Regular procedure

Author

Dutch Council for Refugees Visit Website

General (scope, time limits)

The general asylum procedure (Track 4) is divided into a Regular Procedure (Algemene Asielprocedure) of 8 days and an Extended Procedure (Verlengde Asielprocedure). 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 Procedure.

Regular Asylum Procedure (Algemene Asielprocedure)

A decision on an asylum application in the Regular Procedure currently has to be issued within 6 working days.[3] This deadline may be extended.

In January 2019, the Secretary of State of Justice introduced a new policy. It established that, at the start of the registration procedure, every asylum seeker has to complete an extensive form containing questions about their (1) identity; (2) place and date of birth; (3) nationality, religious and ethnic background; (4) date of leaving the country of origin; (5) arrival date in the Netherlands; (6) remains/stay in one or more third countries when appropriate; (7) identity cards or passport; (8) itinerary; (9) schooling/education; (10) military services; (11) work/profession; and (12) living environment and family.[4]

The completed form is followed by a registration interview (Aanmeldgehoor). During the registration interview, questions can be asked about identity, nationality, travel route and family members. Since the formal introduction of the registration interview on 25 June 2021, the IND will also inquire about the reasons for seeking asylum. The completed form and interview play an essential part in the asylum procedure. During the registration procedure, the asylum seeker does not benefit from legal assistance and does not obtain (individualised) information from the Dutch Council for Refugees. As a result, the asylum seeker will not be informed about the impact of his statements regarding reasons for fleeing his country of origin or other statements he makes, for example regarding his identity and/or nationality. As Amnesty International concluded in its report ‘Bewijsnood, Wanneer nationaliteit en identiteit ongeloofwaardig worden bevonden’, once the Secretary of State (IND) establishes that the identity or nationality of the asylum seeker is not credible, it will be very difficult for them to refute this evaluation.[5]     In addition, failure to provide sufficient evidence of the nationality and/or identity can lead to the IND not to assess the need for protection itself.[6] The Council of State has consequently judged that this practice is permitted, as the motives for requesting asylum only hold value against the background of the identity, nationality and origin of a person.[7]

Seeing the extensiveness of the form and its follow up registration interview, the verification interview, which was taken on the first day of the short asylum procedure, has been abolished since the amendment of the Aliens Decree regarding the regular asylum procedure.[8]

For a clear understanding of the current Regular Procedure, it is important to indicate what happens during these six days. In short, on the odd days the asylum seeker has contact with the IND and on the even days with their legal advisor / counsellor:[9]

The IND takes a decision based on the information stemming from the registration interview and the detailed interview 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.[11]

Extension of the regular Asylum Procedure

In the past, the regular Asylum Procedure could be extended during the procedure up to 14, 16 or 22 days. Since 25 June 2021, when the amendments to the Aliens Decree regarding the regular asylum procedure came into force, the 6 days of the asylum procedure can be extended before the start of the procedure or during the procedure. When the IND decides to extend the procedure before its start, for example due to medical reasons, if the asylum seeker is not able to be interviewed or there are indications that the assessment of the asylum claim cannot take place within the 6 days of the regular procedure, the procedure is extended by 3 days.[12]  In these cases, the regular asylum procedure takes 9 days.[13]

When the IND decides to extend the regular asylum procedure during the regular procedure, for example when more time is needed to assess the identity or nationality of the asylum seeker or the asylum seeker did not show up for his detailed interview the regular procedure can be extended by 12, 14 or 20 days.[14]

When there is a combination of grounds from Article 3.115(1) and (2) then the regular procedure could be extended up to 21, 23 or 29 days.[15]

Extended Procedure (Verlengde asielprocedure)

When the IND is not able to assess the asylum claim and issue a decision within the time frame of the (extended) regular asylum procedure, it has to refer the case to the extended procedure. Cases of minors under the age of 12 years and cases of asylum seekers who, due to medical reasons, cannot be interviewed are also referred to the extended procedure.[16] When the case is referred to the extended procedure, the asylum seeker is relocated from a POL to a centre for asylum seekers (Asielzoekerscentrum, AZC).

