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THE ACCELERATED ASYLUM DETERMINATION PROCEDURE
Dutch asylum law provides for two types of asylum review: an accelerated procedure ("AC procedure") and a full asylum determination procedure.2 The AC procedure results in either a rejection of the claim or a transfer of the claim for consideration under the full procedure. The full procedure may result in a person's being recognized as a refugee or as a person otherwise in need of international protection (a subsidiary status). The full asylum determination procedure can take from several weeks to a year or more, depending on how long the case requires, and it accords asylum seekers rights throughout the process to certain material benefits such as housing, food, and health care. The accelerated asylum procedure, by contrast, takes place in a matter of days and asylum seekers whose claims are denied are ineligible for material assistance while their appeal is pending. In principle, both procedures utilize the same refugee determination criteria, but in reality the AC procedure truncates consideration of the merits of applications and, as argued below, should be deemed unsuitable for a broad range of cases. The AC procedure has quickly developed from its origins in October 1994. Initially conceived as a procedure to weed out "manifestly unfounded" asylum claims, by the second half of 2002 it was being applied to at least 60 percent of all cases lodged in the Netherlands.3 This is triple the rate at which the AC procedure was used in past years. Even so, the Minister of Immigration and Integration has suggested that about 80 percent of all asylum applications should be processed and rejected in the AC procedure. Although this number is not an official target, it has been seen as illustrative of the significant number of asylum cases the ministry believes can safely be processed through the AC procedure. Refugee assistance groups, right groups, lawyers, academics, and even members of parliament have questioned the premises underlying expanded use of the procedure.4 The AC procedure is a source of considerable concern for lawyers and organizations working with migrants and asylum seekers in the Netherlands. Dutch asylum lawyers told Human Rights Watch that for the first time in their careers, often spanning some fifteen to twenty years, they are preparing cases to the European Court of Human Rights (ECHR) to complain about the speed and inadequate nature of the AC procedure and the inability or unwillingness of courts to provide effective judicial review to remedy these inadequacies.5 In March 2003, for the first time in a case involving the Dutch AC procedure, the ECHR imposed an interim measure, prohibiting the Dutch authorities from deporting the applicant to his native Iran prior to the court's decision on the merits.6 This was also the first time that the Court has accepted for review a case involving the Dutch Aliens Act 2000. Based on interviews with asylum lawyers and review of numerous hearing transcripts, decisions of the department of immigration and naturalization (Immigratie en Naturalisatiedienst: IND), and court appeals, Human Rights Watch believes that the AC procedure in many cases deprives asylum seekers of their fundamental right to a full and fair consideration of their claims. The following discussion details these concerns, first assessing the AC procedure itself, and, second, the adequacy of judicial review following the AC procedure. The procedure at the Aanmeldcentra (AC Procedure)
The AC procedure includes two main interviews with IND officials: a first interview in which an applicant primarily gives information about her identity, nationality, and travel route to the Netherlands; and a second interview during which the applicant discusses her reasons for applying for asylum. After the second interview, the IND either decides to forward the case to the full asylum procedure or prepares an "intended decision" notifying the asylum seeker as to the reasons why it plans to reject the application. Cases involving issues of a complex or humanitarian nature
Human Rights Watch is concerned that among those currently channeled into the AC procedure are nationals of countries recovering from conflict or where authorities commit ongoing abuses against certain minorities and individual opponents, such as Afghanistan, northern Iraq, and Somalia.9 To our knowledge, only Burundi, southern Sudan, and central Iraq remain on the Netherlands' list of categorically "unsafe" countries/areas, meaning that asylum seekers originating from these places must automatically be considered under the full asylum procedure.10 Human Rights Watch also came across a number of cases in which the physical or mental well-being of the applicant raised concern about the appropriateness of accelerated processing, regardless of whether the final outcome for the applicant would be positive. Mariella M.,11 for example, told the IND that she had fled Liberia because she was going to be killed in a sacrificial ceremony. At least five to six times throughout the interviewing process, during which she was expected to fully present the basis for her asylum claim, the interview had to be stopped because Mariella M. seemed physically unwell or too emotional to continue. She was very confused, with bouts of