The Bottom Line
- Dutch authorities can maintain immigration detention pending removal, but they must demonstrate they are actively and diligently working towards that goal. For businesses, this underscores that any immigration issue involving a foreign national employee can escalate quickly, with detention subject to strict judicial timelines.
- A foreign national’s failure to cooperate in their own removal process—such as by providing conflicting information on nationality or refusing to help obtain travel documents—significantly strengthens the state’s case for continued detention.
- The courts will regularly assess if a realistic prospect of removal exists. While the process can be slow, detention remains lawful as long as authorities are taking necessary steps and the destination country has not explicitly refused re-entry.
The Details
In a recent decision, The Hague District Court addressed the crucial balance between the state’s power to detain foreign nationals for removal and its obligation to act with due diligence. The case involved a foreign national, believed to be from Nigeria, who appealed the continuation of his detention. He argued that there was no realistic prospect of his deportation within a reasonable timeframe and that the Dutch Minister of Asylum and Migration was not acting with the required diligence. This ruling provides important clarity on the standards governing administrative detention in the Netherlands.
The court’s decision hinged on two critical factors: the prospect of removal and the state’s diligence. On the first point, the court rejected the claimant’s argument, emphasizing that deportation to Nigeria remains a viable option. Crucially, the court pointed to the claimant’s own lack of cooperation. He had provided conflicting statements about his nationality and made no effort to secure the necessary identity documents for his return. As the Nigerian authorities had not rejected the application for a travel document (laissez-passer), the court found that a prospect of removal still existed, effectively placing an onus on the detainee to cooperate with the process.
Secondly, the court examined whether the authorities had acted with the required diligence (voortvarend handelen). The evidence showed that officials had conducted a “departure interview” and were actively pursuing the travel document application. The court deemed these actions sufficient to meet the legal standard for diligence, concluding that the state was not passively holding the individual. This confirms that as long as the government takes consistent, demonstrable steps towards removal, even if the diplomatic process is slow, the legal grounds for detention can be maintained. The appeal was therefore dismissed as unfounded.
Source: Rechtbank Den Haag (The Hague District Court)