In general, the detailed interview takes place in the regular asylum procedure, but both the detailed interview and an additional interview can also take place in the extended procedure. If there is an intention to reject the claim during the extended procedure, the asylum seeker and his or her lawyer are given 4 or 6 weeks to submit an opinion on the intention to reject.[17] The IND has to issue a new intention to reject the asylum application if it changes its grounds for rejecting the claim substantially from the written intention in the regular asylum procedure.[18]

If an asylum application is examined in the Extended 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. In no case may the maximum time limit of 21 months be exceeded.[19]

Due to the pandemic outbreak, in May 2020, the statutory decision period for asylum applications was extended by six months.^[20] The Secretary of State referred to the European Commission’s Guidance, which mentioned that Article 31(3)(b) of the Asylum Procedures Directive allows Member States to extend the six months period for concluding the examination of applications.^[21] On 16 December 2020, the Council of State ruled that this extension was not unreasonable, nor in violation of EU law.^[22] In 2022, a decision for applications assessed within the regular asylum procedure were assessed in 30 weeks on average. For applications referred to the extended procedure, on average, 45 weeks were needed.[23]

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 Yemen. 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 have been applied in previous years.

Personal interview

The law requires the IND to organise a personal interview for all asylum seekers.[24] Every asylum seeker undergoes a detailed interview with the exception of applications dealt with in the Dublin Procedure (Track 1) and the Accelerated Procedure (Track 2). The registration interview 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 detailed interview, the asylum seeker is able to explain the reasons for fleeing his or her country of origin.[25]

Interpretation

The asylum seeker is to be interviewed in a language that they may reasonably be assumed to understand.[26] This means that in all cases an interpreter is present during the interviews, unless the asylum seeker speaks Dutch.[27] The IND may only use certified interpreters by law.[28] 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.[29] Interpreters are obliged to perform their duties honestly, conscientiously and must render an oath.[30] The IND uses its own code of conduct, which is primarily based on the general code of conduct for interpreters.[31] The Legal Aid Board takes the necessary step to ensure the presence of an interpreter facilitating the communication between asylum seekers and their lawyer. They are allowed to make use of the “interpreter telephone”, through which interpretation is provided by phone instead of in person. This service is provided by AVB Vertaaldiensten and Global Talk and paid for by the Legal Aid Board.[32]

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 present claims related to sensitive issues, such as sexual violence.[33]

In the past, there have been concerns about the questions asked during interviews conducted with persons persecuted due to their sexual orientation. These persons had been questioned, for example, on their sexual behaviours and their personal feelings.[34] 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.[35] As a result, the Council of State established that the fact that asylum seekers cannot showcase sufficient proof regarding their connection to the LGBT+ community (be it in the Netherlands or in their country of origin) cannot be considered as a decisive element to determine  the lack of credibility of their asylum claim.[36]

The IND’s work instruction 2015/9 was followed by new IND work instructions: 2018/9 and 2019/17. Work instruction 2019/17 is currently in force and lays down the elements that have to be taken into account while assessing the credibility of one’s sexual orientation. These include the following: the private life of the asylum seeker; their current and previous relationships and contacts with LGBT communities in their country of origin and in the Netherlands, and 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 State stressed that the new work instructions 2018/9 and 2019/17 do not entail a new assessment framework compared to work instruction 2015/9. This is also followed by judgments of the Council of State.[37]

Recording

The National Ombudsman made recommendations in 2014 concerning the possibilities for civilians to record conversations with governmental institutions.[38] The Ombudsman recommended, inter alia, that a governmental institution should not refuse the wish of a civilian to record a hearing or conversation with a governmental institution. Said recommendation is also explicitly applicable in relation to asylum seekers and the IND. The Dutch Council for Refugees started a pilot project on 1 December 2016 at AC Zevenaar, providing asylum seekers with the opportunity to record the interview. Since 2017, the possibility to record interviews is provided to all asylum seekers on all applications centres. Asylum seekers must give notice of the wish to record the interview in advance. In practice, however, interviews are rarely recorded.

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. 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.[39]  However, if the view is received by the IND prior to the publication of the decision, the IND has to consider it in their decision.[40]

Written interview

In March 2020, 15,350 asylum applications were passed on to a newly established IND Task Force, with the aim of clearing the IND’s backlogs. At the end of 2021, the backlog had almost been cleared, and the work of the Task Force ended.

