Expressing the wish to apply for asylum does not mean that the request for asylum has officially been lodged. Asylum applications can be lodged at the border or on Dutch territory. Any person arriving in the Netherlands and wishing to apply for asylum must report to the Immigration and Naturalisation Service (hereafter IND). Asylum seekers from a non-Schengen country, arriving in the Netherlands by plane or boat, are refused entry to the Netherlands and are detained. In this case, the asylum seeker needs to apply for asylum immediately before crossing the Dutch (Schengen) external border, at the Application Centre at Schiphol Amsterdam airport (Aanmeldcentrum Schiphol, ACS).
When an asylum seeker enters the Netherlands by land, or is already present on the territory, he has to report immediately at the Central Reception Centre (Centraal Opvanglocatie, COL) in Ter Apel (nearby Groningen, north-east of the Netherlands), where registration takes place (fingerprints, travel- and identity documents are examined). After registration activities in the COL have been concluded the asylum seeker is transferred to a Process Reception Centre (Proces Opvanglocatie, POL). Third country nationals (TCNs) who are detained in an aliens' detention centre can apply for asylum at the detention centre.
The application/registration procedure in the COL takes three days. During this procedure the asylum seeker has to complete a form, his fingerprints are taken and he is interviewed regarding his identity, family members, travel route and profession. Data from EURODAC and EU-VIS are consulted. From all this information the IND could conclude that, according to the Dublin Regulation, another Member State is responsible for examining the asylum application. In case of a 'match' in Eurodac the IND can already submit a request to another Member State to assume responsibility for the asylum application under the Dublin Regulation (Dublin claim).
Depending on the procedure ('track') in which the asylum application is assessed the asylum seeker is granted a rest and preparation period starting from the moment the asylum application is formally lodged by signing an application form.1 The rest and preparation period grants first time asylum applicants some days to cope with the stress of fleeing their country of origin and the journey to the Netherlands.2
The rest and preparation period takes at least six days. On the one hand, the rest and preparation period is designed to offer the asylum seeker some time to rest, on the other hand, it is designed to provide the time needed for undertaking several preparatory actions and investigations The main activities during the rest and preparation period are investigation of documents conducted by the Royal Military Police (Koninklijke Marechaussee, KMar), a medical examination by FMMU3 (which is an independent agency, hired by the IND to provide medical advice on whether an asylum seeker is physically and psychologically capable to be interviewed by the IND) counselling by the Dutch Council for Refugees (VluchtelingenWerk Nederland) and substantive preparation for the asylum procedure by the lawyer. During the rest- and preparation period the IND continues its investigation whether, according to the Dublin Regulation, another Member State may be responsible for examining the asylum request. In case a 'match' is found in Eurodac the IND can already submit a request, during the rest and preparation period, to another Member state to assume responsibility for the asylum application under the Dublin Regulation (Dublin claim).4
After the rest and preparation period, the actual asylum procedure starts. In first instance, all asylum seekers are channelled into the so-called standard/general asylum procedure (Algemene Asielprocedure, AA) which is, as a rule, designed to last eight working days (hereinafter called ‘short asylum procedure’). The short asylum procedure may be extended by 6, 8 or 14 working days if more time is needed.
If it becomes clear on the fourth day of the short asylum procedure that the IND will not be able to take a well-founded decision on the asylum application within these eight days, the application is further investigated in the extended asylum procedure (Verlengde Asielprocedure, VA). In this extended asylum procedure the IND has to take a decision on the application within 6 months. This time limit can be extended by 9 months, and another 3 months.5
The short asylum procedure can be described as fast, but technically it is not an accelerated procedure. Every asylum application is initially examined in the short asylum procedure. Less complex and evident cases, such as requests for family reunification6 and subsequent applications are mostly dealt with in the short asylum procedure. Positive as well as negative decisions can be taken in the short asylum procedure. The examination of more complex cases takes place in the extended asylum procedure7 (the period for making a decision is then 6 months to a year).8
There is only one asylum status in the Netherlands. However, there are two different grounds on which this asylum status may be granted (besides family reunification). These two grounds are:9
Refugee status (A-status); qualification as a refugee under Article 1A of the Geneva Convention, if there is a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion.10 (Article 29, first paragraph, under a, Aliens Act)
Subsidiary protection (B-status) can be granted on three grounds; (1) death penalty or execution; (2) according to Article 3 of the European Convention on Human Rights and (3) Article 15(c) of the Qualification Directive. Also trauma suffered in the country of origin, as a result of which it is not reasonable to require the asylum seeker to t=return to his country of origin, falls within the scope of Article 29, first paragraph, under b, of the Aliens Act.11
The IND must first examine whether an asylum seeker qualifies for refugee status, before examining whether the asylum seeker should be granted subsidiary protection. This means that an asylum seeker may only qualify for subsidiary protection in case he does not qualify as a refugee under Article 1A of the Geneva Convention. In case an asylum seeker is granted subsidiary protection, he cannot appeal in order to obtain refugee status.12 This is because regardless of the ground on which the permit is granted, the asylum permit – entitles the status holder to the same rights regarding social security.
