Author
The Bill regarding return and detention of aliens was introduced in 2015 but is still being debated and will enter into force once it is accepted by the Senate.[1] In 2022, the file was still pending because an addition to the Bill had been presented to Parliament and because the Bill is already outdated so it needs a revision that still has not been presented.[2] The addition concerns specific measures for nuisance-causing third country nationals. The Bill stresses the difference between criminal detention and immigration detention, which does not have a punitive character. It proposes an improvement in detention conditions for aliens who are placed in detention at the border and on the territory. For instance, third country nationals would be free to move within the centre for at least twelve hours per day. At the end of 2024,[3] the Bill was updated again. It is expected to be discussed in Parliament at the beginning of 2025. At the moment of writing this report, there is no update yet.
Persons in detention have a right to health care, either provided by a doctor appointed by the centre or by a doctor of their own choosing. In March 2022, newspaper Trouw reported that due to a lack of qualified personnel and the right resources, the men detained in the Rotterdam immigration detention centre have been receiving poor medical care for years.[4] In one example a detainee needed to wait four months in order to see a doctor for a growing bump on his chin, because the nurse recorded his request as ‘no emergency’. The Custodial Institutions Agency replied in the newspaper and denied the lack of access to adequate care, neither physical nor mental.[5]
There are no known problems of overcrowding. Due to a reserve both on the short term and on the long run, overcrowding is highly unlikely. However, the Custodial Agency does have a shortage of staff. As a result, the detention centres are not overcrowded, but this does mean that detainees sometimes have to spend more hours in their cells. Additionally, in 2024, there was a one-time intake freeze, during which no new migrants were detained for one week in September (except for those who had committed crimes).[6]
Detained asylum applicants and migrants are normally held in a cell with another detainee. Only upon medical recommendation, an individual can obtain a cell of their own. Detainees are allowed to leave their cells to stay in the living areas within the detention centre between 8 am and 10 pm, with the exception of two hours during which meals are to be consumed in the cell. During these hours, activities are offered. Detained asylum applicants are able to make phone calls, go to the recreational area of the detention centre, receive visitors (two hours a week), access spiritual counselling, visit the library, watch movies, and do sports and other recreational activities. Moreover, they are allowed to go outside for at least one hour a day. All units have access to the internet but detainees are not allowed to go on social media websites, e-mail or any other website with chat functions.
Article 44 of the Penitentiary Principles Act (that applies to all detainees in the Netherlands, including third country nationals) states a duty for the State to make sure that detainees are able to properly take care of one’s appearance and physical hygiene. Article 4.4 of the Regulation Model House Rules for Penitentiary Institutions stipulates that an inmate is allowed to shower a minimum of two times per week. Additionally, it is determined that the institution must provide at least: shampoo, soap, toothpaste, toothbrush, comb, toilet paper, shaving equipment for male detainees, and sanitary pads for female detainees.
As opposed to criminal detainees, migrant detainees are not allowed to access work or education inside the detention centre.
Isolation
A report from Amnesty International, Doctors of the World and Immigration Detention Hotline (Meldpunt Vreemdelingendetentie) shed light on the frequent use made of isolation cells in detention centres.[7] According to the report, detainees were put in isolation 1,176 times in 2019. In response to questions of a regional court, DJI said that in 2021, isolation measures have been carried out 504 times in total.[8] Isolation is an order measure for the safety of the personnel, other detainees or the detainee themselves, but also a punishment. Detainees are put in a cell with nothing but a mattress, a stool, and an iron toilet wearing a ‘non-tearable dress’ for 23 hours a day, up to 14 days in a row (with possibility to prolong). The organisations give a few recommendations to reduce isolating detainees: isolation should not be used for punishment, nor as a collective measure, it should also be used less and for a shorter period. A following report from the Immigration Detention Hotline from 2021 shows that the isolation measure is still being used as punishment for minor violations, such as refusing to stay in a multi-person cell.[9] Isolation is also used as a ‘protective measure’ in cases of hunger strike, self-mutilation and based on potential risk of committing suicide.
