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Appeal against incremental penalty judgments

Last update: 2 May 2022

Since the summer of 2020, asylum seekers have no longer had a right to a payment (incremental penalty) when the IND has not decided on their asylum application in time. The 'Temporary Act suspending incremental penalties IND', which was then adopted by the Dutch Parliament, will be in force until a new act has been adopted. Two courts have recently ruled that the temporary act is in conflict with European legislation [only in available in Dutch]. The IND will appeal against this on behalf of the Minister for Migration. 

Penalty for late decisions

Previously, the IND had to pay a penalty for each day that a decision was taken late, up to a maximum of 1,442 euros (administrative incremental penalty). In addition, the court could impose a judicial incremental penalty on the IND. Then the court imposed a period in which to decide. If that period expired, the IND had to pay an incremental penalty for each day that a decision had not yet been taken, up to a maximum amount determined by the court.

The fact that late decisions  are taken on asylum applications will not be resolved by imposing an incremental penalty. That is why the House of Representatives (in Dutch: Tweede Kamer) agreed with the 'Temporary Act suspending incremental penalties IND' in July 2020. This act will apply until a definite act is adopted. Since then, no more administrative and judicial incremental penalties have been paid to asylum seekers when decisions have been taken outside the legal decision period. 

In conflict with EU law

A judgment by the District Court of Den Bosch (22 April 2022) ruled that by adopting the temporary act, the State had acted in conflict with the equivalence principle under EU law and Article 47 of the European Charter, as far as the administrative and judicial incremental penalties were concerned. The Arnhem District Court (24 March 2022) previously ruled that only the judicial incremental penalty was in conflict with Article 47 of the Charter. There are also courts that do find the temporary act justified.  

Appeal

The Minister for Migration has already appealed to the Council of State against the judgment of the Arnhem District Court. An appeal will also be filed soon against the judgment of the District Court of Den Bosch. In pending appeals where asylum seekers refer to these judgments, the IND will request the District Court to stay the hearing of these appeals until judgment has been given on these appeals. In the meantime, the IND will not pay any incremental penalties.

Amendment of the Aliens Act (Vw)

The current temporary act in which incremental penalties are suspended will apply until the definite act enters into effect. The bill of the definite act is now being debated in the Dutch House of Representatives. 

The IND is in favour of the abolishment of incremental penalties. The assessment of asylum applications is a human endeavour. IND staff members are extremely motivated to provide clarity as quickly as possible in the uncertain situation of asylum seekers. The past has shown that imposing incremental penalties does not contribute to faster decisions. It is a shame to use the limited capacity of the IND to settle incremental penalties instead of processing applications.

Careful and quick decisions

Asylum seekers are entitled to a careful and timely decision. The IND makes every effort to bring this about. To do so, investments are made in more competent staff and further improvement of work processes. Because the number of asylum applications is regularly higher than that for which the IND is equipped, timely processing cannot always be guaranteed.