Written interviews were introduced at the same time, as a measure to accelerate the backlog clearing. Asylum seekers were asked to personally fill in a form at the IND. The written interview was limited to asylum seekers with the following nationalities: Syrian, Yemenite, Eritrean, Turkish and Iranian, as they are considered as more likely to be granted international protection. The forms contained the following sections:[41] (1) reasons for the asylum application (asylum account); (2) reasons for the asylum application; (3) questions on an application for family reunification (only for Syrian, Turkish, Yemenite and Eritrean nationals); (4) information on documents presented to sustain their asylum claim or other documents; and (5) a criminal record certificate. After filling in the form, the applicants had the possibility to make corrections and additions to the filled in form. Nationals from Iran still were (briefly) interviewed after they had filled in the form. Unaccompanied minors were excluded from the written interviews, as well as asylum seekers with medical issues and illiterate asylum seekers.[42] Important to note is that the IND carried out in-person interviews in the cases in which a positive decision on the asylum application could not be taken on the basis of the written interview. It was not mandatory to participate in the written interview: asylum seekers who did want to fill in the form, were entitled to a regular interview.[43] In practice, however, many asylum seekers agreed to the written interview in fear of having to wait even longer.[44] Through the monitoring of the Task Force’s activities, it clearly emerged that the use of written interviews did not help to speed up the processing time of the applications.[45] The applications were still referred to the extended procedure.

After the conclusion of the pilot project ‘written interviews’ (schriftelijk horen), in October 2022 the IND started with a further pilot, offering written interviews to Syrian, Turkish and Yemenite nationals. The pilot involves nationals of the above mentioned countries based on the likelihood of receiving protection. This has been named the ‘Paper & Ink procedure’, or PIP. The invitation to partake in a written interview was sent one week before the start of the written interview, which was deemed insufficient by lawyers. The IND is planning to extend this period to four weeks. The IND currently estimates that 9,000 cases are eligible for being assessed in the PIP. To determine who is eligible for the PIP, the IND screens asylum seekers and excludes asylum seekers that are illiterate, in need of special medical guarantees, or people suspected of being a danger to public order and security. At the time of writing, 1400 cases have been assessed through the PIP. The goal is to have 250 applications per week be assessed through the PIP. Originally, these applications were to be decided upon within seven weeks.[46] Because of delays, currently asylum seekers will receive a decision within ten weeks. If based on the written interview the IND cannot take a positive decision on the asylum application, the asylum seeker will be referred to the regular asylum procedure.[47] The asylum seeker has the option to partake in the PIP or follow the regular procedure. However, in practice many asylum seekers choose to partake in the PIP regardless, because they are worried that otherwise it will take even longer for an interview to take place. After 2,500 cases have been processed through the PIP, an evaluation will take place and a decision will be taken as to whether this procedure is will officially be adopted in official policy.

COVID-19:  interviews via videoconference

In order to minimise physical contact during the COVID-19 pandemic, the IND started conducting videoconference interviews in April 2020. The interviews by videoconference take place via a secure link for video conferencing. Via this link, the asylum seeker is able to speak with the IND staff members working from Zevenaar, Den Bosch, Schiphol or Ter Apel. Lawyers can use these facilities, too. Unaccompanied minors and asylum seekers with medical problems are excluded from videoconference interviews.[48] Initially, videoconference interviews were used for nationals of Syria, Turkey and Yemen. This was later extended to nationals of other countries.[49]

Only in one case, an asylum seeker explicitly argued that he was put at a procedural disadvantage because of the use of a videoconference interview instead of a physically attended interview. According to the Regional Court of Utrecht, the Secretary of State (IND) gave sufficient reasons as to why he could suffice with a video interview instead of an interview in person. The fact that this way of conducting an interview is different from the usual way – because of the lack of direct contact – does not mean that this method does not meet the (minimum) requirements, according to the Court. Nor has it emerged that the third-country national would have made other statements during an interview in person than during an interview via video connection. The Court has also not found that the third-country national did not understand the interpreter and / or the person who conducted the interview.[50]

In a recent case, an asylum seeker stated that the Secretary of State did not take into account his medical situation during his interview via videoconference. The Regional Court of The Hague expressed the opinion that, in this case, the Secretary of State had not sufficiently taken into account the medical advice from FMMU.[51]

Since the resumption of in-person interviews due the end of the pandemic, interviews via videoconference have not been used frequently. In April 2021, the IND evaluated the use of interviews via videoconference, and stated they were looking into the possibility of further application of the instrument to future procedures.[52] However, at the moment no additional documents have been published and it is uncertain whether any steps are being taken in view of a more extensive use of remote interviews.

