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May 2013
IMMIGRATION DETENTION AND THE RULE OF LAW
NATIONAL REPORT: BELGIUM
Alexandra Brand
Immigration Detention in the Netherlands by Alexandra Brand
for the Bingham Centre for the Rule of Law,
London, UK, 2013
1
1 Introduction ................................................................................................................... 3
1.1 A New Life – Behind Bars ............................................................................................ 3
1.2 The Legal Foundation .................................................................................................. 5
1.2.1 New Develpments ................................................................................................... 6
1.2.2 Detention ................................................................................................................ 7
2 Prevention of Illegal Entry: Border Detention – Article 66 AA .......................................... 9
2.1 Arbitrariness of Detention .......................................................................................... 11
2.2 Authority to Detain .................................................................................................... 14
2.3 Duration of Detention ................................................................................................ 14
2.4 Alternatives to Detention ........................................................................................... 16
2.5 Due Process ............................................................................................................... 16
2.5.1 Placement Decision ................................................................................................ 16
2.5.2 Legal Representation .............................................................................................. 18
2.6 Appeal / Access to Justice .......................................................................................... 19
2.7 Conditions of Detention ............................................................................................. 20
2.8 Children ..................................................................................................................... 21
3 Post-Entry: Immigration Detention – Article 59 AA ........................................................ 22
3.1 Criminalization of Illegality ......................................................................................... 25
3.2 Expulsion v. Voluntary Departure ............................................................................... 29
3.3 Arbitrariness of Detention .......................................................................................... 30
3.4 Reasons for Detention ................................................................................................ 33
3.4.1 Public Interest ........................................................................................................ 33
3.4.2 National Security .................................................................................................... 34
3.5 Authority to Detain .................................................................................................... 35
3.6 Duration of Detention ................................................................................................ 35
3.7 Due Process ............................................................................................................... 37
3.7.1 Interview ................................................................................................................ 39
3.7.2 Legal Representation .............................................................................................. 41
3.7.3 Consular Assistance ................................................................................................ 42
3.7.4 Holidays.................................................................................................................. 43
Immigration Detention in the Netherlands by Alexandra Brand
for the Bingham Centre for the Rule of Law,
London, UK, 2013
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3.8 Appeal/Access to Justice ............................................................................................ 43
3.9 Conditions of Detention ............................................................................................. 44
3.9.1 Isolation ................................................................................................................. 47
3.9.2 Access to Health Care ............................................................................................. 47
4 Conclusion ..................................................................................................................... 48
5 Bibliography .................................................................................................................. 50
5.1 Legislation .................................................................................................................. 50
5.2 Official Documents ..................................................................................................... 51
5.3 Case Law .................................................................................................................... 53
5.3.1 Administrative Judicial Review Division of the Council of State ............................... 53
5.3.2 Hoge Raad / Supreme Court ................................................................................... 55
5.3.3 Rechtbank Amsterdam ........................................................................................... 55
5.3.4 Rechtbank Dordrecht .............................................................................................. 55
5.3.5 Rechtbank Haarlem ................................................................................................ 55
5.3.6 Rechtbank Rotterdam ............................................................................................. 56
5.3.7 Rechtbank ‘s-Gravenhage ....................................................................................... 56
5.3.8 Rechtbank ‘s-Hertogenbosch .................................................................................. 56
5.3.9 Rechtbank Utrecht.................................................................................................. 56
5.3.10 Rechtbank Zutphen ................................................................................................ 56
5.3.11 Rechtbank Zwolle ................................................................................................... 57
5.4 Scholars ..................................................................................................................... 57
5.5 Organizations and Institutions .................................................................................... 57
5.6 International Instruments .......................................................................................... 58
6 Annex ............................................................................................................................ 59
Immigration Detention in the Netherlands by Alexandra Brand
for the Bingham Centre for the Rule of Law,
London, UK, 2013
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IMMIGRANTION DETENTION IN THE
NETHERLANDS
BY ALEXANDRA BRAND*
1 Introduction
This is a report on the political and legal situation on immigration detention in the
Netherlands with the aim by the Bingham Centre for the Rule of Law as part of the British
Institute for International and Comparative Law to facilitate comparison on this topic
between several countries as well as analysis for Human Rights purposes.
To this end, the report will set out the substantive as well as procedural laws of immigration
detention within the national legal framework and will illustrate the effect and scope of
these provisions through case law analysis. Furthermore, the report will discuss the current
policy plans of the government with regard to immigration detention and adjacent issues
that influence this topical area.
1.1 A New Life – Behind Bars
More than 70.000 immigrants came to the Netherlands in 2012, 80% of which in pursuit of a
regular residence permit. This number has remained steady above the 55.000-mark for the
last five years.1 The Dutch authorities counted 13.630 asylum requests last year, which
constitutes an icrease of 7% with 9810 first requests. Overall, asylum requests have
decreased since 2009, placing the Netherlands on place 8 of asyum destinations among EU
member states.2 There is no doubt that the Netherlands is a country of high immigration
numbers. In turn, this leads the WODC, the scientific research and documentation centre of
*Alexandra Brand holds an LLM in Globalization and Law and is currently a lecturer at the Department for
International and European Law at the law faculty of Maastricht University.
1 Ministerie van Veiligheid en Justitie. 2013. Rapportage Vreemdelingenketen, Periode Januari – December
2012, retrieved on 28-4-2013 from http://www.dienstterugkeerenvertrek.nl/images/rapportage-
vreemdelingenketen-januari-december-2012_tcm66-495405.pdf, p. 11.
2 Ibid pp. 17, 20.
Immigration Detention in the Netherlands by Alexandra Brand
for the Bingham Centre for the Rule of Law,
London, UK, 2013
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the Ministry for Security and Justice, to estimate that several thousands of immigrants live in
the Netherlands illegally. While this number seems to be decreasing as estimations of 2005
with 128.907 and 97.145 in 2009 show,3 it remains of high significance, also in terms of
immigration detention as will become apparent in Chapter 3.
Many of those immigrants are detained to prevent them from illegally entering the territory,
or with the prospect of motivating them to return to their country of origin, using coercive
measures if necessary. In 2012, 5.420 immigrants were detained, most of them for less than
3 months, 690 between three to six months, and 900 for more than 6 months. The last
number is particularly noteworthy, since Dutch legislation on immigration detention aims at
a duration no longer than six months.4 The number of newly detained immigrants decreased
since 2007 and 2009 which counted 9595 and 8590 new detainees respectively.5 Within this
time span, newly detained immigrants were predominantly male6 and came from Iraq,
Algeria, and Morocco.7 While the numbers of newly detained are high, so are the numbers of
those who leave detention, resulting in an average of 1040 detainees in 2012. Including
immigrants that were not detained during their stay in the Netherlands, 2012 saw 10.090
aliens leave the territory. While 41% chose for their departure with help by the Dutch
authorities, 59% were forced to leave by means of expulsion. A further 10.660 aliens have
been estimated to have left without engaging the services of the Dutch authorities. However,
this number includes also those aliens that have not been found to live at their last
registered address any more and are therefore expected to have left the Netherlands
although there is no way of determining whether this is accurate.8
3 Dienst Justitiële Inrichtingen, Ministerie van Veiligheid en Justitie. 2012. Vreemdelingenbewaring in getal,
2007-2011, retrieved on 28-4-2013 from http://www.dji.nl/Images/vreemdelingenbewaring-in-getal-2007-
2011_tcm93-430853.pdf, p. 16.
4 Supra note 1, p. 33.
5 Supra note 3, p. 15; supra note 1, p. 33.
6 Over 90%, see supra note 3, p. 24
7 Supra note 3, p. 25.
8 Supra note 1, p. 39.
Immigration Detention in the Netherlands by Alexandra Brand
for the Bingham Centre for the Rule of Law,
London, UK, 2013
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1.2 The Legal Foundation
Dutch immigration law is to be found in 4 different sources, namely the Aliens Act 2000
(Vreemdelingenwet),9 the Aliens Decree 2000 (Vreemdelingenbesluit),
10 the Aliens Regulation
2000 (Voorschrift Vreemdelingen 2000)11
and the Aliens Act Implementation Guidelines 2000
(Vreemdelingencirculaire). The Aliens Act (AA) was formally adopted by the Dutch Parliament
and as such constitutes a formal statutory act. The Aliens Decree (AD) contains binding
regulations by the government that support the law of the AA. Pursuant to many provisions
within the AA and the AD, the responsible minister, who often is the Minister of Justice but
may also be the Minister for Immigration and Asylum depending on the constellation of the
respective cabinet, may establish rules and regulations which can be found in the Aliens
Regulation (AR) and which constitute a ministerial order. Furthermore, the Aliens Act
provides for the minister to give specific orders to the authorized officers dealing with the
supervision of aliens.12
These orders are further laid down in the Implementation Guildelines
(IG) which are divided into ‘entry and border control’ under A,13
‘regular residence’ under
B,14
and ‘asylum policy’ under C.15
9 Vreemdelingenwet 2000, 1 April 2001, BWBR0011823, retrieved on 28-4-2013 from
http://wetten.overheid.nl/BWBR0011823/geldigheidsdatum_28-04-2013
10 Vreemdelingenbesluit 2000, 1 April 2001, BWBR0011825, retrieved on 28-4-2013 from
http://wetten.overheid.nl/BWBR0011825/volledig/geldigheidsdatum_28-04-2013#Opschrift
11 Voorschrift Vreemdelingen 2000, 1 Apil 2001, BWBR0012002, retrieved on 28-4-2013 from
http://wetten.overheid.nl/BWBR0012002/volledig/geldigheidsdatum_28-04-2013#Opschrift
12 Article 48 AA: 1. The chief of police and the commander of the Royal Netherlands Military Constabulary shall
furnish Our Minister with the information requested by him about the implementation of this Act and of the
Schengen Borders Code. 2. Our Minister may issue directions to the chief of police and the commander of the
Royal Netherlands Military Constabulary about the implementation of this Act and of the Schengen Borders
Code. Our Minister may issue individual directions to the officials referred to in section 47, subsection 1. 3. Our
Minister may issue directions about the organisation of the job procedures and mode of operation to: (a) the
chief of police, through the intermediary of the Minister of Security and Justice; (b) the commander of the Royal
Netherlands Military Constabulary through the intermediary of the Minister of Defence. 4. Further rules may be
laid down by Order in Council regarding paragraphs 1, 2 and 3.
13 Vreemdelingencirculaire A 2000, 1 April 2001, BWBR0012287, retrieved on 28-4-2013 from
http://wetten.overheid.nl/BWBR0012287/geldigheidsdatum_28-04-2013.
14 Vreemdelingencirculaire B 2000, 1 April 2001, BWBR0012289, retrieved on 28-4-2013 from
http://wetten.overheid.nl/BWBR0012289/geldigheidsdatum_28-04-2013.
15 Vreedemlingencriculaire C 2000, 1 April 2001, BWBR0012288, retrieved on 28-4-20113 from
http://wetten.overheid.nl/BWBR0012288/geldigheidsdatum_28-04-2013; Kampstra, E.M. 2012. Kernzaken
Staats- en Bestuursrecht. Vreemdelingenrecht. Kluwer, Deventer, pp. 5f.
Immigration Detention in the Netherlands by Alexandra Brand
for the Bingham Centre for the Rule of Law,
London, UK, 2013
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The Aliens Act and adjacent legal provisions belong to the area of Dutch administrative law
which regulates the executive power held by the public authorities.16
As a consequence,
subjects of immigration law will also be subject to the General Administrative Law Act
(Algemeene Wet Bestuursrecht)17
in so far as the immigration law does derogate from those
provisions as the more specific rule to follow. This is particularly important with regard to
orders and decisions that the minister and the authorized officers issue to the alien in
question which give rise to different legal procedures before the judicial organs. A valid order
has to adhere to the principles of good governance, some of which will be examined more
closely during this report. The priniples of good governance entail, firstly, the prohibition to
abuse power, secondly, the authorities’ duty to investigate the circumstances of a situation
during the careful preparation of an order, thirdly, the weighing of the objectives to be
achieved with this order against the interests potentially harmed as a consequence of it,
fourthly, to give reasons for the order, and lastly, to treat equal cases alike.18
When orders or decisions are addressed to specific individuals, the latter can challenge them
in accordance with legal remedies of administrative law which differ from other areas of
Dutch law such as criminal or civil law. This constitutes an important aspect for the purpose
of discussing immigration detention, since detention orders are directly addressed to the
foreign national in question who can then challenge this decision within the framework of
administrative legal procedure. In situations where the alien does not agree with the
measure by the authorities, he has the possibility to issue an appeal to the administrative
section of a district court (rechtbank). Immigration detention may also be subject to further
or higher appeal before the Administraive Judicial Review Division of the Council of State
(Afdeling Bestuursrechtspraak Raad van State).19
1.2.1 New Develpments
Despite the legislation’s short existence, it has been subject to multiple changes. The newest
amendment is a substantial change of the Implementation Guidelines from 1 April 2013
16 Kenniscentrum Commissie van Toezicht, Vreemdelingenbewaring, retrieved on 3-4-2013 from:
http://www.commissievantoezicht.nl/dossiers/vreemdelingenbewaring/vreemdelingenbewaring/; Taekema, S.
2011. Understanding Dutch Law. 2nd
ed. Eleven International Publishing, The Hague, Chapter 6, pp. 165-183.
17 Algemene Wet Bestuursrecht, 1 Jan. 1994, BWBR0005537, retrieved on 28-4-2013 from
http://wetten.overheid.nl/BWBR0005537/volledig/geldigheidsdatum_28-04-2013.
18 Ibid Taekema.
19 Ibid.
Immigration Detention in the Netherlands by Alexandra Brand
for the Bingham Centre for the Rule of Law,
London, UK, 2013
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onwards,20
which will become evident in the discussion below. Many details of procedure
have been taken out of the new version. However, for the purpose of historical account and
to better understand the case law, the prior regulations are also specified where appropriate.
Another point of interest is the fact that the current government plans to criminalize illegal
residence and has proposed a bill to that effect to the 2nd
Chamber of Parliament earlier this
year.21
This criminalization aims at subjecting aliens without a residence permit to criminal
detention on top of administrative detention as already provided for in the Aliens Act 2000.
1.2.2 Detention
The Dutch constitution prescribes that no one may be subjected to a deprivation of his
liberty “other than in the cases laid down by or pursuant to Act of Parliament.22
This
provision is not limited to Dutch citizens, but to everyone on Netherlands territory. In line
with the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR),
the Netherlands impose the administrative measure23
of immigration detention for the
purpose of preventing illegal entry and with a view to expulsion.24
In principle, this means
that immigrants in possession of a temporary or permanent residence permit are not
subjected to this measure. However, those aliens who have been barred from entering the
Netherlands territory and those who are illegally resident in the Netherlands may be
detained on the basis of immigration law. Furthermore, the law provides for specific
circumstances under which aliens awaiting a decision with regard to their residence permit
may be detained as well.
20 Immigratie- en Naturalisatiedienst, Ministerie van Veiligheid en Justitie. 2 April 2013. Het Nederlandse
vreemdelingenbeleid herschreven. Retrieved on 28-4-2013 from
http://www.ind.nl/Nieuws/Pages/HetNederlandsevreemdelingenbeleidherschreven.aspx.
21 Vaste Commissie voor Veiligheid en Justitie. 13 March 2013. Verslag van een algemeen overleg, gehouden op
woensdag 13 maart 2013, over Opvang, terugkeer en vreemdelingenbewaring – Vreemdelingenbeleid.
Retrieved on 28-4-2013 from
http://www.parlementairemonitor.nl/9353000/1/j9vvij5epmj1ey0/vj8c5lhaymzk#p1, p. 19.
22 Grondwet voor het Koninkrijk der Nederlanden van 24 augustus 1815, BWBR0001840, retrieved on 28-4-
2013 from http://wetten.overheid.nl/BWBR0001840/geldigheidsdatum_28-04-2013, Artikel 15.1: Buiten de
gevallen bij of krachtens de wet bepaald mag niemand zijn vrijheid worden ontnomen.
23 For recent political development to criminalize illegality which allows for criminal detention of immigrants,
see Chapter 3.2.
24 Convention for the Protection of Human Rights and Fundamental Freedoms, 3 Sept. 1953, 213 UNTS 221
[hereafter ECHR], Article 5.1: Everyone has the right to liberty and security of person. No one shall be deprived
of his liberty save in the following cases and in accordance with a procedure prescribed by law: (f) the lawful
arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person
against whom action is being taken with a view to deportation or extradition.
Immigration Detention in the Netherlands by Alexandra Brand
for the Bingham Centre for the Rule of Law,
London, UK, 2013
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The Aliens Act contains five grounds to restrict25
and four grounds to deprive26
a foreign
national from his freedom. The focus of this report lies on the deprivation measures, but the
restrictive counterparts will be incorporated to the extent that it serves the understanding of
immigration detention. To this end, it is important to distinguish between different concepts
of detention within the Dutch immigration law. The report will analyse border detention in
Chapter 2, which applies to rejected immigrants at the external borders of the Netherlands,
as well as immigration detention in Chapter 3, which is exercised with a view to expulsion for
reasons of public interest or national security. Each form of detention knows its own places
of implementation as well as codes to regulate treatment and behaviour of subjects and
their supervisors. Those will be discussed in the upcoming sections as appropriate.
As the report is mainly concerned with the legal implications of immigration detention, it will
provide for an analysis closely aligned to the provisions in the Aliens Act 2000. Relevant case
law and policy trends will be discussed in the wake of specific issues arising out of these legal
provisions to create a coherent contextual narrative.
For this purpose, each legal provision will be analysed with respect to a set of substantive
and procedural issues that will facilitate ready comparison between different countries and
different aspects in their immigration law and policy.
This report is mainly based on sources of Netherlands origin which are therefore issued in
the Dutch language, including legislation, jurisprudence and policy information. To make the
subsequent analysis more transparent, the Annex includes a selection of the essential
articles of the Aliens Act 2000 in both Dutch and English.27
Where important, the footnotes
give Dutch excerpts to facilitate cross-lingual referencing. Please note that there may be
discrepancies between the translation used in this report and other legal or political
literature, since different authorities, such as the Dutch government or the European Court
of Human Rights, may use different terms to refer to the same concept. This should however
not impair the understanding of the analysis in this report.
