunning), and (b) the suspension of departure due to medical reasons under Article 64 of the Aliens Decree. These national forms of protection provide legal residence for individuals who, due to circumstances beyond their control, cannot leave the Netherlands. The following paragraphs outline the eligibility criteria, application processes, and relevant conditions for these protection statuses.

In the Netherlands, there are several forms of national protection available for individuals who are unable to return to their countries of origin. Two of the key forms of protection include (a) the ‘no fault’ permit (buitenschuldvergunning), and (b) the suspension of departure due to medical reasons under Article 64 of the Aliens Decree. These forms of protection provide legal residence for individuals who, due to circumstances beyond their control, cannot leave the Netherlands. The following paragraphs outline the eligibility criteria, application processes, and relevant conditions for these.

The ‘no fault’ permit (buitenschuldvergunning)

An asylum applicant who has received a final rejection of their asylum application but who cannot leave the Netherlands through no fault of their own, could qualify for a ‘no fault’ permit (buitenschuldvergunning) on grounds of the national ‘no fault’ policy (buitenschuldbeleid).[1] The burden of proof to qualify for this permit is generally very high.

Applicants eligible for a ‘no fault’ permit

There are three categories of applicants who can apply for this permit:

1. applicants who have tried to leave the Netherlands but were unsuccessful;
2. applicants who permanently cannot travel because of medical conditions; and
3. unaccompanied minors who do not qualify for an asylum permit (this category is not included in this section, see for more information on this category see: Return decisions for unaccompanied minors).

Applicants who have tried to leave the Netherlands but were unsuccessful : There are four cumulative eligibility conditions for applicants who have tried to leave the Netherlands but were unsuccessful:

• there is no doubt about the identity and nationality or statelessness of the applicant;
• the applicant has asked the Repatriation and Departure Service of the Ministry of Justice and Security (DT&V) to mediate in favour of his departure and this mediation was unsuccessful;
• the applicant has, according to DT&V, shown that he wants to return to his country of origin or a different country where it can be assumed that the applicant will be granted access; and
• at the moment of deciding on this application, there is no other pending procedure for a residence permit and the applicant does not meet the conditions to be granted different residence permit.[2]

Applicants who permanently cannot travel because of medical conditions: The alternative criteria for applicants who permanently cannot travel because of medical conditions are:

• the BMA (Medical Advisors Office, Bureau Medische Advisering) has confirmed that the applicant permanently cannot travel because of their health; or
• it is demonstrated that the applicant and the authorities have made every effort to achieve departure from the Netherlands, including obtaining replacement for travel documents, and it is shown that the physical transfer cannot be achieved.

The ‘no fault’ policy

In 2020, 80 permits were granted based on this ground. In 2021, 70 permits on this ground were granted. In 2022, again 70 permits were granted. In 2023, a total of 60 permits were granted. In 2024, until 1 October, 50 permits were granted on this form of protection.[3]

The national authorities do not automatically review this form of protection when the asylum application is rejected and, simultaneously, a return decision is issued.[4] If, during the preparation for departure from the Netherlands, the DT&V is of the opinion that an applicant could be eligible for a ‘no fault’ permit, the DT&V may give a weighty advice in an official report to the IND to grant the third country national a ‘no fault’ permit. The IND may then invite the foreign national to apply formally for this permit. In this case, the foreign national does not have to pay any fees and an exemption is granted from the MVV requirement and the passport requirement. Furthermore, the IND does automatically review whether a foreign national might be eligible for the ‘no fault’ permit if an application for a residence permit based on regular grounds is rejected. Finally, third country nationals who have exhausted all legal remedies and who have no right to residence can also apply for a permit based on this national policy themselves.

Applicants can use the form on the website of the IND to apply for this status.[5] There is no right to reception yet for applicants at this stage. The applicant will have to pay fees (so-called legeskosten).[6] If the application is rejected, it is possible for the applicant to object within four weeks.[7] This objection has suspensive effect. If the objection is declared unfounded, the applicant may appeal this decision before a Regional Court. Consequently, it is possible for either the applicant or the Minister to appeal the decision of the Regional Court to the Council of State (onward appeal). The deadlines are the same as in the asylum procedure (see Short overview of the asylum procedure under ‘Appeal’).