Interviews at location

In 2022, the IND started interviewing certain asylum seekers at their accommodation, as opposed to the asylum seekers making an appointment and visiting the IND themselves.[53] This instrument has been introduced informally, and there is no official IND policy as regards to where these interviews are conducted. The IND has so far conducted interviews at different locations, mainly the emergency shelter locations such as boats which are not regularly used as accommodation, but because of the ongoing reception crisis many different places have been used to provide temporary shelter (see Reception, ‘Emergency Locations’ for more information). Due to the lack of an official policy on this matter, it is difficult to make sure all necessary steps in the procedure – regarding, for example, the provision of healthcare and legal support – are being followed. In addition, the IND only interviewed people of certain nationalities, which led to a high level of uncertainty for applicants, who could not know when they would be interviewed. It is to be seen whether this procedure continues to be applied and whether guidelines will be established to regulate the process.

Appeal

Appeal before the Regional Court

In the regular asylum procedure, an asylum seeker whose application for asylum is rejected on the merits within the framework of the regular asylum procedure has one week to lodge an appeal before the Regional Court (Rechtbank).[54] 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 week(s). Applications 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 regular 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.[55]

The concept of “manifestly unfounded” (kennelijk ongegrond) application is defined in Article 30b(1) of the Aliens Act as encompassing the following situations:

1. The applicant has raised issues unrelated to international protection;
2. The applicant comes from a safe country of origin;
3. 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;
4. The applicant has likely in bad faith destroyed an identity or travel document;
5. The applicant has presented manifestly inconsistent and contradictory statements or false information, rendering the claim clearly unconvincing;
6. The applicant has lodged an application only to postpone or delay the execution of a removal order;
7. The applicant has lodged an admissible subsequent application;
8. 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;
9. The applicant refuses to be fingerprinted;
10. There are serious grounds to consider that the applicant poses a risk to national security or public order;
11. The applicant has been expelled for serious reasons of public security or public order.

In cases where the appeal has no automatic suspensive effect, a provisional measure has to be requested. 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.

The judgment of the EU Court of Justice of 19 June 2018 in the case Gnandi has led to a major discussion in Dutch case law regarding the suspensive effect of appeals in asylum cases.[56] In the Netherlands, the judgment of the Court is especially relevant for cases in which the appeal does not have suspensive effect. In those cases, the asylum seeker can request a provisional measure, but while a decision on this request has not yet been made, the asylum seeker may be placed in detention on the basis of Article 59, first paragraph, under a, of the Aliens Act. Additionally, the asylum seeker is not entitled to visitors once the departure period has expired.

According to the Council of State, detention was no longer possible on the basis of Article 59, first paragraph, under a of the Aliens Act in cases where the asylum seeker is awaiting a decision on the request for a provisional measure.[57] The Council of State concluded in this case that an asylum seeker could legally remain in the Netherlands during the period for lodging an appeal and during the appeal itself.^[58] 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 illegal and the measure was lifted. Previously, the Council of State had put preliminary questions to the CJEU.[59] The CJEU indicated that Directives 2008/115 and 2013/32 should be interpreted as precluding an asylum seeker, whose application has been rejected as manifestly unfounded, from being held in detention for the purpose of expulsion while he legally remains in the Netherlands until judgment is given on his request for a provisional measure.[60] Should the Secretary of State want to detain asylum seekers during this period, which is only possible based on the provisions of the Reception Directive, the law will have to be amended.

It was initially unclear whether the Gnandi judgment was applicable in cases in which an asylum seeker makes a second or subsequent application. However, the Council of State concluded that, in a case involving a fourth asylum application with the asylum seeker having been placed in detention, the Gnandi judgment did apply.[61] As a result, the legal effects of the return decision were suspended.

According to the Council of State the Gnandi judgment is also applicable in case the asylum application was rejected in the border procedure.[62]

The Aliens Act, in particular Article 82, has still not been adjusted to the Gnandi judgment.

