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Grounds for cessation of status
Article 32 of the Aliens Act provides the grounds for revocation of temporary asylum status. This article applies to recognised refugees as well as to beneficiaries of subsidiary protection. It states that temporary asylum status can be revoked, and the request to extend the period of validity can be denied, in case the legal ground for granting protection status has ceased to exist. The temporary asylum status of a recognised refugee will be revoked in case any of the grounds of Article 32 Aliens Act applies,[1] as will be the case for temporary asylum status of a beneficiary of subsidiary protection.[2]
Revocation of refugee status or subsidiary protection is further explained in Paragraph C2/10.4 of the Aliens Circular.
Within the Dutch system, there is no distinction between the cessation and the withdrawal of asylum status. Moreover, the Dutch system does not differentiate between an asylum status and the asylum permit. Therefore, revocation of the asylum status means that the permit is automatically revoked. In 2019, 250 temporary asylum statuses/permits were revoked, while they were 170 in 2020 and 190 in 2021. From January to September 2022, the IND revoked 270 temporary asylum statuses/permits.[3] The IND revoked 20 permanent asylum statuses/permits in 2020 and 30 in 2021 (up until September).[4]
The grounds of revocation from Article 32 Aliens Act are:
- False information
- Danger to public order or national security
- Ceased circumstances
- [Change of main residence outside the Netherlands]
- End of the family bond (for family reunification statuses – not discussed further)
Article 32(1)(d) of the Aliens Act provides that, where the beneficiary of international protection changes his or her main residence outside the Netherlands, temporary asylum status can be revoked. This is not in accordance with the limitative grounds for revocation in the recast Qualification Directive. It remains a revocation ground by law for regular migration permits, but can no longer be used for asylum permits. According to the Aliens Circular a change of main residence outside the Netherlands does not constitute a ground for withdrawal of status.[5] Given this policy, this revocation ground is no longer used in practice. Nevertheless, when a beneficiary of international protection changes his or her main residence outside the Netherlands, according to policy, the Dutch authorities assess whether the legal ground for granting protection has ceased to exist. This is laid down in paragraph C2/10.5 of the Aliens Circular.
False information
The withdrawal ground of false information is applicable to both temporary (article 32 Aliens Act) and permanent statuses of international protection (article 35 Aliens Act). This means that this ground can be invoked as a reason of withdrawal even after living over 20 years in the Netherlands.[6]After receiving reports of fraud, the IND started to reassess statuses from homosexual status holders from Uganda.[7] The IND had reasons to believe that there were organizations helping the Ugandans to get asylum in the Netherlands. Of the 253 inspected cases, one status was withdrawn, while 35 cases are still pending as of November 2020. There was no public serious follow up on these cases.
Danger to public order or national security
The withdrawal ground of being a danger to public order or national security is applicable to both temporary (article 32 Aliens Act) and permanent statuses of international protection (article 35 Aliens Act). This means that this ground can be used for withdrawal even after living over 20 years in the Netherlands.
In 2019, the status and residence permit of 30 persons with international protection had been revoked, in 2020 there were also 30 revocations and in 2021 there were 20 revocations.[8]
Article 3.86 Aliens Decree gives a number of ‘sliding scales’. The article establishes a link between the duration of the irrevocable punishment for a crime and the duration of lawful residence in the Netherlands. Although the matter is highly complex, in short, the longer the foreign national legally resides in the Netherlands, the heavier the penalty must be in order to reject the application for extension or to terminate the legal residence.[9]
However, the ‘sliding’ scale only applies only if a minimum threshold of ‘(particularly) serious crimes’ is reached. The asylum status and permit of a refugee can be revoked when the refugee commits a ‘particularly serious crime’ (article 14(4)(b) QD). In Dutch policy, a crime is considered ‘particularly serious’ when the refugee received a prison sentence for at least 10 months. On 15 June 2022, the Council of State referred preliminary questions to the CJEU about the interpretation of ‘particularly serious crimes’.[10] The asylum status and permit of persons with subsidiary protection can be revoked if a ‘serious crime’ (article 17(1)(b) QD) is committed. In Dutch policy, a crime is considered ‘serious’ when the person received a prison sentence of more than 6 months.
