In 2022 the IND paid penal sums amounting to 3.4 million euros. A periodic penalty payment is an amount that the IND must pay if it decides on an application for residence in the Netherlands beyond the statutory period. This amount is much less than in 2021. The main causes of this were developments concerning the ‘Interim Act on the Suspension of Periodic Penalty Payments imposed on the Immigration and Naturalisation Service’ (in Dutch: ´Tijdelijke wet opschorting dwangsommen IND´) and extension of the decision period for asylum applications. The financial accountability is usually contained in the annual report, but has been brought forward as a result of media coverage.
If the decision period is exceeded, then an applicant can submit a notice of default to the IND. Then the IND has two weeks to decide. If it did not succeed in doing so, it previously had to pay a periodic administrative penalty. In addition, the applicant can file an appeal for late decision with the court. The court can subsequently impose a judicial periodic penalty payment.
Interim Act on the Suspension of Periodic Penalty Payments imposed on the Immigration and Naturalisation Service (IND)
In the summer of 2020, the Interim Act on the Suspension of Periodic Penalties imposed on the Immigration and Naturalisation Service' entered into effect. On 30 November 2022 the Council of State (RvS) ruled on the validity of this act. The court did not allow the judicial periodic penalty to be abolished, because it could induce the IND to take a decision on time. It was possible however to abolish the periodic administrative penalty.
Extension of the decision period
Since September 2022 the IND has had 15 months’ time in which to decide on asylum applications instead of 6 months. Because many more asylum applications were submitted than those for which the IND was equipped, asylum seekers had to wait longer for clarity about their future in the Netherlands. A periodic penalty payment can be imposed if the IND has not decided within the period and the asylum seeker files an appeal against this.
Fivefold increase in notices of defaults compared to 2021
Just as last year the IND published the number of notices of default in its annual financial statements. In 2022 there were 19,830. The notices of default relate to asylum, journeys in connection with family reunification and regular applications for residence permits (for example for family, work or studies). The most of them relate to asylum applications. The increase with respect to 2021 occurred mainly because more asylum applications overran the decision period and various courts questioned the validity of the ‘Interim Act on the Suspension of Periodic Penalties imposed on the Immigration and Naturalisation Service’. The Act was declared partially non-binding, which might have been a reason for more asylum seekers to submit a notice of default and ultimately an appeal against failure to decide in time.
An increase in the number of notices of default does not have a direct effect on the payment of periodic penalties. This is because, for example some of the notices of default were submitted too early. Some of them also do not lead to periodic penalty payments because the IND still managed to decide within the prescribed period.
Appeals against failure to decide in time
In 2022 courts gave decisions 6,110 times in appeals against failure to decide in time. One third of them were declared well-founded. In the majority of the underlying proceedings on the merits, the IND decided before a periodic penalty had to be paid.
Effectiveness of the periodic penalty payments
The IND is not a proponent of periodic penalty payments because they do not contribute to quicker decisions. Staff members are extremely motivated to provide clarity as soon as possible regarding the uncertain situations of asylum seekers. Dealing with notices of default and appeals against failure to decide in time requires capacity that cannot be deployed to deal with asylum applications.
Although the IND took more decisions last year, the waiting time for asylum seekers increased. This was because the number of asylum applications exceeds the capacity the IND has to deal with them.
Based on the ruling by the Council of State, the IND is calculating the effects of different scenarios on how many appeals against failure to decide in time can be filed. The expectation is that a higher amount in periodic penalty payments will have to be paid in 2023 and 2024 than in 2022.