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 their own opinion on the credibility of the asylum seeker’s statements to the authorities’. Where the asylum seeker makes contradictory or inconsistent statements, the review can be more intensive. Before 2016, the other elements – not the credibility of the statements – for assessing whether the asylum seeker qualifies for international protection (de zwaarwegendheid) had always been reviewed intensively by Regional Courts.

Regional courts thus rule whether the grounds of a decision of the IND is valid, taking into account the grounds for appeal from the asylum seeker and the arguments of the IND. When the grounds are not valid, the IND has to take a new decision.

Furthermore, when assessing the appeal, the Regional Court takes into consideration all new facts and circumstances which appear after the decision issued by the IND. This is the so-called ex nunc examination of the appeal.[63]

Onward appeal before the Council of State

After the Regional Court issues a judgment on the decision from national asylum authorities, both the asylum seeker and/or the IND may appeal against the decision of the Regional court to the Council of State.[64] The IND makes use of this possibility especially in matters of principle, for example if a court evaluates that a particular minority is systematically subjected to a violation of Article 3 ECHR. 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.^[65]

In April 2017, the Council of State referred preliminary questions to the CJEU on whether an onward appeal in asylum cases should have automatic suspensive effect. The Council of State in doing so referred to the Return Directive, the Asylum Procedures Directive and Article 47 of the EU Charter on the right to an effective remedy. On 26 September 2018, the CJEU ruled that it cannot be derived from the Asylum Procedures Directive, Return Directive and the EU Charter that an onward appeal in asylum cases has automatic suspensive effect.[66] Following this judgment, the Council of State ruled on 20 February 2019 that an onward appeal does not have automatic suspensive effect.[67] As a result, a provisional measure from the President of the Council of State is needed to prevent expulsion.

Initially, a provisional measure could only be requested in case of urgency, such as imminent deportation, detention or termination of reception, but this condition no longer applies. The Council of State changed its course as a result of the ECtHR judgment in A.M v. The Netherlands of 5 July 2016.[68] According to the EctHR, onward appeal to the Council of State, in its existing form, did not qualify as an effective remedy. The Council of State made clear that it is no longer necessary to wait for an expulsion date has been set, an asylum seeker can now submit a request for a provisional measure at the time of appeal.[69] The Council of State also made clear that a request for a provisional measure preventing expulsion will be granted if the asylum request is considered to have an arguable claim in the sense of Article 3 of the European Convention on Human Rights (ECHR).^[70] If granted, a provisional measure allows for reception facilities.

All decisions of the appeal body are public and some are published.[71] 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.

Legal assistance

Every asylum seeker is entitled to free legal assistance.[72] To ensure this right, the following system was designed:

Free legal assistance at first instance

To register the actual asylum application the asylum seeker has to reach an Application Centre. At the Application Centres there are lists where asylum lawyers note their availability for that day. For instance, if five asylum lawyers are scheduled on a Monday they are responsible for all the asylum requests that 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 defining timetables and making sure that sufficient lawyers are available on a particular day. In this way, every asylum seeker is assigned a lawyer from the start of their procedure. On the other hand, in case a great number of applications are presented on one day, it may also happen that lawyers are forced to accept an excessive number of cases. The Legal Aid Board schedules a certain number of lawyers to handle the asylum requests that come in that day, to a maximum of three cases per day they are present at the Application Centre.[73]

An appointed lawyer from the Legal Aid Board is free of charge for the asylum seeker. However, an asylum seeker may choose a lawyer independently. If the Legal Aid Board recognises the self-appointed lawyer as an official asylum lawyer, it 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 they are 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 under this system.

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 can be expected 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.[74] 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 a “second opinion”, meaning that another lawyer takes over the case.[75] 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 opinion, this would be considered as ‘malpractice’ because submitting a written viewpoint is part of 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, this 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.

Limited financial compensation for lawyers who represent asylum seekers can be an obstacle, as some lawyers consider insufficient the compensation they obtain in exchange for the time spent preparing a caset. This means that some lawyers are underpaid in comparison to the time spent on a case, or that some cases are not prepared with sufficient care. Alongside this, due to the economic crisis, more cutbacks had to be made within the state-funded legal aid system. As a result, over the last two years, asylum lawyers’ salaries decreased, leading to a structural problem of underpayment. To counter this, the Dutch government is raising the amount received per point that an asylum lawyer receives after the completion of a case.[76] A point corresponds to the amount of time allocated to a specific case, meaning that for more difficult and time-intensive cases, a lawyer will receive more money, corresponding to the amount of time spent on the case.