Moreover, unique in the public order policy, only for subsidiary protection statuses also suspended sentences have to be calculated.[11]
Ceased circumstances
While considering whether a temporary asylum status – granted to a recognised refugee or a beneficiary of subsidiary protection – will be revoked because the legal ground for granting status is no longer applicable, Dutch authorities shall have regard to whether the change of circumstances is of such significant and non-temporary nature that the fear of persecution or the real risk of serious harm can no longer be regarded as well-founded.[12] The legal basis for granting protection status has not ceased to exist if the beneficiary can state compelling grounds arising out of previous persecution or former serious harm, to refuse to request protection of the country of his or her nationality or his or her former place of residence.[13] It will be stated in the country-based asylum policy whether the IND considers a change of circumstances in the overall situation in (a particular area of) a certain country to be significant and non-temporary for the purposes of cessation.[14]
If the IND finds that the legal ground for granting a temporary asylum status has ceased to exist, and the change of circumstances is of a significant and non-temporary nature, it investigates in any case:[15]
- Whether at the time of granting temporary asylum status another legal ground for granting protection status, provided for in Article 29(1) or (2) of the Aliens Act, applied;
- Whether at the time of review of the temporary asylum status another ground for granting protection status, as provided for in Article 29(1) or (2) of the Aliens Act, applies;
- Whether the status holder can state compelling grounds arising out of previous persecution or former serious harm to refuse to return to his or her country of origin.
If at least one of these conditions applies, the IND does not revoke temporary asylum status.
If the status holder has a permanent status of international protection, ceased circumstances do not lead to the revocation of the status (article 35 Aliens Act).
In January 2020, the IND decided that it would no longer consider certain parts of Sudan to be in a conflict that reaches the Article 15c QD-standards. At the same time, the IND announced starting a reassessment of all subsidiary protection statuses that were granted in line with the country policy stating that there was a 15c-situation in some parts of Sudan. The IND announced that around a hundred statuses were going to be reassessed because they believed that the change of circumstances in Sudan had such a significant and non-temporary nature that the fear of persecution or the real risk of serious harm could no longer be regarded as well-founded (article 3.37g Aliens Regulation)[16] The reassessment project terminated in 2021. According to the Evaluation of the IND, the reassessment resulted in 0 revocations on the ground of ceased circumstances. [17] Most of the status holders kept their permits on other grounds as many groups were considered to be at risk in Sudan.
No extension of the residence permit
The IND also assumes that the ground for cessation ‘ceased circumstances’ applies if the beneficiary of international protection has neither applied for an extension of the period of validity of his or her status nor for a permanent asylum residence permit (paragraph C2/10.4 Aliens Circular). This hypothetical policy is quite new.[18] Before, if the protection beneficiary did not renew their residence permit on time, it would be possible they were not entitled to legal stay for a short time. This was problematic for certain allowances and for employment contracts. There is barely any case law on this new phenomenon.
Change of main residence outside the Netherlands
The IND also assumes that the revocation ground ‘ceased circumstances’ applies if the beneficiary of international protection has left the Netherlands. If the beneficiary is no longer registered in the Municipal Personal Records Database (BRP) it is assumed that he or she has left the Netherlands. This is particularly worrying, given that people who become homeless are also unregistered from the BRP. A few cases concerning beneficiaries who became homeless and lost their asylum status and permit have been assessed by Regional Courts.[19] Often, these people realised that their status had been revoked when it was already too late to apply for review and appeal. This means that the courts cannot decide on their cases and the revocation becomes final. One court decided that the Bahaddar-exception was applicable: an article 3 ECHR-risk was very clear, which made it possible to set the final terms for appeal aside.[20] The court then ruled that the IND could not revoke the status merely because the person was unregistered from the BRP, rather the IND needed to assess whether a change of circumstances in the overall situation in (a particular area of) a certain country was applicable and was also significant and of non-temporary nature.
Voluntary return
The Aliens Circular stipulates that voluntary return to the country of origin is not a sufficient ground for the IND to revoke temporary asylum status. In case the IND finds that a recognised refugee or a beneficiary of subsidiary protection has, of his or her own free will, returned to his or her country of origin, the IND will conduct an interview concerning this journey. It is then up to the status holder to prove that he or she is still in need of protection.