The applicant granted a permit under the ‘no fault’ policy will receive a regular, non-asylum residence permit on temporary humanitarian grounds.[8] The permit is valid for one year and can be renewed for another year.[9] The IND can reject the application for renewal or withdraw the existing permit if it appears from new information from DT&V that the applicant can return to their country of origin or a different country where, based on the individual facts and circumstances, it can be assumed that the applicant will be admitted. After three years of lawful residence, the person concerned can apply for a permit based on non-temporary humanitarian grounds,[10] provided they are still meeting the eligibility conditions and if there are no other grounds for refusal.[11] This permit is valid for five years and can be renewed for another five years.[12]

There is a right to reception in a centre for asylum seekers for applicants that fall under this permit from the moment DT&V has issued a positive advice to the IND about granting an application based on the ‘no fault’ policy.[13]

Holders of this permit will have a notification on the permit stating: ‘free access to the labour market, no work permit required’ (arbeid vrij toegestaan, tewerkstellingsvergunning niet vereist).[14]

Family members

The Minister grants the residence permit to the family member of the foreign national who cannot leave the Netherlands through no fault of his own if the family relationship already existed before the family members were granted entry to the Netherlands.

The Minister will grant the residence permit to the members of one family with different nationalities and/or whose members are from different countries of origin if they meet all the eligibility conditions, where:

• all family members have taken the necessary steps to effect return for the entire family to one country; and
• they have done so in respect of all countries where, based on the totality of facts and circumstances, it can be assumed that the family will be granted entry.

The Minister assumes the existence of a ‘family’ in the following situations:

• (marriage) partners who in fact form a family;
• (one) parent(s) with one or more minor children who in fact form a family; or
• (one) parent(s) with one or more adult children who are so dependent on their parent(s) that there is in fact a family.[15]

Suspension of departure on medical grounds under Article 64 of the Aliens Decree

 Serious medical issues can lead to the suspension of the obligation of departure. This follows from Article 64 of the Aliens Act. The application of this Article results in the temporary suspension of the obligation to leave the Netherlands. During this period, the foreign national is granted lawful residence but does not hold a residence permit. This form of protection is essentially a postponement of departure, effectively granting a temporary right to reside in the Netherlands to ensure the foreign national receives necessary medical treatment until their departure becomes possible. The policy regarding suspension of departure under Article 64 of the Aliens Act is outlined in paragraph A3/7 of the Aliens Circular.

Suspension of departure under Article 64 of the Aliens Act can be granted in the following circumstances:

• the foreign national is determined to be medically unfit to travel; or
• deportation would result in a real risk of a violating of Article 3 ECHR for medical reasons.[16]

The IND assesses whether suspension of departure should be granted. This decision is made based on an advisory report provided by the Medical Advisors Office (Bureau Medische Advisering, BMA), the designated authority responsible for conducting medical evaluations.

Medically unfit to travel

A foreign national may be granted suspension of departure if their medical condition precludes travel. The nature and severity of the condition, along with the assessed medical risks associated with travel, are the important factors in determining whether the individual is objectively capable of undertaking travel.[17] If, at the time of assessment, the foreign national is deemed to be medically unfit to travel, the Medical Advisors Office will, if possible, provide an estimation of the anticipated duration of this incapacity. Suspension of departure will then be granted for this specific period.

In other cases, the Medical Advisors Office can determine that travel is only possible when specific conditions are met. These conditions can include the provision of travel accompaniment, access to adequate medication during the journey, or the immediate continuation of treatment upon arrival in the destination country. The IND must ensure that these travel conditions can be fulfilled. This assessment must be conducted at the time of determining whether Article 64 of the Aliens Act applies and cannot be deferred until the actual deportation of the foreign national.