25 Article 6.1 AA, Article 50.1 AA, Article 55 AA, Article 56 AA, Article 57 AA.
26 Article 6.1 and 2 AA, Article 50.2 and 3 AA, Article 58 AA, Article 59 AA.
27 English translation of the Aliens Act 2000 is based on but not identical to the translation found on
http://www.legislationline.org/documents/id/4680.
Immigration Detention in the Netherlands by Alexandra Brand
for the Bingham Centre for the Rule of Law,
London, UK, 2013
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2 Prevention of Illegal Entry: Border Detention – Article 66 AA
Since the Schengen Agreement entered into force for the Netherlands on 26 March 1995, the
Dutch national borders common with other member states are no longer subject to controls
and for the purpose of border detention do no longer qualify as external borders of the
Netherlands. Instead, external borders are considered only those borders that touch the
outer seams of the Schengen Area. For the Netherlands, these are the the ports and the
airport Amsterdam Schiphol. Third-country nationals who do not fulfill the requirements for
entering the Netherlands as laid down in Article 5 of the Schengen Borders Code (Schengen
Grenscode)28
or in Article 3 of the Dutch Aliens Act 200029
may be refused entry to prevent
the illegal passing of the Schengen border. This refusal of entry entails that the foreign
national has a duty to leave immediately.30
In order to ensure that the alien who has been
refused entry but cannot leave right away does not attempt to pass the border illegally, he
“may be required to stay in a space or place designated by a border control officer” pursuant
to Article 6.1 AA.31
Article 6.2 contains the possibility to turn the restrictive measure under subsection 1 into
one of border detention by means of a coercive element. This rule establishes that the space
or place where the alien is held “may be secured against unauthorized departure”.32
28 Regulation (EC) No 562/2006 of the European Parliament and of the Council, 15 March 2006 establishing a
Community Code on the rules governing the movement of persons across borders, Official Journal L 105/1 of
13-4-2006.
29 Article 3 AA: 1. Entry into the Netherlands shall be refused, in cases different from those in the Schengen
Borders Code, to an alien who:(a) is not in possession of a valid travel document or is in possession of a valid
travel document in which the requisite visa is missing;(b) constitutes a serious threat to public order (ordre
public) or national security;(c) does not have sufficient means to defray both the costs of his stay in the
Netherlands and the costs of his journey to a place outside the Netherlands where his entry is guaranteed, or (d)
does not fulfil the conditions laid down by or pursuant to Order in Council. 2. Rules concerning the refusal of
entry on the basis of this law or through implementation of the Schengen Borders Code shall be laid down by or
pursuant to Order in Council. 3. The border control officers shall not, save in accordance with a special direction
issued by Our Minister, refuse entry into the Netherlands to an alien who indicates that he wishes to have
asylum.
30 Article 5.1 AA: An alien who has been refused entry into the Netherlands shall leave the Netherlands
immediately […]
31 Article 6.1 AA: 1. An alien who has been refused entry into the Netherlands may be required to stay in a space
or place designated by a border control officer.
32 Article 6.2 AA: A space or place, as referred to in subsection 1, may be secured against unauthorized
departure.
Immigration Detention in the Netherlands by Alexandra Brand
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Consequentially, someone who has already factually entered the Schengen Area cannot be
detained under Article 6. This is due to the fact that the justification to detain is tied to the
prevention of illegal entry as to be found in Article 5.1.f of the ECHR. Once the alien entered
the Netherlands, the justification to detain under this provision ceases.33
The alien may be
detained on the basis of different provisions once he has entered as will be discussed in
Chapter 3.
Border detention pursuant to Article 6.1 and 2 can also be invoked subsequent to criminal
detention of an alien.34
In order to continue detention on the basis of Article 6 after criminal
detention, the immigrant must be informed of his prohibition to enter the Netherlands. In
2005, the District Court of Amsterdam ruled that the border detention pursuant to Article 6
of an alien subsequent to his criminal detention was unlawful because he had not been
informed of his prohibition to enter the Netherlands. The Court noted that detaining an
immigrant under criminal law did not automatically imply that he was barred from entry.35
Border detention has received substantial criticism by Human Rights and Migration
organizations. Just in December 2012, the VluchtelingenWerk Nederland, an organization
that concerns itself with the rights of refugees, published an open letter to State Secretary
Teeven to stop border detention altogether. The organization criticises that border detention
often takes longer than the supposed few weeks and that it means deprivation of liberty for
those who come to the Netherlands for refuge from outside the Schengen area. The
organization observes that they are treated more harshly than asylum seekers travelling
overland, who are already inside the Schengen Area when they arrive at the Dutch border
and are therefore not subject to border detention pursuant to Article 6. Instead, asylum
seekers entering the Nehterlands via the surrounding countries are brought to reception
centres instead of being subjected to detention. Incentive for this renewed open criticism is
the fact that the authorities were about to open a new detention centre at Schiphol, where
33 Tweede Kamer en Staten-Generaal. 1998-1999. Algehele herziening van de Vreemdelingenwet
(Vreemdelingenwet 2000). Memoire van Toelichting. Kamerstuk 26 732, Nr. 3, pp. 17f; Rb Haarlem, 23 Oct.
2002, LJN: AF2392; No information on this is provided in the amended Implementation Guildelines from 1 April
2013, in prior version: A6/2.2 IG.
34 Ibid Kamerstuk 26 732, p. 19; Article 7 AA; Rb Amsterdam, 10 April 2008, LJN BD0607.
35 Rb Amsterdam, 25 Jan. 2005, LJN: AS9656.
Immigration Detention in the Netherlands by Alexandra Brand
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asylum seekers would be placed together with criminals, which the organization views as
inacceptable.36
The so-called Justitieel Complex Schiphol is in use since January 2013.37
In his response to this letter in February 2013, the State Secretary explains that asylum
seekers in border detention mostly know whether they may stay within two weeks. Should
the assessment take longer, they are relocated to an open reception centre. In principle, he
argues, detention is lifted when the application assessment does not yield results within six
weeks. When they are denied entry, the measure is upheld until departure can be facilitated.
It seems that the State Secretary does not consider alternatives since they cannot guarantee
that the alien illegally enters the territory after all. He also stresses that a difference in
treatment between aliens that arrive via ship or plane and those that travel overland is
justified due to the fact that the latter already are in the Schengen area in contrast to those
who travel via air or sea.38
Thus, the State Secretary in representing the current government
policy defends the status quo situation without addressing the fundamental issues that arise
as a consequence of this policy already in place.
2.1 Arbitrariness of Detention
To invoke border detention pursuant to Article 6 subsecitions 1 and 2, the alien in question
has to have been refused entry prior to this order. The alien is able to file an administrative
appeal against this refusal of entry, which is also open to subsequent judicial appeal.39
The
alien is also able to appeal against the order of border detention before a court in
36 VluchtelingenWerk Nederland. 27 Dec. 2012. Oproep VluchtelingenWerk: ‘Geen vluchtelingen meer in de
cel’. Retrieved on 28-4-2013 from http://www.vluchtelingenwerk.nl/persberichten/geen-vluchtelingen-meer-
in-de-cel.php.
37 Dienst Justitiële Inrichtingen. Ministerie van Veiligheid en Justitie. Detentiecentrum Schiphol. Retrieved on
28-4-2013 from http://www.dji.nl/Organisatie/Locaties/Detentiecentra-en-uitzetcentra/Detentiecentrum-
Noord-Holland/; Rijksoverheid. 17 Dec. 2012. Nieuw Justitieel Complex Schiphol in gebruik genomen. Retrieved
on 28-4-2013 from http://www.rijksoverheid.nl/nieuws/2012/12/17/nieuw-justitieel-complex-schiphol-in-
gebruik-genomen.html.
38 Ministerie van Veiligheid en Justitie. 19 Feb 2013. Anwoorden kamervragen over de oproep van
Vluchtelingenwerk Nederland om te stoppen met de grensdetentie van vluchtelingen. Kenmerk 2013-
0000002618, retrieved on 28-4-2013 from http://www.rijksoverheid.nl/documenten-en-
publicaties/kamerstukken/2013/02/21/antwoorden-kamervragen-over-de-oproep-van-vluchtenlingenwerk-
nederland-om-te-stoppen-met-de-grensdetentie-van-vluchtelingen.html.
39 No information on this is provided in the amended Implementation Guildelines from 1 April 2013, in prior
version: A2/5.5.4 IG.
Immigration Detention in the Netherlands by Alexandra Brand
for the Bingham Centre for the Rule of Law,
London, UK, 2013
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accordance with Article 94.1 AA.40
According to the Administrative Judicial Review Division of
the Council of State (AJRDCoS), the judge concerned with the lawfulness of border detention
is not in a position to decide upon the lawfulness of refusal of entry, despite the fact that the
latter is a direct condition to the lawfuness of the former. In 2002, a woman of Nigerian
nationality appealed the order of border detention on the basis that she had been subject to
human trafficking and therefore should not have been denied legal entry into the
Netherlands. The District Court Haarlem stated, however, that it was not competent to
adjudge the rightfulness of the refusal of entry in line with the Division’s ruling.41
The
AJRDCoS is not concerned that this artificial separation of the decision on refusal of entry
and the decision to detain is in violation of Article 5.1 of the ECHR.42
The relevant subsection
under f provides that a person’s detention is arbitrary unless he is detained “to prevent his
effecting an unauthorised entry into the country […].”43
Thus, whether the alien was
rightfully refused entry is of great importance in deciding whether his detention is arbitrary
or not.
The matter is different for the determination wether the refusal of entry is lawful. The alien
may apply for a provisional ruling during the ongoing administrative complaint concerning his
rejection to enter the Netherlands.44
The judge may, upon finding that the refusal of entry
was unlawful, also lift the border detention.45
With regard to asylum seekers, border detention is to be applied with caution and as
restrictively as possible. To ensure that those who seek refuge in the Netherlands are not
turned away at the external borders without due reason, asylum seekers may only be
refused entry upon special order by the Minister.46
The Implementation Guidelines lay out
40 Article 94.1 AA: Our Minister shall notify the District Court of an order imposing a custodial measure as
referred to in sections 6, 58 and 59 no later than on the 28th
day after communication of the order, unless the
alien has himself already lodged an application for judicial review. As soon as the District Court has received the
notification the alien shall be deemed to have lodged an application for judicial review of the order imposing the
custodial measure.
41 Rb Haarlem, 23 Oct. 2002, LJN: AF2392.
42 ABRvS, 5 Sept. 2001, LJN: AD4502, zaaknr.: 200103358/1; see also: ABRvS, 17 July 2007, zaaknr.:
200703945/1.
43 Supra note 24.
44 Supra note 17 General Administrative Law Act, Article 8:81.
45 Rb Haarlem, 2 May 2006, LJN: AX3993.
46 Article 3 AA; supra note 33 Kamerstuk 26 732 Nr. 3, pp. 17f.
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that this entails contacting the Immigration and Naturalization Service (IND) to ensure that
the individual in question is put in a position to request asylum.47
Ironically, the consequence
is that asylum seekers at the external borders are in principle formally refused entry and
detained pursuant to Article 6 subsection 1 and 2.48
The individual is then transferred to the
Registration Centre Schiphol.
In 2001, a Somalian asylum seeker argued that his status protected him from border
detention under Article 6 in accordance with the UNHCR Detention Guidelines. However, the
District Court Haarlem found that border detention was allowed in accordance with the
international guidelines, since they allow for detention to determine the identity of the
asylum seeker.49
The Court further explained that the asylum application procedure provides
for a reassessment of the border detention after the first interview, during which identity
and circumstances of the individual are attempted to be determined. Thus, the Aliens Act
provides for safeguards against unnecessary or arbitrary detention with regard to asylum
seekers in border detention.50
47 No information on this is provided in the amended Implementation Guildelines from 1 April 2013, in prior
version: A2/5.5.1 and C9/2.1.1.1 IG; Tweede Kamer en Staten-Generaal. 1999-2000. Algehele herziening van
de Vreemdelingenwet (Vreemdelingenwet 2000). Nota naar aanleiding van het verslag. Kamerstuk 26 732, Nr.
7, p. 90.
48 No information on this is provided in the amended Implementation Guildelines from 1 April 2013, in prior
version: A2/5.5.1 IG.
49 UNHCR. 2012. Detention Guildelines. Guidelines on the Applicable Criteria and Standards relating to the
Retrieved on 28-4-2013 from http://www.unhcr.org/refworld/docid/503489533b8.html, Guideline 4.1, para.
24: Minimal periods in detention may be permissible to carry out initial identity and security checks in cases
where identity is undetermined or in dispute, or there are indications of security risks. 46 At the same time, the
detention must last only as long as reasonable efforts are being made to establish identity or to carry out the
security checks, and within strict time limits established by law (see below).
50 Rb Haarlem, 14 Sept. 2001, LJN: AD7285, para. 2.9: Tenslotte acht de president de toegangsweigering en
daarop volgende detentie van verzoeker niet in strijd met het Vluchtelingenverdrag en de UNHCR-Guidelines.
In Conclusion 44 van de Guidelines is onder meer aangegeven dat detentie noodzakelijk kan zijn om de identiteit
van de vreemdeling te verifiëren elementen waarop de asielaanvraag is gebaseerd te onderzoeken en de
openbare orde te beschermen. Na de toegangsweigering door de Kmar en de toepassing van de artikel 6
maatregel wordt na het eerste gehoor in het AC opnieuw een beslissing genomen of verdere vrijheidsbeneming
geëigend is. Indien de maatregel wordt voortgezet wordt ook binnen korte tijd beslist op het asielverzoek.
Onder deze omstandigheden kan niet worden geoordeeld dat een asielzoeker nodeloos in detentie wordt
gehouden.
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2.2 Authority to Detain
The Implementation Guidelines state that border control officers as defined in Article 46.1 of
the Aliens Act 2000 have the authority to impose the restrictive measure of Article 6.1 AA.51
They may impose the coercive element under subsection 2 when they are given reason to
believe that the immigrant will not comply with the order to stay in a given space or place in
accordance with Article 6.1 AA. Border control officers include officers of the Royal
Netherlands Military Constabulary as well as of the regional police force in the area of the
Rotterdam port and the director of border accommodation as referred to in Article 3 of the
Border Accommodation Regime Regulations. Furthermore, the Minister may, in agreement
with the Minister of Home Affairs, authorise police officers specifically.52
2.3 Duration of Detention
While the Aliens Act 2000 itself does not provide for a maximum time of border detention,
the Implementing Guidelines speak about a timeframe of 6 months.53
Once this time has
elapsed, the interest of the alien to be free weighs heavier than the fulfillment of the
objective of preventing illegal entry as a consequence of which detention was imposed.54
The
timeframe of 6 months may be prolonged by a maximum of another 12 months. If detention
51 A1/2. IG.
52 Article 46.1: The following are charged with supervising the observance of and implementing the statutory
provisions relating to border control: (a) the officers of the Royal Netherlands Military Constabulary; (b) the
officers of the regional police force in the area of the Rotterdam port; (c) the director of border
accommodations referred to in article 3 of the Border Accommodation Regime Regulations; (d) the police
officers designated by order of Our Minister, in agreement with Our Minister of the Interior and Kingdom
Relations and Our Minister of Defence, as referred to in section 3, subsection 1 (a) and (c), and subsection 2 of
the Police Act 1993;2. Rules shall be laid down by Order in Council concerning: (a) the arrangements made in
the interests of border control; (b) the obligations to which persons are subject for the purpose of surveillance in
the interests of border control. 3. Border Control officers as referred to in Paragraph 1 qualify as the border
control guards named in Article 2 (13) of the Schengen Treaty.
53 A5/6.8 IG, Dutch version: De bewaring duut niet langer dan zes maanden, men een mogelijkheid deze te
verlengen met twaalf maanden(…)Een maand geldt daarbij als 30 dagen.
54 Rb Haarlem, 19 April 2000, LJN: AA5762, para. 2.4: De vreemdeling heeft er terecht op gewezen dat bij
voortduring van de maatregel ex artikel 7a,tweede en derde lid, Vw [today: Article 6 subsection 1 and 2] langer
dan zes maanden zijn belang bij opheffing van die maatregel in beginsel groter is dan het belang van
verweerder bij voortzetting daarvan, welk belang is gelegen in uitzetting en in het voorkomen van verdere
toegang(...).
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will be extended beyond the original 6 months, the Repatriation and Departure Service is
obliged to inform the alien about this in writing before the end of the first 6 months.55
Reasons for prolongation are that the alien either does not cooperate or that documents are
still awaited from a third country. The alien can appeal against this prolongation.56
Border detention can also be extended because the alien or his family is not able to travel
due to medical reasons.57
Border detention ends either when the alien has left the Netherlands territory or when the
measure is lifted by the authorities or by a court. It is important to note that the decision to
lift the border detention does not automatically result in the alien having rightful stay in the
Netherlands. Even after detention pursuant to subsection 2 of Article 6 is lifted, the alien
may still be restricted in his freedom of movement in accordance with subsection 1 of the
same article.58
However, once the alien is released on the Netherlands territory, there is no
longer a formal refusal of entry on basis of Article 3. Since this is a condition for Article 6,
authorities may not invoke the latter measure any longer.59
Having said that, being factually
present on the Dutch territory within its external borders is not equal to having rightful stay
under one of the options laid out in Article 8. Thus, the alien will still be illegal and thereby
may be subject to immigration detention pursuant to Article 59.60
As has been discussed with regard to arbitrariness of detention, when the court lifts the
refusal of entry, the border detention ceases to apply at the same time. When a departure
does not go through as planned and the alien comes back, the authorities need to assess
anew whether the conditions for border detention are fulfilled. The alien cannot be taken
55 Supra note 53.
56 No information on this is provided in the amended Implementation Guildelines from 1 April 2013, in prior
version: A6/2.7 IG; Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008
on common standards and procedures in Member States for returning illegally staying third-country nationals,
Official Journal of the European Union, L 348/98 of 24.12.2008 [hereafter: Return Directive], Article 5.6. Please
note that it is debatable whether aliens who have been refused entry qualify as subjects of this Directive as
they are strictly speaking not illegally staying in the Netherlands at the moment of detention.
