Author
Asylum seekers are entitled to material reception conditions after they have shown their wish to apply for asylum. This can be done by registering themselves in the Central Reception Centre COL in Ter Apel. The actual registration of the asylum application will happen after spending at least six days (three weeks for minors) at a reception location. During this time, the asylum seeker is entitled to reception conditions set out in Article 9(1) RVA (Regulation on benefits for asylum seekers and other categories of foreigners 2005).[1] The organ responsible for both material as well as non-material reception of asylum seekers is the COA, according to the Reception Act.[2]
The material reception conditions are not tied to the issuance of any document by the authorities, but the IND will issue a temporary identification card (“W document”) to asylum seekers while their asylum application is still in process. Asylum seekers can use this “W document” to prove their identity, nationality and lawful stay in the Netherlands.[3] If such a document is not issued, the asylum seeker can apply for this. The law makes it clear that the asylum seeker is entitled to obtain it.[4]
From May 2022, newly arrived asylum seekers in need of registering their asylum application at Ter Apel slept on a chair, on the floor or even outside in the grass, for one or more days.[5] As of July, the number of asylum seekers sleeping outdoors had risen to 300.[6] On 24 August 2022, 700 people slept outside in the grass at Ter Apel.[7] Although attempts were made to house them in crisis emergency locations, there were not always enough available spots. Moreover, many asylum seekers felt compelled to stay in Ter Apel because they feared that they would not be registered otherwise (which proved to be a well-founded fear). The State Secretary stated at 25 May 2022, ‘every day it is uncertain to what extent reception can be assured’.[8] From 25th August until 11th of September Médicins sans Frontières (Artsen zonder Grenzen) provided medical care in Ter Apel.[9] It was the very first time that MSF operated in the Netherlands. MSF provided 449 medical and 203 psychological consults.
At the beginning of September 2022, the Ministry of Defence opened a location at Marnewaard to temporarily house unregistered asylum seekers during their registration period at Ter Apel. From the opening of this ‘waiting room’ on, no more asylum seekers slept outside in Ter Apel – except for one night.[10] The location at Marnewaard was closed again on 1 March 2023.[11]
In 2023, no asylum seekers had to sleep out in the open in Ter Apel. However, over the course of 2023 there were many moments in which Ter Apel reached its capacity and urgent measures needed to be taken. In a letter of 24 May 2023 the State Secretary announced that it needed to open two locations for unregistered asylum seekers again.[12] In a letter of 6 June 2023 it was announced that three or four of these locations were needed.[13] On 1 July 2023, the first of these locations opened in Assen with a capacity of 500 beds.[14] Unfortunately, in late 2023, distressing circumstances occurred again. Because there was no longer space in the facility itself, starting from October 9, 2023, the waiting area of the Immigration and Naturalization Service (IND) was used to accommodate asylum seekers.[15] The waiting area did not have beds or showers. Initially, this only affected asylum seekers who reported in the evening or at night in Ter Apel, but soon it also affected those who reported during the day, and asylum seekers (including children) sometimes had to stay there for multiple nights. On December 2, 2023, the Red Cross had to be called in to provide mattresses and emergency showers.[16] On December 7, 2023, the Inspection of the Ministry of Justice and Security reported that the situation in Ter Apel was untenable.[17] Fire safety were not in order, basic requirements for bedding and bathing were not met, and the risk of violent incidents was increasing.[18] Subsequently, an overnight shelter was opened in Stadskanaal, making it unnecessary for asylum seekers to sleep in the waiting area.[19]
In December 2023, the reception centre in Ter Apel had again reached its capacity. Therefore, asylum seekers had to sleep in the waiting room of the IND without beds or showers – sometimes for more than 2 days. On 22 December 2023 the municipality which Ter Apel is part of (Municipality Westerwolde) sued the COA for breach of contract because the maximum capacity of 2,000 asylum seekers was exceeded time and time again in 2023.[20] On 23 January 2024, the civil court ruled in favour of the Municipality, stating that COA has to pay a legal penalty of € 15,000,- for every day that there will be more than 5,000 people residing in Ter Apel.[21]