Real risk of a violation of Article 3 ECHR for medical reasons

According to the case law of the ECtHR regarding Article 3 ECHR, deportation can only result in a violation of Article 3 of the ECHR due to a foreign national’s medical condition under very exceptional circumstances.[18]

The Aliens Circular stipulates that a real risk of a violation of Article 3 ECHR for medical reasons exists if:

1. the Medical Advisors Office advice indicates that lack of medical treatment is likely to result in a medical emergency within three to six months; and
2. the necessary medical treatment is unavailable in the country of origin or habitual residence; or
3. if the necessary medical treatment is available, it has been proven to be demonstrably inaccessible for the foreign national.[19]

Medical emergency

The Aliens Circular defines a medical emergency as follows: a situation in which the foreign national suffers from a condition for which, based on current medical-scientific knowledge, it is certain that the absence of treatment within an indicative period of three to six months will result in death, disability, or another form of serious mental or physical harm.[20]

A medical emergency due to absence of medical treatment should be likely to occur within an indicative period of three to six months. The burden of proof for this lies with the foreign national. The IND used to apply a strict three-month period within which a medical emergency had to likely occur. This definition was adjusted following the judgment of the Court of Justice in X v. the Netherlands.[21] In this case, the Court of Justice addressed preliminary questions from the Regional Court of Den Bosch regarding, among other things, the definition of a medical emergency used by the Netherlands and whether it aligns with the Return Directive.

Medical treatment unavailable

If the Medical Advisors Office’s advice indicates that the absence of medical treatment is likely to result in a medical emergency within the indicative period, it will then investigate the availability of treatment in the country of destination. In order to assess the availability of treatment, the IND requires the foreign national to substantiate their identity and nationality.

According to the Aliens Circular, the IND can determine that the required medical treatment is not available in the country of origin or destination if any of the following applies:

• The Medical Advisors Office’s advice indicates that no or insufficient treatment options are available in the relevant country.
• The Medical Advisors Office’s advice indicates that there are interruptions in the supply of medication in the relevant country, lasting at least one month or longer.
• The Medical Advisors Office is unable, due to the situation in the relevant country, to provide advice on the availability of treatment options there.
• The Medical Advisors Office’s advice indicates that, to prevent a medical emergency, caregiving is essential for the success of medical treatment, but the foreign national has demonstrated that such caregiving cannot be received in the relevant country from one or more family members or through professional (home) care.[22]

Medical treatment inaccessible

If the Medical Advisors Office’s advice indicates that the absence of medical treatment is likely to result in a medical emergency within the indicative period and medical treatment is available in the receiving country, but the foreign national believes that medical treatment is inaccessible to them, they must provide documentation to support this claim. The burden of proof regarding factual inaccessibility of medical treatment lies with the foreign national. Additionally, the foreign national is required to prove their identity and nationality with official documents. The foreign national has four weeks to respond to the Medical Advisors Office’s advice.[23]

The following circumstances may demonstrate that treatment is inaccessible:

• the cost of treatment;
• the absence of a social and family network;
• distance between the place of residence to the treatment facility;
• potential travel options in relation to the medical condition;
• actual access to medical treatment.[24]

The IND assesses whether Article 64 of the Aliens Act will be applied based on the three aforementioned conditions. The assessment is conducted in the order listed above. If there is no medical emergency, the availability of medical treatment in the relevant country will not be assessed, and Article 64 of the Aliens Act will not be granted. If medical treatment is unavailable in the relevant country, the accessibility of medical treatment does not need to be assessed.

Within the Aliens Circular and Work Instruction 2024/2,[25] special categories are specified under which suspension of departure is granted without further research, provided all conditions are met. These categories include pregnancy/childbirth,[26] tuberculosis,[27] clinical admission,[28] and during the no-fault permit application phase in case of serious illness.[29]

The number of people granted suspension of departure is unknown at the moment of writing this report.

Procedure

The suspension of departure on medical grounds under Article 64 can be granted through several procedures. First, the application of Article 64 of the Aliens Act can be requested through a separate application procedure. Additionally, there is official testing of the application of Article 64 of the Aliens Act within the asylum procedure, when a residence permit is revoked or an application for an extension is rejected, when a return decision is imposed, and during the assessment of a request for a regular residence permit.

