Police – Basicrights

Police

If the police discovers that you are undocumented, you might either get a reporting duty, or immediately be put in Immigration Detention. Here you find out what can happen and what are your rights.

Stop & search/frisk

Check for papers The police and other ‘authorities’ may ask anybody above the age of 14 for an identity certificate ‘if this can reasonably be assumed to be required for performing their duties’.1 Authorities are almost all people who have supervising responsibilities. Checks tend to be held in cases of fare dodging, illegal employment and at football stadiums. If asked for documents, a valid identity certificate can be either a Dutch passport, ID-document or such document from an EU-country, or a Dutch residence permit. In most cases, a Dutch or EU drivers licence is also considered a valid identity certificate.2 If you have no identity certificate, a ‘reasonable suspicion of illegal residence’ may arise. In these cases the police are allowed to ask you to show your residence permit.3 If you don’t have a residence permit, they may check your fingerprints to see if your identity is registered in the Dutch or EU foreigners-database. The fact that someone does not speak Dutch or has no identity certificate is not enough reason in itself for a reasonable suspicion of illegal residence.

Sources

Artikel 2 Wet op de identificatieplicht

Artikel 1 Wet op de identificatieplicht

Vreemdelingencirculaire A2 Art 2.1

House searches

Warrant needed to enter someones house Normally the police need the residents’ approval before entering a residence or a room that serves as housing accommodation; they are only allowed to enter without approval if they have a warrant to enter a dwelling. But the authorities are allowed to enter the housing accommodation without such a warrant if there is a ‘reasonable suspicion of illegal residence’.1 In the following cases a ‘reasonable suspicion of illegal residence’ is assumed: if there is information provided by government services, the police, by traffic police or by the labour inspectorate or if there are reliable tips. The police are also always allowed to search premises if there is a suspicion that somebody is present whose application for a residence permit has been denied. In all these cases, the police are allowed to check ID’s of all people who are present.

Sources

Vreemdelingencirculaire A2 Art 2.1

Arrest

After discovery of illegal residence If the police check up on you and you cannot show your identity certificate or your residence permit, the police are allowed to detain you for 6 hours (nightly hours between 0-09h don’t count).1 If further investigation is required this period of time can be extended by 48 hours.2 This requires the Superintendent’s approval. You have the right to get advice from a lawyer before you are interviewed. You can ask for your lawyer of preference, if you have one. If you asked for a lawyer and the lawyer cannot be present within 2 hrs, then the interview may take place anyway. During the interview, you have the right to an interpreter to express yourself better. After the investigation, the police can decide to detain you to prepare your deportation. You will first be placed in a police cell. From there, you have to be transferred within 24 hours to a specialized Immigration Detention Centre. Investigation of personal effects Once there is a ‘reasonable suspicion of illegal residence’ the police are allowed to examine your personal effects such as your bag, your phone and your housing accommodation.3 In this way the police want to obtain information about your identity and your country of origin. In some cases the police will visit and question your acquaintances, for example about your nationality. Your acquaintances are not obliged to answer these questions.

Sources

Artikel 50 Vreemdelingenwet 2000, lid 2

Artikel 50 Vreemdelingenwet 2000, lid 4

Artikel 53a Vreemdelingenwet 2000

Immigration detention

Immigration detention to prepare deportation
Immigration Detention is an ultimate measure. The police has to consider whether a less severe measure can be applied. This might be the case if the person concerned has a fixed abode or if reliable private persons act as guarantors. But if you neglected return orders more often, these reasons don’t count. If you have a passport and you have bought a ticket yourself, Immigration Detention can be discontinued because this shows that you are co-operating with your return.

Immigration Detention normally may last for a maximum of 18 months. After 6 months, detention can only be extended if you do not cooperate with return, or if the embassy will issue documents quickly.

Children can be placed in Immigration Detention for at most 2 weeks, except when they (or their parents) apply for a residence permit. Children cannot be separated from their parents.

Access to legal aid
If you are in Immigration Detention you are entitled to a lawyer free of charge. This may be your own lawyer but also a duty lawyer. This lawyer can lodge a complaint in Court against the detention or against the continuation of the detention. During the first court case it will be investigated whether it was actually allowed to check your identity, to detain you, and whether there is a prospect of deportation. In all follow-up cases the main issue will be the ‘prospect of deportation’.

Most court cases have to be applied for by the lawyer. This applies to the first court case about the lawfulness of the detention, for interim assessments as well as for the request for the discontinuation of the detention after 6 months. Only if the lawyer has not brought an appeal against the detention of aliens, the authorities have to do this within 28 days.