Criteria and conditions

Netherlands

Country Report: Criteria and conditions Last updated: 18/03/21

Author

Dutch Council for Refugees Visit Website

Asylum seekers are entitled to material reception conditions after they have shown their wish to apply for asylum. This can be done by registering themselves in the Central Reception Centre COL in Ter Apel. The actual registration of the asylum application will happen after spending at least six days (three weeks for minors) at a reception location. During this time the asylum seeker is entitled to reception conditions set out in Article 9(1) RVA (Regulation on benefits for asylum seekers and other categories of foreigners 2005).[1] The organ responsible for both material as well as non-material reception of asylum seekers is the COA, according to the Reception Act.[2]

The material reception conditions are not tied to the issuance of any document by the authorities but the IND will issue a temporary identification card (“W document”) to asylum seekers while their asylum application is still in process. The asylum seeker can use this “W document” to prove his or her identity, nationality and lawful stay in the Netherlands.[3] If such a document is not issued, the asylum seeker can apply for this. The law makes it clear that the asylum seeker is entitled to such document.[4] There are no reports indicating that asylum seekers are unable to access material reception conditions or that there are any obstacles which prevent asylum seekers entitled to material reception conditions from accessing them in practice.

 

Right to reception in different procedural stages

 

The COA only provides reception to the categories of people listed in the RVA. The system is based on the principle that all asylum seekers are entitled to material reception conditions. However, according to Dutch legislation only applicants who lack resources are entitled to material reception conditions.[5] During the whole asylum procedure the COA is responsible for the reception of asylum seekers.

 

Rest and preparation period: During the rest and preparation period an individual is already considered an asylum seeker under the RVA because this person has made an application for asylum. So already during the rest and preparation period an individual is entitled to reception. However, daily allowances are reduced during the rest and preparation period.[6] Due to the long waiting times starting from 2019, this has become an issue (see The rest and preparation period). The RVA distinguishes between asylum seekers awaiting the start of their asylum procedure and asylum seekers awaiting the decision. On 29 July 2020, the Council of State ruled that this distinction is permitted by the Reception Conditions Directive.[7] The applicants pointed to Article 2(f) RCD for arguing that the distinction made by the RVA is not in accordance with EU-law. Article 2(f) RCD states that ‘material reception conditions’ include reception provided in kind, or as financial allowances or in vouchers, or a combination of the three, and a daily expenses allowance. However, the Council of State concluded that this article in the RCD is merely an article giving definitions and cannot be used as a legal basis for the right to receive a financial allowance for daily expenses. Therefore, the Council of State found that the distinction made in the RVA, resulting in not giving daily allowances to asylum seekers in the RVT, is not in contradiction with EU-law.

 

Asylum procedure/awaiting the decision: During the actual procedure, asylum seekers stay in a process reception location (POL) and while they wait for the decision of the IND, they stay in an AZC. Asylum seekers whose asylum application is processed in ‘Track 2’, however, must – as of September 2020 – stay in a ‘austere’ reception centre. In this reception centre they receive benefits in kind, they have to report daily, and extra security is present.[8] Even if the asylum seeker appeals after the rejection of his asylum application, he will remain in the austere reception centre. Children and vulnerable asylum seekers are excluded from the austerity of reception but must adhere to the austerity regime (reporting daily) in the AZC.

 

Rejection / appeal: Pursuant to article 5 of the RVA, the right to reception of the rejected asylum seeker continues to exist as long as no deportation decision is taken under the Aliens Act is not taken. Article 82 of the Aliens Act provides that an appeal against the rejection of an asylum application has an automatic suspensive effect even before the appeal is lodged. The asylum seeker therefore retains his right to reception if he lodges an appeal within 4 weeks and then until a decision has been taken on this appeal. From the moment the appeal is declared unfounded, the departure period of (usually) 4 weeks starts.

The negative asylum decision does not automatically have suspensive effect in all cases. There is no automatic suspensive effect in case of:

  • a rejection based on the Dublin procedure (Article 30 of the Aliens Act),
  • asylum applications declared inadmissible (Article 30a of the Aliens Act, with the exception of paragraph 1 under c – safe third country),
  • manifestly unfounded asylum applications (Article 30b of the Aliens Act, with the exception of sub 1 under h – unlawful entry / failure to notify immediately),
  • in the event of “not considering the case on its merits” (article 30c of the Aliens Act) and the rejection of subsequent applications on the basis of article 4:6 GALA.

 

Nevertheless, even in these cases the asylum seeker does not immediately lose his/her right to reception. He/she retains it for the duration of the remedy period (four weeks after rejection). This can be deduced from the jurisprudence of the Council of State following the Gnandi judgment (C-181/16).[9] The Gnandi judgment shows that all legal consequences of a return decision must be suspended by operation of law during the legal remedies period. The remedy period is the period in which it is still possible to lodge an appeal, while it has not yet been used. During this period, according to the Council of State, there is a national right of residence of a temporary nature.[10] This right of residence concerns lawful residence on the basis of Article 8 opening words under h of the Aliens Act: “pending the decision on appeal”. On the basis of the interpretation in accordance with the directive, ‘appeal’ should also be read as ‘request (for a provisional measure)’. The rejection of an asylum application as manifestly unfounded does not therefore lead to the loss of lawful residence. In addition, residence after requesting a provisional measure remains lawful until a decision has been made on that request, on the basis of article 8 opening words under h of the Aliens Act jo. art. 7.3 Vb (cf. Article 46 (6) and (8) of the Procedural Directive).