Official testing in the asylum procedure

Whether the IND assesses the application of suspension of departure under Article 64 of the Aliens Act within the asylum procedure depends on the ground for the final decision of the asylum application. The IND does not apply official testing of Article 64 of the Aliens Act within the asylum procedure if the asylum application will be dismissed under any of the grounds listed in Article 6.1e, paragraph 2 of the Aliens Decree. These grounds include:

• the application is not considered due to the application of the Dublin Regulation;
• the asylum application is declared inadmissible or manifestly unfounded or;
• if the examination of the asylum application is discontinued according to Article 30c of the Aliens Act.

In all other cases of rejection of the asylum application the IND has to assess whether suspension of departure is applicable.[30] For second or subsequent applications asylum applications there is no official testing, unless a return decision has not yet been issued.[31] If no official testing takes place, the applicant can submit an application.

Revocation of an asylum permit or rejection of extension 

Upon the revocation of an asylum permit (both temporary and permanent), the IND must make an official testing as to whether the foreign national qualifies for suspension of departure under Article 64 of the Aliens Act if the foreign national has provided the required medical information and documents.[32]

Return decision

If no official testing under Article 64 of the Aliens Act has been done in, for example, the asylum procedure, the IND must still consider medical obstacles under Article 3 ECHR in the context of issuing a return decision. Under Article 5 of the Return Directive, no return decision may be issued if it violates the principle of non-refoulement, which means the foreign national’s medical situation has to be assessed.

Main rights

Until a few years ago, a foreign national who successfully invoked Article 3 ECHR on medical  grounds would receive an asylum residence permit. Since 2017, this has been limited to the granting of suspension of departure under Article 64 of the Aliens Act. As a result, the foreign national no longer receives a residence permit but merely a postponement of departure. No return decision is issued to the foreign national, and if a return decision has already been issued, it will be suspended. Definitive suspension of departure is granted for the expected duration of medical treatment, as indicated in the advice of the Medical Advisors Office, or for a maximum period of one year.[33]

To extend the suspension of departure under Article 64 of the Aliens Act, the foreign national must submit an application and provide all required documents at least two weeks before the suspension expires.[34] After one year of continuous suspension under Article 64 of the Aliens Act, the foreign national may also apply for a stronger residence status, specifically a regular residence permit on medical grounds.[35]

Suspension of departure under Article 64 of the Aliens Act does not give the foreign national the right to work or to receive social benefits. Throughout the entire initial asylum procedure, the foreign national is, in principle, entitled to accommodation. Within the Article 64 application procedure, former asylum seekers are entitled to accommodation starting from the moment the Medical Advisors Office initiates its medical assessment. Foreign nationals without an asylum background are entitled to accommodation when they are granted temporary suspension of departure during the assessment of the actual accessibility of medical treatment, or when they have been granted suspension of departure as a final decision.[36]

If a foreign national is granted suspension of departure, their family members can also be granted suspension of departure.[37] This applies to a spouse, unmarried partner, children younger than 18 years, children older than 18 if they were part of the family of the foreign national in the country of origin, and (step/foster) parents and brothers and sisters that are part of the family of a foreign national that is younger than 18 years.[38]

Return procedure

Rejected asylum applications are always accompanied by a return decision, as required by law.[39] The rejection of the asylum application and the return decision are taken together in one formal decision (meeromvattende beschikking). When appealing this decision, the appeal automatically involves both the asylum rejection and the return decision. The appeal of the rejection of the asylum application and the return decision will be dealt with together by the same court in the same case at the same time.

According to paragraph A3/1 of the Aliens Circular, a return decision includes the following elements:

• the decision that the TCN is no longer lawfully residing in the Netherlands;
• the obligation to leave the Netherlands, the territory of the EU (except for Ireland), the EEA, and Switzerland;
• the time frame within which the TCN must comply with their obligation to depart; and
• the designation of the country or countries to which the foreign national must return, insofar as such country or countries are known.*

* Note: In 2021, the Council of State ruled that a country of return must be specified in the return decision.[40] However, it is possible that multiple countries of return are specified if there are multiple potential countries of return. Additionally, the country of return may be inferred from the decision of the asylum rejection itself. The obligation to specify a country of return is especially important in cases in which the asylum application has been rejected because the asylum applicant could not prove their nationality. In 2024, the Council of State ruled that in these cases the alleged country of nationality may also serve as the country of return – even if there has not been a refoulement assessment with regard to this country.[41] Therefore, according to the authors of this report, the phrase ‘insofar as such country or countries are known’ should be deleted from the Aliens Circular.