unresponsiveness. Her story was contradictory and scattered in some places, ending with a spontaneous fit of crying. At no point was her fourteen-year-old son, who had fled with her to the Netherlands, interviewed in an effort to corroborate her story or to better understand her physical and emotional state. IND instead chose to process them in the AC procedure and subsequently denied their claim for asylum. When confronted with concerns about why she was interviewed under such circumstances, IND called attention to the fact that they had asked her if she wanted to continue with the interviewing process. Her lawyer explained, "she just wanted it over with and to have rest, not knowing what this could mean to her and her son."12 She did not realize, in other words, that this was her one and only opportunity to present her story, nor that requesting a pause in the interview would not reflect poorly on her asylum request.13 Stichting Rechtsbijstand Asiel (SRA), an organization of asylum lawyers that coordinates legal aid for asylum seekers whose cases are being heard in the AC procedure, reported another case in which the AC process was applied without apparent regard for the physical well-being of the asylum applicant: Louisa L., a young woman from Ghana, was four-months pregnant when she arrived in the Netherlands. During the first interview by IND about her identity, nationality, and travel route to the Netherlands, she became so unwell that the interview was cut short. Later that day, she had a miscarriage, yet IND requested on the following day that the young woman undergo a bone examination to determine her age and that her interviews under the AC procedure be resumed, regardless of her obvious need for physical and mental rest.14 In another case, a young pregnant woman from Senegal was so ill that she was under medical observation in-between her IND interviews during the AC procedure. She showed evident signs of trauma, and VluchtelingenWerk Nederland ("VluchtelingenWerk": the Dutch Refugee Council) expressed concern about the quality of her testimony under such circumstances. IND nonetheless rejected her asylum request in the AC procedure.15 Human Rights Watch has also received numerous reports of IND using the AC procedure to process asylum claims from elderly persons suffering from serious health problems, mentally ill persons, people claiming to be survivors of recent torture or sexual violence, and other persons exhibiting signs of severe trauma.16 Such trauma may relate to their experiences prior to flight or, in some cases, may be the result of experiences during flight. Expedited processing should be deemed inappropriate in such circumstances; all asylum seekers should have a meaningful opportunity to present their cases. · Human Rights Watch urges the Dutch government to revise current policy and practice to recognize that individuals from a much wider range of countries than those currently listed as categorically "unsafe" require access to the full determination procedure in order to establish whether they are in need of international protection. · Human Rights Watch urges the Dutch government to ensure that cases involving serious physical or psychological problems at the time of the applicant's asylum interview, cases involving possible survivors of torture or sexual violence, and other persons exhibiting symptoms of trauma, be exempted from accelerated consideration and admitted to the full asylum procedure. Under Dutch law, persons who suffered severely traumatic events have the opportunity to receive a subsidiary form of protection on the basis of those experiences even if their application for asylum would not result in refugee status-so long as the traumatic event is related to the reason for the applicant's flight from his or her country of origin.17 IND applies a strong presumption that only traumatic events occurring within six months of flight so qualify; when more than six months have elapsed, the applicant must demonstrate that the traumatic event directly caused him or her to flee, a standard that is all but impossible to meet in practice.18 Human Rights Watch is concerned that the six-month rule, rigidly applied, does not take into consideration the reality of such traumatic experience or the difficulty that those facing it may have had in fleeing promptly to the Netherlands. The story of thirty-three-year-old Linda L. from Sierra Leone is an example of this problem. Linda L. arrived in the Netherlands in November 2002. During the AC procedure, she told IND that in 1999 rebels had attacked her village, forcing her to burn her father alive and to join them in pillaging and destroying the rest of the village. She was then brought to the rebel camp where she was given to the colonel as his "wife," and repeatedly raped and abused over the course of three years. Because she had tried to escape on a number of occasions, the colonel had his name branded into her arm. When in the first half of 2002 she was able to escape to Freetown, she tried to make a life for herself there but soon became the target of people who accused her of being one of the rebels, as evidenced by the colonel's name burned into her arm. After being attacked and severely beaten by a gang of accusers, Linda L. went to the police. There she was confronted by a police officer whose own brother