[1] IND, Tijdigheid voorraad eerste asielaanvragen, available in Dutch at: https://bit.ly/3xEVNZ1.

[2] IND, Doorlooptijden per asielspoor over 2022 (information per track on a monthly basis), available in Dutch at: https://bit.ly/3ZcpA7V.

[3] Article 3.110(1) Aliens Decree.

[4] Article 3.109 Aliens Decree, paragraph C1/2.1 Aliens Circular and IND Work instruction 2021/8, available in Dutch at: https://bit.ly/3rfMfji.

[5] Amnesty International, Bewijsnood, Wanneer nationaliteit en identiteit ongeloofwaardig worden bevonden, 19 November 2020, available in Dutch at: https://bit.ly/34zOlCW.

[6] ACVZ, Naar een gelijker speelveld bij vaststelling nationaliteit en identiteit van migranten, 11 April 2022,         available in Dutch at: https://bit.ly/3jPH7T9.

[7] Council of State, Decision No 201407487/1, ECLI:NL:RVS:2015:4061, 24 December 2015.

[8] Amendment Aliens Decree, In verband met het regelen van de aanmeldfase en vervallen van het eerste gehoor in de algemene asielprocedure, Staatsblad 2021, 250 available in Dutch at: https://bit.ly/3ra1ZEH.

[9] Article 3.112-3.115 Aliens Decree.

[10] See also Work instruction 2021/13, Nader gehoor, available in Dutch at: https://bit.ly/3tu11FM.

[11] Article 42(3) Aliens Act.

[12] Article 3.115 (1) Aliens Decree.

[13] Article 3.115 (1) and Article 3.115 (3) Aliens Decree.

[14] Article 3.115 (2) and Article 3.115 (3) Aliens Decree.

[15] Article 3.115 (3) Aliens Decree.

[16] Article 3.113 (7) and Article 3.113 (8) Aliens Decree.

[17] Article 3.116 (2) Aliens Decree.

[18] Article 3.119 Aliens Decree.

[19] Article 43 (1) Aliens Act.

[20] Dutch Parliament, 19637-2605, 15 May 2020, Gevolgen richtsnoeren Europese Commissie voor beslistermijnen IND, available in Dutch at: https://bit.ly/2LD9OSD.

[21] European Commission, Guidance on the implementation of relevant EU provisions in the area of asylum and return procedures and on resettlement, 17 April 2020, available at: https://bit.ly/35T5DIY.

[22] Council of State, Decision No 202005098/1, ECLI:NL: RVS:2020:3020, 16 December 2020.

[23] IND, Doorlooptijden per asielspoor over 2022 (information per track on a monthly basis), available in Dutch    at: https://bit.ly/3ZcpA7V.

[24] Article 3.112 Aliens Decree.

[25] Article 3.113 Aliens Decree.

[26] Article 38 Aliens Act.

[27] IND, Toelichting inzet tolken, March 2021, available in Dutch at: https://bit.ly/3qnP8PK and Work instruction 2020/5, (Samen) werken met een tolk, available in Dutch at: https://bit.ly/33gEmCd.

[28] Article 28(1) Law on Sworn Interpreters and Translators.

[29] Article 28(3) Law on Sworn Interpreters and Translators.

[30] Frits Koers et al, Best practice guide asiel: Bij de hand in asielzaken, Raad voor de Rechtsbijstand, Nijmegen 2012, 38.

[31] IND, Toelichting inzet tolken, March 2021, available in Dutch at: https://bit.ly/3qnP8PK.

[32] Legal Aid Board, information on interpretation services, available in Dutch at: https://bit.ly/33vxctO.

[33] Paragraph C1/2.11. Aliens Circular.

[34] Lieneke Luit, Pink Solution, inventarisatie van LHBT asielzoekers (Inventory of LGBTI asylum seekers), available in Dutch at: http://bit.ly/1MyMHfE.

[35] CJEU, Joined Cases C‑148/13, C‑149/13 and C‑150/13 A, B and C, Judgment of 2 December 2014.

