Border detention of vulnerable applicants
Article 5.1a (3) of the Aliens Decree stipulates that border detention is not imposed or prolonged if there are special individual circumstances that make the detention disproportionate. As IND Work Instruction 2020/9 indicates, border detention cannot be applied to:
- Unaccompanied children, whose detention is only possible when doubt has risen regarding their minority;
- Families with children, where there are no counter-indications such as a criminal record or family ties not found real or credible;
- Persons for whose individual circumstances border detention is disproportionately burdensome;
- Persons who need special procedural guarantees on account of torture, rape or other serious forms of psychological, physical and sexual violence, for whom adequate support cannot be ensured within the border procedure.
For the cases of applicants in need of special procedural guarantees or for whom detention at the border would be disproportionately burdensome, IND Work Instruction 2021/10 clarifies that vulnerability does not automatically mean that the applicant will not be detained at the border. The central issue remains whether the detention results into a disproportionately burdensome situation in view of the asylum seekers’ “special individual circumstances” as mentioned in the Aliens Decree. Whether there are such “special individual circumstances” must be assessed on a case-by-case basis. The IND Work Instruction provides two examples of such circumstances: where a medical situation of an asylum seeker leads to sudden hospitalisation for a longer duration, or where the asylum seeker has serious mental conditions.
The decision to detain at the border has to contain the reasons why the IND, though considering the individual and special circumstances produced by the asylum seeker, is of the opinion to detain the asylum seeker concerned (for example, the IND is of the opinion the border security interest should prevail above the individual circumstances).
If during the detention at the border special circumstances arise, which are disproportionately burdensome for the asylum seeker concerned, the detention will end and the asylum seeker will be placed in a regular reception centre. This means that during the detention it has to be monitored whether such circumstances arise.
Territorial detention of vulnerable applicants
In principle, no group of vulnerable third country nationals is automatically and per se excluded from detention. According to Amnesty International and Stichting LOS, vulnerable aliens sometimes end up in detention because there are no legal safeguards with regard to specific groups of vulnerable aliens. However, families with minor children and unaccompanied minors are in principle not detained. A policy with regard to the exclusion of other categories of vulnerable aliens to detention has not been adopted.
Families with children and unaccompanied children who enter the Netherlands at an external border are redirected to the Application Centre in Ter Apel. Exceptions in the context of territorial detention are made for unaccompanied children that are suspected of or convicted for a crime, that have left the reception centre or that have not abided by a duty to report or a freedom restrictive measure. It is also possible to detain unaccompanied minors when there is a prospect of removing the minor within 14 days. Detention of families with children is possible when the conditions of Articles 5.1a and 5.1b of the Aliens Decree are fulfilled for all family members, i.e. risk of absconding, obstruction the return procedure, additional information needed for the processing of an application, public order grounds, or significant risk of absconding in Dublin cases. In addition, it must be clear that at least one of the family members is not cooperating in the return procedure. Defence for Children strongly opposes detention of children on these grounds and in general. Amnesty International and LOS have also pointed out that detention of children with insufficient balancing of interest has occurred several times.
In 2019, 30 unaccampanied children were placed in detention, compared to 40 unaccompanied children in the whole of 2018. These children are detained at the closed family location in Zeist. Until September 2020, around 30 families stayed in Zeist, their average stay was 8 days. Less than 10 unaccompanied children stayed in Zeist until September 2020, their average stay was 6 days.
 Article 3.109b(7) Aliens Decree.
 Also in paragraphs A5/3.2 and A1/7.3 Aliens Circular.
 Also in paragraph A1/7.3 Aliens Circular.
 Article 5.1a(3) Aliens Decree.
 Article 3.108b Aliens Decree.
 Paragraph A5/2.4 Aliens Circular.
 Paragraph A5/2.4 Aliens Circular.
 Amnesty International, Doctors of the World and LOS, Opsluiten of beschermen? Kwetsbare mensen in vreemdelingendetentie, April 2016.
 Ministry of Security and Justice, Rapportage vreemdelingenketen: January-December 2018, 42; January-June 2019, 32.