The legal grounds for refusing entry to the Dutch territory at the border are laid down in Article 3(1)(a)-(d) of the Aliens Act. In addition, the asylum seeker can be detained on the basis of Article 6(1) and (2) of the Aliens Act. In practice this leads to an initial systematic detention of all asylum seekers at the external Schengen borders of the Netherlands.
According to Article 3(1) of the Aliens Act, in cases other than the Schengen Border Code listed cases, access to the Netherlands shall be denied to the alien who:
Does not possess a valid document to cross the border, or does possess a document to cross the border but lacks the necessary visa;
Is a danger to the public order or national security;
Does not possess sufficient means to cover the expenses of a stay in the Netherlands as well as travel expenses to a place outside the Netherlands where their access is guaranteed;
Does not fulfil the requirements set by a general policy measure.
These grounds are further elaborated in Article 2.1 to 2.11 of the Aliens Decree and Paragraph A1/3 of the Aliens Circular.
Work Instruction 2018/3 describes the border procedure if a traveller who is refused entry applies for asylum. 
When the asylum application has been rejected at the border the detention of the asylum seeker at the border could be continued. However, the Council of State ruled that, as a result of the Gnandi and C.J.S judgments of the CJEU, the present legal ground for continuing the detention at the border after rejection of the asylum application at least during the period for lodging an appeal, is not valid. In this regard a bill has been presented to Parliament to amend the Aliens Act to make it possible to continue the detention of rejected asylum seekers at the border. Until the Aliens Act has been amended the rejected asylum seekers have to be placed in an open reception facility.
Migrants are mostly detained because they do not fulfil the requirements as set out in Article 3(1)(a) and (c) Aliens Act. Migrants, who, after arriving to the Netherlands, apply for asylum, can be detained as well. This is based on Article 6(3) read in conjunction with Article 3(3) of the Aliens Act. They are kept in detention throughout their asylum procedure. Work Instruction 2018/3 lists the cases of exceptions under which the asylum seeker is not subject to the border procedure and is already allowed entry during the asylum procedure (see further Detention of Vulnerable Applicants).
Territorial detention of asylum seekers
The conditions for the detention of asylum seekers are set out in Article 59b of the Aliens Act and further clarified in Article 5.1c of the Aliens Decree. Territorial detention of asylum seekers is only possible in the following situations:
- Detention is necessary for ascertaining the identity and nationality of the asylum seeker. This is the case when the identity or nationality of the asylum seeker are insufficiently known to the authorities and at least two of the grounds for detention are applicable.
- Detention is necessary for acquiring information that is necessary for the assessment of the asylum application, especially when there is a risk of absconding. This condition is fulfilled when information that is necessary for the assessment of the asylum application can be obtained and at least two of the grounds for detention are applicable.
- The asylum seeker has already been detained in the context of a return procedure, has previously had the chance to make an asylum application and has only made the asylum application to delay the return procedure. This assessment considers all circumstances.
- The asylum seeker is a threat to public order or national security. This condition is in any case fulfilled if Article 1F of the Refugee Convention is probably applicable.
The first and second paragraph add the requirement of a risk of absconding for detaining an asylum seeker in order to obtain information. A risk of absconding is demonstrated when at least two grounds for detention, as set out in Article 5.1b(3)-(4) of the Aliens Decree, are applicable.
Dutch courts have referred questions to the CJEU regarding the compatibility of the grounds for detention of asylum seekers with the Charter of Fundamental Rights. The Council of State referred a preliminary question to the CJEU on the compatibility of detention on grounds of public order or national security, which was affirmed by the Court in J.N. v. Secretary of State for Security and Justice in 2016. After the CJEU ruling, the Council of State ruled in the same case that, while Article 59b(d) of the Aliens Act is valid, the public order or national security ground may only be fulfilled where there is a “genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.” The J.N. ruling also gave rise to a change of jurisprudence of the Council of State: a subsequent asylum application only suspends the return decision rather than annulling it.
A question on the compatibility of the grounds for detention regarding identity / nationality and acquisition of information necessary for the assessment of the application was referred by the Regional Court of The Hague, and the CJEU clarified in K. v. Secretary of State for Security and Justice that their application was conform with the Charter. Even prior to the K case, the Council of State had ruled that the general principles regarding the detention of asylum seekers as set out in Articles 8 and 9 of the Reception Directive apply to each ground for detention. In this regard the Council of State referred to the findings in J.N. (par. 59 – 63). This means that these principles also apply to the ground for detention in order to determine the main elements of the claim.
Relating to detention of asylum seekers subject to a transfer under the Dublin Regulation under Article 59a of the Aliens Act, there must be a concrete indication that the asylum seeker can be transferred based on the Dublin Regulation. Asylum seekers in Dublin procedures are not systematically detained but they may be detained when there is a significant risk of absconding. According to Article 5.1b(2) of the Aliens Decree, a “significant risk” is demonstrated in the context of the Dublin Regulation when at least two grounds for detention are applicable, of which at least one is “severe”. The “severe” grounds can be found in Article 5.1b(3) of the Aliens Decree, while the “light” grounds are set out in Article 5.1b(4). A significant risk of absconding may already be determined, for example, when the person concerned has not entered the Netherlands lawfully (a “severe” ground) and does not possess sufficient resources (“light” ground).
The Aliens Circular stipulates in paragraph A1/4.5 that the condition of sufficient means will be fulfilled if the asylum seeker disposes of at least €34 per day.
Present legal ground for border detention after rejection of asylum application: Art. 6 para. 6 Aliens Act.
Council of State, decision no 201808923/1/V3 and 201808670/1, 5 June 2019.
Article 6(1)-(2) Aliens Act.
Article 5.1c Aliens Decree.
CJEU, Case C-601/15 PPU J.N., Judgment of 15 February 2016.
Council of State, Decision No 201507608/2, 8 April 2016.
CJEU, Case C-18/16 K., Judgment of 14 September 2017.
Council of State, Decision No 201600224/1, 13 May 2016.