[36] Council of State, Decisions No 201208550/1, No 201110141/1 and No 201210441/1, 8 July 2015.

[37] See: Council of State, Decision No 201807042/1, ECLI:NL:RVS:2020:1885, 12 August 2020.

[38] Ombudsman, Report 2014/166, November 2014.

[39] Article 3.114 Aliens Regulation.

[40] Article 3.114 (5) Aliens Regulation.

[41] IND, Written interview, not dated, available in English at: https://bit.ly/35YxVC3.

[42] IND, Written interview, not dated, available in English at: https://bit.ly/35YxVC3.

[43] IND, Written interview, not dated, available in English at: https://bit.ly/35YxVC3.

[44] Dutch Council for Refugees, Quickscan Taskforce, 19 November 2020, available in Dutch at: https://bit.ly/39P1yH5.

[45] Dutch Council for Refugees, Quickscan Taskforce, 19 November 2020, available in Dutch at: https://bit.ly/39P1yH5 and Dutch Council for Refugees, Monitor Taskforce, 1 July 2021, available in Dutch at: https://bit.ly/3zPJvx2. 

[46] Legal Aid Board (Raad voor Rechtsbijstand), AC Signalering nr. 15 2022, 16 December 2022.

[47] IND, Asiel: Laatste ontwikkelingen, available in Dutch at: https://bit.ly/3VIITCH.

[48] IND, Procesbeschrijving Telehoren, 14 July 2020, available in Dutch at: https://bit.ly/3c36IlH which was followed up by IND, Procesbeschrijving Telehoren, 1 June 2021, available in Dutch at: https://bit.ly/3rffN0J.

[49] EASO, Asylum Report 2021, page 119, https://bit.ly/3HUKfDS.

[50] Regional Court of Utrecht, Decision No NL20.13775, 5 January 2021.

[51] Regional Court of Den Haag, Decision No NL21.19215, 10 January 2022.

[52] IND, Vreemdelingenvisie 29, 22 April 2021, avalaible in Dutch at: https://bit.ly/3lLdRha.

[53] IND, Vreemdelingenvisue 37, 29 November 2022, available in Dutch at: https://bit.ly/3Zlt4oB.

[54] Article 69(2) Aliens Act.

[55] Article 82(2)(c) Aliens Act, citing Article 30b(1)(h).

[56] CJEU, C-181/16, 19 June 2018.

[57] Council of State, Decision no 201710445/2/V3, 27 August 2018.

[58] Council of State, Decisions No 201710445/2/V3 and 201805258/1/V3, 27 August 2018.

[59] Council of State, Decision No 201703937/1, 19 April 2018.

[60] CJEU, C-269/18, 5 July 2018.

[61] Council of State, Decision no 201903236/1, 29 January 2020.

[62] Council of State, Decision no 201808923/1, 5 June 2019.

[63] Article 83 Aliens Act.

[64] Article 70(1) Aliens Act.        

[65] Tweede Kamer, Explanatory notes on the implementation of the recast Asylum Procedure Directive, Vergaderjaar 34 088, number. 3, 2014–2015, 22 and Chapter 8.5 GALA.

[66] CJEU, Case C-175/17 and C-180/17, X and Y v. Staatssecretaris van Veiligheid en Justitie, 26 September 2018.

[67] Council of State, Decision No 201609659/1/V2 and 201609659/4/V2, 20 February 2019.

[68] ECtHR, no. 29094/09, 5 July 2016.

[69] Council of State, Decision no. 201609138/3, 20 December 2016.

^[70] Council of State (Judge for provisional measures), Decision 201609138/3/V2, 20 December 2016.

[71] Decisions of the Regional Courts and Council of State may be found at: https://www.rechtspraak.nl/.

[72] Article 10 Aliens Act.

[73] J. Nijland and K. Geertsema, Wat verdeint een sociale vreemdelingenadvocaat?, A&MR 2020, nr. 6-7, 361-370.

[74] Circular on payments legal aid in the new asylum procedure, 1 July 2010, available in Dutch at: http://bit.ly/1HS8gek.

[75] Article 12 Legal Aid Act.

[76] J. Nijland and K. Geertsema, Wat verdeint een sociale vreemdelingenadvocaat?, A&MR 2020, nr. 6-7, 361-370.