In its 2023 report on the period review of the Netherlands ‘the CPT recommends that the Dutch authorities carry out a review of the policy and legal framework on the use of segregation as a measure and as a disciplinary sanction in immigration detention centres. While the 14-day maximum period should never be exceeded, the aim should be to reduce the resort to solitary confinement as a public order/security measure and no longer apply solitary confinement as a disciplinary measure in an immigration detention context. The house rules and the applicable disciplinary rules should be amended accordingly. Further, the CPT recommends that, at Rotterdam DC, segregation and disciplinary sanctions be applied proportionately in practice and that staff are provided with training in this regard.’[10] In response the Minister stated that ‘current practice follows these recommendations, in so far as it aims to avoid as much as possible the need to resort to measures or disciplinary punishments within detention centres. To minimise the use of disciplinary powers for ensuring order, peace and safety in the facility, the living environment and the taking of de-escalating action by staff are essential. In immigration detention, the principle of minimum restrictions always applies: this means that detainees have as much independence, freedom and autonomy as possible’.[11]
Border detention
In late 2024, the government authorities in charge of the detention facilities for applicants in the border procedure instated a new policy that increases the amount of time that applicants are locked up in a cell. Normally, applicants are free to move within the border procedure reception facilities until it is time to sleep (from 21:30h onwards). After that, the cell where they reside is locked and it is opened again in the morning. According to the new policy, applicants are locked in their cell from 16:30h onwards. Authorities claim that these restrictions are necessary due to personnel shortages and a large influx of applicants. According to national stipulations on conditions in border detention (Reglement Regime Grenslogies) locking applicants up is only allowed in nightly hours. The District Court of Amsterdam ruled on 12 December 2024 that the detention conditions for applicants in the border procedure were unlawful, citing among others the increased hours under lock-up and the fact that the detention facilities are in essence not different to those in criminal detention.[12] The Minister appealed the ruling shortly after, and the Council of State approved the request for an injunction, meaning that the applicants are allowed to be detained in the same manner until the Council of State makes a ruling on the merits of the appeal.
[1] Bill regarding return and detention of aliens (2015-2016), 34309/2. Information on the current state of affairs can be found on the website of the Senate at: https://bit.ly/2DY5WoF.
[2] KST 35 501, nr. 29, 11 April 2022, available in Dutch at: https://bit.ly/3vM4Ru0.
[3] Novelle bij Wet terugkeer en vreemdelingenbewaring, 23 December 2024, available in Dutch at: https://bit.ly/3C6mjjC.
[4] Trouw, ‘Gezond erin, ziek eruit: de gebrekkige zorg in de vreemdelingendetentie’ (Healthy in, sick out: the lack of care in immigration detention), 14 March 2022, available in Dutch at: https://bit.ly/3VUj5nd.
[5] Ibid.
[6] NRC, ‘Detentiecentrum voor uitgeprocedeerden overvol: uitzettingen gaan niet door’, 2 October 2024, available in Dutch at: https://bit.ly/3BVxewF.
[7] Amnesty International, Doctors from the World, Meldpunt Vreemdelingendetentie (2020): Isolatie in Vreemdelingendetentie, available in Dutch: https://bit.ly/3nQgkCh.
[8] Regional Court Den Bosch, ECLI:NL:RBDHA:2022:5970, 22 June 2022, available in Dutch at: https://bit.ly/42C5x4A.
[9] Meldpunt Vreemdelingendetentie (2021): Gebroken in vreemdelingendetentie, available in Dutch at: https://bit.ly/3WJMlOM.
[10] Report to the Government of the Netherlands on the periodic visit to the Kingdom of the Netherlands carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 10 to 25 May 2022, CPT/Inf (2023) 12, 23 June 2023, available at: https://bit.ly/3vnTE65, 35.
[11] Response of the Kingdom Authorities to the Report of the European Committee for the Prevention of Torture (CPT), 8 June 2023, available at: https://bit.ly/3H5SMFC.
[12] District court of Amsterdam, ECLI:NL:RBDHA:2024:20962, 12 December 2024, available in Dutch at: https://bit.ly/3C3CWws.