ADVICE: CROSSING THE BORDER (Border detention of asylum seekers in the light of human rights standards )

Foreign nationals who enter the Netherlands through an airport or seaport and do not have
the correct travel documents or sufficient means of support are not granted access to the
Netherlands. Some of these refused foreign nationals are asylum seekers who ask for
protection in the Netherlands. This study refers to this group of asylum seekers. In order to
avoid that they enter the Netherlands further asylum seekers are detained in the Schiphol
Criminal Justice Complex, the so-called border detention. The Netherlands Institute for
Human Rights has investigated how the detention of these asylum seekers relates to human
rights standards.

Under certain conditions the Netherlands has the power to limit the freedom of foreign
nationals in the context of migration. However, this power is restricted to human rights
standards. It follows from these standards that a country may only detain asylum seekers if
there are no other, less drastic means and detention is absolutely necessary. In practice all
asylum seekers who ask for protection at the border are standard detained by the
Netherlands and there is no weighing of interests before the detention measure is
imposed. As a result the human rights of these asylum seekers, such as the right of
freedom and the right of protection, are at stake.

The state secretary for Security and Justice states that border detention is necessary. In
the first place because the Netherlands has to guard the external border of the Schengen
area. In the second place to safeguard (financial) claims against transporters, often airline
companies, for the return of a rejected asylum seeker.
The Institute concludes that these reasons are not convincing to substantiate the necessity
of the automatic border detention of all asylum seekers who enter the Netherlands through
an airport or seaport.
For example, the European obligation to guard the European external borders on the basis
of the Schengen Border Code does not prescribe that asylum seekers are refused and
detained at the border; this Schengen Border Code gives room to member states to grant
access to asylum seekers in order to investigate whether they actually need protection.
Furthermore, there are other countries within the Schengen area that do not standard
refuse asylum seekers and detain them. These countries apparently do not interpret the
Schengen Border Code as strictly as the Netherlands. In addition, figures show that the
current practice of border detention hardly contributes to the intended objective, that is
to say, preventing that they are granted access to the Netherlands and hence to the
Schengen area. The majority of asylum seekers are nonetheless still granted access to the
Netherlands after the expiry of the period in border detention. Furthermore, border
detention is not necessary for effectuating claims on behalf of transport companies on the
basis of the current practice.


The Institute is of the opinion that the current policy, in which the border detention of
asylum seekers is general practice, is not consistent with the international commitments as
laid down in the Charter of Fundamental Rights of the European Union, the European
Convention for Human Rights, the Convention on Refugees, the International Convention
on the Rights of the Child and the International Convention on Civil and Political Rights and
European directives regarding the asylum procedure and reception of asylum seekers.
These human rights conventions and European directives set strict conditions on detaining
asylum seekers. Detention is only allowed in exceptional cases when it is necessary and
only after an individual balance of interests has been made in which the interests of the
government to keep sight on asylum seekers and, if necessary, supervise them, are
balanced against the interests of the asylum seeker in question. In this respect it should be

considered that detention is a very drastic means and that it has a negative effect on the
health and well-being of asylum seekers. In addition, asylum seekers may suffer
disadvantages in their procedures from going through their asylum procedure in detention.
There may also be personal circumstances, such as sickness and traumas, so that detention
should not take place. With regard to children there are very strict conditions, because in
general the interest of children should prevail in relation to the interest to detain them
when the various interests are weighed.
Article 6 of the Foreign National Act offers room to weigh the interests when deciding
whether or not to impose a border detention measure. However, in practice this possibility
is not used.
On the basis of the findings and conclusions of this investigation the Institute makes the
following recommendations.

􀂾 Do not impose standard border detention on all asylum seekers who enter the
Netherlands through an airport or seaport.
􀂾 Restrict this freedom-depriving measure to cases in which there are concrete
circumstances that indicate a risk for public safety or national security.
􀂾 When it is necessary to check the identity of an asylum seeker and/or when the basis of
an asylum request has to be established (more specifically), the freedom of asylum
seekers may be restricted for a short period. At present a so-called initial assessment
already takes place when the asylum seeker arrives at the airport or seaport, whereby
his/her identity is established, among other things. At present this initial assessment is
carried out now by the Royal Netherlands Military Constabulary. This initial phase
could, if necessary, be transformed, whereby the involvement of the Immigration and
Naturalisation Service (IND) is guaranteed for a further establishment of the identity,
nationality and basis of the asylum request, after which a further restriction of
freedom is not necessary anymore.
􀂾 If there are any circumstances on the basis of which supervision or restriction of
freedom is at issue, the various interests should always be weighed before a detention
measure is imposed:
o provide an actual framework for the ultimate remedy nature of border detention
and apply alternatives, if possible, such as a deposit or obligation to report;
o in any case let vulnerable persons qualify for less drastic measures than border
o place families with children in open housing units that are especially intended for
this purpose.

Netherlands Institute of Human rights



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