Judicial review of the detention order


Country Report: Judicial review of the detention order Last updated: 08/04/22


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Before a detention order is issued, or as soon as possible after this, the detainee has to be interviewed so that he can give his opinion about the (intended) detention.[1]

According to Article 93 of the Aliens Act, an asylum seeker is entitled to lodge an appeal at any moment he or she is detained on the basis of territorial detention or border detention.

There is also an automatic review by a judge of the decision to detain, regardless of whether it concerns border detention or territorial detention. According to Article 94 of the Aliens Act, the authorities have to notify the Regional Court within 28 days after the detention of a migrant is ordered, unless the migrant or asylum seeker has already lodged an application for judicial review him or herself. The hearing takes place within 14 days after the notification or the application for judicial review by the migrant,[2] and the decision on the detention is taken within 7 days.[3] When the Regional Court receives the notification, it considers this as if the migrant or asylum seeker has lodged an application for judicial review.

The Council of State has referred a question for a preliminary ruling to the CJEU on the review of the detention of aliens on 23 December 2020 (C-704/20).[4] The Council questions whether judges are obliged to rule of their own motion upon all the conditions of detention, even when the detainee has not complained about certain conditions. The question follows from the Mahdi-case (C-146/14) in which the Council of State has not read this obligation before. However, some regional courts did rule of their own motion that – for example – the IND or DT&V had not acted expeditiously. In January 2021, the Regional Court of Den Bosch added some questions to the ones raised by the Council of State.[5] Whereas the Council asked whether judges are obliged to rule of their own motion, the Court questioned at first whether judges are allowed to rule of their own motion. Only if this is the case, whether they are also obliged to rule of their own motion in order to prevent legal inequality. The referral cases also differ significantly. The Council of State is of the opinion that no such obligation exists, while the Court of Den Bosch expressed an opposing view.

The first judicial review examines the lawfulness of the grounds for detention – whether the conditions for detention were fulfilled – whereas further appeals against immigration detention review the lawfulness of the continuation of detention. [6]

If the court is convinced that the detention is unreasonably burdensome because the decision-making authorities have not sufficiently taken into account the interests of the individual, detention can be lifted.[7] Article 59c Aliens Act stipulates: “Our Minister shall only detain an alien on the basis of Article 59, 59a or 59b, insofar as no less coercive measures can be applied effectively” and “Detention of an alien is waived or terminated if it is no longer necessary with a view to the purpose of the detention.”

Paragraph A5/1 of the Aliens Circular states that the interests of the person need to be weighed against the interests of the government in keeping him or her available for the return procedure. This is stressed in the specific context of the detention of asylum seekers.[8] The weighing of interests is not mentioned explicitly in policy with regard to border detention.

Detainees have the right to be informed about the reason for their detention; this is laid down in the Aliens Decree.[9] Usually this information is provided to the individual concerned by the government official who issues the detention order, or by a lawyer. In all cases, the detention order has to be given in writing and state the reasons for detention. More practical rules on how the information should be provided, are laid down in policy guideline Aliens Circular.[10]

[1] Article 59(2) Aliens Decree. The importance of this procedural condition was stressed in the following judgments: Council of State, Decision No 201506839/1/V3, 30 March 2016; and Council of State, Decision No 201801240/1/V3, 2 May 2018. The Council of State referred to EU law, including to the CJEU’s judgment Mukarubega of 5 November 2014 (Case C-166/13).

[2] Article 94(2) Aliens Act.

[3] Article 94(5) Aliens Act.

[4] Council of State, ECLI:NL:RVS:2020:3061, 23 December 2020.

[5] Regional Court Den Bosch, ECLI:NL:RBDHA:2021:466, 26 January 2021.

[6] Article 96 Aliens Act.

[7] Article 94(5) Aliens Act.

[8] Paragraph A5/6.3 Aliens Circular.

[9] Article 5.3 Aliens Decree.

[10] Paragraph A5/6.6 Aliens Circular.

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of the main changes since the previous report update
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection
  • ANNEX I – Transposition of the CEAS in national legislation