In the Netherlands, there are two types of detention of asylum seekers:
- Detention at the external border, which means that the third country national is trying to enter the Schengen area in the Netherlands.
- Territorial detention: which means the third country national is subject to detention after he/she has already entered the Schengen area before entering the Netherlands.
The third-country national who has been refused entry when he or she wants to enter the Schengen area at the Dutch border, is obliged “to stay in a by the border control officer designated area or place, which can be protected against unauthorised departure.” Border detention can be continued with the aim of transferring asylum seekers to the Member State that is responsible for the assessment of their asylum application according to the Dublin Regulation.
According to Article 3(1) of the Aliens Act, in cases other than the Schengen Border Code listed cases, access to the Netherlands shall be denied to the alien who:
• Does not possess a valid document to cross the border, or does possess a document to cross the border but lacks the necessary visa;
• Is a danger to the public order or national security;
• Does not possess sufficient means to cover the expenses of a stay in the Netherlands as well as travel expenses to a place outside the Netherlands where their access is guaranteed;
• Does not fulfil the requirements set by a general policy measure.
Migrants are mostly detained because they do not fulfil the requirements as set out in the above mentioned.
Migrants, who, after arriving to the Netherlands, apply for asylum, can be detained as well. This is based on Article 6(3) read in conjunction with Article 3(3) of the Aliens Act. They are kept in detention throughout their asylum procedure. If the alien makes an asylum application at an external border of the Netherlands, his or her application will be assessed in the Border Procedure. As a result, these asylum seekers can be detained based on Article 6(3) of the Aliens Act. There is one border detention centre for detaining asylum seekers. Asylum seekers who enter the Netherlands via air plane or boat are required to apply for asylum at the detention centre at Justitieel Complex Schiphol. During this procedure, the asylum seeker will be placed in detention and the whole asylum procedure will take place in detention. Both of the interviews (eerste gehoor [first interview] and nader gehoor [second interview]) take place in the detention centre. The asylum seekers will be prepared for these interviews by the Dutch Council for Refugees and it is also possible that a staff member of the Dutch Council for Refugees is present during the interview. This depends on whether the asylum seeker requests this and whether there is enough staff available. The lawyer is also allowed to be present at the hearing but in practice this rarely happens because lawyers do not receive a remuneration for this activity. During the interview, there are IND accredited interpreters present.
The Aliens Decree Article 5.1a (3) stipulates that border detention is not imposed or prolonged if there are special individual circumstances that make the detention disproportionate. Work Instruction 2018/3 lists the cases of exceptions under which the asylum seeker is not subject to the border procedure and is already allowed entry during the asylum procedure:
- Unaccompanied children, whose detention is only possible when doubt has risen regarding their minority;
- Families with children, where there are no counter-indications such as a criminal record or family ties not found real or credible;
- Persons for whose individual circumstances border detention is disproportionately burdensome;
- Persons who are in need of special procedural guarantees on account of torture, rape or other serious forms of psychological, physical and sexual violence, for whom adequate support cannot be ensured within the border procedure.
For the cases of (third and fourth above-mentioned) applicants for whom detention at the border would be disproportionately burdensome or who are in need of special procedural guarantees or, IND Work Instruction 2018/3 clarifies that vulnerability does not automatically mean that the applicant will not be detained at the border. The central issue remains whether the detention results into a disproportionately burdensome situation in view of the asylum seekers’ “special individual circumstances” as mentioned in the Aliens Decree. Whether there are such “special individual circumstances” must be assessed on a case-by-case basis. The IND Work Instruction provides two examples of such circumstances: where a medical situation of an asylum seeker leads to sudden hospitalisation for a longer duration, or where the asylum seeker has serious mental conditions.
Article 59a of the Aliens Act foresees the possibility to detain an asylum seeker for the purpose of transferring him or her under the Dublin Regulation. This article refers to Article 28 of the EU Dublin Regulation. Territorial detention is also applicable to persons without a right to legal residence under Article 59 of the Aliens Act. Asylum seekers may also be detained in the course of the asylum procedure on the territory, in accordance with Article 59b of the Aliens Act, which transposes Article 8 of the recast Reception Conditions Directive. Territorial detention of asylum seekers is only possible in the following situations:
- Detention is necessary for ascertaining the identity and nationality of the asylum seeker. This is the case when the identity or nationality of the asylum seeker are insufficiently known to the authorities and at least two of the grounds for detention are applicable.
- Detention is necessary for acquiring information that is necessary for the assessment of the asylum application, especially when there is a risk of absconding. This condition is fulfilled when information that is necessary for the assessment of the asylum application can be obtained and at least two of the grounds for detention are applicable.
- The asylum seeker has already been detained in the context of a return procedure, has previously had the chance to make an asylum application and has only made the asylum application to delay the return procedure. This assessment takes into account all circumstances.
- The asylum seeker is a threat to public order or national security. This condition is in any case fulfilled if Article 1F of the Refugee Convention is probably applicable.
The first and second paragraph add the requirement of a risk of escaping for detaining an asylum seeker in order to obtain information. A risk of escaping is demonstrated when at least two grounds for detention, as set out in Article 5.1b(3)-(4) of the Aliens Decree, are applicable.
Duration of detention
The majority of persons in detention both at the border and on the territory are detained for less than 3 months in practice, although in some cases they are detained for longer. The law provides different maximum time limits for detention depending on the applicable ground.
Border Detention: The general time limit for border detention is 18 months. Border detention may be imposed for a maximum of four weeks. In case the asylum request is denied and entry is refused the border detention can be prolonged. As a consequence, if an asylum request at the border is not rejected within four weeks, the detention is lifted and the asylum seeker is allowed entry during his further asylum procedure.
Territorial Detention: Territorial pre-removal detention under Article 59 of the Aliens Act may be imposed for a maximum of 18 months.
Territorial detention of asylum seekers under Article 59b of the Aliens Act may be imposed initially for four weeks, subject to the possibility of extension by another two weeks or another 3 months. Territorial detention of asylum seekers on grounds of public order may be ordered for a period of up to 6 months, with the possibility of an extension for another 9 months in the case of complex factual and legal circumstances, or an important issue of public order or national security.
Legal assistance during detention
Asylum seekers are provided legal aid in detention and it is paid for by the government. The IND website explicitly states the following: “in an appeal to the District Court against the detention for foreign nationals, you must have a lawyer. If you cannot afford a lawyer, one will be assigned to you.” Individuals who claim asylum upon their arrival at the border and who are subsequently detained, will be assigned a lawyer / legal aid worker specialised in asylum law. Because of the existence of these state funded lawyers, NGOs in general do not intervene in such cases before the district courts.
Author: Shabnam Tautan
 Article 6(1) and (2) of the Aliens Act
 These grounds are further elaborated in Article 2.1 to 2.11 of the Aliens Decree and Paragraph A1/3 of the Aliens Circular. Also, see Work Instruction 2018/3: https://ind.nl/Documents/WI_2018-3.pdf