The Dublin procedure (track 1)
The Netherlands has signed the Dublin Convention, which states that asylum seekers may only apply for asylum in one country. This rule does not apply to children.
Before evaluating the asylum application, the INS will determine which European Member State is responsible for the asylum application. For example, if an grown up asylum seeker has already applied for asylum in Italy before travelling to the Netherlands, the Netherlands will in this case hold Italy responsible for examining the asylum application of the asylum seeker. The Dublin Convention also applies, if the INS can prove that the asylum seeker traveled through another country which also singed the Dublin Convention before he or she came to the Netherlands. Furthermore, under certain circumstances, the Dublin Convention applies to situations in which another European Member State issued a visa. In all these situations, the INS will request the other Member State to take over the asylum application.
The asylum seeker to whom the Dublin Convention applies will be interviewed by the INS in the Netherlands. This interview will, however, not deal with his or her reasons to flee his or her country of origin. The central question in the Dublin procedure is why the asylum seeker cannot return to the country that is, according to the Dublin Convention, responsible for examining the asylum application. During the interview by the INS, the asylum seeker is generally only asked why he or she does not want to go back to the country that is responsible for the asylum application.
The Dublin procedure differs from the general asylum procedure. For example, the Dublin procedure does not have a period of rest and preparation. This means, among other things, that the asylum seeker is not informed beforehand, that the asylum seeker does not get the opportunity to talk to attorney beforehand and that no medical examination takes place.
The preliminary decision to not examine the asylum application
If the INS shares the opinion that another Member State is responsible for examining the asylum application, the INS will express her intention not to examine the asylum application. This preliminary decision will be issued or sent to the asylum seeker. Most of the time this is the moment an attorney is being appointed.
In the meantime, the INS sends a take back request the Member State responsible for the asylum claim.
The so-called zienswijze
Together with the attorney it is possible to inform the INS about the errors and additions with regard to the interview. Moreover a so-called zienswijze will be drawn up. The zienswijze is the asylum seeker's reaction to the preliminary decision, more specific the reasons why he or she disagrees with the preliminary decision. The zienswijze has to be ready within two weeks after the preliminary decision.
The decision of the INS
If the zienswijze does not lead to a different decision as the preliminary decision, the INS will not examine the asylum application because another Member State is responsible. One of the automatic consequences of this is that the asylum seeker has to leave the Netherlands within four weeks. If he or she does not leave the Netherlands in time, he or she may be deported to the Member State responsible. The asylum seeker will have lawful residence and the right to shelter in the Netherlands until the actual transfer to the responsible Member State..
Appeal procedure in court
The asylum seeker can lodge an appeal against the decision of the INS. The period for lodging an appeal is one week. The asylum seeker in not allowed to stay in the Netherlands during the appeal procedure. It is therefore necessary that the attorney does not only lodge an appeal, but also requests the court for a preliminary injunction, which entails a request that the asylum seeker may stay in the Netherlands till the court reached a decision in the appeal procedure. The court will reach a decision within four weeks after the appeal has been lodged.
The Afdeling Bestuursrechtspraak van de Raad van State (ABRvS)
The asylum seeker can lodge an appeal against the court's decision at the so-called Afdeling Bestuursrechtspraak van de Raad van State (ABRvS). Since the asylum seeker cannot stay lawfully in Netherlands during the procedure, the attorney must request a preliminary injunction.
European Court of Human Rights (ECHR)
If the asylum seeker believes that the transfer to the Member State responsible will lead to a violation of Article 3 ECHR - prohibition of inhumane treatment - he or she can lodge a complaint with the European Court of Human Rights. Since a transfer to the Member State responsible is possible as long as no interim measure has been taken by the judge of the Afdeling Bestuursrechtspraak van de Raad van State, an early decision is necessary. The asylum seeker can request the ECtHR, through his or her attorney, to take a provisional measure.
When will there be no transfer?
A transfer to the Member State responsible for the asylum application may not take place if there are serious concerns that the asylum procedure and shelter conditions for asylum seekers in that Member State show systemic flaws resulting in inhuman or degrading treatment within the meaning of Article 3 ECHR and Article 4 of the EU Charter of Fundamental Rights. These provisions are identical and prohibit deportation to a country where a person faces a real risk of torture or inhuman or degrading treatment or punishment.
In principle, the INS may rely on the so-called interstate principle of the protection of legitimate expectations. In other words, it is assumed that in all other Member States, the substantive assessment of asylum applications, the quality of the asylum procedure, and shelter, living and detention conditions meet the standards laid down in the applicable directives. It is also assumed that no Member State will deport an asylum seeker to a country where he or she has a well-founded fear of inhumane treatment.
But: this interstate principle of legitimate expectation is rebuttable. The burden of proof falls on the shoulders of the asylum seeker.
An asylum seeker can also ask the INS to make an exception in his or her case and examine his asylum application, even if the INS is not obliged to do so on the basis of the criteria of the Dublin Convention. This is possible because the State Secretary has a discretionary power on the basis of which he can decide to examine an asylum application without being obliged to do so.
The current policy states that the State Secretary should be reluctant with regard to using the power to examine an asylum application on the basis of Article 17 of the Dublin Convention. The policy also lists a number of situation that justify the use of the discretionary power, namely:
- there are concrete indications that the Member State responsible is not complying with its international obligations;
- special, individual circumstances render the transfer of the foreigner to the Member State responsible disproportionate; or
- if in the opinion of the INS there are reasons of efficiency. In particular when the foreign national comes from a safe country of origin, and return to the country of origin is guaranteed in the foreseeable future after the asylum application has been processed.
Medical situation as an objection to a transfer
If there is a chance that the transfer of an asylum seeker with a particularly poor state of health would represent a real and proven risk of a significant and irreversible deterioration in his or her health, there could be a violation of Article 4 of the EU Charter of Fundamental Rights. This is what the European Court of Justice ruled in C.K. and others v. Slovenia on 16 February 2017. If the Member State responsible for the transfer shares the opinion that the state of health will not improve on short notice or that it could deteriorate as a result of a prolonged suspension of the transfer, the Member State can make use of the discretionary power.
The transfer period
Six months after the Member State received the so-called claimakkoord, or within six months after the decision the court in the appeal procedure, if there was an preliminary injunction, the asylum seeker should be transferred to the Member State responsible.
If the transfer does not take place within this period, the obligation for the Member State responsible will lapse.
Note: The six-month transfer period may be extended to a maximum of eighteen months if the asylum seeker has gone into hiding. In this case, the transferring Member State should inform the Member State responsible before the expiry of the six-month period. A consequence of not informing the Member State responsible on time is that the transferring Member State will be responsible for reviewing on substantive grounds the asylum application.
From Dublin procedure to the General Asylum Procedure
If, during the Dublin procedure, it turns out that the Netherlands is responsible for examining the asylum application, the examination of the asylum application will continue in General Asylum Procedure. Think of the situation in which it turns out that there are no concrete grounds for a Dublin claim after all or if the requested Member State has rejected the claim. In that case, the asylum seeker is transferred from the AZC to a POL. If the asylum seeker has not (yet) completed a (full) period of rest and preparation, this will be the first step. The decision period of six months will only commence once it has been established that the Netherlands is responsible for the processing of the asylum application.