57 Article 64 AA; A3/7 IG.
58 No information on this is provided in the amended Implementation Guildelines from 1 April 2013, in prior
version: A6/2.8 IG.
59 Rb Amsterdam, 15 Dec. 2008, LJN: BG7919; see also: Rb Haarlem, 16 Oct. 2002, LJN: AF2389.
60 See Chapter 3.
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back into border detention on the basis of the prior placement decision but needs to receive
a new one.61
2.4 Alternatives to Detention
Foreign nationals who seek asylum are formally refused entry and placed in border detention
under Article 6 subsection 1 and 2 as a matter of principle.62
This means that there is no
assessment whether less intrusive means than detention could be invoked to guarantee that
the individual will not illegally enter the territory of the Netherlands. Hence, the question
arises whether this way of application of Article 6 is in conflict with the principles laid down
in the UNHCR Detention Guidelines and the Return Directive63
that immigration detention
should be handled as a matter of last resort.
2.5 Due Process
2.5.1 Placement Decision
When the border control officer dealing with a refused immigrant has reason to believe that
the alien will not stay in the assigned place or when the alien constitutes a risk to public
order or national security, the officer may impose border detention.64
The reasoned65
61 Rb Haarlem, 30 Dec. 2003, LJN AO2652, No information on this is provided in the amended Implementation
Guildelines from 1 April 2013, in prior version: A6/2.8 IG.
62 The prior version of the Immigration Guildelines clearly states in A2/5.5.1: Ingevolge artikel 3, derde lid, Vw
dient in het geval een vreemdeling te kennen geeft asiel te willen vragen, (...) [i]n beginsel [...] de toegang
worden geweigerd en een vrijheidsontnemende maatregel worden opgelegd ex artikel 6, eerste en tweede lid
Vw (...). , The amended Implementation Guildelines from 1 April 2013 formulate more neutrally, stating that
those who seek asylum for the first time shall in principle not be presumed to try to evade surveillance.
However, certain situations, such as having been refused entry, are seen as indicating the opposite. Since
evasion of surveillance is enough reason to detain an alien on basis of Article 6 subsection 1 and 2, this equals
the principle detention of first-time asylum seekers as described in the prior version of the IG. The current IG
state in A3/3: Een risico dat de vreemdeling zich aan het toezicht zal onttrekken wordt in beginsel niet
aangenomen bij de eerste aanvraag van (...) asiel voor bepaalde tijd. In all volgende situaties wordt een risico
dat de vreemdeling zich aan het toezicht zal onttrekken bij de eerste aanvraag (...) wel tegengeworpen: als het
een grensgeweigerde vreemdeling betreft (...).
63 Supra note 49, Guideline 2, para. 14; Supra note 56 Return Directive, preamble para. 20; Article 15.1.
64 No information on this is provided in the amended Implementation Guildelines from 1 April 2013, in prior
version: A6/2.4 IG: (...)Het opleggen van de vrijheidsontnemende maatregel is in ieder geval geïndiceerd
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palcement decision (plaatsingsbeschikking) enters into force from the moment that the
responsible officer delivers a copy of the order, the so-called M19-form, to the alien in
question. In accordance with the ECHR, The Implementing Guidelines to the Dutch Aliens Act
2000 provide for the essential duty to inform the alien about the content of the order of
border detention under Article 6 as well as about the possibility to appeal against this order
in a language that the alien can understand.66
Non-fulfillment of this essential duty on part of
the authorities leads to the detention being unlawful.67
In principle, every time the place of detention changes the authorities are required to draw
up a new M19-form. A temporary change of place which does not exceed 48 hours and
which is based on reasons put forward in the Aliens Act does not require a new placement
decision.68
Equally, exceptional circumstances may not leave the opportunity to issue a new
placement decision. On 27 October 2005, the Detention Centre Schiphol (detentiecentrum
Schiphol) was severely damaged due to a fire, as a consequence of which many detained
immigrants were relocated to other detention facilities. One of them was a Chinese national,
who was transferred to the detention boat “Reno” in Rotterdam on the very same date
without a new placement decision. The District Court of Amsterdam found that there was no
infringement on the alien’s rights since the necessary order had been handed to the judicial
authorities on 3 November. According to the Court the delay in producing this placement
decision did not challenge the lawfulness of detention.69
Another alien of Kenyan nationality
from the Schiphol centre was also placed on a detention boat in Rotterdam on 27 October
2005. His placement decision was issued on 1 November, i.e. 2 days earlier than the order in
wanneer naar het oordeel van de ambtenaar belast met de grensbewaking aanwijzingen bestaan dat de
vreemdeling zich niet zal houden aan de aanwijzing om zich op te houden in de bedoelde ruimte of plaats en/of
omdat aspecten van openbare orde of nationale veiligheid dit vorderen(...).
65 No information on this is provided in the amended Implementation Guildelines from 1 April 2013, in prior
version: A5/2.5.3.2 IG.
66 A5/3.1 IG, prior version: A6/2.5 IG
67 Rb Haarlem, 3 Dec. 2004, LJN: AR8529, para. 2.5 – 2.7: (…)De rechtbank is evenwel van oordeel dat niet is
gebleken dat bij uitreiking ook de inhoud en strekking van de beschikking aan de vreemdeling zijn meegedeeld
(...)Uit het bovenstaande concludeert de rechtbank dat de vreemdeling niet op de hoogte is gesteld van de
inhoud en strekking van de plaatsingsbeschikking en de mogelijkheid tot het instellen van een rechtsmiddel. De
rechtbank acht het feit dat een vreemdeling op de hoogte wordt gesteld van de inhoud en strekking van de
maatregel en de mogelijkheid een rechtsmiddel in te stellen in het licht van het onder r.o. 2.4 bepaalde dermate
essentieel, dat het ontbreken hiervan de bewaring van aanvang af onrechtmatig maakt.
68 Article 5.5.1 AD; A5/3.1 IG, the timespan of 48 hours can only be found in prior version of IG: A6/2.5 Vc.
69 Rb Amsterdam, 8 Nov. 2005, LJN: AU7456.
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the other case. Still, the Court found that the period between the transfer to the boat and
the issuing of the decision did not have a legal basis. While the Court acknowledged that the
fire posed exceptional circumstances that could justify the lack of a legal basis, it also stated
that it was the authorities’ responsibility to keep this period of time as short as possible. The
evidence was found not to establish that the authorities took an extra effort during these
days. As a result, the measure needed to be lifted.70
2.5.2 Legal Representation
The law does not provide for the right of the immigrant to be informed of the possibility of
legal representation before border detention under Article 6 subsections 1 and 2. This is in
contrast to the procedural safeguards put into place concerning Article 59, the legal
foundation for immigration with a view to expulsion, which provides for the right to be
informed by the authorities within a reasonable time before the first interview that legal
representation is granted upon request.71
Furthermore, in principle the authorities are under no obligation to organize legal
representation for the individual in question. This has been affirmed in case law shortly after
the new Aliens Act 2000 had entered into force on 1 April 2001. The AJRDCoS stated in
November 2001 that neither law nor guidelines of immigration policy nor Article 5 ECHR
contained such a right that in every case of invoking a measure under Article 6 AA the state is
obliged to facilitate that the alien receives a visit by an assigned lawyer.72
The District Court
Haarlem reinforced this statement in August 2002, but pointed to the Implementation
Guidelines which state that the officer has to inform the Legal Aid Service if the alien
requests the assistance of a lawyer upon rejection of his residence permit application.73
In 2007, the District Court Amsterdam interpreted this provision as equally applicable to
aliens detained under Article 6. The Court stated that the criterion that led to a responsibility
on part of the authorities was the fact that the alien had been barred from entering the
Netherlands. Whether he was subsequently put into border detention or not was not of
relevance in the court’s opinion. Since the applicant in the case had asked for legal
70 Rb Haarlem, 9 Nov. 2005, LJN: AU6550.
71 See Chapter 3
72 ABRvS, 15 Nov. 2001, LJN: AH9538.
73 Rb Haarlem, 19 Aug. 2002, LJN; AE8447, the Court mentions Article A2/5.2.1 IG, which was later renamed
A2/ 5.5.4 and can be found in the current IG as A1/7.3.
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representation, the authorities were under the legal obligation to follow this request, given
that the immigrant had just been refused entry.74
A violation of this restricted right to legal representation is itself not a reason to declare the
border detention unlawful. Both Courts Amsterdam and Haarlem recognized that the
interest of keeping the border safe and preventing illegal entry has to be weighed against the
infringement of the right to legal representation of the alien. In the case before the Haarlem
Court it was found that the fact that the alien had the possibility to contact a lawyer himself
but failed to do so should be regarded relevant and let to the conclusion that lifting the
detention was not in order.75
The Court Amsterdam came to the same conclusion because
the alien had received legal representation after all, just with some delay, which could not
outweigh the interest of keeping the border safe.76
2.6 Appeal / Access to Justice
The individual in border detention pursuant to Article 6 may appeal to this decision at any
time on the basis of Article 94 AA in conjunction with Article 69.3 AA. The possibility for
higher appeal is given in Article 95 AA, which has a filing deadline of one week attached to it.
Appeal may be filed by the indivual himself, his lawyer or authorized representative.77
Next
to that, the Minister has the obligation to inform the court on the detention of the individual
in question within 28 days, should the immigrant not have filed an appeal himself already.
This way, review to the measure of detention on the ground of Article 6 is automatic in the
Netherlands. The court has to hear the case within 14 days of the Minister‘s notice or the
74 Rb Amsterdam, 22 Feb. 2007, LJN: BA1740, paras. 2.7.2.f: In het beleid inzake de toegangsweigering,
neergelegd in paragraaf A2/5.5.4 van deVreemdelingencirculaire 2000 (Vc 2000) is het volgende omtrent
rechtsbijstand is opgenomen: “Indien een geweigerde vreemdeling om een raadsman verzoekt, zendt de
grensbewakingsambtenaar hieromtrent een faxbericht aan de meldcentrale rechtsbijstand.” (...) De rechtbank
ziet niet zonder meer in dat dit beleid niet zou kunnen worden toegepast wanneer een vreemdeling om
rechtsbijstand verzoekt wanneer hij, nadat hem de toegang tot Nederland is geweigerd, op grond van artikel 6
van de Vw 2000 is onderworpen aan vrijheidsontneming.
75 Supra note 73.
76 Supra note 74.
77 Aritcle 70 AA.
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appeal by the immigrant.78
If these 14 days are not respected, detention becomes unlawful
from the due date onwards and has to be lifted.79
As has been elaborated on with regard to arbitrariness of detention, the Dutch immigration
law separates the matter of refusal of entry from the lawfulness of border detention, i.e. the
judge who rules on whether border detention is lawful cannot decide on the lawfulness of
the refusal of entry although the two issues are closely interconnected.80
One might question
whether this is in line with the right to a speedy trial pursuant to Article 5.4 of the European
Human Rights Convention.
Furthermore, within the framework of border detention, the detainee has the possibility to
complain about infringements of his rights in accordance with the rules and regulations
applicable in border detention facilities, namely the Border Accommodation Regime
Regulations (Reglement Regime Grenslogies).81
According to Article 14 of these rules, the
alien has a right to complain about orders imposed on him, such as solitary confinement, or
any other measures not based on legal grounds, about the rejection of his visitors, or the
taking away of his property described in Article 6. Once asylum seekers receive a negative
decision on their application, they remain in border detention until they can adhere to their
duty to leave in accordance with Article 5 AA.
2.7 Conditions of Detention
When an alien is restricted in his freedom of movement in accordance with Article 6.1 AA in
a room or place assigned by the authorized officer, there is no specific set of rules applicable
to this measure. The lounge of Schiphol Airport, for example, constitutes a room within the
scope of Article 6.1. The idea is that the alien is restricted because he cannot leave the
lounge to enter the Netherlands territory, but he is still there by choice because he can
78 Article 94.1 AA.
79 Rb Zwolle, 28 Dec. 2000, LJN: AB0124.
80 ABRvS, 17 July 2007, zaaknr.: 200703945/1.
81 Article 6.3 AA; Reglement Regime Grenslogies, 1 April 1993, BWBR0005848, retrieved on 28-4-2013 from
http://wetten.overheid.nl/BWBR0005848/geldigheidsdatum_30-04-2013, Article 1.
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access outgoing flights from the lounge and it is essentially up to him when and how long he
stays and when he leaves.82
In contrast, any room which is secured against unauthorized departure, and thereby
becomes a place of detention under Article 6.2 AA must adhere to the rules and regulations
laid down in the Border Accommodation Regime Regulations, the set of rules designed to
regulate the administrative detention in order to prevent illegal entry.83
As long as this rule is
complied with, Article 6.2 can be imposed in any place the Minister chooses for.84
Upon arrival at this facility, the detainee will receive a copy of the Border Accommodation
Regime Regulations. Should the rules in force at the place of border detention divert from
the Border Accommodation Regime Regulations, this does not automatically mean that the
law has been violated. Instead the court has to adjudge whether the alien’s damage weighs
heavier than the objective reached through the implementation of the diverging rules.85
Under no circumstances is it permitted to place border detainees together with criminal
offenders. The District Court Haarlem found in 2000 that because border detention is an
administrative measure and not a penitiary one, it was not acceptable to place foreign
nationals together with convicted criminals. The Court stressed that, in contrast to prison
rules, the Border Accomodation Regime Regulations may only infringe freedoms of aliens as
far as it is necessary.86
2.8 Children
The Implementation Guidelines stress that the measure of border detention may only be
imposed on minors after careful consideration of alternatives. The law gives more specific
rules on how to deal with children until the age of 12 and then until the age of 16 and so
forth. In any case, border detention of minors is only acceptable under strict safeguards that
find expression in a less coercive regime of rules and a place of implementation that is
82 Rb Amsterdam, 19 Feb. 2002, LJN: AE2024.
83 Supra note 81; Rb Haarlem, 26 Jan. 2001, LJN: AB0012.
84 No information on this is provided in the amended Implementation Guildelines from 1 April 2013, in prior
version: A6/2.6 IG.
85 Rb Haarlem, 26 Jan. 2001, LJN: AB0012.
86 Rb Haarlem, 19 Apirl 2000, LJN: AA5762.
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appropriate for children.87
In 2006, the District Court Amsterdam ruled that minors are not to
be placed in detention without pressing reasons specific to the individual circumstances, but
that the child in question should be placed in an open reception centre where he could await
the outcome of his asylum application.88
When children travel together with their parents, it is always desirable to impose a restrictive
measure instead of full deprivation of liberty.89
In 2011 the District Court Haarlem ruled that
the Detention Centre Schiphol was not accurate for minors and that the authorities were not
within the law to detain three children there. The fact that their mother was with them did
not change anything about this. The Court found that the detention on the mother and her
three children was to be lifted.90
Also, the time factor is a sensitive one. In 2010, the District
Court Amsterdam ruled that the authorities did not take a decision to prolong a family’s
detention in the Detention Centre Rotterdam in good faith, thereby subjecting the parents
and their children to arbitrary detention.91
3 Post-Entry: Immigration Detention – Article 59 AA
Once foreign nationals have crossed the external borders of the Netherlands – irrespective of
doing so with permission of the authorities – they can no longer be subjected to border
detention pursuant to Article 6 AA as explained above. Nevertheless, immigrants may, even
after years of living in the Netherlands, be subjected to detention. The Aliens Act 2000
provides for the possibility to restrict certrain groups of immigrants, for example those who
are illegally resident or are still awaiting the outcome of their asylum applications, in their
freedom of movement on the basis of keeping those aliens available for the duration of their
87 A5/2.4; A5/3.1-3.2 IG.
88 Rb Amsterdam, 13 Juni 2006, LJN: AZ2577, para. 11: De rechtbank overweegt voorts dat het door verweerder
voor deze groep vreemdelingen voorheen gevoerde beleid (...) expliciet inhoudt dat minderjarigen niet worden
geplaatst in het Grenshospitium en dat in dat geval de maatregel ex artikel 6, eerste lid, van de Vw 2000 wordt
toegepast. (...)Uit de toelichting op het Wijzigingsbesluit Vreemdelingencirculaire 2005/12, waarbij het thans
geldende beleid is vastgesteld, blijkt niet dat een wijziging is beoogd in die zin dat plaatsing in een gesloten
inrichting, waaronder een huis van bewaring dat is aangewezen als ruimte in de zin van artikel 6, eerste en
tweede lid, van de Vw 2000, thans wel is toegestaan.
89 Supra note 87.
90 Rb Haarlem, 1 April 2011, LJN: BQ0203.
91 Rb ‘s-Gravenhage, 18 Nov. 2010, LJN: BO7499.
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application process,92
after their application has been rejected,93
or for reasons of public
interest or national security.94
As the prior concern of this report is to demonstrate the
situation in immigration detention and not regarding restrictive measures, these regulations
will not be further elaborated on at this point. Immigrants resident in the Netherlands may
be deprived of their liberty on three different legal grounds. Firstly, the Aliens Act 2000
provides for the possibility of authorized officers to stop and check persons to check their
identity and residence status, and furthermore, to take those persons into custody and hold
them there to determine information that cannot be immediately asserted under Article 50
AA. Secondly, immigrants who are illegally resident in the Netherlands, or whose status as
lawful resident has not yet been ultimately determined may be deprived of their liberty with
a view to expulsion for reasons of public interest or national security pursuant to Article 59
AA. Thirdly, Article 58 AA allows for the detention of rejected asylum seekers with a view to
expulsion, even when the decision to reject the asylum application is not yet final before the
courts, i.e. the alien may still appeal.95
Since many asylum seekers are already subjected to
border detention pursuant to Article 696
and immigration detention under Article 5997
also
extends to rejected asylum seekers, Article 58 is scarcely used to detain immigrants98
and will
therefore not be further discussed here. Equally, stop and search provisions under Article 50
do not lie in the focus of this report and will therefore not be further elaborated upon at this
point.
