Since March 2016, the IND has implemented a “Five Tracks” policy whereby asylum seekers are channelled to a specific procedure depending on the circumstances of their case. Beyond the regular asylum procedure (“Track 4”), the policy foresees specific tracks for manifestly well-founded cases (“Tracks 3 and 5”), applicants coming from a safe country of origin or receiving protection in another Member State (“Track 2”) and Dublin cases (“Track 1”).
While the Netherlands has transposed the recast Asylum Procedures Directive, it should be noted that the “Five Tracks” policy does not fully follow the structure of the Directive in terms of regular procedure, prioritised procedure and accelerated procedure. The different sections below refer to the applicable track in each case.
Regular procedure (“Track 4”)
General (scope, time limits)
The general asylum procedure (Track 4) is divided into a short asylum procedure of 8 days and an extended asylum procedure. The assessment of each asylum application starts in the short asylum procedure. During this procedure the IND can decide to refer the case to the extended asylum procedure.
Short asylum procedure
A decision on an asylum application in the short asylum procedure has to be issued within 8 working days. In exceptional cases, this deadline may be extended by 6, 8 or 14 more days. Therefore, the total length of the short asylum procedure is 14, 16 or 22 days depending on the grounds for extending the short procedure. These extensions are not frequent in practice. According to Paragraph C1/2.3 of the Aliens Circular, the IND is reticent regarding extensions of the deadline of the short asylum procedure.
For a clear understanding of the short asylum procedure it is important to indicate what happens during these eight days. In short, on the odd days the asylum seeker has contact with the IND and on the even days with his or her legal advisor / counsellor:
Start of the actual asylum procedure with first (verification) interview (Verificatie eerste gehoor)
On the day of the official lodging of the asylum application, the IND conducts the first (verification) interview with the asylum seeker to ascertain the asylum seeker’s identity, nationality and travel route from their country of origin to the Netherlands. The first interview does not concern the reasons for seeking asylum. Up until now a lawyer is automatically appointed from day 1. The State Secretary announced that this will be changed in 2021: free legal assistance will be available only when the IND has issued a written intention to reject the asylum application.
Review of the first interview and preparation of the second interview
The asylum seeker and the appointed lawyer review the first interview after which corrections and additions thereto may be submitted, which happens generally due to interpretation problems, where a misunderstanding easily occurs. The second day also focuses on the preparation of the second interview.
Second interview by the IND (Nader gehoor)
In the second and more extensive interview, the asylum seeker is questioned by the IND about his or her reasons for seeking asylum.
Review of the second interview and corrections and additions
The lawyer and the asylum seeker review the report on the day after the second interview. During this stage, the asylum seeker may submit any corrections and additions to the second interview.
After day 4, the IND assesses the asylum application. It may decide to grant asylum. If not, the IND chooses either to continue the examination in the short asylum procedure or to refer to the extended procedure.
The intention to reject the asylum application (Voornemen)
In case the IND decides to reject the asylum application it will issue a written intention. The intention to reject provides the grounds and reasons for a possible rejection.
Submission of the view by the lawyer (Zienswijze)
After the IND has issued a written intention to reject the asylum application, the lawyer submits his or her view in writing with regards to the written intention on behalf of the asylum seeker.
The decision of the IND (Beschikking)
After submission of the lawyer’s view in writing, the IND may decide either to grant or refuse asylum. It may also still decide to continue the examination of the asylum application in the extended asylum procedure.
When the IND cannot assess the asylum claim and cannot take a decision within the time frame of the short asylum procedure, it has to refer the case to the extended asylum procedure. A decision is taken by the IND on the basis of the information that stems from the first and second interviews, and information from official reports and other country information. A decision to reject the asylum application must be motivated and take into account the lawyer's view in writing.
Extended asylum procedure
In case the IND, after the second interview and the submission of corrections and additional information in the short asylum procedure, decides to continue the examination of the asylum application in the extended asylum procedure, the asylum seeker is relocated from a POL to a centre for asylum seekers (Asielzoekerscentrum, AZC). There are no specific conditions under which the IND can refer a case to the extended asylum procedure, but in general the IND needs more time to investigate the identity of the asylum seeker or his or her reasons for seeking asylum. This referral cannot be appealed.
