Temporary custody is imposed by the INS, the Royal Netherlands Marechaussee, the Repatriation & Departure Service and the Immigration Police for the (sole) purpose of returning illegally staying foreigners to their country of origin or the country in which they do have lawful residence. Temporary custody is not a punishment, but is experienced as such by the foreign national. He or she is placed in a closed institution for this purpose - a detention centre. Temporary custody may not be carried out in a prison.

It is a very heavy measure, which the INS only can use as a last resort. The main rule is that illegally staying foreign nationals must first be given the opportunity to leave the Netherlands of their own.

Appeal against the imposition of temporary custody

Temporary custody is a serious measure that should only be imposed as a last resort. The imposition of this measure can be appealed.

Within our office we have the expertise to lodge such an appeal. Since the foreign national is detained, there are no costs involved for the foreign national.

Only in the case of a first appeal, thus shortly after the foreign national has been detained, will the court assess whether the measure of temporary custody has been imposed in a careful and correct manner. The court assesses whether a less severe remedy, such as an obligation to report, was an option. The court also examines whether the INS has done enough to deport the foreign national. The court also assesses whether there is a real possibility of deporting the foreign national (prospect of deportation).

If the court declares the appeal well-founded and orders the lifting of the measure of temporary custody, the court may also award damages for the time that the foreign national has been unlawfully detained.

If the court declares the first appeal unfounded, the second appeal can only complain about the fact that the INS did not act with the necessary promptness and diligence and the prospect of deportation. The court also weighs up the interests, especially if the detention period is longer. In principle, the maximum duration of temporary custody is six months. In special cases, e.g. in the case of the aactive obstruction of deportation the maximum duration is eighteen months.

It is therefore clear that it is the first appeal that offers the most opportunities. It is therefore advisable to contact us (or have us contact you) as soon as possible.

Prevent temporary custody

You can take some aspects into account to prevent temporary custody, namely:

• Strictly adhere to agreements with the INS and the Repatriation and Departure Service. Comply with an imposed duty to report and report (preferably in advance) when circumstances prevent you from complying with your duty to report.
• Contact the International Organisation for Migration (IOM). This organisation, which is part of the United Nations, is independent of the INS and can help foreign nationals return to their country of origin.
• Do not cross borders. Crossing borders increases the chance that the authority will check your personal details. A trip from the Netherlands or a trip to the Netherlands without the proper papers, such as a passport, or without a residence permit may be a reason to place someone in temporary custody.
• Get your own passport. If you do not want to run the risk of staying (unnecessarily) long in temporary custody because a laissez-passer procedure can take a long time, make sure you have a valid passport. If family or friends bring the passport and a ticket to the Repatriation & Departure Service or the Immigration Police, there is a good chance that you will be released on condition that you use the ticket. The passport will often be sent to the Royal Marechaussee at Schiphol Airport or Eindhoven Airport.