Author
Detention is supposed to be a matter of last resort.[1] This is also laid down in policy rules.[2] Consequently, one alternative to detention is the limitation of freedom based on Article 56 of the Aliens Act. This includes reporting duties and restriction of freedom of movement, for instance within the borders of one specific municipality (see Freedom of Movement).
According to an EMN report on Alternatives to Detention, the following alternatives to detention are used in the Netherlands: (1) Reporting obligations, (2) Requirement to reside at a designated area, (3) Obligation to surrender a passport, travel document or identity document, (4) Deposit or financial guarantee, (5) Accommodation in return and asylum facilities.[3] Other alternatives to detention, such as electronic monitoring or return counselling are not used.
Clear data on such practices are however often not available, as it is impossible to determine whether the measure is used as an alternative to detention, or just used in general. This has been criticised by the Advisory Council on Migration (Adviesraad Migratie), that recommended in 2021 that the government should start registering the use of alternatives to detention and should also experiment more with lighter alternative methods to detention.[4] An important ‘alternative to detention’ as discussed in the EMN report is the ‘Requirement to reside at a designated area’. The period 2015-2020 saw between 450 and 2,890 persons each year subject to reside at the Freedom Restricted Location (VBL) in the return procedure, see Freedom of Movement.[5] However, the question is whether residing at the Freedom Restricted Location can really be viewed as an alternative to detention. Rejected asylum seekers who are willing to cooperate in their return procedure can stay at this location for a maximum period of 12 weeks. As these people are already willing to cooperate in their return procedure, they would probably not have been detained as they do not qualify for the condition of risk of absconding/ hampering the return procedure. The same goes for ‘Obligation to surrender a passport’, travel document or identity document as all asylum seekers need to surrender their passport, which will only be given back upon return or if a residence status is granted.[6]
A draft Decree relating to a Bill regarding return and detention of aliens, specifies the circumstances in which alternatives to detention can be applied.[7] However, the adoption of this Bill had been delayed (see below). The Bill has been presented to the Senate of the Dutch Parliament, which is assessing it.
Recently, some courts ruled that detention in a specific case was unlawful due to a lack of investigation by the IND into alternatives to detention.[8]
[1] Article 59c Aliens Act.
[2] Paragraph A5/1 Aliens Circular.
[3] EMN, ‘Detention and alternatives to detention in international protection and return procedures’, May 2022, available at: https://bit.ly/3HVgOng.
[4] ACVZ, Advice: Working together on Retun, April 2021, available at: https://bit.ly/3HsoxHP.
[5] EMN, ‘Detention and alternatives to detention in international protection and return procedures’, May 2022, available at: https://bit.ly/3HVgOng, 19.
[6] Par. C1/2.1 Aliens Circular.
[7] Bill regarding return and detention of aliens (2015-2016), 34309/2, available in Dutch at: https://bit.ly/3SPU8uW.
[8] E.g. Council of State, ECLI:NL:RVS:2022:1667, 13 June 2022, available in Dutch at: https://bit.ly/49v4RjI (Dublin case), Regional Court Haarlem, Decision No NL21.19757, 28 December 2021; Regional Court Den Bosch, Decision No NL21.5216 and NL21.5248, 21 April 2021.