had died at the hands of the rebels and who refused to take action to protect her. Thereafter Linda L. fled to the Netherlands.19 IND placed Linda L. in the AC procedure and rejected her application less than three days after she had arrived in the Netherlands on the basis that she had not left Sierra Leone within six months of the traumatic events-her capture by the rebels-for which she may have otherwise received subsidiary protection, further arguing that the marks on her arm were irrelevant because they were not evidence of association with the rebels.20 Linda L.'s lawyer argued that this was clearly a case where additional time to investigate her story and possible consequences of returning her to Sierra Leone (where the rule of law is still fragile and unreliable) was needed. Her lawyer further argued that the Ministry of Foreign Affairs had issued an official notification that ex-rebels or those affiliated with rebels in Sierra Leone may well be the object of discrimination and ostracism. The Ministry had also verified that branding of women as described by Linda L. was commonplace and frequently used as a means to prevent the victims starting a new life elsewhere in Sierra Leone.21 Human Rights Watch is concerned that this information in combination with reports of Linda L.'s symptoms of trauma and distress throughout the accelerated procedure were insufficient to persuade IND to transfer Linda L.'s case to the full asylum consideration procedure. · The Dutch government should direct IND asylum officers to transfer complex cases requiring additional investigation to the full asylum determination procedure. Cases involving the application of the six-month trauma guideline, questions of "internal flight options," or other complex interpretative questions, such as whether persecution as a member of a "social group" occurred, should always be transferred. Lack of meaningful access to legal counsel
If the lawyer or applicant wish to respond to IND's intended decision, they must do so within that three-hour period. Otherwise, the intended decision will be taken as final, which can have serious and lasting consequences for the asylum seeker, who effectively loses the opportunity to bring forward information not already disclosed during the AC interviews and to refute IND's determination that the applicant lacks credibility. As one counselor at VluchtelingenWerk observed: "If the lawyer is one hour late, the case is lost-their life is lost. I've seen it with real refugees, with terrible cases of torture. In the past the Ministry could take all the time it needed, but now it doesn't matter."23 Lawyers from the Dutch Bar Association, SRA, and VluchtelingenWerk have expressed serious concern about the ability of lawyers to provide meaningful counsel given this tight timeframe. It is particularly difficult where asylum seekers' stories are complex and require additional research or the gathering of evidentiary documentation, such as arrest warrants or local information on conditions in a country of origin. Where an interpreter is required simple communication may consume much of the allotted time. For many asylum seekers it is only when they receive the intended decision and meet their second lawyer for the first time that they begin to understand that this was their asylum determination procedure and that they have three hours to document and make their case. Human Rights Watch believes that this rigid framework of deadlines fails to allow meaningful access to legal counsel and raises serious risks of refoulement. · Human Rights Watch recommends that the Ministry of Justice explore ways in which asylum seekers' access to lawyers, preferably a single lawyer throughout the process given the speed of accelerated procedures, can be made more flexible so as to allow adequate time for the claim and any appeal to be prepared. Accelerated credibility determinations and their impact on asylum seekers' claims
Visa restrictions imposed by the Netherlands, in concert with all E.U. member states, can make it virtually impossible for asylum seekers to travel legally to the Netherlands, leaving smugglers as the only viable route open to many individuals. Asylum seekers who reach the Netherlands through the aid of people-smugglers are very likely to arrive without valid travel documents and are often fearful of telling the authorities about their journey. Regarded with immediate skepticism and suspicion on this basis, they begin the AC procedure with the heavy burden of quickly presenting an overwhelmingly convincing account of their need for asylum, if they wish to stand any chance of being admitted to the full asylum determination procedure. As Eduard Nazarski, director of VluchtelingenWerk, points out, with the speed of the AC procedure:
These sentiments have been echoed by the UNHCR in its authoritative Handbook on Procedures and Criteria for Determining Refugee Status (UNHCR Handbook), stating that:
Asylum lawyers and refugee organizations also report concern about the way in which asylum seekers are expected to present their personal accounts in the AC procedure. Asylum seekers are not permitted to say anything about what happened to them or why they fled to the Netherlands during the first interview, which focuses solely on their identity, nationality, and travel route. They are frequently asked to explain contradictions in their information on these points during the second interview with another IND officer. When, during that second interview, the asylum seeker is asked to tell the interviewer why he or she left his or her country of origin and is seeking asylum in the Netherlands, there is very little guidance as to what type of information the interviewer may be seeking. Instead, the interviewer frequently plays a passive role, "expecting the asylum seeker to bring all relevant information forward, and without contradictions."28 A Dutch asylum law expert at Amnesty International told Human Rights Watch, "There is no room in the Netherlands for an asylum seeker to be apprehensive or anxious in telling his story."29 Some applicants also experience difficulties gathering the necessary documentation or evidentiary support for their asylum claims within the short timeframe of the AC procedure, further decreasing their chances of being considered in the full asylum determination procedure. This can occur either because applicants are unaware that they must furnish particular pieces of documentary support until the time of the intended decision, just a few hours before the close of the AC procedure, or because they do not realize the need, or are unable, to produce the type and level of evidentiary proof IND requires in this time period. In one case, for example, the validity of a young woman's nationality was in question so the woman asked her sister-in-law, who lived in Belgium, to send a copy of her identity card. This was not considered sufficient to counter concerns about her identity. In the same case, IND questioned whether the woman was a member of a particular political party so the applicant requested and received a letter from the party's international headquarters based in Belgium. IND concluded that the letter was insufficient proof of membership and did not telephone the party headquarters to further inquire about the applicant and her asylum-related concerns.30 The applicant's lawyer claimed that had his client been given more time to gather her documentation or had IND followed up on the information she did provide, she might well have met IND's evidentiary requirements for proof of her identity and political affiliation.31 In another case, a young woman from Ethiopia was rejected in the AC procedure in large part because of her failure to produce documentary proof of her identity and the account she gave IND authorities, even though her lawyer informed IND that she had been making serious efforts to obtain these documents from the moment that she was informed that she must do so-one day before the decision against her application was made. When finally the young woman received the documents, it was too late: her court appeal had been rejected and there was no possibility for her to counter IND's determination that her case lacked credibility.32 Establishing an applicant's credibility is an important factor in evaluating an application for asylum, as is the search for objective verification of any asylum seeker's fears of persecution. Human Rights Watch is concerned, however, that at times IND officials are applying an inappropriately high evidentiary threshold and are failing to refer cases that properly should be examined in detail in the full asylum determination procedure. Dutch practice appears to fly in the face of the following guidance set forth in the UNHCR Handbook:
· The Dutch government should direct asylum officers in the AC procedure, when evaluating credibility, to take into account the limited opportunity available to the asylum seeker to present documentary proof and other relevant information. Judicial review of cases rejected in the AC procedure
At the same time, however, recent jurisprudence from the Raad van State is narrowing the scope of judicial review. Interpreting article 83 of the Aliens Act 2000, the Raad van State has ruled that, on appeal, asylum seekers are not permitted to bring forward information relating to claims of trauma-related events, torture, or other experiences connected to their alleged fears of persecution unless the events were previously raised with IND; courts may only review the substance of matters that formed part of the original IND decision to reject the application.35 Human Rights Watch has received reports of a number of cases in which asylum applicants who were rejected in the AC procedure have attempted to bring forward on appeal information or evidence relating to rape, torture, arrests, or other issues relevant to their asylum claim that had not been mentioned during the original AC procedure. In several of these cases, the asylum seekers explained their failure to present the information earlier, citing the effects of trauma or inadequate legal advice about the criteria for refugee status. Even so, the Raad van State has reversed a number of lower court decisions that had transferred cases like these to the full asylum determination procedure. The Raad van State reasons that Dutch courts may not assess information that should have been, but was not, earlier brought to the attention of the IND. Consequently, asylum seekers with additional bases for their fear of persecution cannot advance these claims to challenge whether their asylum request should be transferred to the full asylum determination