Asylum seekers whose application is rejected may appeal this decision at a regional court (Rechtbank). In the ‘short’ regular procedure this appeal should be submitted within one week after the negative decision. Depending on the ground for rejecting the asylum claim this appeal has suspensive effect or not. This means that the asylum seeker can be expelled before the court’s decision. To prevent expulsion the legal representative (or in theory the asylum seeker) should request a provisional measure to suspend removal pending the appeal. This must be done immediately after the rejection in order to prevent possible expulsion from the Netherlands. After a rejection of the asylum request in the short regular procedure the asylum seeker is, as a rule, entitled to accommodation for a period of 4 weeks regardless whether he lodges an appeal and whether this appeal has suspensive effect due to a granted provisional measure.
An appeal against a negative decision in the extended procedure has suspensive effect and must be submitted within four weeks. The asylum seeker is entitled to accommodation during this appeal. Both the asylum seeker and the IND may lodge an appeal against the decision of the regional court to the Council of State (Afdeling Bestuursrechtspraak Raad van State, ABRvS). This procedure does not have suspensive effect, unless the Council of State issues a provisional measure. In case this provisional measure is denied by the Council of State, the asylum seeker is no longer entitled to accommodation.
The Council of State ruled in 2016 that a request for a provisional measure preventing expulsion during the appeal has to be granted if the asylum request is considered to be an arguable claim (as in Article 13 ECHR).13
As the abovementioned 'short procedure' is considered to be the standard procedure in the Netherlands, the Secretary of State introduced the so called “Five Tracks” policy on 1 March 2016.14 Each track stands for a specific procedure.
Track 1: In this situation the IND is of the opinion that the Dublin Regulation is applicable on the asylum application. The application is assessed in a so called (separate) Dublin procedure.
Track 2: Applications from asylum seekers from 'safe countries of origin' or asylum seekers who already receive international protection in another Member State are assessed in this fast-track procedure. The IND finds that it is not likely that these asylum requests will be complied with. . The assessment of the application takes place in 8 steps (in practice in less than 8 days). The asylum seeker is not entitled to a rest and preparation period nor a medical examination by FMMU.
The steps entail the following:
The registration of the asylum seeker with the IND takes place.
The asylum seeker fills in a form.
The identification/registration with the Aliens Police takes place.
The IND decides that the application will be assessed in 'track 2'.
The interview of the asylum seeker takes place.
The IND assesses the application and issues an intended decision (to reject the application).
With the help of his lawyer the asylum seeker has the opportunity to make adjustments and additions to his interview. The lawyer/ asylum seeker has the opportunity to lodge/make his view.
The IND issues a decision.
The asylum seeker can lodge an appeal with the regional court against the decision.
Track 3: This procedure has not been applied yet. Applications of asylum seekers which are – in advance – considered likely to be granted will be assessed in this fast track procedure. For instance, applications for asylum by Eritreans and Syrians whose nationality is not in question could be assessed in track 3. Please see also page 20 of the latest report. Furthermore, this procedure is also linked to track 5.
Track 4: This procedure is the abovementioned standard asylum procedure of 8 days with the possibility to extend this time limit by f 6 days. In case the application cannot be thoroughly assessed within the standard/regular asylum procedure there is a possibility of assessing the application in the extended Procedure.
Track 5: This procedure is linked to track 3. Track 5 has not been applied yet. Asylum applications that could not be assessed in track 3, because of the fact that nationality/identity documents have not been submitted, are assessed in track 5.
- 1. When it is assumed that the asylum application will be rejected in accordance with the Dublin Regulation (Article 3.109c Aliens Decree (Vreemdelingenbesluit)) or due the fact that the safe country of origin concept applies or the asylum seeker already receives international protection in a Member State of the European Union (Article 3.109ca Aliens Decree) the asylum seeker will not have a rest and preparation period, including the medical examination by FMMU.
- 2. Article 3.109 Aliens Decree.
- 3. See the website FMMU, accessible at: http://bit.ly/1STLNPh.
- 4. The Repatriation and Departure Service of the Ministry of Security and Justice, accessible at http://bit.ly/1PKtFY6.
- 5. See Article 42 (4) (5) Aliens Act.
- 6. Article 29(1)(e) and (f) Aliens Act.
- 7. Amnesty International & Vluchtelingenwerk Nederland, Asielbarometer (Asylum barometer), 2011, 5, accessible at http://bit.ly/1NWQ98k.
- 8. Article 29(1)(e) and (f) Aliens Act.
- 9. Article 29 Aliens Act.
- 10. UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189.
- 11. The trauma policy used to have its own ground (Article 29 (1) (c) c Aliens Act) before January 1st 2014. Nowadays the policy is set out in 2000 Aliens Circular 2/3, sub: Previous confrontation with atrocities (“Eerdere confrontatie met wandaden”) Former specific groups which qualified for a residence permit under the 'c-ground'(e.g. Unaccompanied Afghan women) are now eligible for international protection under Article 29 (1) sub b 2000 Alien Act Other groups, like westernized Afghan school girls, can attain a regular residence permit instead of a permit under Article 29 (1) sub 'c' as was the case before January 1st 2014.
- 12. Council of State, 20010591481, Judgment of 28 March 2002.
- 13. Council of State (Judge for provisional measures), 201609138/3/V2, Decision of 20 December 2016.
- 14. Staatsblad 2016, 87 and WBV 2016/4.