The support from EUAA has not been very visible. No information is provided on this by the Dutch government or COA. The only publicy available information is a Twitter post from February 2023 by EUAA about the delivery of 160 temporary reception units to the Winsum and Uithuizen locations in the Netherlands, and the delivery of a best practices workshop.[22] According to the Operating Plan signed by EUAA and the Dutch government in December 2022, EUAA would provide immediate support to the reception system through the increase of the temporary reception capacity, support through the deployment of EUAA personnel, and contribution to, and collaboration on, contingency planning.[23] The Operational Plan for 2024, signed by EUAA and the Dutch government in December 2023, proposes support to the reception system through the increase of the temporary reception capacity, support in reception through the deployment of EUAA asylum support teams, and contribution to, and collaboration on, contingency planning.[24]
Throughout 2023, the EUAA deployed 32 experts to the Netherlands.[25] These included 15 junior reception child protection experts, 8 junior asylum information provision experts and 4 members of the roving team.[26] As of 19 December 2023, a total of 28 EUAA experts were deployed in the Netherlands, out of which 15 were junior reception child protection experts, 7 junior asylum information provision experts and 3 members of the roving team.[27] In 2023, the EUAA delivered 7 training sessions to a total of 34 experts and personnel of national authorities, relevant partners and EUAA contracted personnel.[28]
Right to reception in different procedural stages
The COA only provides reception to the categories of people listed in the RVA. The system is based on the principle that all asylum seekers are entitled to material reception conditions. However, according to Dutch legislation only applicants who lack resources are entitled to material reception conditions.[29] During the whole asylum procedure, the COA is responsible for the reception of asylum seekers.
As will be further addressed in sections below, during a reception crisis, asylum seekers and BIPs in all stages can be housed in (crisis)emergency centres.
Rest and preparation period: During the rest and preparation period, an individual is already considered an asylum seeker under the RVA because this person has made an application for asylum. So already during the rest and preparation period, an individual is entitled to reception. However, daily allowances are reduced during the rest and preparation period.[30]
Starting from 2019, this became an issue due to the long waiting times (see The rest and preparation period). The RVA distinguishes between asylum seekers awaiting the start of their asylum procedure and asylum seekers awaiting the decision. On 29 July 2020, the Council of State ruled that this distinction is permitted by the Reception Conditions Directive.[31] The applicants pointed to Article 2(f) RCD for arguing that the distinction made by the RVA is not in accordance with EU-law. Article 2(f) RCD states that ‘material reception conditions’ include reception provided in kind, or as financial allowances or in vouchers, or a combination of the three, and a daily expenses allowance. However, the Council of State concluded that this article in the RCD is merely an article giving definitions and cannot be used as a legal basis for the right to receive a financial allowance for daily expenses. Therefore, the Council of State found that the distinction made in the RVA, resulting in not providing daily allowances to asylum seekers in the RVT, is not in violation of EU-law.
During the procedure started by the Dutch Council for Refugees in August 2022, the COA stated that asylum seekers would receive allowances during the Rest and Preparation period starting from 1 August 2022 – except for asylum seekers staying at crisis emergency shelter centres (See: 2. Conditions in reception facilities). The RVA has not been altered yet and no public report on this is available.
Asylum procedure/awaiting the decision: During the actual procedure, asylum seekers stay in a process reception location (POL) and while they wait for the decision of the IND, they stay in an AZC. Asylum seekers whose asylum application is processed in ‘Track 2’, however, must – as of September 2020 – stay in a ‘austere’ reception centre. In this reception centre, they receive benefits in kind, they have to report daily, and extra security is present.[32] Even if the asylum seeker appeals after the rejection of their asylum application, they will remain in the austere reception centre. Children and vulnerable asylum seekers are excluded from the austerity of reception but must adhere to the austerity regime (reporting daily) in the AZC.