procedure. In such cases, the courts fail to offer a meaningful check against IND error, and the Netherlands runs a very real risk of violating its obligation of non-refoulement (that is, not to return a person to a country where his or her life or freedom would be threatened because of persecution). Hana H. is an example of this type of case. She and her husband applied for asylum in the Netherlands in the spring of 2002 and were both rejected in the AC procedure. On appeal, Hana H. presented the court with a letter that she had written after the AC procedure. In the letter, she told the court that she was raped when she presented herself to the revolutionary court in Iran to give information about her husband, and again some months before fleeing Iran. Her lawyer also submitted to the court a medical examination in support of her story. Hana H. told the court that she had not stated this during her interviews, even when asked by one of the interviewers, because she was ashamed and had not yet told her husband this painful fact. The Raad van State held that, since the woman had not mentioned the rapes during the AC procedure, the letter and medical report could not serve as new evidence warranting re-consideration of Hana H.'s asylum claim. The Court further stated that it seemed plausible and was expected that Hana H. "could have at least mentioned something about her rape" during the AC procedure, especially since a female IND officer had informed the woman that she could, and should, "speak freely."36 In another case, a young Nigerian woman, who fled her country because of severe domestic violence and threats on her life, appealed against a negative decision on her asylum claim in the AC procedure. On appeal, she told the court that in early 2001, just a few months after the murder of her parents and two siblings during fighting between Muslims and Christians in her village, she was forced to marry an acquaintance of her uncle. Just after the marriage she was forcibly circumcised, which was later followed by severe domestic violence, leading at one point to hospitalization. When she tried to leave the marriage she was threatened with death by her husband as well as her uncle, who cited tribal justification for her death should she choose to leave the marriage. Soon after, she fled to the Netherlands, arriving in April 2002, where she applied for asylum.37 The court of first instance reversed IND's decision to reject the young woman's application for consideration in the full asylum determination procedure, ruling that even though she had not mentioned her circumcision or elaborated on the abuse she suffered in her marital life during her initial interviews, the IND should consider this information. This court also overturned the IND's decision that this young woman was not eligible for consideration under the policy for protection of persons who have suffered severely traumatic events because she had not left Nigeria within six months of her parents' and siblings' murder.38 The Raad van State reversed and reinstated the IND's original negative determination. It ruled that the young woman could have mentioned the circumcision during the AC procedure and that the six-month rule did apply.39 The Raad van State decisions prohibiting courts from considering evidence or claims that may call into question the appropriateness of the AC procedure compound the problems arising from the expedited process. The result is that the Dutch government is unnecessarily increasing the risk that failed asylum seekers may later be deported to countries where their lives or freedom are threatened. On the issue of torture, the Raad van State has said that even in cases of forced returns to countries where the person may be at risk of cruel, inhuman, or degrading treatment or punishment, in violation of article 3 of the European Convention of Human Rights (ECHR), domestic law on procedure should be respected as a rule.40 Although the Raad van State did note that in very special circumstances based on the facts relating to an individual case, an exception to the general rule could apply, the current policy may lead to a violation of the prohibition against refoulement because of the high threshold an applicant must meet before a court may disregard the procedural rule.41 In addition to the jurisprudence discussed above, the Raad van State held in November 2002 that the review of cases rejected in the AC procedure should be limited and courts should assess only the "reasonableness" of the IND's decision, especially with regard to the assessment of an applicant's credibility, rather than examining the merits of the case.42 This decision may have the effect of limiting further the judicial check on IND's decisions about which cases are admitted to the full asylum determination procedure. Human Rights Watch is concerned that asylum seekers are being denied a meaningful review of their asylum decisions due to the constraints placed upon judicial review in the Netherlands. Where individuals are returned to their countries of origin in violation of the non-refoulement provision of the Refugee Convention43 or article 3 of the ECHR,44 the denial of an effective remedy for a violation of human rights might also violate article 13 of the ECHR.45 A genuine opportunity to appeal implies more than a perfunctory