Refugees have a right to a fair asylum procedure, and subsequently access to adequate housing, education, health care and work. ‘Legal aid’ refers to legal assistance provided by lawyers to persons free of charge to ensure they can effectively exercise their right to access justice. An asylum seeker is a person who has applied for international protection and whose application has not yet been decided on.
Every asylum seeker in the Netherlands is also entitled to legal assistance. To ensure this right, the following system has been designed in the Netherlands:
During the rest and preparation period and first instance:
Asylum seekers are given at least 6 days to recover from their journey. Appointment of a lawyer during the rest and preparation period is to provide substantive preparation for the asylum procedure.
The asylum procedure will begin after asylum seekers have had a period of rest and preparation. The asylum procedure will take place in the building where asylum seekers are staying. Asylum seekers will also have the meetings with their lawyer in that building. These Application Centres have schedules where an asylum lawyer can subscribe. The Legal Aid Board makes sure that sufficient lawyers are listed on the schedules every day. Therefore every asylum seeker is automatically appointed a lawyer.
The Legal Aid Board (Raad voor de Rechtsbijstand), a state-funded organisation, is responsible for appointing lawyers for the asylum seekers. The lawyer is an independent legal assistance counsellor who is there to assist asylum seekers during their asylum procedure and is not employed by the Legal Aid Board. A lawyer will assist the asylum seekers during their asylum procedure. This lawyer works independently of the Dutch government. The lawyer will have a meeting with the asylum seekers to prepare them for the interviews with the IND. Asylum seekers have this preparatory meeting with their lawyer in the building where they are staying. Any information that asylum seekers share with their lawyers will be treated confidentially.
An appointed lawyer from the Legal Aid Board is free of charge for the asylum seeker when they cannot pay for a lawyer. However, an asylum seeker may choose a lawyer him or herself (voorkeursadvocaat). If this self-appointed lawyer is recognised by the Legal Aid Board as an official asylum lawyer, the Legal Aid Board will pay for the costs. This happens in the vast majority of cases. There are no limitations to the scope of the assistance of the lawyer as long as he or she gets paid. Lawyers are paid for eight hours during the procedure at first instance. The Dutch Council for Refugees has criticised the fact that the contact hours between lawyers and their clients are limited in this system.
The Legal Aid Board takes the principle of free choice of lawyer into account when planning asylum cases. Given the time limits within which asylum cases must be planned, the desire to act as a preferred lawyer can only be taken into account in advance if the asylum department of the Legal Aid Board has submitted an asylum procedure in time (ie before the asylum department has scheduled the case in question) and the client has received signed written authorisation.
The amount of financial compensation for lawyers who represent asylum seekers can be an obstacle. Some lawyers claim to have spent more work on a case than they have got paid for. They believe the amount of time to prepare a case very lengthy as compared to the compensation they receive which is too little. Alongside this, due to the economic crisis, more cutbacks had to be made within the state-funded legal aid system.
Asylum law and refugee law is a dynamic area of the law, as it depends to a large extent on the political atmosphere and security circumstances at that time. It is therefore important for an asylum lawyer to keep up with the current developments of that time. Policies with regards to asylum law are frequently changed. The laws and policies in this field are usually related to people who have political problems, those fleeing from war, or people who do not have the freedom to practice their own religion or sexual orientation within their own country. In asylum affairs and asylum law e.g. regarding applications by political refugees and other asylum seekers, a good legal advice and representation in such matters seems necessary.
During the registration procedure, the asylum seeker does not benefit from legal assistance and does not obtain information from the Dutch Council for Refugees. This new policy is laid down in the Aliens Circular and IND work instruction has been introduced in that regard.
The Dutch Senate (Eerste Kamer) Commission on Justice and Security discussed the provision of legal aid to asylum seekers in a debate on the rule of law on 6 February 2018. The debate follows an announcement in the Coalition Agreement of October 2017 to curtail asylum seekers’ right to legal aid during the first instance procedure. Applicants in the Netherlands, who currently benefit from a ‘rest and preparation period’ and at least four meetings with a legal representative during the asylum procedure, would only be given access to a lawyer at the moment the Immigration and Naturalisation Service (IND) notifies them of its intention to reject their application.
As a result, the applicant will not be able to discuss his or her case before the start of the actual asylum procedure. To implement this measure, the Decree on Legal Aid Fees (Besluit vergoedingen rechtsbijstand) has to be adjusted. The Secretary of Justice has announced that a proposal to adjust the Decree is currently being prepared. The Dutch Parliament has requested a feasibility test (ex ante uitvoeringstoets) to be executed by the IND before implementing the measure. The Secretary of Justice has not yet officially responded to this request.
Free legal assistance on appeal
If the IND refuses the asylum application in the Border Procedure, the asylum seeker can discuss with his/her lawyer the possibility of appealing against this decision in a Dutch court. Appeal means that an asylum seeker officially tells the court that he/she does not agree with the IND’s decision. He/she can also ask the court whether he/she may stay in the Netherlands during the appeal procedure. The lawyer will help the asylum seeker to do this.
At the appeal stage of the asylum procedure, asylum seekers continue to have access to free legal assistance and no merits test applies. Every asylum seeker has access to free legal assistance under the same conditions. The lawyer can decide not to submit any written opinion – on day 6 of the short asylum procedure – if they think the appeal is likely to be unsuccessful. In this case the lawyer has to report to the Legal Aid Board and the asylum seeker can request for a ‘second opinion’, meaning that another lawyer takes over the case. This only happens in exceptional cases. On the one hand, the intention of the legislator is that the same lawyer will represent the asylum seeker during the whole procedure. On the other hand, if the lawyer does not submit a written viewpoint, this would be considered as ‘malpractice’ because submitting a written viewpoint is indeed the core of the lawyer’s job during the whole procedure. Even if the lawyer is strongly of the opinion that a written viewpoint will not be of any use it may not be the case in future circumstances, for example in case of a subsequent application. Only after several recognised ‘malpractices’ can an asylum lawyer be penalised. The gravest penalisation is disbarment.
In Dublin cases (Track 1), the right to free legal assistance differs from the regular procedure (Track 4). Instead of being appointed a lawyer once they register their asylum application, asylum seekers subject to the Dublin procedure are assigned a legal representative only at the point when the IND issues a written intention to reject the application. This is due to the lack of rest and preparation period.
Numerous cases have been reported where this has caused problems concerning the obligation, or even the possibility, for legal counsel to represent the asylum seeker. In those cases, no contact was established between the applicant and his or her lawyer due to the fact that the applicant would escape after receiving the IND’s written intention to reject the application. It remains unclear whether the lawyer concerned then has power of attorney to represent the case.
Author: Shabnam Tautan