Voluntary re-availing
Considering Article 1C of the 1951 Refugee Convention, it is stipulated that a temporary asylum status of a recognised refugee shall be revoked in case he or she requests and receives a passport from the authorities of the country of origin. Temporary asylum status is not revoked in case the recognised refugee can prove that Article 1C of the Refugee Convention does not apply.[21]
Cessation procedure
The Aliens Act provides that the intention procedure is applicable in case a temporary asylum status is revoked.[22] Under the intention procedure, the status holder is informed in writing of the intention to revoke his or her temporary asylum status. The letter of intention will not be sent to the previous asylum lawyer, only to the status holder.[23] Within 6 weeks, the status holder can put forward his or her view on the intention to revoke temporary asylum status.[24] In case the IND still intends to revoke temporary asylum status, the status holder will be allowed an interview.[25] During the interview, the status holder will be given the opportunity to react on the intention to revoke temporary asylum status and explain his or her view on this. The legal representative can attend the interview.
In the decision to revoke temporary asylum status, the IND considers on its own accord, on the basis of Article 3.6a of the Aliens Decree, whether the status holder can be granted a temporary regular residence permit, or whether there are sufficient grounds for granting delay of departure from the Netherlands on medical grounds.[26]
The cessation decision states that there is an obligation to leave the country within 4 weeks.[27] Within 4 weeks the status holder can appeal the decision to revoke the temporary asylum status before the Regional Court.[28] In case a timely appeal has been made, the status holder retains his or her right to lawful residence in the Netherlands based on Article 8(c) of the Aliens Act. This means that the status holder retains his or her material rights, until the court’s decision, including the right to a residence permit. The status holder has a right to legal assistance during the procedure.
The IND can review protection status at any time. As the temporary asylum status is valid for 5 years, the refugee or beneficiary of subsidiary protection must apply to either extend the period of validity of his or her status or apply for a permanent asylum residence permit. At that time, the IND systematically reviews protection statuses.
[1] Article 3.105d Aliens Decree.
[2] Article 3.105f Aliens Decree.
[3] KST 36200-VI, no. 12, List of questions and answers for the of the budget of the Ministry of Justice and Security 2023, 2 November 2022, available in Dutch at: https://bit.ly/418lvTg.
[4] List of questions and answers for the of the budget of the Ministry of Justice and Security 2022, 17 November 2021, number 138, available in Dutch at: https://bit.ly/3n8vckJ.
[5] Paragraph C2/10.5 Aliens Circular.
[6] For example Council of State, ECLI:NL:RVS:2020:2953, 14 December 2020 (the applicant had an asylum status for over 14 years).
[7] KST 19637, nr. 2670 and appendix, LGBTI in the asylum procedure.
[8] Ministry of Justice and Security, State of Migration 2022, 7 July 2022, available in Dutch at: https://bit.ly/3Z6t8Zf, 135.
[9] Work Instruction 2020/12 De toepassing van de glijdende schaal, available in Dutch at: https://bit.ly/3wiiym0.
[10] Council of State, ECLI:NL:RVS:2022:1703, C-402/22, 15 June 2022.
[11] Paragraph C2/10.3 and C2/10.7 Aliens Circular.
[12] Article 3.37g Aliens Regulation.
[13] Article 3.37g Aliens Regulation.
[14] Paragraph C2/10.4 Aliens Circular.
[15] Paragraph C2/10.4 Aliens Circular.
[16] Decree WBV 2020/1 of 12 January 2020, Stb. 2020, 3262, amending the Aliens Circular 2000, available in Dutch at: https://bit.ly/3i9r1yB.
[17] Evaluatierapport Herbeoordelingen Soedan oktober 2021, p. 21, available in Dutch at: https://bit.ly/3VPy7uh.
[18] Decree WBV 2018/10 of 20 September 2018, Stb. 2018, 52887, available in Dutch at: https://bit.ly/38FLDLM.
[19] Regional Court Den Bosch, 21 July 2021, Decision No NL20.18837 and Regional Court Utrecht, 14 September 2020, ECLI:NL:RBDHA:2020:9086.
[20] Regional Court of Den Bosch, 21 October 2021, NL20.22228.
[21] Paragraph C2/10.4 Aliens Circular.
[22] Article 38 Aliens Act and Article 41(1) Aliens Act.
[23] The legality of this practice has been confirmed by the Council of State, ECLI:NL:RVS:2022:2203, 1 August 2022.
[24] Article 3.116(2)(b) Aliens Decree.
[25] Article 41(2) Aliens Act.
[26] Article 64 Aliens Act.
[27] Article 62(1) Aliens Act.
[28] Article 69(1) Aliens Act.