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Border detention
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;[1]
- 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.
Migrants are mostly detained because they do not fulfil the requirements as set out in Article 3(1)(a) and (c) Aliens Act.[2] 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 2021/10 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).[3]
Courts have recently been discussing whether beneficiaries of protection from other Member States can be detained at the border. According to the Regional Court Amsterdam, they should be released from border detention after the IND run its checks on EURODAC, from which emerged they were recognised international protection in another Member State.[4] One of the reasons for this exemption is that Article 6(5)(a) of the Schengen Borders Code states that beneficiaries of protection or third country nationals with a visa should be authorised to enter the territory of the Member States for transit purposes to the Member State which granted them a residence permit. The Council of State upheld its previous judgements, ruling that EU law does not prohibit automatic application of the border procedure and border detention to everyone who applies for asylum at the border (with the exception of vulnerable persons).[5]
Territorial detention of asylum seekers
There are three forms of territorial detention: (a) the detention of third country nationals who have no right of residence (Article 59 of the Aliens Act); (b) the detention of Dublin claimants (Article 59a Vw); and (c) the detention of asylum seekers (Article 59b Vw). They are based respectively on Article 15 of the Return Directive, Article 28 of the Dublin Regulation and Article 8 of the Procedures Directive. Different rules and terms apply to each form, which will be discussed below.
Detention for the purpose of removal
Detention for the purpose of removal can be imposed on both third country nationals (TCNs) with and without lawful residence on the basis of Article 59 of the Aliens Act. However, third country nationals who can be detained with lawful residence on the basis of Article 59(1)(b) of the Aliens Act are considered as asylum seekers, but, for example, as third country nationals who have applied for a regular permit. Only the detention of third country nationals without lawful residence will be discussed in the following paragraph.
Conditions
It follows from the Return Directive that TCNs without lawful residence can be detained if the following cumulative (added together, ed.) conditions are met:
- Return decision
- Risk of absconding / hampering return procedure
- A reasonable prospect of removal
- Removal arrangements are in progress and executed with due diligence
- No other sufficient but less coercive measures can be applied
Return decision
The Council of State ruled on 2 June 2021 that, as established by the CJEU judgements that a country of return must be mentioned in the return decision.[6] The country of return can also be deduced from the asylum decision and it is possible to add several countries of return. This is mostly relevant for asylum seekers whose claim of holding a certain nationality was not believed, leaving them with no country to return to.
EU status holders whose asylum application has been declared inadmissible will not receive a return decision, as it refers to return to a country outside the EU – usually the country of origin of the applicant -, while it is clear for EU beneficiaries that they run a risk of refoulement upon return to their country of origin. However, the Court of Justice ruled that this group of TCNs can be detained on national grounds with a view to deportation, without a return decision being imposed on them.[7] Therefore, the beneficiaries of protection in another Member State will not be issued a return decision after their asylum application was declared inadmissible; regardless, they have an obligation to leave. If they do not comply with this departure obligation, they can be forcibly deported on the basis of the general deportation authority of Article 63 of the Aliens Act. The status holder can also be detained for deportation on the basis of Article 59, paragraph 2 of the Aliens Act (the fiction that the interest of public order demands detention, if the documents necessary for return are available in the short term).
Risk of absconding
According to Article 59 of the Aliens Act, a foreign national can be detained on the grounds of being a potential threat to the interests of public order or national security. Whether there is a risk of absconding is determined based on light and serious grounds for detention as described in paragraphs 3 and 4 of Article 5.1b Aliens Decree. If at least two of these grounds are met, the risk of absconding can be assumed. However, the IND still needs to substantiate why these grounds entail a risk of absconding. A serious ground is for example ‘illegal entry’. Practice shows that these grounds are easily met in case of third country nationals who have no right of residence.