examination of the law and a hands-off approach on assessment of credibility and review of the merits. In sum, in the Netherlands, courts now bar asylum seekers from bringing forward on appeal any facts or circumstances not relating to those mentioned during the forty-eight-hour AC procedure. Another rule of Dutch asylum law prohibits the lodging of a new claim unless circumstances in the country of origin have changed since the earlier claim was lodged. Together, these rules in many cases effectively prevent substantive consideration of what could be very critical information about an asylum seeker's reasons for fearing return to his or her country of origin. Denial of a meaningful appeal opportunity is particularly egregious where it follows such an excessively accelerated procedure as the Netherlands' AC procedure and where the government itself justifies the very broad use of the AC procedure by reference to the fact that appeal is available to catch any mistakes. · Human Rights Watch recommends that the government of the Netherlands take urgent steps to ensure that every asylum seeker is provided an adequate opportunity to present their claim for asylum, and that judicial review ensures that the merits of the case have been fairly examined. 2 See Vreemdelingenwet 2000 (Aliens Act 2000), arts. 28 and 29, in combination with paragraphs 3.111 of the Vreemdelingenbesluit 2000 (Aliens Decree 2000) for the full refugee determination procedure and in combination with paragraphs 3.112 and 3.117 of the Aliens Decree for the accelerated determination procedure. 3 Human Rights Watch interview, IND, Ministry of Justice, The Hague, January 21, 2003. 4 See e.g., parliamentary debate with Minister Hilbrand Nawijn on 31 October 2002, Tweede Kamer (TK: Parliament), 2002-2003, 19 637 and 27 557, no. 696, p. 6. This issue has also been addressed in the European Commission. In late 2002, Dutch MEP Erik Meijer asked in a written question whether the practice of setting targets as to the proportion of asylum seekers to be rejected, as has been done by the competent Minister in his own country, is in line with the 1951 Convention Relating to the Status of Refugees. The European Commission denied knowledge of any official targets. Written Question to the European Commission, no. E-3141/02, October 23, 2002. 5 Although some of these cases have been accepted for consideration by the European Court of Human Rights (ECHR), there are as yet no decisions specifically relating to the Dutch AC procedure. 6 Human Rights Watch telephone interview with Michel Collet, asylum lawyer, March 20, 2003. For more information about the facts of the case, the court's decision (and the Chamber of the Second Session decision, which also held that article 39 of the European Convention on Human Rights is applicable), and future developments in this case, see http://www.collet.nu/informatie/EHRMzaak.htm (accessed March 26, 2003). 7 See e.g. Raad van State, decision no. 200103491/1, August 27, 2001; Raad van State, decision no. 200105777/1, December 20, 2001. 8 UNHCR Executive Committee Conclusion No. 30 (XXXIV) - 1983 - The Problem of Manifestly Unfounded or Abusive Applications for Refugee Status or Asylum, para. (d). The Executive Committee of the High Commissioner's Program ("ExCom") is UNHCR's governing body. Since 1975, ExCom has passed a series of Conclusions at its annual meetings. The Conclusions are intended to guide states in their treatment of refugees and asylum seekers and in their interpretation of existing international refugee law. While the Conclusions are not legally binding, they do constitute a body of soft international refugee law. They are adopted by consensus by the ExCom member states, are broadly representative of the views of the international community, and carry persuasive authority. Since the members of ExCom have negotiated and agreed to their provisions, they are under a good faith obligation to abide by the Conclusions. 9 On February 7, 2003, the Ministry of Justice announced that persons from northern Iraq should not be returned to Iraq and should have access to basic material reception rights even if they are rejected in accelerated or full asylum determination procedures. The halt on deportations to northern Iraq was to be periodically reassessed in light of the international situation. 10 Human Rights Watch interview with H.P. Schreinemachers, coordinator, Asylum Policy Department, IND, Ministry of Justice, The Hague, January 21, 2003. 11 We have assigned pseudonyms to all of the asylum seekers mentioned in this report in order to protect their privacy. 12 Human Rights Watch telephone interview with Jan Broersen, asylum lawyer, Stichting Rechtsbijstand Asiel (SRA)-Haarlem, January 8, 2003. See also Haarlem district court, decision no. AWB (Algemene Wet Bestuursrecht: general administrative law guidelines) 02/94324, January 9, 2003. 13 Although asylum seekers do have information about the AC procedure and should in theory realize that the second interview is their primary chance to present information about their asylum claim, the use of several lawyers throughout the AC procedure in combination with the speed of the procedure may present serious barriers to an applicant's ability to realize both the importance of the procedure and what is expected of them. See the following section for discussion of access to meaningful counsel in the AC procedure. 