Author
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.[1] 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.
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).[2] 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:
- applicants who have tried to leave the Netherlands but were unsuccessful;
- applicants who permanently cannot travel because of medical conditions; and
- 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).
1. 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.[3]
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.[4]
The national authorities do not automatically review this form of protection when the asylum application is rejected and, simultaneously, a return decision is issued.[5] 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.[6] There is no right to reception yet for applicants at this stage. The applicant will have to pay fees (so-called legeskosten).[7] If the application is rejected, it is possible for the applicant to object within four weeks.[8] 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.[9] The permit is valid for one year and can be renewed for another year.[10] 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,[11] provided they are still meeting the eligibility conditions and if there are no other grounds for refusal.[12] This permit is valid for five years and can be renewed for another five years.[13]
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.[14]
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).[15]
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.[16]
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.[17]
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.
Information about the conditions and procedure for suspension of departure on medical grounds up until 2024 is available in the AIDA Country Report: The Netherlands 2024 Update.[18]
Return procedure
Rejected asylum applications are always accompanied by a return decision, as required by law.[19] 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.[20] 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.[21] 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.[22] 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).
Asylum applications from beneficiaries of international protection from Greece who cannot return to Greece are assessed on their merits. However, it is unclear if it is possible to issue a return decision (to the country of origin) if such asylum applications are rejected. In 2025, some courts have ruled that it impossible to issue a return decision if Greece has not terminated the international protection status.[23]
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.[24] 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). 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.[25] Following the AA judgment of the CJEU,[26] many Regional Courts have ruled that these return decisions should not have been issued.[27] 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.
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] Information about suspension of departure due to medical reasons under Article 64 of the Aliens Decree is no longer included in this report, as the authors of this report have shifted away from active work on this topic.
[2] This permit is granted on the grounds of Article 3.48 (2)(a) Aliens Decree.
[3] Paragraph B8/4 Aliens Circular.
[4] KST 36600 XX, no. 5, 24 October 2024, available in Dutch at: https://bit.ly/40mIhYU.
[5] Staatsblad 2013 580, 23 December 2013, available in Dutch at https://bit.ly/3DDqYdd.
[6] The IND website contains a form for applicants based on humanitarian grounds or other special reasons at: https://bit.ly/4gVnEsA.
[7] Article 3.34 Aliens Regulation.
[8] Article 69(1) Aliens Act.
[9] Article 3.4(1)(q) Aliens Decree.
[10] Article 3.58(1)(q) Aliens Decree.
[11] Article 3.51(1)(a)(3) Aliens Decree.
[12] Paragraph B9/1 Aliens Circular.
[13] Article 3.58(1)(s) Aliens Decree.
[14] KST 29344, no. 106, 28 November 2012, available in Dutch at: https://bit.ly/3W6YFKJ.
[15] Article 3.1(5)(a)
[16] Paragraph B8/4 Aliens Circular.
[17] Paragraph A3/7.1 of the Aliens Circular.
[18] DCR – Dutch Council for Refugees (author), ECRE (ed. or publisher): Country Report: Netherlands; Update on 2024, May 2025 https://bit.ly/4t1abWd.
[19] Article 40 Aliens Act.
[20] 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.
[21] Council of State, ECLI:NL:RVS:2024:1970, 8 May 2024, available in Dutch at: https://bit.ly/3PEyI1f.
[22] 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.
[23] See, for example, Regional Court The Hague, ECLI:NL:RBDHA:2025:21083, 6 November 2025, available in Dutch at: https://bit.ly/48Ty3DF; and Regional Court Groningen, ECLI:NL:RBDHA:2025:19029, 17 October 2025, available in Dutch at: https://bit.ly/49UP5SU.
[24] See website of DT&V, available in Dutch at: https://bit.ly/4hFl9KD.
[25] See Council of State, ECLI:NL:RVS:2021:2466, 10 November 2021, available in Dutch at: https://bit.ly/4g1b3mp.
[26] CJEU, C‑663/21 AA, 6 July 2023, available at: https://bit.ly/3C3Pq7i.
[27] 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.