Rejection / appeal: Pursuant to article 5 of the RVA, the right to reception of the rejected asylum seeker continues to exist as long as no deportation decision is taken under the Aliens Act. Article 82 of the Aliens Act provides that an appeal against the rejection of an asylum application has an automatic suspensive effect even before the appeal is lodged. The asylum seeker therefore retains their right to reception if they lodge an appeal within 4 weeks and then until a decision has been taken on this appeal. From the moment the appeal is declared unfounded, the departure period of (usually) 4 weeks starts.
The negative asylum decision does not automatically have suspensive effect in all cases. There is no automatic suspensive effect in case of:
a rejection based on the Dublin procedure (Article 30 of the Aliens Act),
asylum applications declared inadmissible (Article 30a of the Aliens Act, with the exception of paragraph 1 under c – safe third country),
manifestly unfounded asylum applications (Article 30b of the Aliens Act, with the exception of sub 1 under h – unlawful entry / failure to notify immediately),
in the event of “not considering the case on its merits” (article 30c of the Aliens Act) and the rejection of subsequent applications on the basis of article 4:6 GALA.
Nevertheless, even in these cases the asylum seeker does not immediately lose their right to reception, retaining it instead for the duration of the remedy period (four weeks after rejection). This can be deduced from the jurisprudence of the Council of State following the Gnandi judgment (C-181/16).[33] The Gnandi judgment shows that all legal consequences of a return decision must be suspended by operation of law during the legal remedies period. The remedy period is the period in which it is still possible to lodge an appeal, if it has not yet been presented. During this period, according to the Council of State, there is a national right of residence of a temporary nature.[34] This right of residence concerns lawful residence on the basis of Article 8 opening words under h of the Aliens Act: “pending the decision on appeal”. Based on the interpretation in accordance with the directive, ‘appeal’ should also be read as ‘request (for a provisional measure)’. The rejection of an asylum application as manifestly unfounded does not therefore lead to the loss of lawful residence. In addition, residence after requesting a provisional measure remains lawful until a decision has been made on that request, on the basis of article 8 opening words under h of the Aliens Act jo. art. 7.3 Aliens Decree (cf. Article 46 (6) and (8) of the Procedural Directive).
However, in the case of beneficiaries of international protection from other EU-member states, the COA often does not wait for the applicant to request a provisional measure before ending their stay at the reception centre. Therefore, the Council of State ruled that asylum seekers, whose application is deemed inadmissible because they received protection in another EU-member state, had the right to reception during the period following the inadmissibility decision in which they were able to appeal.[35]
Onward appeal: If the person lodges an onward appeal to the Council of State, there generally is no entitlement to reception facilities. However, the law subscribes that, in case that a provisional measure is granted by the Council of State, proclaiming that the asylum seeker cannot be expelled until the decision on the appeal is made, there is a right to reception.[36]
Beneficiaries of international protection: When the asylum application has a positive outcome, the asylum seeker will retain the right to shelter until there is housing available. For more information on the allocation of Housing see Content of International Protection – Housing.
Subsequent applicants: When an asylum seeker wishes to lodge a Subsequent Application they have to complete a separate form. From this point onwards, the asylum seeker enjoys the right to reception.[37] However, if the form is not completely filled in (e.g. when no new circumstances are put forward) the application will be disregarded and the right to reception will end.[38] When the form is complete, and the application is being handled during the short or extended asylum procedure, the asylum seeker enjoys the right to reception until the IND has made a decision on the application.
If the subsequent application is rejected, the applicant must ask for a provisional measure in order to keep their right to reception. In two judgments, the Council of State ruled that the main rule for subsequent applications based on EU Directives is that the processing of a request for a provisional measure after rejection may be awaited in the reception centre.[39] There are two exceptions: there is no novum and the subsequent application was submitted to frustrate the deportation (This is assumed if the deportation date is known.) If the main rule applies to the case, the asylum seeker retains the right to reception after rejection of the subsequent application until a decision in appeal has been made.