Unaccompanied minors can be excluded from the obligation to issue a return decision at the same time as the asylum rejection, this is further explained in Return decisions for unaccompanied minors.

Beneficiaries of international protection from other EU Member States whose asylum application has been declared inadmissible will not receive a return decision, as return decisions refer to a return to a country outside the EU – usually the country of origin of the applicant – while it is clear for beneficiaries of international protection from other Member States that they run a risk of refoulement upon return to their country of origin. However, the CJEU ruled that beneficiaries of international protection from other Member States can be detained prior to their return to the EU Member State which granted them international protection without the need for a return decision.[42] While beneficiaries of international protection from other Member States will not be issued a return decision after their asylum application is declared inadmissible, they still have an obligation to leave the Netherlands. If they do not comply with this departure obligation, they can be forcibly deported on the basis of the general deportation authority of Article 63 of the Aliens Act. Furthermore, they can be detained for deportation on the basis of Article 59, paragraph 2 of the Aliens Act (the fiction that the interest of public order demands detention, if the documents necessary for removal are available in the short term).

All asylum rejections automatically include a return decision. This means that return decisions are also issued when it is known that forced return of the third country national is not possible. For instance, forced return is not possible to Afghanistan, Yemen, Syria, Somalia and Eritrea.[43] Nevertheless, rejected asylum applicants from these countries will be issued a return decision.

The Netherlands did not implement the facultative provision of Article 8(3) of the Return Directive introducing a separate administrative or judicial decision or act ordering the removal..

Official suspension of the return decision is only possible in medical cases on the basis of Article 64 Aliens Act (see National forms of protection above). Article 9 of the Return Directive has only been transposed into Article 64 Aliens Act. Therefore, suspension of return decisions is not possible for other circumstances that are not related to medical issues. In cases where international protection was revoked because of criminal offences, return decisions were always imposed, even when the beneficiary was still facing a risk of refoulement. The Minister would write in the return decision that it would not be carried out when this risk continued to exist, but this did not mean that the return decision was officially suspended.[44] Following the AA judgment of the CJEU,[45] many Regional Courts have ruled that these return decisions should not have been issued.[46] However, there is still no clear policy as to how to deal with these cases in light of the obligation to always issue an asylum rejection together with a return decision.

There is no information on the number of unenforceable return decisions.

Detention prior to return is only allowed if there is a reasonable prospect of removal, for more information see Territorial detention of asylum applicants.

[1] This permit is granted on the grounds of Article 3.48 (2)(a) Aliens Decree.

[2] Paragraph B8/4 Aliens Circular.

[3] KST 36600 XX, no. 5, 24 October 2024, available in Dutch at: https://bit.ly/40mIhYU.

[4] Staatsblad 2013 580, 23 December 2013, available in Dutch at https://bit.ly/3DDqYdd.

[5] The IND website contains a form for applicants based on humanitarian grounds or other special reasons at: https://bit.ly/4gVnEsA.

[6] Article 3.34 Aliens Regulation.

[7] Article 69(1) Aliens Act.

[8] Article 3.4(1)(q) Aliens Decree.

[9] Article 3.58(1)(q) Aliens Decree.

[10] Article 3.51(1)(a)(3) Aliens Decree.

[11] Paragraph B9/1 Aliens Circular.

[12] Article 3.58(1)(s) Aliens Decree.

[13] KST 29344, no. 106, 28 November 2012, available in Dutch at: https://bit.ly/3W6YFKJ.

[14] Article 3.1(5)(a)

[15] Paragraph B8/4 Aliens Circular.

[16] Paragraph A3/7.1 of the Aliens Circular.

[17] Protocol Bureau Medische Advisering, 2023, p. 14, available in Dutch at: https://bit.ly/4fQBpHW.