Pursuant to Article 59 subsection 199
of the Aliens Act 2000, immigrants that have taken up
illegal residence100
in the Netherlands and immigrants still awaiting a (final) decision on their
92 Article 55.1 AA; A5/4 IG.
93 Article 57 AA.
94 Article 56 AA; A5/5 IG.
95 Article 58.1 AA in conjunction with Article 57.1 AA.
96 See Chapter 2.
97 See Chapter 3.2.
98 Kox, M. 2007: 48 Vreemdelingen. Utrecht, retrieved on 24-4-2013 from
http://www.schipholwakes.nl/achtergrondinformatie-schipholwakes.htm, pp.10f.
99 Supra note 47, Kamerstuk 26 732, Nr. 7, p. 200.
100 Article 59.1.a.
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residence status101
may be deprived of their liberty “for reasons of public interest102
or
national security (…) with a view to expulsion”.103
Subsection 2 of Article 59 specifies that every alien not “lawfully resident on the grounds of
Article 8 subsection a-e and l” may be detained “if the papers necessary for the return of the
alien are available or will shortly become available”.104
The (prospective) availability of travel
documents constitutes a reason of public interest valid to detain an alien of this category.
However, the information that the travel documents will be available has to be explicit. In
2001, the Dutch authorities invoked Article 59.2 on an alien with an expired Yugoslavian
passport. They based this action on their experience that, in the past, Yugoslavia had
allowed for extension of validity periods of expired passports so that their nationals could
travel back. The Court held that experience on part of the Dutch authorities did not qualify
as a legitimate reason to assume that the documents would become available shortly or that
the alien would be expelled soon. Therefore, the implicit knowledge from experience that
documents might be available does not constitute a basis to invoke Article 59.2.105
Detention pursuant to Article 59 constitutes a measure of last resort and not a standard
procedure to expel aliens.106
To justify detention pursuant to Article 59, the judge always has
101 Article 59.1.b; In accordance with the Aliens Act 2000, immigrants can only lawfully stay in the Netherlands
on basis of Article 8. Furthermore, subsection b allows for those immigrants to be detained who are awaiting a
decision on request for a temporary residence permit (Article 8, f), a decision on request for permanent
residence permit or extension or change of a temporary residence permit (Article 8, g), or a decision on an filed
objection or appeal (Article 8, h). Immigrants falling under other subsections of Article 8 may not be detained
on the basis of Article 59.
102 Openbare orde (translated as reasons of public interest) can also be translated into “public policy” or “public
safety”.
103 Article 59.1: If necessary for reasons of public interest or national security, Our Minister may, with a view to
expulsion, order the remand in custody of an alien who: a. is not lawfully resident; b. is lawfully resident on the
grounds of article 8 subsection f,g and h.
104 Article 59.2: If the papers necessary for the return of the alien are available or will shortly become available,
it is deemed to be for reasons of public interest that the alien be remanded in custody, unless the alien has been
lawfully resident on the grounds of article 8 subsection a- e and l.
105 Rb ’s-Hertogenbosch, 19 April 2001, LJN: ZA7047, pp.f: Gelet op het vorenstaande is de rechtbank van
oordeel dat verweerder heeft gehandeld in strijd met de achterliggende gedachte achter de bevoegdheid
neergelegd in artikel 59, tweede lid, van de Vw (...) De enkele – niet nader onderbouwde – verklaring ter zitting
van de gemachtigde van verweerder dat het op grond van ervaringsgegevens bekend is dat de Joegoslavische
autoriteiten, indien met in het bezit is van een verlopen paspoort, overgaan tot hetzij verlenging van dat
paspoort, hetzij tot afgifte van een laissez passer, leidt niet tot een ander oordeel(...).
106 Supra note 47, Kamerstuk 26 732, Nr. 7, p. 199.
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to weigh the personal interests of the alien to be detained against the reasons of public
interests served with the detention. All information relating to the personal situation of the
alien may be taken into account.107
Amongst those that may be detained, special attention in the jurisprudence is given to
asylum seekers. With regard to those that seek refuge in the Netherlands, the
Implementation Guidelines108
state that the provision of detention should be applied as
restrictively as possible, carefully weighing the facts and circumstances under which an
asylum application is submitted against the indications for necessity of detention.
Furthermore, detention before a decision on a 1st
request for asylum is received may only be
imposed after consulting with the IND.109
3.1 Criminalization of Illegality
Until now, immigration detention constitutes an administrative measure, not one of penal
nature. This may change in the future. Criminalization of persons who are illegally resident in
the Netherlands is not a new topic in Dutch politics. The Balkende cabinets in the early years
of 2000 discussed criminalization of illegality on and off.110
The first Rutte cabinet focused
mainly on illegal aliens who caused nuisance or engaged in criminal deeds. Since then, the
Netherlands experiences a trend toward a stricter immigration policy.111
Currently, under
Rutte II, the government has engaged in a broader view on criminalization of immigration
detention. On 7 January 2013, State Secretary Teeven sent a proposal to the 2nd
Chamber of
the Dutch Parliament on “Amending the Aliens Act 2000 concerning the criminalization of
107 Tweede Kamer der Staaten Generaal.2006-2007. Terugkeerbeleid. Verslag van een schriftelijk overleg.
Kamerstuk 29 344, Nr. 58, p. 18; supra note 47, Kamerstuk 26 732, Nr. 7, p. 199.
108 A5/6.1 IG; prior version: A6/5.3.3.5 IG.
109 ABRvS, 17 Nov. 2009, LJN: BK6033; see also: ABRvS, 21 Jan. 2008, zaaknr.: 200707652/1; ABRvS, 16 June
2008, LJN: BD5536.
110 Tweede Kamer der Staten-Generaal. 1999-2000. Algehele herziening van de Vreemdelingenwet
(Vreemdelingenwet 2000). Kamerstuk 26 732, Nr. 12, p. 28.
111 Tweede Kamer der Staten-Generaal. 2012-2013. Wijziging van de Vreemdelingenwet 2000 in verband met
de strafbaarstelling van illegaal verblijf van vreemdelingen in Nederland. Kamerstuk 33 512, Nr. 3, pp. 25-29.
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illegal residnece of aliens within the Netherlands”.112
The amendment entails an aggravation
of the return policy for third country nationals, i.e. immigrants not of EU Member State
nationality, who are 18 years or older. It proposes an additional Article 108a to the Aliens Act
2000 which allows for the authorities to impose a fine of up to 3900EUR upon encounter
with an alien who is residing in the Netherlands illegally, i.e. not staying in the Netherlands
on basis of Article 8 AA. When the alien has been fined twice, he may be subjected to a
severe entry ban.113
A violation of this entry ban is a criminal offence114
and may be punished
with imprisonment of up to six months.115
The commentary to this amendment identifies illegal residence as an exploitation of Dutch
society, since persons not legally present in the Netherlands do not fully engage in the
society but profit from it. Also, illegality is depicted as going hand in hand with crime. In
consequence, the government pleads for a prevention of illegal immigration and illegal
residence. Sanctioning illegal residence promises to have a deterrent effect on third country
nationals and will thereby prevent illegal residence in the long term. While the government
advocates for a stricter return policy and the punishing of illegal residence, the commentary
also recognizes that the fine has to be applied with caution, always taking the individual
circumstances of each case into account, for example whether the alien is willing to foster his
return upon being discovered by the authorities.116
While EU policy rejects imprisonment or any other kind of criminalization that contravenes
the possibility for humane facilitation of return for the foreign national in question, recent
case law by the European Court of Justice asserts that imposing criminal sanctions on illegal
immigrants is permitted as long as this does not go against the aim of the Return Directive
and the facilitation of departure or expulsion is not hampered or infringed upon. The Dutch
government added a safeguard into the bill, stating that the fine or the imposed prison-time
for non-compliance with the payment is to be suspended in the wake of departure or
expulsion. This means that the alien cannot be withheld from leaving the Netherlands
because he has not paid the fine yet or served the assigned prison time. However, the
112 Tweede Kamer der Staten-Generaal. 2012-2013. Wijziging van de Vreemdelingenwet 2000 in verband met
de strafbaarstelling van illegaal verblijf van vreemdelingen in Nederland. Kamerstuk 33 512, Nr. 4; supra note
21.
113 Artilce 66.a.7 AA
114 Article 197 Criminal Code (Wetboek Strafrecht).
115 Supra note 111, p.2.
116 Ibid.
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measure officially expires after 4 years,117
so that, should the alien come back within this
timespan, he may still be punished.118
The bill has raised concerns by the Council of State, who advises the government on new
legislation, as well as by other institutions inside the Nehterlands. Foremost, there is doubt
about the added value of the criminalization. The law as it stands today envisages that an
illegal alien who is encountered by the police on the street or during a check of a working
place will receive a return decision together with an entry ban. Violation of this entry ban
can be punished. Hence, when an alien returns despite the entry ban and is recognized by
the police again, he may be fined for this breach. Also, the number of illegal aliens is
decreasing since 2002 which further undermines the initiative for the new law. The
government reacts to this by arguing that the possibility to fine illegal aliens upon first
encounter already sends a strong signal against acceptance of illegal residence and tightens
the return policy to a significant extent. Furthermore, it is argued that the numbers are of
little significance since the EU has grown post-2002 which resulted in many illegal aliens
becoming EU-country nationals which are exempt from immigration detention. On the
contrary, the number of illegal immigrants is still so high that the new law will have an
impact.119
Secondly, concerns are that aliens involved in a criminal investigation or subject to criminal
punishment will receive a double-punishment, since upon arresting them they will be
identified and punished for residing in the Netherlands illegally separately to any further
punishment for their criminal deed. The Advisory Committee on Migration Affairs (ACVZ)
acknowledges that this is not a discrimination de jure, but de facto; however, this does not
render it less significant. The government takes the view that the bill is not directed at any
group of illegal immigrants in particular and therefore, double-punishment is not in order.120
Thirdly, the Council of State is troubled by the fact that the bill does not adhere to the lex
certa principle within Dutch criminal procedure. This principle entails that provisions of
criminal law have to be as precise as possible. However, the bill as it was submitted subjects
aliens to a fine that have no lawful stay under Article 8 AA. Since there are several categories
of aliens who do not have lawful stay under this provision but still remain in the territory due
117 Article 76 Criminal Code.
118 Supra note 111.
119 Supra note 112.
120 Supra note 111.
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to technical reasons of departure or on exceptional grounds on policy by the Dutch
government, they may be subjected to sanctioning although they have no choice in the
matter to prevent this situation. One example given by the Council of State are immigrants
who are undergoing a process before the UN Human Rights Committee and are therefore
allowed by the Dutch authorities to remain in the Netherlands until the procedure is
closed.121
Those immigrants have however no lawful stay and might therefore fall victim to
criminalization in the future. As a response, the government refers to the possibility for those
aliens to apply from exemption from the fine due to “force majeure” (overmacht).122
Forthly, and in direct connection to the prior criticism, this bill turns aliens into criminals for
whom it is impossible to leave (niet uitzetbar) due to the fact that they have no identification
and their country of origin does not cooperate with the Dutch authorities or does not
recognize the alien as a citizen.123
Those persons are already caught in the loops of the
system since they remain illegal in the Netherlands because their application for residence
permit is rejected, but the authorities cannot expel them due to circumstances beyond their
control. Therefore, those aliens do not only end up in immigration detention every time they
are encountered by the police, but on account of the proposed bill will also be fined every
one of these times for being illegal. Since this group of people is usually not one of wealth,
illegal aliens are likely to serve prison time for not being able to pay those fines in addition to
their time in immigration detention.124
Finally, the institutions are concerned that criminalization will further marginalize aliens
within society. Illegal aliens will not apply for a residence permit any more because they are
afraid to be punished and victims of human trafficking or violence will be more reluctant to
come forward and work together with the police to eliminate those issues. The government
is more optimistic. It is argued that illegal immigrants will not be fined when they apply for a
residence permit. However, should the application be rejected, the fine may still be imposed.
The government is also more positive on the future of victims coming to the fore. Their illegal
residence status will at that moment of investigation not be in the focus of the authorities.
121 Supra note 112, p. 5.
122 Supra note 111; supra note 112.
123 See example of Suriname national Ahmed in Musch, S. 14. April 2013. Humanist Association: Immigration
Policy in the Netherlands is in violation of human rights. Retrieved on 27-4-2013 from
http://svj.hu.nl/mensenrechten/2013/04/14/humanist-association-immigration-policy-in-the-netherlands-is-in-
violation-of-human-rights/.
124 Ibid.
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Instead, the police will focus on the elimination of the danger imposed by those who profit
from human trafficking or violence against this group of aliens. However, the government
omits to clarify whether the illegality status will resurface later and lead to a fine, for
example after the perpetrator is tried and sentenced. This insecurity might still pose an
obstacle to illegally resident victims in approaching the police.125
3.2 Expulsion v. Voluntary Departure
Article 59 contains the coercive element of expulsion, which means that the state will take
measures that leave the person in question no choice but to cross the border. This coercive
element imposes an obligation on the authorities to diligently work toward the expulsion of
the alien from the moment that he is detained. If this requirement of due process is not
followed, the detention becomes illegal and has to be terminated.
In parallel to this obligation of the authorities, the alien retains the duty to actively pursue
his departure once he is refused entry.126
Therefore, Article 59.3 maintains the possibility for
the alien to leave on his own accord. Detention shall not be started, or continued “as soon as
the alien has indicated that he wishes to leave the Netherlands and also has the opportunity
to do so”.127
In this case, he may be transferred to an open reception centre or stay with
friends of family in the Netherlands until he leaves.
This ‘opportunity to leave’ is defined in the Implementation Guidelines as being in
possession of the necessary valid travel documents and a ticket or sufficient means to put
departure into effect.128
Without these criteria, the alien’s willingness alone to leave the
Netherlands is not sufficient to end detention under Article 59.129
Even if the alien is
suspected of mischief or lying, the court has to weigh the personal interests of the alien and
the circumstances of the situation against the interest of the authority to secure the
125 Supra note 112.
126 Supra note 33 Kamerstuk 26732, Nr. 3, p.61; see Articles 5 and 61 AA.
127 Article 59.3 An alien shall not be remanded in custody or the remand shall be ended as soon as the alien has
indicated that he wishes to leave the Netherlands and also has the opportunity to do so.
128 No information on this is provided in the amended Implementation Guildelines from 1 April 2013, in prior
version: A6/5.3.8 IG.
129 ABRvS, 23 March 2009, LJN: BH8487; see also: ABRvS, 20 July 2009, LJN: BJ3641.
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departure through the imposition of detention. In 2008, a woman detained pursuant to
Article 59 declared that she was willing to leave the country and could show a plane ticket
from Brussels to Guinea, as well as a valid passport and a visa for Benelux. Still, the State
Secretary did not lift the detention because he suspected that she engaged in criminal
actions since she had offered a counterfeit 100-Euro banknote in a casino before. The
AJRDCoS, however, in balancing the interests and circumstances at hand decided that the
State Secretary’s suspicion did not change the fact that the alien declared her willingness to
leave and had a valid ticket for a plane soon in the future. Therefore, the detention was
lifted and declared unjustified under Article 59 AA.130
3.3 Arbitrariness of Detention
The absoltue condition to invoke Article 59 AA constitutes the ‘view to expulsion’. Thus, once
the view to expulsion lapses, there is no longer a justification to detain the alien pusuant to
Article 59 AA.131
In a rather special case in 2007,132
the AJRDCoS found that command of the
Dutch language did not entail that someone is of Netherlands nationality, even though the
individual asserted to have Netherlands nationality. In another case in 2008, the authorities
detained an individual who could not cooperate with regard to his nationality due to the fact
that he was traumatized and received medication to manage his condition.133
The Council
ruled that putting him in detention was lawful, even though the insecurity about his
nationality put a hold on progressing the expulsion. Thus, the view to expulsion does not
automatically lapse just because nationality cannot be determined right away. However, in
the latter case, the individual did not show signs of recovery after having been treated for
three weeks. Nevertheless, the State Secretary continued with detention under Article 59
AA. The Council ultimately decided that the psychological condition of the immigrant
outweighed expulsion within a reasonable time after the three-week reconsideration. Thus,
130 ABRvS, 14 Feb. 2008, LJN: BC4719.
131 ABRvS, 1 July 2009, LJN: BJ1600, para. 2.4.1: Zoals de Afdeling eerder heeft overwogen (...), is, omdat
bewaring krachtens artikel 59 van de Vw 2000 moet zijn gericht op uitzetting van de desbetreffende
vreemdeling, inbewaringstelling in strijd met die bepaling, indien zicht op uitzetting ontbreekt.; see also: ABRvS,
17 Dec. 2004, zaaknr.: 200409206/1; see also prior version of Implementation Guidelines: A6/5.3.1 and
A6/5.3.8.
132 ABRvS, 2 April 2007, LJN: BA2831.
133 ABRvS, 23 Jan. 2008, LJN: BC4384.
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detention after those three weeks was decided to be unlawful.134
The District Court
Rotterdam took the ‘view to expulsion’ as being explicit and concrete which is evident from a
case involving extension of stay of a foreign national in 2005. In the night from 26 to 27
October that year, the detention centre at Schiphol airport experienced severe damages
through fire, as a consequence of which the detainees were replaced in other facilities and
quesioned as part of the investigation. Among many others, the alien in question had
received a date of departure for early November prior to the fire, but this date was lifted due
to the opened investigation into the fire. The Court found that the view of expulsion lapsed
since the alien was kept longer in detention without having been given an alternative date of
expulsion in the near future. Since view to expulsion required the element of ‘reasonable
time’, this treatment was not considered lawful.135
Baudoin et. al. see a problem with Article 59.1.b with regard to Human Rights standards of
detention. In general, Article 59 needs the ‘view to expulsion’ as discussed above. However,
in case of subsection 1.b, aliens are already granted legal stay under some subsections of
Article 8 Vw prior to detention since they are awaiting a decision by the court on their
residence status. Once they become detainees under Article 59, this rightful stay lapses
which means that they have to leave the country.136
This lapse is only justified if detention is
lawful.137
The problem here is that the ‘view to expulsion’ arises as a consequence of
detention, and is not a justification to impose it in the first place. Baudoin et. al. raise the
point whether this is still in accordance with Article 5.1.f ECHR.138
The view to expulsion as a justification to detain is not automatically present when an alien’s
application for residency is rejected. In accordance with the EU Return Directive139
and
national law140
the alien has to be given the chance of voluntary departure. In a case before
the District Court ‘s-Hertogenbosch in 2001, an asylum seeker had received a rejection
134 Ibid.
135 Rb Rotterdam, 17 Nov. 2005, LJN: AU7340.
136 Tweede Kamer en Staten-Generaal. 1999-2000. Algehele herziening van de Vreemdelingenwet
(Vreemdelingenwet 2000). Tweede Nota van Wijziging. Kamerstuk 26 732, Nr. 44, p. 5.
