Changes brought about by the new Aliens Act:
On the first of April 2001, the new Aliens Act (Act
2000) came into force. The new Act is supposed to accelerate and simplify the
asylum procedure. This summary briefly mentions some of the more important
changes.
Division between regular aliens and asylum seekers:
The procedures of "regular aliens" (aliens
applying for permission to stay on other than asylum (-related) motives) and of
asylum seekers are strictly divided. Arguments for a regular status cannot be
used in the asylum procedure. Also, an alien already in possession of or in
procedure for a regular status will face non-admissibility in a request for
asylum.
Only one status left:
Under the old Act, there were many different statuses.
To stop asylum seekers who had been granted one status from appealing for a
better one, this system has been abandoned. The new Act leaves only one permit
to be obtained, although the grounds on which asylum seekers can be admitted to
the Netherlands remain the same as under the old Aliens Act. Asylum can thus be
granted to people that are refugees according to the definition in section 1A
of the Treaty, but also to traumatised people, or those coming from a country
to which repatriation would be unduly harsh because of the general situation.
Regarding the rights derived from the permit, nearly all differences have been
removed, giving all asylum seekers with an asylum-permit the rights formerly
reserved only for those who had been granted refugee-status. This leaves the
asylum seeker no interest as such recognised by the judges, leading to a
non-admissibility should he try to appeal to the court. At least, this is how
it works in theory. There is at this moment no jurisprudence yet on this
matter.
The asylum-permit comes in two varieties, the
"permit for limited time asylum" and the "permit for unlimited
time asylum". If an asylum seeker gets a permit for limited time asylum, a
"permit for unlimited time asylum" can be requested when three years
have elapsed and no grounds have occurred that should lead to withdrawal of the
permit. The limited time-variety can be withdrawn during its term of validity
or when the request for an unlimited time-permit is under consideration. This
can be done for a number of general reasons, like fraud, or specific reasons
depending on the ground on which the permit has been granted. The permit for
unlimited time can still be withdrawn, but the number of grounds on which this
can be done has been restricted.
Procedural aspects:
An aspect that caused considerable resistance was the
introduction of the decision-moratorium. It gives the Immigration Service (IND)
the possibility to freeze decision-making in the procedures of a certain group
of asylum seekers for the period of one year. A moratorium can for example be
installed during a mass-influx of asylum seekers from a certain country, or
during a period when it is unclear how the situation in a country will
develop.
Also much debated was the exclusion of administrative
appeal in asylum cases. To ease the pain, a so-called
"intention-procedure" has been introduced. The IND will formulate an
intended decision to which the asylum seeker can respond before the actual
decision is taken. The time for this response is very limited, in the
accelerated procedure only three hours. If the decision is a negative one, the
asylum seeker must appeal directly to the court. The court will use an ex nunc
test of the relevant facts brought before it. This could result in the
nullification of a well made decision at the time of it's making in case new
facts come to light.
Both the IND and the asylum seeker can appeal to a
higher court (the Council of State). The access to this court is not open in
all cases and the procedure before it has been restricted. For example, the
Council can declare an appeal unfounded without motivation if it wants to and
the procedure is in all cases an accelerated one. The Council of State uses an
ex tunc-test.
The more-enclosing decision:
Because of, again, the wish to speed up the procedure
in asylum-cases the phenomenon "more-enclosing decision" has been
introduced. A negative decision under the Act 2000 now serves many needs. When
the term of four weeks during which the rejected asylum seeker is supposed to
leave the country has elapsed, he is illegally residing in the Netherlands
because of the negative decision. Furthermore, based on such a decision, the
rejected asylum seeker can be evicted from his residence, the residence can be
cleared and officers responsible for supervision of foreigners can enter any
place to execute repatriation.
Safe (third) country concept:
Several ways of applying the safe third country
concept to refuse asylum have been used in the new Act. The first is of course
on the ground of another state's responsibility because of the Dublin
Agreement. In case of another treaty between the Netherlands and any country of
former residence on basis of which the asylum seeker can be transferred to that
country, the request for asylum will always be denied if that country is a
party to the Refugee Convention, the International Covenant on Civil and
Political Rights, the Convention against Torture or when that country has
otherwise undertaken to respect the relevant sections of these treaties that prohibit
refoulement. If the asylum seeker has stayed for a while in a country that
fulfils the criteria mentioned above, but the Netherlands has no treaty with
this country, this can still be a reason to deny asylum. Regarding those whose
return to their country would be unduly harsh because of the general situation,
a short stay in a third country can be a ground for denial of the permit if the
asylum seeker had or could have had protection in this country and if actual
re-admittance to this country can be assumed.
The safe country concept can be the basis for a
negative decision if the country that the asylum seeker has fled from is a
party to the Refugee Treaty and the International Covenant on Civil and
Political Rights or the Convention against Torture. The asylum seeker can try
to show that in his case the said country does not comply with its obligations
under these treaties.