Pronouncement of undesirability

(exclusion order) (ongewenstverklaring)

In the Netherlands the Immigration and Naturalisation Service (IND) is entitled, on behalf of the State Secretary for Justice, to pronounce a third-country national undesirable pursuant to Article 67 of the Aliens Act 2000. A pronouncement of undesirability (exclusion order) is an (administrative) measure for the purpose of preventing third-country nationals who are not or are no longer permitted to stay in the Netherlands from entering or remaining in the country. In most cases, this concerns third-country nationals who have committed an offence or are a threat or risk to public order or national security.

When assessing whether a third-country national will be pronounced undesirable the IND balances all interests concerned. The national interest (public order and national security) and the third-country national’s own personal and (possibly) family interests are considered. The pronouncement of undesirability is imposed by the IND. This is done as a decision. This decision is issued to the third-country national by the police. This will be accompanied by a leaflet with information about the pronouncement of undesirability. If it is not possible to issue the decision in person, pronouncement of undesirability will then in any event be published in the Government Gazette.

The consequences of a pronouncement of undesirability

The pronouncement of undesirability has immediate effect. The third-country national who has been pronounced undesirable, has to leave the Netherlands immediately (personal obligation to leave the country), after which he/she is no longer allowed to enter or stay in the Netherlands.By not leaving the Netherlands or entering the Netherlands when the third-country national has been pronounced undesirable, he/she would be breaking the law. By doing so, they can be sentenced to imprisonment for a maximum period of 6 months. After having served the prison sentence, the third-country national can be expelled from the Netherlands. The personal details of the third-country national are entered in the Schengen Information System (SIS) in the event of a pronouncement of undesirability.  This means that the third-country national cannot access any of the Schengen countries as long as his/her pronouncement of undesirability is in effect. Since the pronouncement of undesirability aims to ban certain foreign nationals from the Netherlands, an alert is entered in the Schengen Information System (SIS) for refusal of entry. This means that for the duration of the pronouncement of undesirability the foreign national cannot access Schengen Area countries.

Appeal against the pronouncement of undesirability

A foreign national may lodge an application for review in respect of a pronouncement of undesirability. The foreign national shall not, however, be permitted to stay in the Netherlands pending the outcome of such an application. If he/she has officially been pronounced undesirable and has left the Netherlands, then he/she can submit a written request to have the pronouncement of undesirability lifted. Any foreign national who stays in the Netherlands whilst he or she is aware or may reasonably assume that he or she has been pronounced undesirable, is guilty of an offence pursuant to Article 197 of the Penal Code and may be sentenced to a maximum of six months’ imprisonment.

Author: Shabnam Tautan