The asylum seeker and his or her lawyer are given 4 weeks to submit a viewpoint in writing in response to the intention of the IND to reject the asylum application. The IND has to issue a new intention to reject the asylum application if it changes its grounds for rejecting the claim substantially.
If an asylum application is examined in the extended asylum procedure the maximum time limit for deciding is 6 months. According to Article 42(4) of the Aliens Act, transposing Article 31(3) of the recast Asylum Procedures Directive, this time limit can be prolonged by 9 months if, for example, the case is complex or there is an increased number of asylum applications at the same time. In addition to the 9-month prolongation, the time limit can be extended by another 3 months according to Article 42(5) of the Aliens Act.
Prioritised examination and fast-track processing (“Tracks 3 and 5”)
Track 3 foresees a fast-track procedure for applicants who are prima facie likely to be granted protection, for instance nationalities such as Syria and Eritrea. Track 5 applies to the same cases, where nationality or identity documents have not been submitted. There is no prioritised examination and fast-tracking processing in practice, as neither Track 3 nor Track 5 were applied in 2018 and 2019.
The law requires the IND to organise a personal interview for all asylum seekers. Every asylum seeker is interviewed at least twice, with the exception of applications dealt with in the Dublin Procedure (Track 1) and the Accelerated Procedure (Track 2). The first (verification) interview is designed to clarify nationality, identity and travel route. It has become less exhaustive in 2019 following the introduction of an extensive form and a follow-up interview at registration stage. In the second interview the asylum seeker is able to explain the reasons for fleeing his or her country of origin.
The asylum seeker is to be interviewed in a language which he or she may reasonably be assumed to understand. This means that in all cases an interpreter is present during the interviews, unless the asylum seeker speaks Dutch. The IND may only use certified interpreters by law. However, in certain circumstances the IND may derogate from this rule, for example, when in urgent situations there is a need for an interpreter or if an asylum seeker speaks a very rare dialect. Interpreters are obliged to perform their duties honestly, conscientiously and must render an oath. The IND uses its own code of conduct which is primarily based on the general code of conduct for interpreters. The Legal Aid Board arranges for an interpreter in order to facilitate the communication between asylum seekers and their lawyer. They are allowed to make use of the “interpreter telephone”. This service is provided by Concorde and paid by the Legal Aid Board.
Gender and sexual orientation
The asylum seeker can express the wish to be interviewed by an employee of the IND of his or her own gender; this includes interpreters as well. This may make it easier for an asylum seeker to speak about issues such as sexual violence.
In the past, there have been concerns about the questions asked during interviews conducted with persons that had been persecuted because of their sexual orientation. These persons had been questioned for example about their sexual behaviours and their feelings. In a judgment of 2 December 2014, the CJEU clarified the methods by which national authorities may assess the credibility of the declared sexual orientation of applicants for international protection. As a result, the Council of State now considers that the fact that an asylum seekers cannot furnish sufficient information about his attachment to the gay community (be it in the Netherlands or in his/her country of origin) is not a decisive element in the conclusion of a lack of credibility.
The IND’s work instruction 2015/9 has been followed by a new IND work instruction 2018/9 which lays down the elements that have to be taken into account while assessing the credibility of the one’s sexual orientation. These include the following: the private life of the asylum seeker; his/her current and previous relationships and contacts with LGBT communities in the country of origin and in the Netherlands; discrimination, repression and persecution in the country of origin. The emphasis is put on the personal experiences of the asylum seeker. However, the Secretary of Justice stressed that the new work instruction 2018/9 does not entail a new assessment framework compared to work instruction 2015/9. This is also followed by judgments of Regional Courts.
The National Ombudsman made recommendations in 2014 concerning the possibilities for civilians to record conversations with governmental institutions. One of the recommendations is that a governmental institution should not, in principle, refuse the wish of a civilian to record a hearing or conversation with a governmental institution. This recommendation is also explicitly applicable in relation to asylum seekers and the IND. The Dutch Council for Refugees has started a pilot on 1 December 2016 at AC Zevenaar which entails that there is a possibility to record the interview. Since 2017 the possibility to record interviews is provided to all asylum seekers on all applications centres.