Assessment of resources
According to Dutch legislation, only asylum seekers who lack resources are entitled to material reception conditions.[40] There is no specific assessment to determine the resources of the asylum seeker. If an asylum seeker has financial means of a value higher than the maximum resources allowed in order to benefit from the social allowance system (around €7,605 for a single person and €1,.210 for a married couple), the COA can reduce the provision of reception conditions accordingly, with a maximum of the economic value equivalent to the reception conditions provided.[41] The assessment of resources is carried out two days after the asylum seeker has been moved to a Centre for Asylum Seekers (AZC).
In 2020, another problem arose: asylum seekers who received significant monetary indemnities, as a result of the legal penalties imposed on the IND that had not deliberated on time on their applications, were considered to have enough resources to pay for their reception. The COA considered the legal penalty payments as assets.
As the COA often did not immediately request the payment, asylum seekers had often already spent the sums received, for example on air tickets for their family members. A limited number of regional courts ruled on this issue, establishing that the COA was allowed to reclaim the costs for reception as the legal penalty payments are not considered as compensation for the asylum seeker but merely as a financial incentive for the IND to decide quicker.[42] However, one court ruled that the COA should have researched the full financial situation of the asylum seeker (both debts and assets) instead of just reclaiming the money.[43] Another court ruled that COA calculates the amount of money that needs to be paid back incorrectly.[44] COA calculates for how long someone needs to pay until their financial means are below the threshold of the social allowances again. This could mean that the asylum seeker already is requested to pay for reception they have not enjoyed yet and that they might even not access at all – in case they receive a permit and housing before.
[1] Article 9(1) RVA.
[2] Article 3(1) RVA.
[3] IND, ‘Vreemdelingen Identiteitsbewijs (Type W en W2)’, available in Dutch at: http://bit.ly/2y8JraF.
[4] Article 9 Aliens Act.
[5] NOS, ‘Noodkreet na noodkreet, maar in Ter Apel verandert er (bijna) niets’, 12 May 2022, available in Dutch at: https://bit.ly/3GRhdap.
[6] NOS, ‘300 asielzoekers in Ter Apel sliepen vannacht buiten, hoogste aantal tot nu toe’, 17 July 2022, available in Dutch at: https://bit.ly/3vMZieW.
[7] NOS, ‘Asielcrisis Ter Apel: vannacht hebben 700 mensen buiten geslapen’, 24 August 2022, available in Dutch at: https://bit.ly/3IFeeDp.
[8] Letter from State Secretary and Miniser of Housing to parliament, 25 May 2022, available in Dutch at: https://bit.ly/3X3Lh8z.
[9] MSF, ‘Crisis at Ter Apel Registration Centre’, 11 September 2022, available in Dutch at: https://bit.ly/3QsWpcx.
[10] NOS, ‘Ondanks noodverordening toch buitenslapers bij Ter Apel’, 28 September 2023, available in Dutch at: https://bit.ly/3SjCxLK.
[11] RTV Noord, ‘Noodopvang locatie Marnewaard bij Zoutkamp sluit zoals gepland in maart’, 2 February 2023, available in Dutch at: https://bit.ly/3RXcfNR.
[12] KST 19637, nr. 3110, available in Dutch at: https://bit.ly/3S6Ttns.
[13] Letter to parliament, 6 June 2023, available in Dutch at: https://bit.ly/3vKQYzi.
[14] NOS, ‘Evenementenhal in Assen wordt ‘wachtkamer’ voor aanmeldcentrum Ter Apel’, 24 May 2023, available in Dutch at: https://bit.ly/4217KGv.
[15] See for an overview of all these different moments this blog at the website of COA, available in Dutch at: https://bit.ly/4aUqED8.
