1. Preliminary remarks ; (Read full CPT report)
49. In the course of the visit, the delegation visited all three closed immigration detention facilities in the Netherlands: it carried out follow-up visits to Rotterdam43 and Schiphol Detention Centres (DCs), and it conducted a first-time visit to the Closed Family Facility (Gesloten Gezinsvoorziening – GGV) at Zeist DC.
50. Rotterdam DC, built in 2010 next to Rotterdam Airport, detains adult men with a view to
expulsion and has a capacity of 332 places. At the time of the 2022 visit, the immigration detention
section at the centre held a total of 181 detained persons within the six wings, each of which contained 32 cells.44 The large majority of persons were detained under Section 59 of the Aliens Act (territorial detention). Most foreign nationals present at the time of the visit had been held at Rotterdam DC for a period lasting between several days and several months, with an average length of stay of six weeks. Three persons were detained for more than six months, including one person for over seven months.
51. Schiphol DC is within the vicinity of Schiphol Judicial Complex near Schiphol Airport
(Amsterdam).46 The centre is mainly used for holding asylum seekers and irregular migrants who
have been refused entry under Article 6 of the Aliens Act (border detention).47 Persons applying for
asylum upon their arrival to the Netherlands (except unaccompanied minors and families with
children) or while in detention are held at the establishment for the whole duration of their asylum
process under the border procedure, which can last for up to four weeks (or longer if the person
lodges an appeal). On the day of the visit, the delegation visited Section C2 only, which operates
under the authority of the Immigration and Naturalisation Service (Immigratie en Naturalisatiedienst
– IND), and which accommodated 57 persons (including 45 men and 12 women) for a maximum
capacity of 117 places within three wings.
52. The delegation also visited the Closed Family Facility (GGV), a separate sub-section of
Zeist DC49 that comprised a modern building with a 10-room unit for unaccompanied minors and
12 family-type housing units, each of which can accommodate up to six persons, situated around a
large outdoor garden area. The GGV is used for the detention of women as well as, exceptionally,
unaccompanied minors and families with children, both in the context of border detention and
territorial detention. At the time of the visit, the facility held 25 persons, including five families with
six children (between three and six years old) and 11 women. While the families had all been held
for less than two weeks, which is the maximum time of detention permitted by law, the women were
held for a period lasting between several weeks and several months, including one woman who was
detained for almost six months
53. The applicable legal framework for immigration detention in the European part of the Kingdom
of the Netherlands has not undergone major changes since the CPT last examined this issue in
2011. It is set out in the Aliens Act (Vreemdelingenwet 2000) and its implementing regulation
(Vreemdelingenbesluit), as amended.50 Dutch law still distinguishes between two types of detention of foreign nationals under aliens’ legislation:
(i) According to Section 6 (1) and (2) of the Aliens Act, foreign nationals who have been
denied access to the territory upon arrival at one of the borders to the Netherlands can be placed in border detention.51 Persons placed in border detention are not considered to have formally entered the Netherlands. This type of detention may last for up to six months, which can be extended by an additional period of 12 months. The detention of asylum seekers can last for up to four weeks, or six weeks in Dublincases.
(ii) Under Section 59 (1) and (2) of the Aliens Act, foreign nationals who are staying
unlawfully on the territory of the Netherlands, including failed asylum seekers who are
no longer allowed to remain on the territory, may be held in territorial detention with a
view to expulsion.53 This type of detention may last for up to six months, which can
be extended by an additional period of 12 months. Asylum seekers may be detained
for four weeks and rejected asylum seekers for up to six weeks, which can be extended by an additional period of three months if they appeal. In addition, foreign nationals who are apprehended by the police without legal residence may be detained under aliens’ legislation (vreemdeling bewaring) in a police station for up to five days.
54. The statistical data provided by the Dutch authorities indicate that the previous trend of
increasing numbers of foreign nationals in detention had been halted during the Covid-19
pandemic.55 In 2019, a total of 3 730 foreign nationals were detained, while the numbers had dropped
to 2 320 persons in 2020. In 2021, they had increased again to 2 880 persons. For most foreign
nationals deprived of their liberty, the length of detention did not exceed a few weeks for persons
kept under border detention and six months for persons held under territorial detention.
55. In its 2011 visit report, the CPT was critical of the fact that immigration detention in the
Netherlands was not covered by specific rules reflecting the administrative nature of immigration
detention. Instead, deprivation of liberty of foreign nationals in detention centres was governed by
the same rules and restrictions as those applicable to persons detained under criminal law in prisons.
More than a decade later, this situation remains unchanged, and the same prison legislation still
applies to persons held in territorial detention: the Penitentiary Principles Act (Penitentiaire
beginselenwet) continues to regulate all aspects of detention, notably when it comes to the
applicable regime and restrictions.
56. In 2013, the Dutch authorities initiated a reform of the legal framework for immigration
detention. The draft bill on the proposed Return and Detention of Foreign Nationals Act
(Wet terugkeer en vreemdelingenbewaring), which was tabled before Parliament in 2015, would
introduce a separate administrative statutory framework for the “humane immigration detention” of
foreign nationals and regulate regimes and conditions of detention.57 Under the new legal framework,
the current forms of detention for foreign nationals (namely, border detention and territorial detention)
would cease to exist. The parliamentary process was halted, and the draft bill became outdated and required revision.
Recently, the process was further delayed pending the adoption of amending legislation on
emergency measures for foreign nationals who disturb public order and security (Novelle
maatregelen ten aanzien van overlastgevende vreemdelingen). In April 2022, the Government
informed the Parliament that the revised legislation should be tabled before the end of the year. The
revised draft bill would align Dutch regulations with the current practice and the country’s national
and international obligations. It would also, inter alia, give directors of detention centres the power
to impose restrictions on the regime in the event of serious problems regarding public order and
security. The CPT would like to be informed of the status of the draft bill in the Dutch Parliament and to receive a copy of the Return and Detention of Foreign Nationals Act, once it is adopted.
57. At the same time, the Dutch authorities informed the delegation that they consider that the
dedicated section or department of a prison can be regarded as a specialised facility for detaining
foreign nationals, as referred to in the Return Directive. Consequently, they take the view that the
way in which the Netherlands currently implements immigration detention is compatible with the
requirements set by the Council of State and Court of Justice of the European Union in recent case
law.58 In this regard, the CPT wishes to recall its position, according to which a prison is – by definition not a suitable place in which to detain someone who is neither suspected nor convicted of a criminal
offence. In this regard, the CPT has made it clear that care should be taken in the design and layout
of such premises to avoid, as far as possible, any impression of a carceral environment. The CPT
trusts that the Dutch authorities will implement immigration detention in a manner that complies with these principles.