137 ABRvS, 17 April 2003, LJN: AH9320.
138 Baudoin et. al. 2008. Vrijheidsontneming van vreemdelingen. 2nd ed. Sdu Uitgevers, den Haag, pp. 183f.
139 Supra note 56 Return Directive, Article 3.4 in conjunction with Article 7.1.
140 Article 62.1 AA; no information on this is provided in the amended Implementation Guildelines from 1 April
2013, in prior version: A4/3.1.
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concerning his application with the order to leave the Netherlands within 24 hours. However,
he was detained on the basis of Article 59.2 before the timespan provided for had lapsed.
The Court ruled that this detention was unlawful because there was no view to expulsion
given at the time. The justification to expel, so the Court argued, would only start if the alien
remained in the Netherlands after his mandatory date of departure had passed.141
Despite
this ruling, the District Court Haarlem came to a different conclusion only three days later in
a similar case.142
An immigrant had given wrong information about his age and his request
for asylum was subsequently rejected. He received an order to leave the country
immediately, within 24 hours. The Court ruled that in accordance with the law, the immigrant
was rightfully detained for reasons of public interest. According to the Court, the law allows
for the authorities to shorten or abandon a voluntary departure time frame in special
circumstances that always have to be reasoned on a case by case basis. Shortening or
abandoning a timeframe to a period of 24 hours equals zero days, so that the alien can be
detained immediately after receiving his order to leave. The fact that the immigrant in the
case lied about his age was sufficient to suspect that he would try to evade expulsion, which
justifids detention for reasons of public interest.
In 2001, the District Court Utrecht stressed that in accordance with the EU Return Directive
the alien has to be given a chance to leave voluntarily within seven to thirty days. Any
shortening or lifting of this deadline needs to be justified with regard to the facts of the
individual case and the date of departure must still be proportionate and suitable.143
Voluntary departure ceases to apply when the alien is detained on the grounds of national
security. In which case the threat for national security weighs heavier than the alien’s right to
voluntary departure.144
141 Rb ‘s-Hertogenbosch, 7 May 2001, LJN: ZA7046.
142 Rb Haarlem, 10 May 2001, LJN: AD6733; see also: ABRvS, 7 Feb. 2011, LJN: BP5114.
143 Rb Utrecht, 6 June 2011, LJN: BQ7242; see also: Rb Utrecht, 8 Nov. 2011, LJN: BU4116.
144 Rb Zutphen, 14 Dec. 2005, LJN: AU8217.
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3.4 Reasons for Detention
Detention on the basis of Article 59 AA always requires an official order that needs to be
reasoned, dated and signed in accordance with Article 5.3 AD.145
Article 59 contains two
reasons for detention, public interest and national security.
3.4.1 Public Interest
The Aliens Decree defines reasons of public interest as the risk that the alien will evade
surveillance or that the alien boycotts the preparation of departure or expulsion.146
Article
5.1.b AD lays out a non-exhaustive list of circumstances that may lead to the assumption that
the immigrant will evade surveillance. However, the presence of one of those circumstances
alone is not enough to detain an immigrant. The amended version of the Implementation
Guidelines states that two of these reasons justify the suspicion that the immigrant might
elude expulsion.147
However, in accordance with the case law, it has to be shown based on
the specific facts and circumstances of the case at hand that detention is necessary to
prevent elusion or circumvention of departure.148
Those specific reasons need to be present
in the order and may not be complemented or supplemented later, for example on the basis
of information obtained during the first interview.149
Reasons of public interest may already be fulfilled as a justification to detain in cases where
the alien omits from following specific provisions of immigration law that regulate his
presence in the Netherlands, such as registering with the authorities or reporting to the
Aliens Police frequently. Therefore, in 2002, the AJRDCoS ruled that a woman who entered
the Netherlands and did not register with the authorities within three days as required by
law, was rightfully detained on the basis of reasons of public interest. The fact that she was
unaware of this law was not of relevance.150
In 2006, the Council found that an alien who did
not comply with an order to leave and remained in the Netherlands beyond this date, could
145 ABRvS, 1 May 2002, LJN: AE3705.
146 Article 5.1.a.1 AD; See also prior version of IG: A6/5.3.3.1.
147 A3/3 IG.
148 ABRvS, 1 May 2002, LJN: AE3705.
149 ABRvS, 3 Feb. 2009, zaaknr.: 200900047/1.
150 ABRvS, 24 July 2002; LJN: AE8061.
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be detained on the basis of public interest.151
Furthermore, in 2008, the Council ruled that
the fact that an immigrant can name an address where he lives is not enough. In the case at
hand, an alien told the authorities that he stayed with his mother. However, he was not
registered with the municipality. Therefore, he could not prove that he had a fixed place to
live and could therefore be detained.152
Finally, in 2009, the AJRDCoS had before it a case in
which an immigrant was detained on the basis of boycotting the preparatory work for
departure. He damaged his finger tips to an extent that made it impossible to identify him by
analysing his fingerprints. The Council ruled that detention was lawful.153
Apart from this, it is
in principle sufficient to declare an alien “undesireable” (ongewenst) in order to justify
detention as a measure to protect reasons of public interest.154
As already explained above,
subsection 2 of Article 59 states that the (prospective) availability of travel documents
constitutes a reason of public interest valid to detain an alien.
When considering the necessity to detain an immigrant for reasons of public interest, special
regard has to be had to the specific facts and circumstances of the case at hand. In line with
this principle of weighing interests, in 2008, the Council found that pursuant to the UN
Refugee Convention Handbook it is not allowed to detain asylum seekers on the basis alone
that they travel without necessary documents.155
There is a need to give further case-based
reasons for detention. In the case at hand, the asylum seeker was not only unable to show a
proof of identity, but had applied for asylum in France before. Instead of waiting for the
outcome there, however, he had left. Thus, the AJRDCoS ruled that the authorities acted in
pursuit of public interest in detaining the immigrant because it was likely that he would try to
elude expulsion.
3.4.2 National Security
The second reason for detention in Article 59.1 is national security, such as espionage or
terrorist activities. The Implementation Guidelines explain, however, that this reason is rarely
used to detain immigrants.156
In any case, invoking reasons of national security requires a
151 ABRvS, 13 Jan. 2006, LJN: AU9837.
152 ABRvS, 29 Dec. 2008, LJN: BG9512.
153 ABRvS, 18 Nov. 2009, LJN: BK4688; see also: ABRvS, 9 Dec. 2009, LJN: BK6174.
154 ABRvS, 25 Jan. 2002, LJN: AE1108.
155 ABRvS, 22 July 2008, zaaknr.: 200804746/1.
156 see prior version of Implementation Guidelines A6/5.3.3.2.
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special authorization by the Minister as laid down in Article 48.2 AA.157
It important to note
that the risk of jeopardizing national security outweighs the imperative right in Article 59.3 of
the alien to voluntary departure. In 2005, the District Court Zutphen found that the alien’s
declaration that he wanted to leave and his possession of valid documents and sufficient
resources to actually pursue this endeavour could not be given priority over national
security. The Court ruled that there still remained a risk, due to the fact that the alien was
also declared undesireable, that he would try to abscond. Since he posed a threat to national
security, this risk could not be taken. Thus, his detention remained lawful.158
3.5 Authority to Detain
Article 59 AA as well as Article 1.3 AR state clearly that the Minister, meaning the Minister of
Justice, has the authority to order detention under Article 59. However, a close reading of
the case law and political documents shows that the authority concerned with immigration
detention is the State Secretary of Justice,159
who is responsible to the Minister.
Furthermore, detention may be invoked or lifted by officers responsible for border control or
surveillance of aliens, who are officers with the auhtority to investigate under the Minister of
Justice (hulpofficier van justitie).160
These include police officers under Article 2, a, c and d of
the Police Act, officers of the Royal Military Constabulary161
and officers directly authorized
by the Minister pursuant to Aricle 1.4 AD.
3.6 Duration of Detention
The duration of detention differs depending on what category the individual in detention
belongs to. For aliens detained under Article 59.1 subsection a, who have no right to lawfully
stay in the Netherlands, the statute does not provide for a maximum detention period.
However, their detention may last for six months in accordance with established case law.
157 A5/6.1 IG; Rb Zutphen, 23 Nov. 2005, LJN: AU8219.
158 Rb Zutphen, 14 Dec. 2005, LJN: AU8217.
159 “Staatssecretaris” can also be found to be translated into „deputy minister“ in international literature.
160 A1/2 IG; prior version IG: A6/5.3.2 Vc.
161 Article 47.1.a and b AA
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After those six months, the individual’s interest to be free from detention weighs heavier
than the authorities’ interest to expel the alien.
In a case before the District Court Dordrecht in 2007, an immigrant from Suriname appealed
against an extension of detention pursunat to Article 59 AA.162
The authorities reasoned this
extension by the fact that Suriname authorities only issue a re-entry permit after a
presentation of the alien in person. Presentation of up to four persons was only possible
every two weeks and the individual in question was placed as number 42 on the waiting list.
Upon that point in time, the alien had already been in detention for four months. The Court
estimated that the immigrant would have to wait for presentation for approximately five
months, plus additional time until the paperwork would be completed to make departure
possible. Thus, the Court found that there was no view to expulsion within a reasonable time
and that the detention had to be lifted in the interest of the immigrant.
Aliens detained under Article 59.1 subsection b or Article 59.2 have a statutory provision to
fall back on: They may only be detained for a maximum of four – and in some cases of six –
weeks before duration of detention becomes unlawful. In 2008, the AJRDCoS decided in a
case where the immigrant had been lawfully resident under Article 8 f AA awaiting the
decision on his appeal against the rejection of his asylum application. The decision took
longer than four weeks and the immigrant was let go, only to be re-detained a few weeks
later. This second time, the Council ruled, detention was unlawful from the start because the
law was very clear on the matter: It only allowed for a detention of four (or maximum of six)
weeks. Since the decision on the appeal had still not been taken, there was no reasonable
view to expulsion and detention was therefore unlawful.163
However, if the delay in time is due to the behavior of the alien, detention might take longer.
If, for example, the alien frustrates the facilitation of expulsion, the duration might be
extended.164
162 Rb Dordrecht, 27 Feb 2007, LJN: BA0563, para. 2.2: (…)Gelet op de duur van de onderhavige bewaring, thans
bijna vier maanden, de lange duur van de periode tot de presentatie, alsmede de omstandigheid dat de
eventuele afgifte van een laissez-passer ook enige tijd in beslag zal nemen (...)is de rechtbank van oordeel dat
zicht op uitzetting van eiser binnen een redelijke termijn ontbreekt, zodat geoordeeld dient te worden dat de
voortduring van de bewaring bij afweging van alle daarbij betrokken belangen in redelijkheid
ongerechtvaardigd is te achten. De bewaring dient derhalve te worden opgeheven.
163 ABRvS, 21 Nov. 2008, LJN: BG5680.
164 REK, 21 Aug. 1997, LJN: ZA3477; Tweede Kamer der Staten-Generaal. 2006-2007. Terugkeerbeleid.
Kamerstuk 29 344, Nr. 58, p. 18.
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The duration of transfer to the appropriate facility, e.g. the removal centre (uitzetcentrum) is
also part of the detention. Jurisprudence puts the maximum reasonable time for transfer at
ten hours. If this timespan is exceeded due to actions or omissions on part of the authorities,
they have to reason the longer period of transfer. However, as long as the time of transfer
stays within the 10-hour-limit, the Minister does not have to give a motivation for the
duration.165
Detention on the basis of Article 59 ends either with the execution of expulsion, or by a
judicial decision delcaring detention to be over, or because the reason for detention ceases
to exist, for example when the alien declares to want to leave the territory and when he has
the opportunity to do so as discussed above.
3.7 Due Process
Once the Minister, or the authorized officers, made the decision to impose detention on the
basis of Article 59, the individual subject to this measure will be heard in order to collect first
information on identity, nationality and personal circumstances. The process of expulsion is
managed at one of the removal centres (uitzetcentrum), to which the individual will be
transferred. Once the nationality and country of origin are clear, the authorities apply for a
re-entry permit with the authorities of the home country. The individual will be interviewed
again in view of departure and departure will be organized for a specific date and executed
with a ‘strong arm’, making sure that the individual leaves the Netherlands territory for sure.
During this process, the authorities concerned with detention with a view to expulsion on
the basis of Article 59 AA have an obligation to work with due diligence. While this is not a
statutory provision, case law grants the State Secretary 14 days to start preparatory work for
expulsion from the day the alien is placed in detention.166
However, these 14 days are not
granted as a matter of principle. Assessment of whether due process grants the full 14 days
depends on the facts and circumstances of each individual case.167
In 2009, the AJRDCoS
faced a case in which the immigrant in question had sufficient identification documents. The
Council found that since no time had to be spent on determining where the immigrant was
from and consequentially, where he could be sent back to, the authorities were expected to
165 ABRvS, 23. Jan. 2008, LJN: BC4384.
166 ABRvS, 29 Aug. 2007, LJN: BB3120.
167 ABRvS, 16 July 2007, LJN: BB1374.
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handle expulsion quicker than in cases where no identity documents were available.168
More
specifically, the jurisprudence chooses for a narrow interpretation of what includes action of
due process. In 2009, the Council ruled on two cases where the immigrant had been
transferred to a removal centre subsequent to detention and an application for a re-entry
permit had been filed with the competent authorities of the alien’s home country. While the
Council stated that these actions indicated that the preparatory work had been started, they
could not be seen as directly relevant to the expulsion of the alien and therefore did not
qualify as indications for due process. In constrast, the departure interview and the date on
which the actual departure was organized, by booking a flight ticket or a similar action, were
seen as directly relevant. In the wake of this determination, the AJRDCoS found the time
period of ten days between the start of the detention and the first relevant action taken by
the authorities in excess of the time allowed under due process.169
As stated above, the alien retains the duty, and therefore principle possibility, to leave the
country on his own. The Implementation Guidelines affirm that the International
Organization for Migration (IOM) may support the alien in his voluntary departure,170
a line
of action that would then run parallel to the preparatory work of the authorities for
expulsion of the immigrant. Therefore, action taken by the IOM cannot substitute for the
authorities’ obligation to prepare the expulsion of the alien.171
Furthermore, the alien’s
obligation to pursue his departure goes even further and contains the duty to cooperate with
the authorities in preparation of his expulsion. If he does not support this line of action, his
detention might be rightfully extended beyond the customary timespan.172
This extension
cannot be used to argue a violation of due process by the authorities.173
Next to the work of the IOM, another line of action might run parallel to the efforts of the
authorities to expel an alien, namely the assessment of an asylum request of the immigrant
168 ABRvS, 29 June 2009, LJN: BJ1619.
169 ABRvS, 28 Aug. 2009, LJN: BJ6909; see also: ABRvS, 29 Oct. 2009, LJN: BK2270.
170 A3/5 IG.
171 ABRvS, 22 Aug. 2007, LJN: BB2452; see also: ABRvS, 17 June 2009, LJN: BJ1651.
172 ARticle 59.6 AA: In derogation from subsection 5 but without prejudice to subsection 4, remand in custody
pursuant to subsection 1 may be extended by 12months at most, when the expulsion despite all reasonable
efforts may require more time on the grounds that the alien does not cooperate in his expulsion or that the
necessary documentation from 3rd
countries is still missing.; supra note 33 Kamerstuk 26 732, Nr. 3, p. 62.
173 ABRvS, 11 Dec. 2007, LJN: BC1070.
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in detention by the Immigration and Naturalization Service (IND). Immigrants may have
submitted this request before they became subject to detention or after they have been
subjected to measures under Article 59. If the latter is the case, the authorities have a duty
to provide aliens in detention with the opportunity to make such requests within a
reasonable time.174
. IN 2009, an immigrant required to file an applicaton for asylum but was
only granted this possibility after ten days. The AJRDCoS found that this was in excess of due
process.175
Moreover, the work of the IND on an asylum request is no excuse for the national
authorities to stay passive and wait for a result. They still have to take efforts toward
expulsion parallel to the asylum procedure.176
3.7.1 Interview
A cornerstone of due process under Article 59 is the interview upon start of detention. It is
important to note at this point that the interview before detention pursuant to Article 59 is
not equal to, and cannot be substituted for the interview during stop and search pursuant to
Article 50.177
Before being put in detention, the alien must be heard unless the interview
cannot take place at the destined moment but cannot be awaited because the immigrant
needs to be put into detention right away.178
If the alien cannot be interviewed before
detention, this part of the process has to be executed as soon as possible after detention
started.179
This exception may occur when an immigrant is transferred from a place of
criminal detention into immigration detention but the officer authorized to complete the
interview is unavailable at the time of arrival.180
Another example is the case before the
AJRDCoS in 2009, where an individual had to be brought to the hospital urgently. The officer
was unable to interview the alien in the hospital, so he was formally detained while still in
the hospital and later on interviewed.181
174 C1.2.1 IG; for details see prior version C11/2.1 IG.
175 ABRvS, 27 Feb. 2009, LJN: BH6168.
176 ABRvS, 22 Jan. 2008, LJN: BC2998.
177 ABRvS, 20 Feb. 2009, LJN: BH4680.
178 Art 5.2.2.b AD; see also prior version of IG: A6/5.3.4.1.
179 Art 5.2.3 AD, A5/6.4 IG.
180 ABRvS, 5 Oct. 2001, LJN: AD5956.
181 ABRvS, 28 May 2009, zaaknr.: 200901606/1.
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As already evident from the explanation above, only specifically authorized officers may
conduct the interview,182
which is often very short.183
The law does not give any specifics on
formal requirements on how to conduct the interview. It is clear, however, that the interview
is conducted in Dutch. The immigrant may be granted an interpreter if the need arises.