[16] Dutch Council for Refugees, ‘Extra voorzieningen voor asielzoekers in wachtruimtes Ter Apel’, 2 December 2023, available in Dutch at: https://bit.ly/3RX7eop.
[17] Inspection of Justice and Security, ‘Letter about unsafe situation at Ter Apel’, 7 December 2023, available in Dutch at: https://bit.ly/4aTiACx.
[18] Ibid.
[19] RTL Nieuws, ‘COA: wachtruimtes IND niet meer in gebruik als nachtopvang’, 7 December 2023, available in Dutch at: https://bit.ly/41WqBCP.
[20] RTV Noord, ‘Westerwolde sleept COA voor de rechter vanwege te hoog aantal asielzoekers in Ter Apel’, 22 December 2023, available in Dutch at: https://bit.ly/3vDsqbK.
[21] Civil Court North-Netherlands, ECLI:NL:RBNNE:2024:129, 23 January 2024, available in Dutch at: https://bit.ly/3SVti4A.
[22] EUAA on Twitter ‘The #EUAA delivered 160 temporary reception units to #Winsum & #Uithuizen #Netherlands. Staff from @FedasilBelgium, @COAnl & #EUAA visited these locations & organised a workshop to share lessons learned & best practices in the delivery & installation of these #reception units’, available at: https://bit.ly/3RLrOYU.
[23] EUAA, Operational Plan to the Netherlands 2022-2023, December 2022, available at: https://bit.ly/3tOLaEw.
[24] EUAA, Operational Plan to the Netherlands 2024, December 2023, available at: https://bit.ly/3vC2Vr2.
[25] EUAA personnel numbers do not include deployed interpreters by the EUAA in support of asylum and reception activities.
[26] Information provided by the EUAA, 26 February 2024.
[27] Information provided by the EUAA, 26 February 2024.
[28] Information provided by the EUAA, 26 February 2024.
[29] Article 2(1) RVA.
[30] Article 9 sub 5 RVA.
[31] Council of State, ECLI:NL:RVS:2020:1803, 29 July 2020, available in Dutch at: https://bit.ly/3HSupLV.
[32] Letter of the State Secretary, KST 19637, nr 2658, 14 September 2020.
[33] Council of State, ECLI:NL:RVS:2019:1710, 5 June 2019, available in Dutch at: https://bit.ly/49ucBmd.
[34] Council of State, ECLI:NL:RVS:2019:3442, 15 October 2019, available in Dutch at: https://bit.ly/3urqBOS.
[35] Council of State, ECLI:NL:RVS:2020:8, 6 January 2020, available in Dutch at: https://bit.ly/48tCeCE.
[36] Article 3(3)(a) RVA.
[37] Council of State, ECLI:NL:RVS:2018:2157, 28 June 2018, available in Dutch at: https://bit.ly/49aFHqW.
[38] Article 30c (1) Aliens Act.
[39] Council of State, ECLI:NL:RVS:2019:4358, 19 December 2019, available in Dutch at: https://bit.ly/3STeJi3 and ECLI:NL:RVS: 2020:244, 29 January 2020, available in Dutch at: https://bit.ly/42Pq8Tv.
[40] Article 2(1) RVA.
[41] Article 20(2) RVA.
[42] E.g. Regional Court Middelburg, ECLI:NL:RBDHA:2022:11143, 21 October 2022, available in Dutch at: https://bit.ly/49LO7F0 and Regional Court Groningen, ECLI:NL:RBNNE:2021:4635, 28 October 2021, available in Dutch at: https://bit.ly/3uzXAAn.
[43] Regional Court Arnhem, ECLI:NL:RBDHA:14536, 27 December 2021, available in Dutch at: https://bit.ly/3SxL2lg.
[44] Regional Court Haarlem, Decision No AWB 21/4779, 28 April 2022, not published on a publicly available website.