[18] See for example ECtHR, ECLI:CE:ECHR:1997:0502JUD003024096, D. v. the United Kingdom (St. Kitts), 2 May 1995, available at: https://bit.ly/41xXFkI, ECtHR, ECLI:CE:ECHR:2016:1213JUD004173810, Paposhvili v. Belgium, 13 December 2016, available at: https://bit.ly/4bDjT9H and ECtHR, ECLI:CE:ECHR:2021:1207JUD005746715, Savran t. Denmark, 7 December 2021, available at: https://bit.ly/41GVYS1.

[19] Paragraph A3/7.1.3 of the Aliens Circular.

[20] Paragraph A3/7.1.3 of the Aliens Circular.

[21] CJEU, ECLI:EU:C:2022:913, X. v. the Netherlands, 22 November 2022, available at: https://bit.ly/40ct2kg.

[22] Paragraph A3/7.1.4 of the Aliens Circular.

[23] Paragraph A3/7.1.5 of the Aliens Circular.

[24] Work Instruction 2024/2, p. 13-14, available in Dutch at: https://bit.ly/4ahK5Wo.

[25] Available in Dutch at: https://bit.ly/4ahK5Wo.

[26] Paragraph A3/7.3.2.6 of the Aliens Circular.

[27] Paragraph A3/7.3.2.7 of the Aliens Circular.

[28] Paragraph A3/7.3.2.8 of the Aliens Circular.

[29] Work Instruction 2024/2, p. 16, available in Dutch at: https://bit.ly/4ahK5Wo.

[30] Article 6.1e, paragraph 1 of the Aliens Decree.

[31] Paragraph A3/7.2.3 of the Aliens Circular and Work Instruction 2024/2, available in Dutch at: https://bit.ly/4ahK5Wo, 7.

[32] Article 6.1e paragraph 3 of the Aliens Decree and paragraph A3/7.2.3 of the Aliens Circular.

[33] Paragraph A3/7.3.1 of the Aliens Circular.

[34] Work Instruction 2024/2, p. 15, available in Dutch at: https://bit.ly/4ahK5Wo.

[35] Paragraph B8/9 of the Aliens Circular, see also Work Instruction 2024/2, p. 15, available in Dutch at: https://bit.ly/4ahK5Wo.

[36] Article 3, paragraph 3, under f and g of the RVA.

[37] Paragraph A3/7.1.1 of the Aliens Circular.

[38] Paragraph A3/7.1.2 of the Aliens Circular.

[39] Article 40 Aliens Act.

[40] Council of State, ECLI:NL:RVS:2021:1155, 2 June 2021, available in Dutch at: https://bit.ly/3SStGRm. This follows from CJEU, FMS, FNZ (C‑924/19 PPU), SA, SA junior (C‑925/19 PPU) v Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság, Országos Idegenrendészeti Főigazgatóság, 14 May 2020, available at: https://bit.ly/49r9Kug and CJEU, C‑673/19, M, A, Staatssecretaris van Justitie en Veiligheid v Staatssecretaris van Justitie en Veiligheid, T, 24 February 2021, available at: https://bit.ly/3HV1p6A.

[41] Council of State, ECLI:NL:RVS:2024:1970, 8 May 2024, available in Dutch at: https://bit.ly/3PEyI1f.

[42] CJEU, C‑673/19, M, A, Staatssecretaris van Justitie en Veiligheid v Staatssecretaris van Justitie en Veiligheid, T, 24 February 2021, available at: https://bit.ly/3HV1p6A.

[43] See website of DT&V, available in Dutch at: https://bit.ly/4hFl9KD.

[44] See Council of State, ECLI:NL:RVS:2021:2466, 10 November 2021, available in Dutch at: https://bit.ly/4g1b3mp.

[45] CJEU, C‑663/21 AA, 6 July 2023, available at: https://bit.ly/3C3Pq7i.

[46] E.g. Regional Court The Hague, ECLI:NL:RBDHA:2024:18943, 15 November 2024, available in Dutch at: https://bit.ly/42aC8QU and Regional Court Den Bosch, ECLI:NL:RBDHA:2024:4019, 9 February 2024, available in Dutch at: https://bit.ly/3BVU5It.