In a report on his visit to the Netherlands in May 2014, the Council of Europe Commissioner for Human Rights, Nils Muižnieks, has expressed concern regarding the extensive use of detention of asylum seekers and migrants at the border. Current practice shows that in the Netherlands all asylum seekers who arrive at external borders are systematically detained for a period of up to 14 days, during which their asylum claim is processed. At the time of the Commissioner’s visit children were also detained at the border but this is no longer the case. Since September 2014, children are immediately transferred to an open reception centre.
The report notes that unaccompanied children are still detained pending deportation despite a change in policy in 2011 according to which detention should be a measure of last resort and for the shortest appropriate time. In practice, a number of grounds for detention remain, i.e. when the child is suspected of or convicted for having committed a crime; when it is expected that the child can be returned within two weeks; or when the child has previously left a reception facility without informing the authorities of their destination or has not complied with an imposed duty to check in or with a measure restricting their freedom.
The Commissioner urges the Dutch government to ensure that detention of asylum seekers and immigrants is in practice used as a measure of last resort, for the shortest possible period of time and when no effective alternative is applicable. Asylum seekers and migrants in particularly vulnerable situations must not be detained under any circumstances.
Finally, the Commissioner further calls on the Dutch authorities not to detain foreigners who cannot be returned as this raises questions of compatibility with the European Court of Human Rights’ case law (see for instance Louled Massoud v. Malta) and could be considered arbitrary. The Commissioner acknowledges the steps taken to grant residence permits to some of the persons who cannot be returned and to child asylum seekers whose applications were rejected but who have been living in the country for a certain period of time and invites the Dutch authorities to ease the restrictive conditions applying to these schemes.
This article originally appeared in the ECRE Weekly Bulletin of 24 October 2014. You can subscribe to the Weekly Bulletin here.