14 Email communication from Riëtta van Empel Bouman, case coordinator, SRA-Rijsbergen, to Human Rights Watch, January 22, 2003. 15 Ibid. 16 UNHCR Executive Committee Conclusion No.73 (XLIV) - 1993, para. (g) "Recommends that in procedures for the determination of refugee status, asylum seekers who may have suffered sexual violence be treated with particular sensitivity." 17 See Aliens Act 2000, art. 29(c). Article 29 of Aliens Act 2000 sets forth the possible categories of protection applicable to asylum seekers in the Netherlands, including refugee status recognition and leave to stay on the basis of humanitarian grounds. One of the changes in the 2000 asylum law is the combining of all forms of asylum-related protection statuses in one article, each status entitling the recipient of protection to the same rights in the Netherlands. See generally Aliens Act 2000, art. 29. 18 See Vreemdelingencirculaire 2000 (Aliens Circular 2000: Aliens Act implementing guidelines), para. C1/4.4.2. An exception to this rule may be made if the applicant establishes a plausible connection between the traumatic event and his or her departure. For an interpretation of this guideline, see Raad van State, decision no. 200202452/1/V1, July 16, 2002. In an interview with Human Rights Watch, representatives of the IND foreigners policy department explained that the six-month-rule is a guideline, but that if an applicant did not leave within six months then the presumption is that he or she could have stayed in the country of origin. In such cases, the burden of proof on the applicant to demonstrate the causal relationship between the traumatic event and subsequent departure is higher. Human Rights Watch interview with senior policy officers, Unit Admission, Immigration Policy Department, Ministry of Justice, The Hague, January 24, 2003. 19 Human Rights Watch interview with Karin van Herk, VluchtelingenWerk (Dutch Refugee Council) (Amsterdam Office), Amsterdam, January 17, 2003. See also, IND decision in the case of Linda L., on file with VluchtelingenWerk. 20 Human Rights Watch interview with Karin van Herk, VluchtelingenWerk (Dutch Refugee Council) (Amsterdam Office), Amsterdam, January 17, 2003. See also, IND decision in the case of Linda L., on file with VluchtelingenWerk. Note that as a matter of policy in such cases, the Dutch authorities would calculate the six-month period from the date when it would have been possible for Linda L. to flee Sierra Leone, not from the moment of her capture. 21 See lawyers brief to the court on appeal against IND's decision not to transfer Linda L.'s case to the full asylum determination procedure. Copy on file with Human Rights Watch. See generally, Human Rights Watch, "We'll Kill You if You Cry": Sexual Violence in the Sierra Leone Conflict (January 2002). 22 According to the Dutch legal aid act, legal aid may be granted to asylum seekers who do not have the necessary financial means, so long as the case is concerned with legal matters within the Dutch legal system. See Legal Aid Act of December 23, 1993, art. 12. Although legal aid applicants are normally asked to pay a small contribution toward their representation, asylum seekers are exempt from this policy. Ibid., art. 11(1)(a). 23 Human Rights Watch interview with Albert Reedijk, VluchtelingenWerk (Amsterdam office), Amsterdam, January 17, 2003. 24 See Eduard Nazarski, director of VluchtelingenWerk, in De Volkskrant, "IND vergeet dat het asielzoekers betreft," November 6, 2002, p. 3, observing that the AC procedure starts from the base assumption that asylum seekers are familiar with and able to maneuver within the asylum system in attempting to gain status to remain in the Netherlands when instead "most are frightened, traumatized people who have been put in the AC procedure." 25 See Memorie van Toelichting (Memorandum of Explanation) to Parliament on Article 31(2) of Aliens Act 2000 (art. 29(2)), TK, 1998-1999, 26 732, no. 3, p. 40-41; Human Rights Watch interview with H.P. Schreinemachers, coordinator, Asylum Policy Department, IND, Ministry of Justice, The Hague, January 21, 2003. 26 Eduard Nazarski, director of VluchtelingenWerk, in De Volkskrant, "IND vergeet dat het asielzoekers betreft," November 6, 2002, p. 3 (unofficial translation). 27 UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, UN Doc. HCP/1P/4/Eng/REV.2, 1979, (edited 1992), para. 190. The UNHCR Handbook was prepared at the request of states members of UNHCR's ExCom for the guidance of governments. The Handbook is an authoritative interpretative guide and is treated as such by governments. See Guy Goodwin-Gill, The Refugee in International Law, (Oxford: Oxford University Press, 1996), p. 34. 