On day 2 and 4 of the regular asylum procedure, the asylum seeker and his or her lawyer have the possibility to submit any corrections and additions they wish to make regarding the interview that took place the day before. A record of the interviews can be very supportive by the making of any corrections and submissions. On day 6, after and if the IND has issued a written intention to reject the asylum application, the lawyer submits his or her view in writing with regards to the written intention on behalf of the asylum seeker. If the lawyer's view is not submitted on time (i.e. by day 6 of the general asylum procedure), the IND may decide without considering that view.
Appeal before the Regional Court
In the short asylum procedure, an asylum seeker whose application for asylum is rejected on the merits within the framework of the short asylum procedure has one week to lodge an appeal before the Regional Court (Rechtbank). In the extended asylum procedure an appeal after a rejection of the asylum claim has to be – depending on the grounds for rejection – lodged within 1 or 4 weeks. Claims rejected as manifestly unfounded, dismissed as inadmissible, or rejected following implicit withdrawal or abandonment have to be lodged within one week.
The appeal against a negative in-merit decision in the short or extended asylum procedure has automatic suspensive effect, except for situations where the claim is deemed manifestly unfounded for reasons other than irregular presence, unlawful extension of residence or not promptly reporting to the authorities.
The concept of “manifestly unfounded” (kennelijk ongegrond) application is defined in Article 30b(1) of the Aliens Act as encompassing the following situations:
- The applicant has raised issues unrelated to international protection;
- The applicant comes from a safe country of origin;
- The applicant has misled the Minister by providing false information or documents about his or her identity or nationality or by withholding relevant documents which could have a negative impact on the application;
- The applicant has likely in bad faith destroyed an identity or travel document;
- The applicant has presented manifestly inconsistent and contradictory statements or false information, rendering the claim clearly unconvincing;
- The applicant has lodged an application only to postpone or delay the execution of a removal order;
- The applicant has lodged an admissible subsequent application;
- The applicant has irregularly entered or resided in the Netherlands and has not reported to the authorities as soon as possible to apply for international protection, without valid reason;
- The applicant refuses to be fingerprinted;
- There are serious grounds to consider that the applicant poses a risk to national security or public order;
- The applicant has been expelled for serious reasons of public security or public order.
In the cases where the appeal has no automatic suspensive effect, the lawyer has to request a provisional measure pending the appeal. In case the request for a provisional measure is granted the appeal has suspensive effect, which means that the right to accommodation is retained and the asylum seeker may remain in Central Agency for the Reception of Asylum Seekers (COA) accommodation.
Up until now divergent national case law has been delivered on the question of the automatic suspensive effect of appeals and the CJEU’s rulings in C.J.S. and Gnandi have not been implemented yet. There has been no explicit general ruling from the Council of State on the matter, except for the judgment of the Council of State of 27 August 2018. It concluded in this case that an asylum seeker can legally remain in the Netherlands during the period for lodging an appeal and during the appeal itself. The asylum seeker concerned had been detained in a removal detention centre after his asylum application was rejected as manifestly unfounded. The removal detention was subsequently considered to be illegal and the measure was lifted. As a result, the Council of State did not have to conclude whether Dutch national law regarding the automatic suspensive effect of an appeal complies with the Gnandi and C.J.S judgments and European Union law.
Scope and intensity of review
The intensity of the judicial review conducted by Regional Courts (administrative judges) changed in 2016. According to the Council of State’s judgment of 13 April 2016, Article 46(3) of the recast Asylum Procedures Directive does not impose a general intensity of judicial review under administrative law in asylum cases and thus not in cases regarding the credibility of an asylum seeker's statements in particular. In the Dutch context, the Regional Court is not allowed to examine the overall credibility of the statements of the asylum seeker intensively (full review). This is, according to the Council of State, due to the fact that the IND has specific expertise to verify statements of the asylum seeker and is therefore in general in a better position to examine the credibility of the claim. An administrative judge can never substitute his or her own opinion on the credibility of the asylum seeker’s statements for that of the authorities. Where contradictory or inconsistent statements are made by the asylum seeker, the review can, however, be more intensive; this is different than it used to be. The other elements – not the credibility of the statements – for assessing whether the asylum seeker qualifies for international protection (de zwaarwegendheid) have always been reviewed intensively by Regional Courts.
Regional courts thus rule whether the grounds of a decision of the IND is valid. When the grounds are not valid then the IND has to make a new decision. And of course the regional courts take into account the grounds for appeal from the asylum seeker and the arguments of the IND.