However, in the case of beneficiaries of international protection from other EU-member states, the COA often does not wait for the applicant to request a provisional measure before ending their stay at the reception centre. Therefore, the Council of State ruled that asylum seekers, whose application is deemed inadmissible because they received protection in another EU-member state, had the right to reception during the period following the inadmissibility decision in which they were able to appeal.[11]

 

Onward appeal: If the person lodges an onward appeal to the Council of State, there generally is no entitlement to reception facilities. However, the law subscribes that, in case that a provisional measure is granted by the Council of State, proclaiming that the asylum seeker cannot be expelled until the decision on the appeal is made, there is a right to reception.[12]

 

Status holders: When the asylum application is granted, the asylum seeker will retain the right to shelter until there is housing available.

 

Subsequent applicants: When an asylum seeker wishes to lodge a Subsequent Application he or she has to complete a separate form. From this point onwards, the asylum seeker enjoys the right to reception.[13] However, if the form is not completely filled in (e.g. when no new circumstances are put forward) the application will be disregarded and the right to reception will end.[14] When the form is complete, and the application is being handled during the short or extended asylum procedure, the asylum seeker enjoys the right to shelter until the IND has made a decision on the application.

 

If the subsequent application is rejected, the applicant must ask a preliminary ruling in order to keep his right to reception. In two judgments, the Council of State ruled that the main rule for subsequent applications based on EU Directives is that the processing of a request for a preliminary ruling after rejection may be awaited in the reception center.[15] There are two exceptions: there is no novum and the subsequent application was submitted to frustrate the deportation (This is assumed if the deportation date is known.) If the main rule applies to the case, the asylum seeker retains the right to reception after rejection of the subsequent application until a decision in appeal has been made.

 

Assessment of resources

 

According to Dutch legislation only asylum seekers who lack resources are entitled to material reception conditions.[16] There is no specific assessment to determine the resources of the asylum seeker. If an asylum seeker has financial means of a value higher than the maximum resources allowed in order to benefit from the social allowance system (around €6,295 for a single person and €12,590 for a married couple), the COA is allowed to reduce the provision of reception conditions accordingly but with a maximum of the economic value equivalent to the reception conditions provided.[17] The assessment of resources is carried out two days after the asylum seeker has been moved to a Centre for Asylum Seekers (AZC).

 

In theory reception facilities can be withdrawn or refused if asylum seekers have resources of their own. In practice this rarely happens but it is a possibility. For instance, in 2016 it came to the attention of the Dutch Council for Refugees that the COA considers asylum seekers that have a derived refugee status (based on their relationship with a refugee) and that now want to get a divorce and lodge their own asylum application, are still having enough resources. According to the COA, these people are to be regarded as spouses of people who have a right to housing in the municipality, even when they filed for divorce, and as such they can be considered as asylum seekers with enough resources of their own. They are therefore not entitled to reception facilities. This practice has continued throughout 2020.

 

In 2020 another problem arose: asylum seekers who received penalties from the IND because the decision upon their asylum application was not on time, were considered to have enough resources. The COA considered these penalty payments as assets. As the COA often did not reclaim this immediately, asylum seekers had already spent it, for example, on air tickets for their family members. A solution has not been found yet.

 

[1]Article 9(1) RVA.

[2]Article 3(1) RVA.

[3]IND, ‘Vreemdelingen Identiteitsbewijs (Type W en W2)’, available in Dutch at: http://bit.ly/2y8JraF.

[4]Article 9 Aliens Act.

[5]Article 2(1) RVA.

[6]Article 9 sub 5 RVA.

[7]Council of State, ECLI:NL:RVS:2020:1803, 29 July 2020.

[8]Letter of the Secretary of State, KST 19637, nr 2658, 14 September 2020.

[9]Council of State, ECLI:NL:RVS:2019:1710, 5 June 2019.

[10]Council of State, ECLI:NL:RVS:2019:3442, 15 October 2019.

[11]Council of State, ECLI:NL:RVS:2020:8, 6 January 2020.

[12]Article 3(3)(a) RVA.

[13] Council of State, Decision No 201706173/1, 28 June 2018.

[14]Article 30c (1) Aliens Act.

[15]Council of State, ECLI:NL:RVS:2019:4358, 19 December 2019 and ECLI:NL:RVS: 2020:244, 29 January 2020.

[16]Article 2(1) RVA.

[17]Article 20(2) RVA.

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of the main changes since the previous report update
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection
  • ANNEX I – Transposition of the CEAS in national legislation