Vulnerable asylum seekers in the Dutch system and special procedural arrangements

In the Netherlands, for certain groups of asylum seekers, there is a specific identification mechanism in place to identify vulnerable asylum seekers. Article 3.108b of the Aliens Decree sets out the obligation to provide “adequate support” (passende steun) to the applicant where he or she is in need of procedural guarantees as per Article 24 of the recast Asylum Procedures Directive. The IND bases its decision on the medical advice, its own observations and those of the lawyer and asylum seeker him or herself. The IND does not have specialised units dealing with vulnerable groups. However, every (interviewing) officer has to follow the European Asylum Support Office (EASO) training module on Interviewing Vulnerable Persons since 2012.[1]

Important documents in this context are the IND Work Instructions 2010/13 and 2015/8. These documents contain a list of indications on the basis of which it may be concluded that the asylum seeker is a vulnerable person. This list is divided in several categories, for instance physical problems (e.g. pregnancy; blind or handicapped) or psychological problems (traumatised, depressed or confused). It is explicitly noted that this is not an exhaustive list.

In addition, special guarantees may be offered during the interviews:

  • A person of confidence or family members in the interview may be present;
  • A lawyer in the interview may be present;
  • Additional breaks during interviews, including splitting the interview in several days are possible;
  • Additional explanation about the interview are provided;
  • An applicant with physical impairment may receive special help during the interview;
  • Leniency from the interviewing officer on small inconsistencies and contradictions;
  • Postponement of the interview to a later date.
  • Further adjustments to the interview could be that a female employee of the IND will conduct the interview in cases of a female asylum seeker who has suffered sexual violence.

The asylum seeker is able to make objections regarding the refusal of the IND to grant him or her special procedural guarantees in the appeal against the negative decision on the asylum application

Unaccompanied children and Age inspection (leeftijdsschouw)

In policy, unaccompanied children are generally considered as a vulnerable group. Children are considered to be unaccompanied if they travel without their parents or their guardian and their parents or guardian are not already present in the Netherlands. One is considered as a “child” (underage) when under the age of 18. In case the IND doubts whether an asylum seeker is a child and the child is unable to prove his/her identity, an age assessment examination can be initiated.

Unaccompanied children may lodge an asylum application themselves. However, in the case of unaccompanied children younger than the age of 12, their legal representative or their guardian has to sign the asylum application form on their behalf. Under the Dutch Civil Code, all children must have a legal guardian (a parent or court appointed guardian), therefore, a guardian is assigned to every unaccompanied child. Nidos, the independent guardianship and (family) supervision agency, is responsible for the appointment of guardians for unaccompanied asylum seeking children in a reception location. For unaccompanied children, Nidos will request to be appointed as a guardian by the juvenile court. The formal guardianship is assigned to the organisation and individual professionals, called “youth protectors” carry out the task.

Children from the age of 13 to 18 years are accommodated in a specific Process Reception Centre (POL). After their stay in the POL they are transferred to foster families or small-scale housing. Campus reception is only advised if the child is able to live independently in a large-scale setting. Children who arrive at Schiphol airport are transferred to the application centre in Ter Apel and are not detained in AC Schiphol if their minority is not disputed. Children under the age of 15 are not immediately sent to Ter Apel but are placed in a foster family straight away. After a few days the child and the guardian go to Ter Apel to lodge the asylum application.

Under Paragraph C1/2 of the Aliens Circular, if an asylum seeker, who claims to be an unaccompanied minor, applies for asylum, the Royal Police and/or the IND can conduct an inspection (leeftijdsschouw). This means that officers from the police and/or the IND assess whether the asylum seeker is evidently over or under 18 based on his or her appearance and discussion with him or her. This is usually done in cases where it seems evident that the asylum seeker is an adult. The opposite is possible too, however: when an asylum seeker claims he or she is of age, an inspection can follow if the authorities suspect they are dealing with a minor. As a result of criticism of this method in Dutch case-law[2], the Secretary of State introduced a few changes in the system regarding leeftijdsschouw in 2016 and the policy was amended in 2017. Currently, three officers from the IND, the Royal Police or the Border Police have to conduct the inspection independently from one another. There must ultimately be a unanimous judgment to come to the conclusion of obvious majority or minority of the applicant. In addition, officials cannot establish that the person is an adult solely based on appearance.

It the officers from IND, or police cannot conclude that the asylum seeker is evidently over 18 years of age and he or she cannot prove his or her minority, an age assessment takes place. This is carried out on the basis of X-rays of the clavicle, the hand and wrist. However, in Darboe and Camara v. Italy, during a third-party intervention, The Dutch Council for Refugees intervened together with ECRE and the AIRE Centre argued that no existing medical method can reliably determine the age of an individual and that medical methods should be avoided due to their low evidential value, intrusiveness and a risk of a disproportionate interference in the child’s private life that may lead to a violation of Article 8 ECHR.[3] In their intervention they stressed that unaccompanied non-national children wrongly identified as adults risk being subject to treatment contrary to their special status and best interests, resulting in a potential violation of Articles 3 and 8 ECHR.    

Up until 2016, the Medico-ethical Commission (Medisch-ethische Commissie) supervised the practice of age assessment. This is currently assigned to the Inspectie voor Veiligheid en Justitie.

The Accelerated Procedure (“Track 2”) is not applicable to unaccompanied children. This is not regulated in law but happens in practice.

The role of medical reports

Every asylum seeker under the regular procedure is invited to be medically examined by FMMU in order to assess whether he or she can be interviewed. FMMU (Forensisch Medische Maatschappij Utrecht) is an independent agency, working on behalf of the IND to provide medical advice. Before the start of the short asylum procedure in general asylum procedure (Track 4), (not in Dublin (Tracks 1) and 2(accelerated procedure)), a medical examiner from medical advice examines every asylum seeker as to whether he or she is mentally and physically able to be interviewed. FMMU’s medical advice is important in the decision as to how the application will be handled. The FMMU is not an agency that identifies vulnerable asylum seekers as such; it only gives advice to the IND as to whether the asylum seeker is able to be interviewed based on physical and/or mental capacity. Therefore, it is the IND that decides on the vulnerability in the end.

Author: Shabnam Tautan

[1] In a case concerning an LGBTI applicant, Rechtbank Zwolle accepted an appeal on the basis that the IND interviewing office had not followed the training module on Interviewing Vulnerable Persons. In another case, Rechtbank Arnhem considered that it was unclear whether the officer had followed the training module, and ordered the IND to ensure that the officer would have received the relevant training if the LGBTI applicant concerned had to be interviewed again.

[2] Rechtbank Amsterdam,13 July 2016, No 16/13578; Rechtbank Arnhem, 16 June 2016, No 16/10627; Rechtbank Haarlem, 19 April 2016, No 16/5615 and No 16/833 of 12 February 2016.

[3] ECRE et al., Third party intervention in Darboe and Camara v. Italy, 5 July 2017.