Furthermore, when assessing the appeal, the Regional Court takes into consideration all the new facts and circumstances which appear after the decision issued by the IND. This is the so-called ex nunc examination of the appeal.
Onward appeal before the Council of State
After a decision in the short and extended asylum procedure is taken by the Regional Court, either the asylum seeker and/or the IND may appeal against the decision of the regional court to the Council of State. The IND makes use of this possibility especially in matters of principle, for example if a court judges that a particular minority is systematically subjected to a violation of Article 3 ECHR. This procedure does not have any suspensive effect.
The Council of State carries out a marginal ex tunc review of the (judicial) judgment of the Regional Court and does not examine the facts of the case. A provisional measure from the president of the Council of State is needed to prevent expulsion before the verdict of the Council. A provisional measure is only granted in case the departure date is set. A granted provisional measure gives a right to reception facilities. In the extended asylum procedure the right to accommodation ends after the verdict of the court, or in the case of onward appeal and this appeal has suspensive effect, after the verdict of the Council of State. However, in most cases only in a very late stage the departure date and time is set so in general there are no reception facilities during the onward appeal.
All decisions of the appeal body are public and some are published. There are no obstacles in practice with regard to the appeals in asylum cases. However, asylum seekers are not generally informed about their possibility to appeal, time limits etc. but if they have specific questions they can address them to the Dutch Council for Refugees. The representatives of the asylum seekers are responsible for the submission of the appeal.
In April 2017, the Council of State referred preliminary questions to the CJEU on whether an onward appeal in asylum cases should have an automatic suspensive effect. The Council of State involved the Return Directive, the Asylum Procedures Directive and Article 47 of the EU Charter on the right to an effective remedy in this regard. On 26 September 2018 the CJEU ruled that for an onward appeal in asylum cases to have an automatic suspensive effect cannot be derived from the APD, Return Directive and the EU Charter.  Following this judgment, the Council of State ruled on 20 February 2019 that an onward appeal does not have automatic suspensive effect.
Free legal assistance at first instance
To register the actual asylum application the asylum seeker has to go to an Application Centre. These Application Centres have schedules where an asylum lawyer can subscribe. For instance, if five asylum lawyers are scheduled on a Monday they are responsible for all the asylum requests which are made that day. Those lawyers are also physically present at the centre all day. The Legal Aid Board (Raad voor de Rechtsbijstand), a state-funded organisation, is responsible for this schedule and makes sure that sufficient lawyers are listed on the schedules every day. Therefore, every asylum seeker is automatically appointed a lawyer. On the other hand, in case there are too many applications on one day, it may also happen that lawyers are forced to take on too many cases.
An appointed lawyer from the Legal Aid Board is free of charge for the asylum seeker. However, an asylum seeker may choose a lawyer him- or herself. If this self-appointed lawyer is recognised by the Legal Aid Board as an official asylum lawyer, the Legal Aid Board will pay for the costs. This happens in the vast majority of cases. There are no limitations to the scope of the assistance of the lawyer as long as he or she gets paid. Lawyers are paid for eight hours during the procedure at first instance. The Dutch Council for Refugees has criticised the fact that the contact hours between lawyers and their clients are limited in this system.
In 2017, the Coalition Agreement of the new Dutch administration announced that free legal assistance at first instance would be limited to the moment when an asylum seeker has to submit his or her views against the IND written intention to reject the application. As a result, the applicant will not be able to discuss his or her case before the start of the actual asylum procedure. To implement this measure, the Decree on Legal Aid Fees (Besluit vergoedingen rechtsbijstand) has to be amended. The Secretary of Justice has announced in 2019 that a proposal to adjust the Decree is currently being prepared. A feasibility test (ex ante uitvoeringstoets) as requested by the Dutch Parliament has been executed and the State Secretary of Justice & Security responded to this by announcing that free legal assistance in 2021 will be available only then when the IND has issued a written intention to reject the asylum application. In 2020 a legal proposal to amend the Decree on Legal Aid Fees will be presented to Parliament.
