In January 2021, the Court of Justice of the EU (CJEU) ruled in T.Q. that the Dutch policy on unaccompanied minors who do not qualify for international protection is not in accordance with the EU Returns Directive. In December 2021, the responsible Secretary of State amended the Dutch policy. The amendments violate the EU Returns Directive even further and harm the legal protection of unaccompanied minors. In this blog, I will discuss the shortcomings of the new policy.

The EU Returns Directive prescribes that before taking a return decision for an unaccompanied minor, the Member State shall determine whether the child is returned to a family member, a nominated guardian or adequate reception facilities in the country of origin (Article 10(2)). In the Dutch policy guidelines, this is only investigated for children who are younger than fifteen years old (see Vc B8/6). For children older than fifteen, a return decision is taken without the determination of adequate reception. In practice, children are often not deported and no return action is taken until the child reaches adulthood.

In T.Q., the CJEU held that the distinction in age is not in accordance with the Returns Directive. In order to offer children perspective for the future, it needs to be determined whether there is adequate protection in the country of origin for each unaccompanied minor (para. 57). In case there is no adequate reception, lawful residence must be granted to the child. The Court emphasises that the Member States are required to issue a return decision and take measures to enforce it. Alternatively, the Member States can make use of Article 6(4) Returns Directive and allow for residence. In its ruling, the Court uses the concept of the best interests of the child, as enshrined in Article 24(2) of the Charter of Fundamental Rights of the EU and emphasised in Article 5(a) EU Returns Directive.

In response to the ruling and pending policy amendment, the Secretary of State for a number of months simply refused to make a return decision. Time after time, District Courts have ruled that this was unlawful. In December, the Secretary of State announced a new policy. This new policy states that the Secretary of State will grant postponement of departure to unaccompanied minors who cannot be issued with a return decision because further investigations are needed on the availability of adequate protection in the country of origin. Postponement of departure is not a new phenomenon in Dutch immigration law. It is already used for foreigners who cannot be deported because this would lead to a medical emergency situation.

The new policy is still not in accordance with the safeguards of the EU Returns Directive. The obligation to investigate whether there is adequate protection in the country of origin is only partly implemented in Dutch immigration law; partly – because it is only applied to children who are younger then fifteen years old. Moreover, as was intended by the legislator, the availability of adequate protection in the country of origin is not investigated separately, but is based on information about the applicant’s family that is obtained during the asylum procedure. This means that there is no real investigation as required by Article 10(2) EU Returns Directive.

Furthermore, by granting postponement of departure, the Secretary of State refuses to take a return decision. The Secretary of State argues that this is in accordance with the Returns Directive, but it is not. Article 6(4) of the Returns Directive gives the Member States the competence to offer an autonomous residence permit or another right to stay for compassionate, humanitarian or other reasons. But in the next sentence it is added that in that event no return decision is issued. The Secretary of State relies on this provision and considers that postponement of departure qualifies as another right to stay. In the new policy, the postponement of departure means that the applicant will get lawful residence in accordance with Dutch immigration law, but this is merely a postponement of the return decision. When the unaccompanied minor reaches adulthood, a return decision is taken after all. As there is no possibility to request a residence permit on another ground without leaving the Netherlands, the postponement of departure cannot be regarded as an implementation and application of Article 6(4) Returns Directive. The amended policy in no way explains how the assessment of adequate reception in the country of origin is conducted.

The new policy will essentially mean that the Secretary of State can continue the current policy of tolerating residence until the age of eighteen without issuing a return decision. Only granting postponement of departure, without specifying the policy on the determination of adequate reception in the country of origin, is at odds with the Court’s ruling. The Court has clearly stated that an in-depth assessment of the situation of the unaccompanied minors should be made in order to determine what is in the best interests of the child and to comply with the requirements of the EU Returns Directive. This is absent in both the old policy and the amendment. Furthermore, the Dutch policy does not provide for the hearing of the unaccompanied minor on the possible reception in the country of origin. This is explicitly required by the Court (see para. 59) and it is illustrative of the reluctant attitude of the Secretary of State to respect international obligations concerning children’s rights in immigration law.

The amendment is a clear attempt to implement the Court’s ruling in the most minimalist way. In the very short explanation, the Secretary of State makes it clear that the objective of the policy is to emphasise that the future for unaccompanied minors whose asylum claims are rejected lies in the country of origin. The amendment is not in the best interests of the child and means that the Dutch policy on unaccompanied minors is not in accordance with the EU Returns Directive.