However, when the police report does not state that the individual had problems
understanding or expressing himself during the interview, the court is reluctant to find that
the interview was unlawful given later complaints by the immigrant concerning that
matter.184
While the interview is a mandatory part of the procedure when putting someone into
detention, it is not always necessary when an alien already in detention on grounds of a
provision under Article 59, shifts to a detention based on another provision under the same
article. If an immigrant originally detained under subsection 1.a (illegal) files an application
for a residence permit, he transitions into detention under subsection 1.b. Similarly, when
the court takes a negative decision on matters concerning a person detained under
subsection 1.b the alien awaiting this decision transits to subsection 1.a as illegally resident.
This change of caterogy does not require the orginial detention to be lifted, or a new
interview. The alien solely receives a new order stating the change of category.185
In
accordance with Article 5.3 AD, the new order must be dated, signed and reasoned. This
pragmatic procedure was adopted to ensure faster handling of cases. A change of categoy
within the subsection does not lead to a repetition of the detention procedure.186
In
contrast, when an alien that was detained under Article 59.1 is re-detained under Article
59.2 or vice versa, he has to be heard again.187
182 A5/6.4 IG.
183 Supra note 138, p.236.
184 ABRvS, 16 Jan. 2007, LJN: AZ7564.
185 No information on this is provided in the amended Implementation Guildelines from 1 April 2013, in prior
version: A6/5.3.4.4 IG; Staatssecretaris van Justitie. 2001. Tussentijds Bericht Vreemdelingencirculaire (TBV
2001/11). Staatscourant, Nr. 66, p. 9.
186 Besluit van 23 november 2000 tot uitvoering van de Vreemdelingenwet 2000 (Vreemdelingenbesluit 2000),
Staatsblad van het Koninkrijk der Nederlanden, 2000, Nr. 497, p. 204.
187 No information on this is provided in the amended Implementation Guildelines from 1 April 2013, in prior
version: A6/5.3.4.5 IG;
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3.7.2 Legal Representation
Article 5.2.5 AD guarantees the right of an alien to be informed about his right to legal
representation during the interview before detention on the basis of Article 59 within a
reasonable time. This is in great contrast to border detention pursuant to Article 6 AA, where
the alien has no right to this information or legal asisstance.188
The Implementation
Guidelines, prior to amendment this year, provided that the officer authorized to conduct the
interview has to ensure that the lawyer is informed on time, normally via a fax to the Legal
Aid Service (advocaatpiketdienst).189
When the alien wants a lawyer, the reasonable time
requirement imposes a waiting time of two hours after the Legal Aid Service has been
informed before the interview may commence – without a lawyer if the latter has not arrived
by then.190
The Implementation Guidelines prior to amendment explain that the officer may
postpone the interview when the Legal Aid Service is closed. However, this is not obligatory.
In 2007, the Legal Aid Service was closed but the officer still went ahead with the interview
after having waited for two hours. The AJRDCoS ruled that this was well within the law.191
While the authorities have to make sure that the right to legal representation is respected,
there are limits to the request of the immigrant. In 2011, the alien requested his lawyer, who
he had hired, to be present during the interrogation. However, the Legal Aid Service sent
someone else. The Disctrict Court of Zwolle found that the right to legal representation had
been sufficiently respected.192
The Legal Aid Service also needs to be informed when the alien does not wish to be
represented or advised during the interview. In a case before the AJRDCoS in 2009, the
officer had informed the Legal Aid Service that the immigrant did not want a lawyer and
interviewed him subsequently. Later, the Legal Aid Service informed the authorities that the
immigrant in question actually had hired a lawyer, who had made an agreement with his
client to be present at the interview. The Council decided that this fact was not sufficient to
prove that there was a miscommunication. Upon being informed of his right to a lawyer, the
188 See Chapter 2.
189 No information on this is provided in the amended Implementation Guildelines from 1 April 2013, in prior
version: A6/5.3.4.2 IG;
190 ABRvS, 16 July 2007, LJN: BB1374.
191 Ibid.
192 Rb Zwolle, 22 June 2011, Awb 11/19510, to be found in attachment to ABRvS, 1 July 2011, zaaknr.:
201107455/1/V3.
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alien had stated not to need one during the interview, so the prior agreement between him
and his lawyer did not make a difference with regard to the lawfulness of the interview.193
Regardless of whether the immigrant wants a lawyer during the interview or not, the
information sent to the Legal Aid Service needs to be clear and straightforward. If it cannot
be deduced from the officer’s communication whether a lawyer was required, the
subsequent interview renders the detention under Article 59 unjustified.194
When an
immigrant is unable to pay for the services of a lawyer, he can request legal aid pursuant to
Article 100 AA.
3.7.3 Consular Assistance
The Netherlands are party to the Vienna Convention on Consular Relations, in force since
1967, which obliges each Member State to facilitate communication between a foreign
national in detention and his home country’s consular post if he so requests.195
Similarly,
Article 5.5.2 subsection b of the Aliens Decree imposes the responsibility on part of the
authorities to inform the home state consular post as soon as possible of the foreign national
detained under Article 59.1. If these provisions are not follwed, this does not necessarily lead
to the detention being illegal. Instead, the court needs to weigh the interests protected with
the measure against the damage done to the individual rights in question.196
It is important
to note that it does not matter whether the immigrant undertook efforts to contact the
consular post on his own, since the responsibility rests with the authorities that put him in
detention.197
193 ABRvS, 27 July 2009, zaaknr.: 200904318/1/V3.
194 Rb Amsterdam, 27 Jan. 2005, LJN: AS9431.
195 Vienna Convention on Consular Relations, 1963, United Nations Treaty Series , vol. 596, p.261, Article
36.1.b: With a view to facilitating the exercise of consular functions relating to nationals of the sending
State:(…) (b) if he so requests, the competent authorities of the receiving State shall, without delay, inform
the consular post of the sending State if, within its consular district, a national of that State is arrested
or committed to prison or to custody pending trial or is detained in any other manner. Any communication
addressed to the consular post by the person arrested, in prison, custody or detention shall be forwarded by the
said authorities without delay. The said authorities shall inform the person concerned without delay of
his rights under this subparagraph;(…).
196 ABRvS, 10 Feb. 2009, LJN: BH4190; ABRvS, 18 Feb. 2009, zaaknr.: 200808871/1.
197 ABRvS, 3 Sept. 2009, LJN: BJ7536.
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3.7.4 Holidays
Another area of concern related to due process in Dutch immigration jurisprudence concerns
the problem of respecting public holidays that may collide with deadlines of procedure
attached to immigration detention under Article 59. While the Council of State found that it
cannot be expected that the authorities work the same pace on holidays as they do on work
days, they should take measures to circumvent delays due to blocks of holidays and bridge
days occurring in a row.198
However, a simple delay in procedure due to such a holiday block
is not in itself a violation of due process. Since due process is not a statutory obligation, it has
to be weighed against the interests served with this detention. In a case in 2008, the Council
argued that because the immigrant accepted the reasons for detention, a delay of eight days
in due process did not outweigh the public interest served by his detention and thus did not
find a violation of due process.199
3.8 Appeal/Access to Justice
The individual in detention pursuant to Article 59 may appeal against this measure at any
time on the basis of Article 94 AA in conjunction with Article 69.3 AA. The possibility for
higher appeal is given in Article 95 AA, which has a filing deadline of one week attached to
it.200
Appeal may be filed by the indivual himself, his lawyer or authorized representative.201
Next to that, the Minister has the obligation to inform the court on the detention of the
individual in question within 28 days, should the immigrant not have filed an appeal himself
already. This way, review to the measure of detention on the ground of Article 59 is
automatic in the Netherlands. The court has to hear the case within 14 days of the Minister‘s
notice or the appeal by the immigrant.202
If these 14 days are not respected, detention
becomes unlawful from the due date onwards and has to be lifted.203
198 ABRvS, 12 June 2008, LJN: BD5485.
199 ABRvS, 17 July 2008, LJN: BD9028.
200 ABRvS, 10 June 2002, LJN: AE6645.
201 Article 70 AA.
202 Article 94.1 AA.
203 Rb Zwolle, 28 Dec. 2000, LJN: AB0124.
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In contrast, there is not automatic continuous review of the appropriateness of ongoing
detention. However, the immigrant can file an appeal on the matter at any time. As discussed
above in the Due Process and the Duration sections, detention under Article 59 has to be
well-reasoned and is subject to the limit of six months for illegally resident aliens (to be
found in case law) and four to six weeks for aliens resident on the basis of Article 8
subsections f, g or h AA.
Detention also has an effect on the access to justice concerning decisions on lawful stay. As
has already been discussed above, aliens in principle have lawful stay pursuant to Article 8 f,
g or h when they are awaiting a decision on their request for a temporary or permanent
residence permit, or a decision on a subsequent appeal. A negative decision is by law only
enforced after the time for appeal has lapsed and the deicision becomes final in accordance
with Article 73.1 and Article 82.1 AA.
Nevertheless, the alien in question may be detained under subsection b of Article 59.1. In
case of detention, the suspensive effect in legal recourse is lost as laid down in Article 73.4
and Aritcle 82.44 AA.204
This is due to the fact the alien’s original grounds based on Article 8
f, g and h becomes invalid upon the commencement of detention pursuant to Articlel 59.
Thus, the alien is no longer lawfully resident in the Netherlands205
and may not await the
decision there.206
In consequence, the alien might be deported before a decision is reached
on his appeal.207
He is thereby prevented from effective access to justice. The only exception
to this might be granted by a judge through a provisional ruling. If the court upon request for
a provisional ruling determines that expulsion is halted, the individual in question may await
the decision on the residence application or the subsequent appeal in the Netherlands.208
3.9 Conditions of Detention
In contrast to places of border detention pursuant to Article 6 who are run under a specific
set of rules drawn up for this purpose, immigration detention pursuant to Article 59 adheres
204 ABRvS, 11 March 2013, LJN: BZ4428.
205 Rb Haarlem, 29 June 2004, LJN: AQ1614.
206 Rb ‘s-Hertogenbosch, 18 July 2003, LJN: AK3549.
207 See supra note 138, p. 222.
208 Rb Amsterdam, 28 Aug. 2008, LJN: BG3926; ABRvS, 10 June 2002, LJN: AE6645.
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to a particular version of the Dutch prison rules (Penitentiaire Beginselenwet),209
the
socalled regime ‘retricted community’ (regime beperkte gemeenschap),210
which does not
aim for rehabilitiation or reintegration of the detainees. The underlying rationale behind this
is the fact that immigration detention is an administrative measure, not a penal one, and that
this measure is taken with a view to expulsion, meaning that the detainees only stay for a
short while and will not require reintegration or education in order to fit into Dutch society
after they are released, such as criminal offenders. The National Ombudsman criticises this in
his report of August 2012. He argues that this rationale facilitates rules that are sometimes
stricter than those applied in criminal detention. Foreign nationals cannot work or take part
in educational programs, they are constantly under surveillance and have no privacy as they
share a 10m2 cell with another immigrant, in which they are locked up from 5 p.m. to 8 a.m.
every day.211
In his view, which is shared by non-governmental organizations such as Amnesty
International,212
a person who has done nothing wrong should not be subjected to this
regime of rules that does not even give the possibility to go outside into the yard whenever
one desires to.
During the day, detainees may freely move around in the common area of their sections.
These common areas include a library and a sports hall, visitation rooms and meeting rooms
for lawyers. Acitivities are organized for four hours per week, which is in line with the prison
rules.213
Some detention facilities are equipped for families which include rooms for creative
and game acitivities.214
However, for the same reason that adults to not receive training or
209 Penitentiaire Beginselenwet, 18 June 1998, BWBR0009709, retrieved on 1-5-2013 from
http://wetten.overheid.nl/BWBR0009709/geldigheidsdatum_01-05-2013.
210 Ibid Article 20.
211 De Nationale Ombudsman. 7 Aug. 2012. Vreemdelingenbewaring: strafregime of maatregel om uit te zetten.
Rapportnummer 2012/105, retrieved from www.nationaleombudsman.nl; Dienst Justitiële Inrichtingen,
Ministerie van Veiligheid en Justitie. Veiligheit en beveiliging, retrieved on 28-4-2013
http://www.dji.nl/Onderwerpen/Vreemdelingen-in-bewaring/Veiligheid-en-beveiliging/.
212 Amnesty International. November 2010. Vreemdelingen Detentie: In Strijd met Mensenrechten.
213 Supra note 211 Dienst Justitiële Inrichtingen, Ministerie van Veiligheid en Justitie. Veiligheit en beveiliging;
supra note 21.
214 Supra note 211 Dienst Justitiële Inrichtingen, Ministerie van Veiligheid en Justitie. Veiligheit en beveiliging.
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can work, children in detention do not receive a school education.215
Detainees are allowed
to receive visits for a limited amount of 2 hours per week, always under surveillance.216
In general, the Ombudsman criticizes that detainees are treated like criminals. Upon arrival,
their fingerprints are taken and they undergo a bodily check by two members of the centre’s
personnel. These checks can be repeated after every encounter with the outer world on part
of the detainee – and on account of the National Ombudsman this discretion is frequently
employed. Hence, after each time the detainee leaves the centre – for example to go to the
hospital or to a family occasion such as a wedding or a funeral – during which he is never left
unsupervised, he will be subjected to a bodily search upon return at the facility.
Furthermore, aliens may be checked after having received visitors inside the centre, despite
continued surveillance. As an illustration, parents are allowed to take their visiting children
under the age of four up on their laps. However, the report argues that the chance of being
searched after the visit is considerably higher when the detainee does this because it
increases the potential passing of forbidden objects from the visitor to the detainee.
Therefore, many detainees refrain from making physical contact with their children to not be
subjected to this humiliating search.217
In a reaction from September 2012 to questions from the 2nd
Chamber of Parliament
subsequent to the Ombudsman Report, the former Minister for Immigration, Integration and
Asylum, Mr. Leers,218
and State Secretary for Security and Justice, Mr. Teeven, explain that
the regime ‘restricted community’ is designed to fit the situation of immigrant detainees that
will leave the country in a matter of weeks or months and are therefore not subject to
ressocialization programs. The lack of these programs are compensated for through
alternative activity programs, however, there are no details on what kinds of acitivities those
are and when they are offered. The Minister stresses that the circumstances of detention are
not degrading in nature and that in fact they have recently been improved by doubling
215 Supra note 211 Ombudsman Report
216 Ibid.
217 Ibid.
218 This was a position under the first Rutte cabinet and its obligations lay now with the post of Minister of
Security and Justice under the second Rutte cabinet.
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visiting hours from one to two hours per week and by starting up two pilots where restricted
internet access is allowed in detention centres.219
3.9.1 Isolation
Foreign nationals in detention centres may be subjected to the disciplinary measure of being
placed in isolation for a maximum of 14 days. Isolation cells only contain a matress or sitting
cube. The use of those isolation cells has not been documented in the past. Recently,
however, the authorities started documenting the reason and the duration of isolation.220
In
2012, detention centres experienced an average of 75 isolations per month, adding up to
900 isloations per year distributed over 1230 detainees. The average duration of this
isolation was between six and seven days. Although the SP member Ms. Gesthuizen on the
Permanent Commission for Security and Justice during the recent general deliberation on
immigration detention expressed her concern that this practice of isloation was applied in a
far too lenient fashion, State Secretary of Security and Justice, Mr. Teeven, assured the
Commission that this measure adheres to the required norms and its application is in
principle proportional to the desired aims to maintain security for peer detainees and staff in
the centre. He admits however that the proportion of aliens serving isolation time is higher
than that of criminals due to the situation of high uncertainty and consequential tension
these individuls experience.221
3.9.2 Access to Health Care
Detainees under the Prison Rules have a right to medical care by professional personnel
within the facility.222
To this end, detention centres are equipped with medical staff
consisting of a common practitioner who is avaible daily from 10 a.m. to 5 p.m. and a nurse,
who stays on until 10 p.m. During the night, a doctor on call may be requested by the guards
if necessary. The medical staff circulates through the different sections of the detention
centre during the week so that detainees can walk in during the contact hours on the
respective day. When an individual needs medical attention outside these contact hours, he
has to request this via a card that he posts in a box in the common area of the section. Upon
219 Ministerie van Binnenlandse Zaken en Koninkrijksrelaties. 5 Sept. 2012. Beantwoording kamervragen met
kenmerk 2012 Z14 940, retrieved on 1-5-2013 from http://www.rijksoverheid.nl/documenten-en-
publicaties/kamerstukken/2012/09/05/beantwoording-kamervragen-over-vreemdelingenbewaring.html.
220 Supra note 211 Ombudsman Report.
221 Supra note 21.
222 Supra note 209, Article 42.
Immigration Detention in the Netherlands by Alexandra Brand
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London, UK, 2013
48
reception of this card, the nurse checks in with the detainee and determines whether the
doctor has to come. According to the Ombudsman Report, detainees that require care over a
longer period of time or who arrive with a condition that requires specific treatment, this is
often not or only poorly addressed during detention with consequential complications for
the detainee. When a person requires special treatment that can only be given in hospitals,
he has to wear handcuffs throughout this visit. Since this is experienced as degrading and
humiliating treatment, detainees often refrain from hospital visits which may worsen their
condition. When a detainee is released in the Netherlands because the view of expulsion
lapses, he is able to receive care in specific facilities for two more weeks. After that, he is on
his own, often with psychological problems worsened by the conditions of detention that
may lead to depression and tensions. 223
4 Conclusion
Dutch immigration law is part of Dutch administrative law and knows five rules to restrict an
alien’s freedom of movement, while four allow for the complete deprivation of an
immigrant’s liberty. The two main detention provisions currently employed by the Dutch
authorities constitute the measure of border detention under Article 6 subsection 1 and 2, as
well as immigration detention with a view to expulsion for reasons of public interest or
national security under Article 59 of the Dutch Aliens Act 2000. Border detention may be
imposed on aliens that have been rejected at the external borders of the Netherlands (equal
to the Schengen borders) in order to prevent them from illegal entry. Immigration detention
targets those immigrants who pose a risk to public interest or national security and who are
to be expelled. Aliens subjected to this measure are mostly illegally resident in the
Netherlands or are still awaiting a final decision on their residence status. Along other issues,
two major concerns have been outlined above which are brought to the fore especially by
organizations that support immigrants interests but also by the political opposition in the
country. The first concerns the problem that the system of immigration detention allows for
repeated detention without certainty to its duration. Immigrants are caught in the apparatus
and suffer from distortion of their daily rhythms and future prospects due to repeated
detention for timespans of several months. Aliens that cannot be expelled but equally do not
receive a residence permit are particularly affected by this as they remain illegally resident in
the Netherlands and have to fear for detention upon encounter with the police.