The Dutch Council for Refugees also provides legal assistance. During the rest and preparation period (see Registration), the Dutch Council for Refugees offers asylum seekers information about the asylum procedure. Asylum seekers are informed about their rights and obligations, as well as what they might expect during the asylum procedure. Counselling may be given either individually or collectively. During the official procedure, asylum seekers may always contact the Dutch Council for Refugees, in order to receive counselling and advice on various issues. In addition, representatives of the Dutch Council for Refugees may be present during both interviews at the request of the asylum seeker or his or her lawyer. The Dutch Council for Refugees has offices in most of the reception centres.
Free legal assistance on appeal
At the appeal stage of the asylum procedure, asylum seekers continue to have access to free legal assistance and no merits test applies. Every asylum seeker has access to free legal assistance under the same conditions. However, the lawyer can decide not to submit any written opinion – on day 6 of the short asylum procedure – if they think the appeal is likely to be unsuccessful. In this scenario the lawyer has to report to the Legal Aid Board and the asylum seeker can request for a “second opinion”, meaning that another lawyer takes over the case. This only happens in exceptional cases. On the one hand, the intention of the legislator is that the same lawyer will represent the asylum seeker during the whole procedure. On the other hand, if the lawyer does not submit a written viewpoint, this would be considered as ‘malpractice’ because submitting a written viewpoint is actually the core of the lawyer’s job during the whole procedure. Even if the lawyer is strongly of the opinion that a written viewpoint will not be of any use it may not be the case in future circumstances, for example in case of a subsequent application. Only after several recognised 'malpractices' can an asylum lawyer be penalised. The gravest penalisation is disbarment.
The amount of financial compensation for lawyers who represent asylum seekers can be an obstacle. Some lawyers consider the amount of time to prepare a case, and therefore the compensation they get, as too little. This means that it is possible that some lawyers spend more work on a case than they get paid for or that some cases are not prepared thoroughly enough. Alongside this, due to the economic crisis, more cutbacks had to be made within the state-funded legal aid system.
Article 3.110(1) Aliens Decree.
Article 3.110(2) Aliens Decree. An extension with six days is applied for instance in case an interpreter is not available or documents have to be analysed.
Article 3.112-3.115 Aliens Decree.
State Secretary of Justice & Security, 15 November 2019, available in Dutch at: https://bit.ly/31mi8cB; and State Secretary of Justice & Security, 19 December 2019, available in Dutch at: https://bit.ly/2RUks7R .
Article 42(3) Aliens Act.
Article 3.117 Aliens Decree.
Article 3.112 Aliens Decree.
Article 3.113 Aliens Decree.
Article 38 Aliens Act.
Article 28(1) Law on Sworn Interpreters and Translators.
Article 28(3) Law on Sworn Interpreters and Translators.
Frits Koers et al, Best practice guide asiel: Bij de hand in asielzaken, Raad voor de Rechtsbijstand, Nijmegen 2012, 38.
IND, Toelichting inzet tolken, February 2014, 5.
Secretary of State Decision No lNDVITI3-273, 1 April 2013, 110.
CJEU, Joined Cases C‑148/13, C‑149/13 and C‑150/13 A, B and C, Judgment of 2 December 2014.
Council of State, Decisions No 201208550/1, No 201110141/1 and No 201210441/1, 8 July 2015.
See for example judgments of Regional Court Groningen, 14 May 2019, NL19.7357 and Regional Court, 7 March 2019, NL19.2786.
Ombudsman, Report 2014/166, November 2014.
Article 3.114 Aliens Regulation.
Article 69(2) Aliens Act.
Article 82(2)(c) Aliens Act, citing Article 30b(1)(h).
Council of State, Decisions No 201710445/2/V3 and 201805258/1/V3, 27 August 2018.
Council of State, Decisions No 201710445/2/V3 and 201805258/1/V3, 27 August 2018.
Regional Court Den Bosch, decision no NL18.13634, 7 August 2018.
Article 83 Aliens Act.
[28Article 70(1) Aliens Act.
Tweede Kamer, Explanatory notes on the implementation of the recast Asylum Procedures Directive, Vergaderjaar 34 088, number. 3, 2014–2015, 22 and Chapter 8.5 GALA.
Article 8.106 GALA.
CJEU, Case C-175/17 and C-180/17, X and Y v. Staatssecretaris van Veiligheid en Justitie, 26 September 2018.
Council of State, Decision No 201609659/1/V2 and 201609659/4/V2, 20 February 2019.
Article 10 Aliens Act.
Article 12 Legal Aid Act.