28 Human Rights Watch interview with Wilma Lozowski, lawyer, VluchtelingenWerk (headquarters), Amsterdam, December 12, 2002. In a recently published book about the interviewing process in the AC procedure, Nienke Doornbos, researcher at the University of Nijmegen, draws attention to a number of serious communication problems associated with the AC procedure. She notes in particular that there is far too little room for asylum seekers to tell their story given IND's heavy focus on travel route descriptions and identification-related questions and some interviewers' tendency to encourage yes-no and general types of answers to questions rather than fuller, more detailed descriptions of flight motives. In addition, she concluded that the process creates confusion for the asylum seeker as to who is who (e.g. IND, guards, translators, lawyers, and VluchtelingenWerk aids) and what their importance to the applicant's asylum request might be, making it practically impossible for lawyers to gain the necessary trust of asylum seekers. This research was partially funded by the IND and based on an in-depth analysis of 138 AC procedure cases taking place between September 1999 and June 2001. See Nienke Doornbos, De papieren asielzoeker, Institutionele communicatie in de asielprocedure, ISBN 90-71478-70-X, January 15, 2003. 29 Human Rights Watch interview with René Bruin, Amnesty International, Amsterdam, December 17, 2002. 30 Email communications from Frans-Willem Verbaas, asylum lawyer, SRA-Noord Oost, to Human Rights Watch, January 10 and 13, 2003; Human Rights Watch telephone interview with Frans-Willem Verbaas, asylum lawyer, SRA-Noord Oost, January 13, 2003. 31 Ibid. 32 Email communication from Hans Eizenga, asylum lawyer, SRA-Den Bosch, to Human Rights Watch, January 17, 2003. When Nasrine N.'s lawyer filed for a second application for asylum on her behalf, the request was denied because IND had already made a decision based on her account, notwithstanding the fact that she was now in possession of necessary documentation. See the following subsection for more discussion of problems associated with the right to judicial appeal. 33 UNHCR Handbook, para. 196. See also, paragraph 198 of the Handbook, stating, "A person who, because of his experiences, was in fear of the authorities in his own country may still feel apprehensive vis-à-vis any authority. He may therefore be afraid to speak freely and give a full and accurate account of his case." Ibid., para. 198. A number or refugee organizations and asylum lawyers in the Netherlands have expressed concern that the speed of the AC procedure in combination with the manner of interviewing and burden of proof allocated to the applicant in cases where credibility is an issue fails to recognize the difficulties asylum seekers may have immediately trusting the Dutch authorities. 34 Human Rights Watch interview with IND officials, Immigration Policy Department, Ministry of Justice, The Hague, January 24, 2003. 35 See, e.g., Raad van State, decision no. 200202452/1, July 16, 2002. 36 Raad van State, decision no. 200202610/1, June 28, 2002. 37 Human Rights Watch telephone interview with Gerben Kor, asylum lawyer and researcher, Vrije Universiteit, Amsterdam, December 13, 2002. See also Haarlem district court, decision no. AWB 02/28867, April 25, 2002. 38 Human Rights Watch telephone interview with Gerben Kor, asylum lawyer and researcher, Vrije Universiteit, Amsterdam, December 13, 2002. See also Haarlem district court, decision no. AWB 02/28867, April 25, 2002. 39 Raad van State, decision no. 200202452/1, July 16, 2002. 40 Raad van State, decision no. JV 2002/125, March 5, 2002. 41 Rights groups based in the Netherlands have expressed similar concern. See, e.g., discussion in a letter dated May 8, 2002 from Amnesty International to the leader of the Permanent Committee on Justice of the Dutch Parliament. Refugee organizations and asylum lawyers have also expressed serious concern that the ability for rejected asylum seekers to repair the damage done by an inadequate determination procedure and judicial review is extremely limited due to the Raad van State's interpretation of what constitutes new information or changed circumstances for the purpose of filing a new asylum application. Human Rights Watch interview with Dominique van Huijstee, lawyer, Het Amsterdams Solidariteits Komitee Vluchtelingen / Steunpunt Vluchtelingen (ASKV), Amsterdam, November 21, 2002; Human Rights Watch telephone interview with Frans Willem Verbaas, asylum lawyer, SRA-Noord Oost, December 9, 2002; Human Rights Watch interview with Marcelle Reneman, policy officer, VluchtelingenWerk (headquarters), Amsterdam, January 9, 2003. 42 Raad van State, decision no. 200205522/1, November 15, 2002. In interviews with Human Rights Watch, academics, lawyers, and refugee organizations voiced their concerns about the effect of such a decision. Human Rights Watch interview with Thomas Spijkerboer, professor and researcher, Vrije Universiteit, Amsterdam, December 13, 2002; Human Rights Watch telephone interview with Gerben Kor, asylum lawyer and researcher, Vrije Universiteit, Amsterdam, December 13, 2002; Human Rights Watch interview with René Bruin, Amnesty International, Amsterdam, December 17, 2002. 43 Refugee Convention, art. 33. 44 ECHR, art. 3. 45 See e.g., ECHR, Jabari v. Turkey, application no. 40035/98, July 11, 2000, holding:
Ibid., paras. 48 and 49. In that case, an Iranian woman accused of adultery was at risk of being deported to Iran where she was likely to suffer torture or ill-treatment. On consideration of her application for judicial review on her asylum claim, which had been denied on procedural grounds, the presiding court had limited itself to a review of the issue of "the formal legality of the applicant's deportation rather than the more compelling question of the substance of her fears." Ibid., para. 40.
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