Criteria and restrictions to access reception conditions

Netherlands

Country Report: Criteria and restrictions to access reception conditions Last updated: 30/11/20

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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).[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. The asylum seeker can use this “W document” to prove his or her 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 such document.[4] There are no reports indicating that asylum seekers are unable to access material reception conditions or that there are any obstacles which prevent asylum seekers entitled to material reception conditions from accessing them in practice.

 

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.[5] During the whole asylum procedure the COA is responsible for the reception of asylum seekers.

 

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 lodged 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.[6] Due to the long waiting times in 2019, this has become an issue (see The rest and preparation period). A regional court has decided that this reduction during the rest and preparation period is generally justified based on the recast Reception Directive. However in some individual cases, for instance when there has been a very long rest and preparation period due to the waiting time, applicants should be granted daily allowances.[7]

 

Rejection / appeal: When the asylum application is rejected during the regular asylum procedure, the asylum seeker continues to be entitled to reception facilities until 4 weeks after the negative decision of the IND.[8] If the asylum seeker makes use of the possibility to appeal the first instance decision within these four weeks the right to reception conditions continues until four weeks after the verdict of the court.[9] After those four weeks, the asylum seeker has to leave the reception centre. To avoid this precarious situation an asylum seeker can make a request for an ‘immediate’ provisional measure as soon as it is clear that the court will not decide within this 4-week period.[10] Making such a request for a provisional measure ensures that after the 4-week period the asylum seeker is still entitled to stay in the reception centre while the appeal is still pending. Based on Article 3(3)(a) RVA, however, the mere submission of a request for provisional measures does not entail a right to reception. This has been challenged several times in 2017,[11] but the issue is now settled due to the Gnandi judgment of 19 June 2018.[12] In fact, asylum seekers who request for provisional measures now immediately obtain a right to reception. However, the RVA still needs to be amended in that regard.

 

There is no right to reception if the appeal is not suspensive i.e. where an application is rejected based on: the Dublin III Regulation, as inadmissible for reasons other than the “safe third country” concept; or as manifestly unfounded for reasons other than the fact that the applicant did not report to the authorities promptly to apply. Of course, these applicants can request a provisional measure to be granted reception, which again will be provided when the court is not deciding on the appeal within 4 weeks. However, in the course of 2019 there has been some discussion about whether asylum seekers, whose application is deemed inadmissible because they received protection in another EU-country, had the right to reception directly after submitting a request for a provisional measure. According to COA this was not the case because the Gnandi judgment was not applicable since there was no return decision involved and the return directive was therefore not relevant to these cases. However, various courts have countered this argument and decided that there was a right to reception after submitting a request for a provisional measure.[13]

 

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.[14]

 

Subsequent applicants: When an asylum seeker wishes to lodge a Subsequent Application he or she has to complete a separate form. From this point onwards, the asylum seeker enjoys the right to reception.[15] 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.[16] When the form is complete, and the application is being handled in during the short or extended asylum procedure, the asylum seeker enjoys the right to shelter until the IND has made a decision on the application.

 

When the application is granted, the asylum seeker will retain the right to shelter until there is housing available. After a subsequent asylum application has been rejected in the extended asylum procedure, no voluntary departure period is granted.[17] An appeal against a negative decision for subsequent applications has no suspensive effect.[18] Since the asylum seeker who submitted a subsequent application has theoretically to leave the territory immediately after a negative decision, there is no right to reception conditions.[19] Of course there is still an opportunity to appeal and request a provisional measure. As for now, an asylum seeker can benefit from reception conditions again only once an appeal or a provisional measure has been granted.[20] However, in light of the Gnandi judgment, discussions arose on whether the appeal or the request for provisional measure in cases of a subsequent application should have an automatic suspensive effect, thereby creating a right to reception.[21]

 

Assessment of resources

 

According to Dutch legislation only asylum seekers who lack resources are entitled to material reception conditions.[22] There is no specific assessment to determine whether the asylum seeker is destitute. However, there are more or less some guarantees to ensure that asylum seekers do not become destitute. For instance, 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 €6.225 for a single person and €12.45 for families), the COA is allowed to reduce the provision of reception conditions accordingly but with a maximum of the economic value equivalent to the reception conditions provided.[23] The assessment of resources is carried out two days after the asylum seeker has been moved to a Centre for Asylum Seekers (AZC).

 

In theory reception facilities can be withdrawn or refused if asylum seekers have resources of their own. In practice this rarely happens but it is a possibility. For instance, in 2016 it came to the attention of the Dutch Council for Refugees that the COA considers asylum seekers that have a derived refugee status (based on their relationship with a refugee) and that now want to get a divorce and lodge their own asylum application, are still having enough resources. According to the COA, these people are to be regarded as spouses of people who have a right to housing in the municipality, even when they filed for divorce, and as such they can be considered as asylum seekers with enough resources of their own. They are therefore not entitled to reception facilities. This practice has continued throughout 2019.

 

 


[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]Article 2(1) RVA.

[6]Article 9 sub 5 RVA.

[7]Regional Court Groningen, Decision No. 18/8330 and 19/4461, 17 September 2019.

[8]From this moment the asylum seeker officially falls under the scope of the RVA.

[9]Article 5 RVA.

[10]Regional Court Den Bosch, Decision No 11/25103, 1 September 2011.

[11]Regional Court The Hague, Decision NL17.9885, 29 October 2017; Regional Court The Hague, Decisions NL17.13663 and NL17.13665, 29 November 2017; Regional Court Middelburg, Decision NL17.14646, 19 December 2017.

[12]Council of State, Decision No 201710445/2, 27 August 2018. The Council of State had requested a preliminary ruling before the CJEU and applied the CJEU’s judgment Gnandi v. Belgium (Case C-181/16) of 19 June 2018.

[13]Regional Court Roermond, Decision no NL19.17719, 30 July 2019 and Regional Court The Hague,          Decision No. ECLI:NL:RBDHA:2018:13144, 1 November 2018.

[14]Article 3(3)(a) RVA.

[15]Council of State, Decision No 201706173/1, 28 June 2018.

[16]Article 30c (1) Aliens Act.

[17]Article 62(2)(b) Aliens Act.

[18]Article 82(2)(b) Aliens Act.

[19]Article 62 Aliens Act. 

[20]Article 3(3)(a) RVA.

[21]For example: Regional Court Middelburg, Decision NL18.16543, 27 September 2018 and Regional Court  Groningen,  Decision AWB 18/8447, 9 November 2018.

[22]Article 2(1) RVA.

[23]Article 20(2) RVA.

 

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