Asylum applications can be lodged at the border or on the 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, who arrive 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 of Schiphol Amsterdam airport (Aanmeldcentrum Schiphol, AC).
When an asylum seeker enters the Netherlands by land, or is already present on the territory they have to apply at the Central Reception Centre (Centraal Opvanglocatie, COL) in Ter Apel (nearby Groningen, north-east of the Netherlands), where their registration takes place (fingerprints, travel- and identity documents are taken). After registration activities in the COL have been concluded the asylum seekers are transferred to a Process Reception Centre (Proces Opvanglocatie, POL). Third country nationals (TCNs) who are detained in an aliens' detention centre may apply for asylum at the detention centre itself.
Expressing the wish to apply for asylum does not directly imply that the request for asylum has officially been lodged. The asylum seeker will first have to lodge the application using a form offered to them by the Dutch authorities. This marks the formal start of the asylum procedure. This form is signed at the beginning of the rest and preparation period (Rust- en Voorbereidingstijd).1 This is a period in which first time asylum applicants are granted a period to cope with the stress of fleeing their country of origin and the journey to the Netherlands.2
The duration of the rest and preparation period is 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 investigations 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 concerning the question of 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 some preparations for the asylum procedure are conducted by the lawyer. Another important activity carried out by the IND during the rest and preparation period is the (re)search in the Eurodac-system. When a positive 'match' is found the IND can already submit a request, during the rest and preparation period, to another state to assume responsibility for the asylum application under the Dublin Regulation (Dublin claim). When an application is rejected, on the basis of the 'Dublin claim' for example, the Repatriation and Departure Service of the Ministry of Security and Justice (Dienst Terugkeer en Vertrek, DT&V) is responsible for the transfer to the state responsible. The DT&V coordinates the actual departure of TCNs who do not have the right of residence in the Netherlands. The DT&V is not part of the IND.4
After the rest and preparation period has ended, the actual asylum procedure starts. In the first instance, all asylum seekers are channelled in to the so-called regular asylum procedure (Algemene Asielprocedure, AA) which is, as a rule, designed to last eight working days hereinafter called ‘short asylum procedure’.
If it becomes clear on the fourth day that the IND will not be able to take a thorough decision concerning the asylum application within these eight days, the application continues according to the extended asylum procedure (Verlengde Asielprocedure, VA). In this extended procedure the IND has to make a decision on the application within 6 months (the time frame of 6 months can be extended by another 6 months).
On the other hand the short asylum procedure can be extended by 6 working days if more time is needed (this is not, however, the extended asylum procedure). In 2012 almost 60% of all asylum applications were dealt with within the short asylum procedure.5 It is unlikely this is still the case in 2015 due to the increased number of asylum applications since the summer of 2015.
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 or evident cases will be decided within eight days in the short asylum procedure while the examination of more complex cases is continued in the extended asylum procedure (which can take 6 months to a year to decide). However, Amnesty International and the Dutch Council for Refugees refer to the short asylum procedure in the Netherlands as 'the accelerated regular procedure'.6 Less complex and evident cases, such as family reunification7 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.
There is only one asylum status in the Netherlands. However, there are two different grounds on which this asylum status may be issued (besides the grounds for family reunification). These two grounds are:8
- Refugee status; qualification as a refugee under Article 1A of the Geneva Convention9 (if there is a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion.
- Subsidiary protection; according to Article 3 of the European Convention on Human Rights and Article 15(c) of the Qualification Directive. Within this scope fall traumatic experiences in the country of origin, due to which it is not reasonable to require that the asylum seeker returns to their country of origin.10
It should be noted that before 1 January 2014, two additional grounds (humanitarian grounds and categorical protection) existed on the basis of which the single asylum status could be granted. Both grounds have been abolished by law.11
The IND must first examine whether an asylum seeker qualifies for protection under ground A, before examining B, and so on. This means that an asylum seeker may only qualify for protection under B if they do not qualify on the grounds under A. When an asylum seeker receives a residence permit on ground B, they cannot appeal for the ‘higher’ A-status.12 This is because every asylum permit – regardless of the ground on which the permit is granted – gives the same rights regarding social security.
Due the fact that it is harder for the IND to withdraw a residence permit based on the A-status than a B-status13 it would have been of interest to the asylum seeker if it was possible to appeal for a ‘higher status’. Furthermore, some asylum seekers want to be recognised as a refugee in the sense of the 1951 Geneva Refugee Convention. However, when a residence permit is withdrawn on the B-ground, the asylum seeker can make a claim to be recognised as a refugee (A-status) once again. In this case it is helpful, while having a residence permit on the B-status, that an asylum seeker keeps collecting evidence to strengthen their (eventual) future case on the A-status.
Asylum seekers whose application is rejected may appeal against this decision at a regional court (Rechtbank). Appealing against a negative decision in the ‘short’ regular procedure should be submitted within one week to the regional court and has no suspensive effect itself. This means an asylum seeker can be expelled before the verdict of the court. To avoid this situation the legal representative (or in theory the asylum seekers themselves) should request a provisional measure to suspend removal pending the appeal. This must be done within 24 hours after the rejection. After a rejection in the short regular procedure the asylum seeker has the right to be accommodated for a period of 4 weeks regardless of whether the asylum seeker appeals the rejection and whether this 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 also continues to have a right 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 any suspensive effect. At this stage the right to accommodation ends unless the Council of State has issued a provisional measure.14
The IND is responsible for examining asylum applications, including the examination of the Dublin Regulation criteria. The DT&V carries out the Dublin transfers. On the third day of the regular procedure a so-called Dublin-hearing takes place if the IND thinks another Member State is responsible for the application. This interview concerns the potential responsibility of another Member State and the asylum seeker has an opportunity during this interview to argue that the Netherlands should examine their asylum application. On day 5 of the short regular procedure the IND issues its intention to reject the asylum application which means that no substantive review of the application takes place. The asylum seeker can respond to this intended negative decision which will be revised on day 7 and 8 when the decision on the application takes place.
- 1. Due to the implementation of the Dublin III Regulation on January the first 2014 the mentioned form is signed at the beginning of this rest and preparation period which is an alternation of the former practice whereby the signing of the document took place on the first day of the actual asylum procedure. The main difference is that now an applicant is formally an asylum seeker as of the start of the rest and preparation period whereas before the application of the Dublin III Regulation they were not. However, this has no consequences on their situation and access to rights under material law.
- 2. Article 3,109 Aliens Resolution.
- 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. Letter of the Minister of Asylum and Integration to the House of Representatives, 5 September 2012, 2, accessible at http://bit.ly/1Li4qGe.
- 6. Amnesty International & Vluchtelingenwerk Nederland, Asielbarometer (Asylum barometer), 2011, 5, accessible at http://bit.ly/1NWQ98k.
- 7. Article 29(1)(e) and (f) Aliens Act.
- 8. Article 29 Aliens Act.
- 9. UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189.
- 10. The trauma policy has had its own ground (Article 29 (1), sub C Aliens Act) before January 1st 2014. Now 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.
- 11. Law of 25 of November 2013, Publication of the State (Staatsblad) 2013, 478 and House of Representatives, Session year 2011–2012, 33 293, no. 2.
- 12. Council of State, 20010591481, Judgment of 28 March 2002.
- 13. It is for example harder to withdraw a residence permit which is issued on the A ground than on the B ground, when an asylum seeker forms a so-called threat to public order.
- 14. Danielle Zevenum et al. Dublin II, National asylum procedure in the Netherlands, (Dublin transnational project), 2012, 11.