Detention is supposed to be a matter of last resort. This is also laid down in policy rules. 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).
Other alternatives to detention, such as giving a financial guarantee, are rarely used. This has been criticized multiple times. For instance, the Advice Commission on Aliens’ Matters (Adviescommissie in Vreemdelingenzaken, ACVZ) has noted in previous years that there is no explicit legal ground stating the circumstances in which an alien cannot be put in detention. Amnesty International has also argued that there should be a legal obligation imposed on the decision-making authorities to proactively consider alternatives to detention. Previously, however, there have been pilots on alternatives to aliens’ detention. In 2018, Amnesty International concluded in a report that immigration detention (both territorial and at the border) are applied too often and not just as an ultimum remedium. It further demonstrated that alternatives to imprisonment are only considered if the immigrant actively facilitates his or her expulsion.
A draft Decree relating to a Bill regarding return and detention of aliens, specifies the circumstances in which alternatives to detention can be applied. However, this Bill has not been adopted yet (see below), which is why the Decree has still not come into force. The Bill has been presented to the Senate of the Dutch Parliament, which is assessing the Bill.
Article 59c Aliens Act.
Paragraph A5/1 Aliens Circular.
Amnesty International, Remarks to the Bill regarding return and detention of aliens (online consultation), February 2014, available at: http://bit.ly/2kJVszM; Amnesty International, Detention of aliens in the Netherlands: human rights as a standard, 2013.
Amnesty International, Het recht op vrijheid. Vreemdelingendetentie: het ultimum remedium-beginsel, February 2018, available in Dutch at: https://bit.ly/2TAX1i2.