The Netherlands: Detention order of unaccompanied minor deemed unlawful following improper age assessment

On 2 December 2019, the Court of The Hague (the Court) published its judgment on the unlawful detention of an applicant claiming to be an unaccompanied minor following an improper age assessment.

On 1 November 2019, the Secretary of State imposed a detention order of an unaccompanied child pending Dublin transfer. The applicant claims to be a child, and argues that he was wrongfully detained as an adult following an age assessment that was conducted not in accordance with the law.

A lawful age assessment requires assessments from both officials of border control and employees of the Immigration and Naturalisation Service (IND) who must individually assess the applicant before drawing their own conclusions. Following this, a unanimous decision is needed declaring that the applicant is clearly of age or clearly a minor. The assessing bodies will consider the physical characteristics of the applicant, as well as behaviour, any statements made, and any other relevant circumstances. Moreover, the Court noted that the detention of unaccompanied minors is permitted only in extreme cases and must be for the shortest possible time. Grounds justifying detention include: on suspicion of a crime; the return of the applicant can be arranged within 14 days; and the applicant presents a risk of absconding.

The Court noted that the initial age assessment of the applicant was not conducted in accordance with the law as no IND employee was involved. It follows that the Secretary of State should not have assumed that the applicant was an adult. In light of the high threshold for detaining minors, it was necessary to conduct a thorough investigation and provide justifications for the grounds of detention. The Court concluded that the detention order was unlawful and must be lifted with immediate effect. 

Based on an unofficial translation by the EWLU team.

This item was reproduced with the permission of ECRE from the ELENA Weekly Legal Update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is pusexblished but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.