Furthermore, they lack any serious future prospects of being able to find employment and
make a meaningful life for themselves. The second concern became manifested in January
223 Supra note 211 Ombudsman Report, p. 30.
Immigration Detention in the Netherlands by Alexandra Brand
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49
2013 with a proposal by the government for an amendment of the Aliens Act 2000 to
criminalize illegal stay. Many fear that this will marginalize immigrants even more and will
lead to further unregistered immigration and an increase in criminal activity as illegal
immigrants will fear to be caught by the system for example through registering with an
employer or for health insurance.
Immigration Detention in the Netherlands by Alexandra Brand
for the Bingham Centre for the Rule of Law,
London, UK, 2013
50
5 Bibliography
5.1 Legislation
Algemene Wet Bestuursrecht, 1 Jan. 1994, BWBR0005537, retrieved on 28-4-2013 from
http://wetten.overheid.nl/BWBR0005537/volledig/geldigheidsdatum_28-04-2013;
Grondwet voor het Koninkrijk der Nederlanden van 24 augustus 1815, BWBR0001840,
retrieved on 28-4-2013 from
http://wetten.overheid.nl/BWBR0001840/geldigheidsdatum_28-04-2013;
Penitentiaire Beginselenwet, 18 June 1998, BWBR0009709, retrieved on 1-5-2013 from
http://wetten.overheid.nl/BWBR0009709/geldigheidsdatum_01-05-2013;
Reglement Regime Grenslogies, 1 April 1993, BWBR0005848, retrieved on 28-4-2013 from
http://wetten.overheid.nl/BWBR0005848/geldigheidsdatum_30-04-2013;
Voorschrift Vreemdelingen 2000, 1 Apil 2001, BWBR0012002, retrieved on 28-4-2013 from
http://wetten.overheid.nl/BWBR0012002/volledig/geldigheidsdatum_28-04-
2013#Opschrift;
Vreemdelingenbesluit 2000, 1 April 2001, BWBR0011825, retrieved on 28-4-2013 from
http://wetten.overheid.nl/BWBR0011825/volledig/geldigheidsdatum_28-04-
2013#Opschrift;
Vreemdelingencirculaire A 2000, 1 April 2001, BWBR0012287, retrieved on 28-4-2013 from
http://wetten.overheid.nl/BWBR0012287/geldigheidsdatum_28-04-2013;
Vreemdelingencirculaire B 2000, 1 April 2001, BWBR0012289, retrieved on 28-4-2013 from
http://wetten.overheid.nl/BWBR0012289/geldigheidsdatum_28-04-2013;
Vreedemlingencriculaire C 2000, 1 April 2001, BWBR0012288, retrieved on 28-4-20113 from
http://wetten.overheid.nl/BWBR0012288/geldigheidsdatum_28-04-2013;
Vreemdelingenwet 2000, 1 April 2001, BWBR0011823, retrieved on 28-4-2013 from
http://wetten.overheid.nl/BWBR0011823/geldigheidsdatum_28-04-2013.
Immigration Detention in the Netherlands by Alexandra Brand
for the Bingham Centre for the Rule of Law,
London, UK, 2013
51
5.2 Official Documents
Besluit van 23 november 2000 tot uitvoering van de Vreemdelingenwet 2000
(Vreemdelingenbesluit 2000), Staatsblad van het Koninkrijk der Nederlanden, 2000, Nr. 497;
De Nationale Ombudsman. 7 Aug. 2012. Vreemdelingenbewaring: strafregime of maatregel
om uit te zetten. Rapportnummer 2012/105, retrieved from www.nationaleombudsman.nl;
Dienst Justitiële Inrichtingen. Ministerie van Veiligheid en Justitie. Detentiecentrum Schiphol.
Retrieved on 28-4-2013 from http://www.dji.nl/Organisatie/Locaties/Detentiecentra-en-
uitzetcentra/Detentiecentrum-Noord-Holland/;
Dienst Justitiële Inrichtingen, Ministerie van Veiligheid en Justitie. Veiligheit en beveiliging.
Retrieved on 28-4-2013 http://www.dji.nl/Onderwerpen/Vreemdelingen-in-
bewaring/Veiligheid-en-beveiliging/;
Dienst Justitiële Inrichtingen, Ministerie van Veiligheid en Justitie. 2012.
Vreemdelingenbewaring in getal, 2007-2011, retrieved on 28-4-2013 from
http://www.dji.nl/Images/vreemdelingenbewaring-in-getal-2007-2011_tcm93-430853.pdf;
Immigratie- en Naturalisatiedienst, Ministerie van Veiligheid en Justitie. 2 April 2013. Het
Nederlandse vreemdelingenbeleid herschreven. Retrieved on 28-4-2013 from
http://www.ind.nl/Nieuws/Pages/HetNederlandsevreemdelingenbeleidherschreven.aspx;
Ministerie van Binnenlandse Zaken en Koninkrijksrelaties. 5 Sept. 2012. Beantwoording
kamervragen met kenmerk 2012 Z14 940, retrieved on 1-5-2013 from
http://www.rijksoverheid.nl/documenten-en-
publicaties/kamerstukken/2012/09/05/beantwoording-kamervragen-over-
vreemdelingenbewaring.html;
Ministerie van Veiligheid en Justitie. 19 Feb 2013. Anwoorden kamervragen over de oproep
van Vluchtelingenwerk Nederland om te stoppen met de grensdetentie van vluchtelingen.
Kenmerk 2013-0000002618, retrieved on 28-4-2013 from
http://www.rijksoverheid.nl/documenten-en-
publicaties/kamerstukken/2013/02/21/antwoorden-kamervragen-over-de-oproep-van-
vluchtenlingenwerk-nederland-om-te-stoppen-met-de-grensdetentie-van-
vluchtelingen.html;
Ministerie van Veiligheid en Justitie. 2013. Rapportage Vreemdelingenketen, Periode Januari
– December 2012, retrieved on 28-4-2013 from
Immigration Detention in the Netherlands by Alexandra Brand
for the Bingham Centre for the Rule of Law,
London, UK, 2013
52
http://www.dienstterugkeerenvertrek.nl/images/rapportage-vreemdelingenketen-januari-
december-2012_tcm66-495405.pdf;
Rijksoverheid. 17 Dec. 2012. Nieuw Justitieel Complex Schiphol in gebruik genomen.
Retrieved on 28-4-2013 from http://www.rijksoverheid.nl/nieuws/2012/12/17/nieuw-
justitieel-complex-schiphol-in-gebruik-genomen.html;
Staatssecretaris van Justitie. 2001. Tussentijds Bericht Vreemdelingencirculaire (TBV
2001/11). Staatscourant, Nr. 66;
Tweede Kamer en Staten-Generaal. 1998-1999. Algehele herziening van de
Vreemdelingenwet (Vreemdelingenwet 2000). Memoire van Toelichting. Kamerstuk 26 732,
Nr. 3;
Tweede Kamer en Staten-Generaal. 1999-2000. Algehele herziening van de
Vreemdelingenwet (Vreemdelingenwet 2000). Nota naar aanleiding van het verslag.
Kamerstuk 26 732, Nr. 7;
Tweede Kamer der Staten-Generaal. 1999-2000. Algehele herziening van de
Vreemdelingenwet (Vreemdelingenwet 2000). Kamerstuk 26 732, Nr. 12;
Tweede Kamer en Staten-Generaal. 1999-2000. Algehele herziening van de
Vreemdelingenwet (Vreemdelingenwet 2000). Tweede Nota van Wijziging. Kamerstuk 26
732, Nr. 44;
Tweede Kamer der Staaten Generaal. 2006-2007. Terugkeerbeleid. Verslag van een
schriftelijk overleg. Kamerstuk 29 344, Nr. 58;
Tweede Kamer der Staten-Generaal. 2012-2013. Wijziging van de Vreemdelingenwet 2000 in
verband met de strafbaarstelling van illegaal verblijf van vreemdelingen in Nederland.
Kamerstuk 33 512, Nr. 3;
Tweede Kamer der Staten-Generaal. 2012-2013. Wijziging van de Vreemdelingenwet 2000 in
verband met de strafbaarstelling van illegaal verblijf van vreemdelingen in Nederland.
Kamerstuk 33 512, Nr. 4;
Vaste Commissie voor Veiligheid en Justitie. 13 March 2013. Verslag van een algemeen
overleg, gehouden op woensdag 13 maart 2013, over Opvang, terugkeer en
vreemdelingenbewaring – Vreemdelingenbeleid. Retrieved on 28-4-2013 from
http://www.parlementairemonitor.nl/9353000/1/j9vvij5epmj1ey0/vj8c5lhaymzk#p1.
Immigration Detention in the Netherlands by Alexandra Brand
for the Bingham Centre for the Rule of Law,
London, UK, 2013
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5.3 Case Law
5.3.1 Administrative Judicial Review Division of the Council of State
ABRvS, 5 Sept. 2001, LJN: AD4502, zaaknr.: 200103358/1;
ABRvS, 5 Oct. 2001, LJN: AD5956;
ABRvS, 15 Nov. 2001, LJN: AH9538;
ABRvS, 25 Jan. 2002, LJN: AE1108;
ABRvS, 1 May 2002, LJN: AE3705;
ABRvS, 10 June 2002, LJN: AE6645;
ABRvS, 24 July 2002; LJN: AE8061;
ABRvS, 17 April 2003, LJN: AH9320;
ABRvS, 17 Dec. 2004, zaaknr.: 200409206/1;
ABRvS, 13 Jan. 2006, LJN: AU9837;
ABRvS, 16 Jan. 2007, LJN: AZ7564;
ABRvS, 2 April 2007, LJN: BA2831;
ABRvS, 16 July 2007, LJN: BB1374;
ABRvS, 17 July 2007, zaaknr.: 200703945/1;
ABRvS, 22 Aug. 2007, LJN: BB2452;
ABRvS, 29 Aug. 2007, LJN: BB3120;
ABRvS, 11 Dec. 2007, LJN: BC1070;
ABRvS, 21 Jan. 2008, zaaknr.: 200707652/1;
ABRvS, 22 Jan. 2008, LJN: BC2998;
ABRvS, 23 Jan. 2008, LJN: BC4384;
ABRvS, 14 Feb. 2008, LJN: BC4719;
Immigration Detention in the Netherlands by Alexandra Brand
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ABRvS, 12 June 2008, LJN: BD5485;
ABRvS, 16 June 2008, LJN: BD5536;
ABRvS, 17 July 2008, LJN: BD9028;
ABRvS, 22 July 2008, zaaknr.: 200804746/1;
ABRvS, 21 Nov. 2008, LJN: BG5680;
ABRvS, 29 Dec. 2008, LJN: BG9512;
ABRvS, 3 Feb. 2009, zaaknr.: 200900047/1;
ABRvS, 10 Feb. 2009, LJN: BH4190;
ABRvS, 18 Feb. 2009, zaaknr.: 200808871/1;
ABRvS, 20 Feb. 2009, LJN: BH4680;
ABRvS, 27 Feb. 2009, LJN: BH6168;
ABRvS, 23 March 2009, LJN: BH8487;
ABRvS, 28 May 2009, zaaknr.: 200901606/1;
ABRvS, 17 June 2009, LJN: BJ1651;
ABRvS, 29 June 2009, LJN: BJ1619;
ABRvS, 1 July 2009, LJN: BJ1600;
ABRvS, 20 July 2009, LJN: BJ3641;
ABRvS, 27 July 2009, zaaknr.: 200904318/1/V3;
ABRvS, 28 Aug. 2009, LJN: BJ6909;
ABRvS, 3 Sept. 2009, LJN: BJ7536;
ABRvS, 29 Oct. 2009, LJN: BK2270;
ABRvS, 17 Nov. 2009, LJN: BK6033;
ABRvS, 18 Nov. 2009, LJN: BK4688;
Immigration Detention in the Netherlands by Alexandra Brand
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London, UK, 2013
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ABRvS, 9 Dec. 2009, LJN: BK6174;
ABRvS, 7 Feb. 2011, LJN: BP5114;
ABRvS, 11 March 2013, LJN: BZ4428;
5.3.2 Hoge Raad / Supreme Court
REK, 21 Aug. 1997, LJN: ZA3477.
5.3.3 Rechtbank Amsterdam
Rb Amsterdam, 19 Feb. 2002, LJN: AE2024;
Rb Amsterdam, 25 Jan. 2005, LJN: AS9656;
Rb Amsterdam, 27 Jan. 2005, LJN: AS9431;
Rb Amsterdam, 8 Nov. 2005, LJN: AU7456;
Rb Amsterdam, 13 Juni 2006, LJN: AZ2577;
Rb Amsterdam, 22 Feb. 2007, LJN: BA1740;
Rb Amsterdam, 10 April 2008, LJN BD0607;
Rb Amsterdam, 28 Aug. 2008, LJN: BG3926;
Rb Amsterdam, 15 Dec. 2008, LJN: BG7919;
5.3.4 Rechtbank Dordrecht
Rb Dordrecht, 27 Feb 2007, LJN: BA0563;
5.3.5 Rechtbank Haarlem
Rb Haarlem, 19 Apirl 2000, LJN: AA5762;
Rb Haarlem, 26 Jan. 2001, LJN: AB0012;
Rb Haarlem, 10 May 2001, LJN: AD6733;
Rb Haarlem, 14 Sept. 2001, LJN: AD7285;
Rb Haarlem, 19 Aug. 2002, LJN; AE8447;
Immigration Detention in the Netherlands by Alexandra Brand
for the Bingham Centre for the Rule of Law,
London, UK, 2013
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Rb Haarlem, 16 Oct. 2002, LJN: AF2389;
Rb Haarlem, 23 Oct. 2002, LJN: AF2392;
Rb Haarlem, 30 Dec. 2003, LJN AO2652;
Rb Haarlem, 29 June 2004, LJN: AQ1614;
Rb Haarlem, 3 Dec. 2004, LJN: AR8529;
Rb Haarlem, 9 Nov. 2005, LJN: AU6550;
Rb Haarlem, 2 May 2006, LJN: AX3993;
Rb Haarlem, 1 April 2011, LJN: BQ020;
5.3.6 Rechtbank Rotterdam
Rb Rotterdam, 17 Nov. 2005, LJN: AU7340;
5.3.7 Rechtbank ‘s-Gravenhage
Rb ‘s-Gravenhage, 18 Nov. 2010, LJN: BO7499;
5.3.8 Rechtbank ‘s-Hertogenbosch
Rb ’s-Hertogenbosch, 19 April 2001, LJN: ZA7047;
Rb ‘s-Hertogenbosch, 7 May 2001, LJN: ZA7046;
Rb ‘s-Hertogenbosch, 18 July 2003, LJN: AK3549;
5.3.9 Rechtbank Utrecht
Rb Utrecht, 6 June 2011, LJN: BQ7242;
Rb Utrecht, 8 Nov. 2011, LJN: BU4116;
5.3.10 Rechtbank Zutphen
Rb Zutphen, 23 Nov. 2005, LJN: AU8219;
Rb Zutphen, 14 Dec. 2005, LJN: AU8217;
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London, UK, 2013
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5.3.11 Rechtbank Zwolle
Rb Zwolle, 28 Dec. 2000, LJN: AB0124;
Rb Zwolle, 22 June 2011, Awb 11/19510, to be found in attachment to ABRvS, 1 July 2011,
zaaknr.: 201107455/1/V3;
5.4 Scholars
Baudoin et. al. 2008. Vrijheidsontneming van vreemdelingen. 2nd ed. Sdu Uitgevers, den
Haag;
Kampstra, E.M. 2012. Kernzaken Staats- en bestuursrecht. Vreemdelingenrecht. Kluwer,
Deventer;
Kox, M. 2007: 48 Vreemdelingen. Utrecht, retrieved on 24-4-2013 from
http://www.schipholwakes.nl/achtergrondinformatie-schipholwakes.htm;
Taekema, S. 2011. Understanding Dutch Law. 2nd
ed. Eleven International Publishing, The
Hague.
5.5 Organizations and Institutions
Amnesty International. November 2010. Vreemdelingen Detentie: In Strijd met
Mensenrechten;
Humanist Association: Immigration Policy in the Netherlands is in violation of human rights.
Retrieved on 27-4-2013 from http://svj.hu.nl/mensenrechten/2013/04/14/humanist-
association-immigration-policy-in-the-netherlands-is-in-violation-of-human-rights/;
Kenniscentrum Commissie van Toezicht, Vreemdelingenbewaring, retrieved on 3-4-2013
from:
http://www.commissievantoezicht.nl/dossiers/vreemdelingenbewaring/vreemdelingenbewa
ring/;
VluchtelingenWerk Nederland. 27 Dec. 2012. Oproep VluchtelingenWerk: ‘Geen
vluchtelingen meer in de cel’. Retrieved on 28-4-2013 from
http://www.vluchtelingenwerk.nl/persberichten/geen-vluchtelingen-meer-in-de-cel.php.
Immigration Detention in the Netherlands by Alexandra Brand
for the Bingham Centre for the Rule of Law,
London, UK, 2013
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5.6 International Instruments
Convention for the Protection of Human Rights and Fundamental Freedoms, 3 Sept. 1953,
213 UNTS 221 [hereafter ECHR];
Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008
on common standards and procedures in Member States for returning illegally staying third-
country nationals, Official Journal of the European Union, L 348/98 of 24.12.2008 [hereafter:
Return Directive];
Regulation (EC) No 562/2006 of the European Parliament and of the Council, 15 March 2006
establishing a Community Code on the rules governing the movement of persons across
borders, Official Journal L 105/1 of 13-4-2006;
UNHCR. 2012. Detention Guildelines. Guidelines on the Applicable Criteria and Standards
relating to the Retrieved on 28-4-2013 from
http://www.unhcr.org/refworld/docid/503489533b8.html;
Vienna Convention on Consular Relations, 1963, United Nations Treaty Series 2005, vol. 596.