A reasonable prospect of removal
The condition ‘reasonable prospect of removal’ requires the indication of a reasonable period of time within which the removal can be carried out. If forced deportations are not at all foreseeable for the future, such in the case of Eritrea, there is no prospect of deportation, and as such, detention is not possible. Courts usually look at whether embassies issue laissez passers and whether presentations are possible at the embassy. For example, the Council of State ruled that there was no reasonable prospect of removal to Algeria, because the Embassy had not issued any laissez passers for 26 months.[8] On 14 November 2022, the Council of State ruled that there is a reasonable prospect of removal to Morocco, after having been ruled out since 2 April 2021.[9] The Council of State considered that a reasonable prospect of removal can be envisioned due to a political process between the Netherlands and Morocco that was expressed in an Action Plan made public on 29 November 2022.[10] One of the agreed statements is as followed: ‘Both countries are bound to respect each other’s sovereignty and institutions and not to interfere in internal affairs.’ According to Moroccan experts interviewed by the newspaper NRC, the Action Plan shows that the Netherlands will no longer openly criticize the human rights situation in Morocco in exchange for being able to deport and detain Moroccan nationals.[11]
Removal arrangements are in progress and executed with due diligence
Numerous rulings analysed this condition. Case law does not clearly specify how many days does the Secretary of State have to start deportation acts, however. More than usual diligence is required if the third country national is in possession is of a valid passport. Deportation arrangements include conducting departure interviews, investigating the deportation process, applying for the laissez passer and taking fingerprints.
No other sufficient but less coercive measures can be applied
Finally, pursuant to Article 59c of the Aliens Detention, detention may only be used as an ultimum remedium. Case law is however scarce on this matter. The Council of State often follows the IND position in arguing that the risk of absconding does not allow for alternatives.[12]
Detention of Dublin applicants
Dublin claimants can be detained for the purpose of transferring them to the responsible Member State.[13] Two conditions apply: (1) a concrete starting point for a Dublin transfer and (2) a significant risk of absconding. A EURODAC hit and a Dublin claim are both concrete starting points. For the risk of absconding Article 5.1b, paragraph 2 Aliens Decree is also used in Dublin cases. At least two grounds need to apply and at least one needs to be a serious grounds.
Detention of asylum seekers
The Aliens Act also provides a basis for the detention of asylum seekers during the asylum procedure (Article 8 Reception Directive). This form of detention may be imposed when:[14]
- 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 above grounds are further elaborated in Article 5.1c Aliens Decree. In principle, detention of third country nationals with lawful residence may not last longer than four weeks. However, an extension can be given for two weeks if the third country national submitted an asylum application and the intention procedure of Art. 39 Aliens Act is followed. The Secretary of State must process the asylum application expeditiously. It appears from a decision by the Council of State that Article 59b sub b of the Aliens Act can no longer be used as a basis for the detention measure on appeal, but only in the administrative phase.[15]
[1] 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.
[2] Article 6(1)-(2) Aliens Act.
[3] Article 5.1a(3) Aliens Decree. See IND Work Instruction 2017/1, available in Dutch at: http://bit.ly/2lZGp2X.
[4] E.g. Regional Court Amsterdam, ECLI:NL:RBDHA:2021:12551, 7 October 2021.
[5] Council of State, ECLI:NL:RVS:2021:1648, 28 July 2021; based on ECLI:NL:RVS:2016:1452, 3 June 2016; see also Council of State, ECLI:NL:RVS:2021:2870, 22 December 2022.
[6] Council of State, ECLI:NL:RVS:2021:1155, 2 June 2021. This follows from CJEU, C-924/19 PPU en C-925/19 PPU (FMS and others), 14 May 2020 and C‑673/19 (M. and others), 24 February 2021.
[7] CJEU, C‑673/19, 24 February 2021.
[8] Council of State, ECLI:NL:RVS:2022:1276, 4 May 2022.
[9] Council of State, ECLI:NL:RVS:2022:3269, 14 November 2022 overruling Council of State ECLI:NL:RVS:2021:695, 2 April 2021.
[10] Action Plan Netherlands-Morocco, 8 July 2021, available in Dutch at: https://bit.ly/3vv1WFV.
[11] NRC, The Netherlands can again deport migrants to Morocco — but may no longer criticize the country, 1 October 2022, available in Dutch at: https://bit.ly/3IcBMOl.
[12] E.g. Council of State, ECLI:NL:RVS:2020:1546, 1 July 2020.
[13] Article 59a Aliens Act.
[14] Article 59b Aliens Act.
[15] Council of State, ECLI:NL:RVS:2021:230, 4 February 2021.