Immigration Detention in the Netherlands by Alexandra Brand
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6 Annex
Vreemdelingenwet 2000
Artikel 6:
1. De vreemdeling aan wie toegang is
geweigerd kan worden verplicht zich op te
houden in een door de ambtenaar belast met
grensbewaking aangewezen ruimte of plaats.
2. Een ruimte of plaats, bedoeld in het eerste
lid, kan worden beveiligd tegen ongeoorloofd
vertrek.
Artikel 55.1:
De vreemdeling die rechtmatig verblijf geniet
op grond van artikel 8, onder f, dient zich, in
verband met het onderzoek naar de
inwilligbaarheid van de aanvraag om een
verblijfsvergunning beschikbaar te houden op
een door Onze Minister aangewezen plaats,
overeenkomstig hem daartoe door de
bevoegde autoriteit gegeven aanwijzingen.
Aliens Act 2000
Article 6:
1. An alien who has been refused entry into
the Netherlands may be required to stay in a
space or place designated by a border control
officer.
2. A space or place, as referred to in subsection
1, may be secured against unauthorised
departure.
Article 55.1
An alien who is lawfully resident on the
grounds of section 8 (f)224
shall keep himself
available, in connection with the screening of
his application for a residence permit, at a
place designated by Our Minister in
accordance with the directions given to him by
the competent authority for this purpose.
224 Artikel 8(f): De vreemdeling heeft in Nederland
uitsluitend rechtmatig verblijf: in afwachting van
de beslissing op een aanvraag tot het verlenen van
de verblijfsvergunning, bedoeld in de artikelen 14
en 28, terwijl bij of krachtens deze wet dan wel op
grond van een rechterlijke beslissing uitzetting van
de aanvrager achterwege dient te blijven totdat op
de aanvraag is beslist; translation: (f) pending a
decision on an application for the issue of a
residence permit as referred to in sections 14 and
28 in circumstances where, by or pursuant to this
Act or on the ground of a judicial decision,
expulsion of the applicant should not take place
until the decision on the application has been
given;
Immigration Detention in the Netherlands by Alexandra Brand
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Artikel 56:
1. Overeenkomstig bij algemene maatregel
van bestuur te geven regels kan, indien het
belang van de openbare orde of de nationale
veiligheid zulks vordert, door Onze Minister de
vrijheid van beweging worden beperkt van de
vreemdeling die:
a. geen rechtmatig verblijf heeft;
b. rechtmatig verblijf heeft op grond
van artikel 8, met uitzondering van de
onderdelen b, d en e.
2. Toepassing van het eerste lid blijft
achterwege wanneer en wordt beëindigd
zodra de vreemdeling te kennen geeft
Nederland te willen verlaten en hiertoe voor
hem ook gelegenheid bestaat.
Article 56:
1. In accordance with rules issued by Order in
Council Our Minister may, for reasons of public
interest225
or national security, restrict the
freedom of movement of an alien who:
a. is not lawfully resident;
b. is lawfully resident on the grounds
of article 8, with the exception of b, d
and e;
2. If the alien has indicated that he wishes to
leave the Netherlands and also has the
opportunity to do so, subsection 1 shall not be
applied or, if already applied, shall cease to
apply as soon as such an indication is given.
225 Openbare orde can also be translated into
“public policy” or “public safety” (give sources!)
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Artikel 57:
1. Onze Minister kan de vreemdeling wiens
aanvraag om een verblijfsvergunning als
bedoeld in artikel 28 is afgewezen de
aanwijzing geven zich op te houden in een
bepaalde ruimte of op een bepaalde plaats en
aldaar de aanwijzingen van de bevoegde
autoriteit in acht te nemen, ook indien de
beschikking waarbij de aanvraag is afgewezen
nog niet onherroepelijk is dan wel het beroep
de werking van de beschikking opschort.
2. Op aanvraag van de vreemdeling kan een
andere ruimte of plaats worden aangewezen.
3. Een aanwijzing als bedoeld in het eerste lid
blijft achterwege indien de vrijheid van
beweging van de vreemdeling is beperkt in
verband met het onderzoek naar de aanvraag
om een verblijfsvergunning en de vreemdeling
zich daadwerkelijk beschikbaar heeft
gehouden en de beschikking tot afwijzing
meer dan acht weken na de indiening van de
aanvraag is gegeven.
4. De aanwijzing, bedoeld in het eerste lid,
vervalt indien de beschikking waarbij de
aanvraag is afgewezen is vernietigd of zodra
het vertrek van de vreemdeling uit de ruimte
of plaats nodig is om Nederland te verlaten.
5. De termijn, bedoeld in het derde lid, wordt
opgeschort gedurende de termijn waarin de
vreemdeling de beperking van zijn
bewegingsvrijheid niet in acht heeft genomen.
Artikel 58.1:
Indien zulks voor de uitzetting noodzakelijk is,
kan Onze Minister in het geval, bedoeld in
artikel 57, eerste lid, de vreemdeling een
ruimte of plaats aanwijzen, die is beveiligd
tegen ongeoorloofd vertrek.
Article 57:
1. Our Minister may give an alien whose
application for a residence permit as referred
to in Article 28 has been rejected a direction to
stay in a given space or at a given place and to
observe the directions of the competent
authority there, even if the decision rejecting
the application is not yet irrevocable or if the
application for review suspends the operation
of the decision.
2. Another space or place may be designated
at the request of the alien.
3. A direction as referred to in subsection 1
shall not be given if the freedom of movement
of the alien is restricted in connection with the
screening of his application for a residence
permit and the alien has actually kept himself
available and the decision to reject the
application was given more than eight weeks
after the submission of the application.
4. A direction as referred to in subsection 1
shall lapse if the decision in which the
application was rejected has been quashed or
as soon as the departure of the alien for the
space or place is necessary in order to leave
the Netherlands.
5. The time limit referred to in subsection 3
shall be suspended during any period in which
the alien has not complied with the restriction
on his freedom of movement.
Article 58.1:
In the case referred to in section 57, subsection
1, Our Minister may, if this is necessary for the
purpose of expulsion, designate for the alien a
space or place which is secured against
unauthorized departure.
Immigration Detention in the Netherlands by Alexandra Brand
for the Bingham Centre for the Rule of Law,
London, UK, 2013
62
Artikel 50:
1. De ambtenaren belast met de grensbewaking en
de ambtenaren belast met het toezicht op
vreemdelingen, zijn bevoegd, hetzij op grond van
feiten en omstandigheden die, naar objectieve
maatstaven gemeten, een redelijk vermoeden van
illegaal verblijf opleveren hetzij ter bestrijding van
illegaal verblijf na grensoverschrijding, personen
staande te houden ter vaststelling van hun
identiteit, nationaliteit en verblijfsrechtelijke
positie. Degene die stelt Nederlander te zijn, maar
dat niet kan aantonen, kan worden onderworpen
aan de dwangmiddelen als bedoeld in het tweede
en vijfde lid. Bij algemene maatregel van bestuur
worden de documenten aangewezen waarover
een vreemdeling moet beschikken ter vaststelling
van zijn identiteit, nationaliteit en
verblijfsrechtelijke positie.
2. Indien de identiteit van de staande gehouden
persoon niet onmiddellijk kan worden vastgesteld,
mag hij worden overgebracht naar een plaats
bestemd voor verhoor. Hij wordt aldaar niet langer
dan gedurende zes uren opgehouden, met dien
verstande, dat de tijd tussen middernacht en
negen uur voormiddags niet wordt meegerekend.
3. Indien de identiteit van de staande gehouden
persoon onmiddellijk kan worden vastgesteld en
indien blijkt dat deze persoon geen rechtmatig
verblijf geniet, dan wel niet onmiddellijk blijkt dat
hij rechtmatig verblijf heeft, mag hij worden
overgebracht naar een plaats bestemd voor
verhoor. Hij wordt aldaar niet langer dan
gedurende zes uren opgehouden, met dien
verstande, dat de tijd tussen middernacht en
negen uur voormiddags niet wordt meegerekend.
4. Indien nog grond bestaat voor het vermoeden
dat de opgehouden persoon geen rechtmatig
verblijf heeft, kan de in het tweede en derde lid
bepaalde termijn door de Commandant der
Koninklijke marechaussee respectievelijk door de
korpschef in het belang van het onderzoek met ten
hoogste acht en veertig uren worden verlengd.
5. De in het eerste lid bedoelde ambtenaren zijn
bevoegd de opgehouden persoon aan diens
kleding of lichaam te onderzoeken, alsmede zaken
van deze persoon te doorzoeken.
6. Bij algemene maatregel van bestuur worden
nadere regelen gegeven omtrent de toepassing
van de voorgaande leden van dit artikel.
Article 50:
1. The border control officers and aliens supervision
officers are authorised to stop persons in order to
check their identity, nationality and residence
status either because there is, on the basis of
objective criteria, a reasonable suspicion that such
persons are illegally resident or in order to prevent
illegal residence of persons after they have crossed
the border. A person who alleges that he has
Netherlands nationality but is unable to prove this
may be subjected to coercive measures as referred
to in subsections 2 and 5. The documents which an
alien must possess in order to establish his identity,
nationality and residence status shall be
designated by Order in Council.
2. If the identity of a person who has been stopped
cannot be immediately established, he may be
transferred to a place of interview. He shall not be
detained there for longer than six hours, for which
purpose, however, the period between midnight
and nine o’clock in the morning is not counted.
3. If the identity of a person who has been stopped
cannot be immediately established and if it
transpires that this person is not lawfully resident
in the Netherlands or it is not immediately
established that he is lawfully resident, he may be
transferred to a place of interview. He shall not be
detained there for longer than six hours, for which
purpose, however, the period between midnight
and nine o’clock in the morning is not counted.
4. If there is still a basis for the suspicion that the
detained person is not lawfully resident, the period
referred to in subsections 2 and 3 may be extended
for a maximum of forty-eight hours in the interests
of the investigation by the commander of the Royal
Netherlands Military Constabulary or, as the case
may be, the chief of police in the place where the
person is present.
5. The officials referred to in subsection 1 are
authorised to search the clothing and body of the
detained person and his belongings.
6. Further rules on the application of the above
subsections shall be laid down by Order in Council.
Immigration Detention in the Netherlands by Alexandra Brand
for the Bingham Centre for the Rule of Law,
London, UK, 2013
63
Artikel 59
1. Indien het belang van de openbare orde of de
nationale veiligheid zulks vordert kan, met het oog
op de uitzetting, door Onze Minister in bewaring
worden gesteld de vreemdeling die:
a. geen rechtmatig verblijf heeft;
b. die rechtmatig verblijf heeft op grond
van artikel 8, onder f, g en h.
2. Indien de voor de terugkeer van de vreemdeling
noodzakelijke bescheiden voorhanden zijn, dan wel
binnen korte termijn voorhanden zullen zijn, wordt
het belang van de openbare orde geacht de
bewaring van de vreemdeling te vorderen, tenzij
de vreemdeling rechtmatig verblijf heeft gehad op
grond van artikel 8, onder a tot en met e, en l.
3. Bewaring van een vreemdeling blijft achterwege
indien en wordt beëindigd zodra hij te kennen
geeft Nederland te willen verlaten en hiertoe voor
hem ook gelegenheid bestaat.
4. Bewaring krachtens het eerste lid, onder b, of
het tweede lid duurt in geen geval langer dan vier
weken. Indien voorafgaande aan de beslissing op
de aanvraag toepassing is gegeven aan artikel 39,
duurt de bewaring krachtens het eerste lid, onder
b, in geen geval langer dan zes weken.
5. Onverminderd het vierde lid duurt de bewaring
krachtens het eerste lid niet langer dan zes
maanden.
6. In afwijking van het vijfde lid en onverminderd
het vierde lid kan de bewaring krachtens het eerste
lid ten hoogste met nog eens twaalf maanden
worden verlengd, indien de uitzetting, alle
redelijke inspanningen ten spijt, wellicht meer tijd
zal vergen, op grond dat de vreemdeling niet
meewerkt aan zijn uitzetting of de daartoe
benodigde documentatie uit derde landen nog
ontbreekt.
7. Het vijfde en zesde lid zijn van overeenkomstige
toepassing op de vreemdeling aan wie de
verplichting of maatregel, bedoeld in artikel 6,
eerste of tweede lid, dan wel artikel 58 is
opgelegd.
Article 59
1. If necessary for reasons of public interest or
national security, Our Minister may, with a
view to expulsion, order the remand in custody
of an alien who:
a. is not lawfully resident;
b. is lawfully resident on the grounds
of article 8 subsection f,g and h.
2. If the papers necessary for the return of the
alien are available or will shortly become
available, it is deemed to be for reasons of
public interest that the alien be remanded in
custody, unless the alien has been lawfully
resident on the grounds of article 8 subsection
a- e and l.
3. An alien shall not be remanded in custody or
the remand shall be ended as soon as the alien
has indicated that he wishes to leave the
Netherlands and also has the opportunity to
do so.
4. Remand in custody pursuant to subsection 1
b or subsection 2 shall in any event last for no
longer than four weeks. If article 39 has been
applied prior to the decision on the
application, the remand in custody pursuant
to subsection 1 b shall in any event not exceed
six weeks.
5. Without prejudice to subsection 4, remand
in custordy pursuant to subsection 1 shall not
exceed six months.
6. In derogation from subsection 5 but without
prejudice to subsection 4, remand in custody
pursuant to subsection 1 may be extended by
12months at most, when the expulsion despite
all reasonable efforts may require more time
on the grounds that the alien does not
cooperate in his expulsion or that the
necessary documentation from 3rd
countries is
still missing.
7. Subsections 5 and 6 apply mutatis mutandis
to aliens on whom are imposed Article 6
subsection 1 or 2, or Article 58.
Immigration Detention in the Netherlands by Alexandra Brand
for the Bingham Centre for the Rule of Law,
London, UK, 2013
64
Artikel 48
1. De korpschef en de Commandant der
Koninklijke marechaussee geven Onze
Minister door hem gevraagde inlichtingen
over de uitvoering van deze wet en van de
Schengengrenscode.
2. Onze Minister kan aan de korpschef en
aan de Commandant der Koninklijke
marechaussee aanwijzingen geven over de
uitvoering van deze wet en van de
Schengengrenscode. Onze Minister kan
individuele aanwijzingen geven aan de
ambtenaren, bedoeld in artikel 47, eerste
lid.
3. Onze Minister kan aanwijzingen geven
over de inrichting van de werkprocessen
en bedrijfsvoering aan:
a. de korpschef, door tussenkomst van
Onze Minister van Veiligheid en
Justitie;
b. de Commandant der Koninklijke
marechaussee, door tussenkomst van
de Minister van Defensie.
4. Bij algemene maatregel van bestuur
kunnen nadere regels worden gesteld
over het eerste, tweede en derde lid.
Article 48
1. The chief of police and the commander of
the Royal Netherlands Military
Constabulary shall furnish Our Minister
with the information requested by him
about the implementation of this Act and
of the Schengen Borders Code.
2. Our Minister may issue directions to the
chief of police and the commander of the
Royal Netherlands Military Constabulary
about the implementation of this Act and
of the Schengen Borders Code. Our
Minister may issue individual directions to
the officials referred to in section 47,
subsection 1.
3. Our Minister may issue directions about
the organisation of the job procedures and
mode of operation to:
(a) the chief of police, through the
intermediary of the Minister of
Security and Justice;
(b) the commander of the Royal
Netherlands Military Constabulary
through the intermediary of the
Minister of Defence.
4. Further rules may be laid down by Order in
Council regarding paragraphs 1, 2 and 3.
Immigration Detention in the Netherlands by Alexandra Brand
for the Bingham Centre for the Rule of Law,
London, UK, 2013
65
Artikel 3
1. In andere dan de in de Schengen
grenscode geregelde gevallen, wordt
toegang tot Nederland geweigerd aan de
vreemdeling die:
a. niet in het bezit is van een geldig
document voor
grensoverschrijding, dan wel in
het bezit is van een document
voor grensoverschrijding waarin
het benodigde visum ontbreekt;
b. een gevaar oplevert voor de
openbare orde of nationale
veiligheid;
c. niet beschikt over voldoende
middelen om te voorzien zowel in
de kosten van verblijf in
Nederland als in die van zijn reis
naar een plaats buiten Nederland
waar zijn toegang gewaarborgd is,
of
d. niet voldoet aan de voorwaarden
die bij of krachtens algemene
maatregel van bestuur zijn
gesteld.
2. Bij of krachtens algemene maatregel van
bestuur worden regels gesteld over de
weigering van toegang op grond van deze
wet of ter uitvoering van de
Schengengrenscode.
3. De ambtenaren belast met de
grensbewaking weigeren niet dan
ingevolge een bijzondere aanwijzing van
Onze Minister de toegang aan de
vreemdeling die te kennen geeft dat hij
asiel wenst.
Article 3
1. Entry into the Netherlands shall be
refused, in cases different from those in
the Schengen Borders Code, to an alien
who:
a. is not in possession of a valid
travel document or is in possession
of a valid travel document in
which the requisite visa is missing;
b. (b) constitutes a serious threat to
public order (ordre public) or
national security;
c. (c) does not have sufficient means
to defray both the costs of his stay
in the Netherlands and the costs of
his journey to a place outside the
Netherlands where his entry is
guaranteed, or
d. (d) does not fulfil the conditions
laid down by or pursuant to Order
in Council.
2. Rules concerning the refusal of entry on
the basis of this law or through
implementation of the Schengen Borders
Code shall be laid down by or pursuant to
Order in Council.
3. The border control officers shall not, save
in accordance with a special direction
issued by Our Minister, refuse entry into
the Netherlands to an alien who indicates
that he wishes to have asylum.