Sanctions for holders of an asylum residence permit in case of (proven) identity fraud (2015)
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Summary
Fraud involving the name(s), date of birth, birthplace and nationality of the holder of a residence permit is subject to the general stipulation on fraudulent data and information. This means that in case of (proven) identity fraud by the holder of an asylum residence permit the withdrawal of the permit depends on whether the newly submitted information or data would have led to the refusal of the application.
In the Dutch Aliens Act there is no special article on the penalisation of (proven) identity fraud. Fraud involving the name(s), date of birth, birthplace and nationality of the holder of a residence permit is subject to the general stipulation on fraudulent data and information. This means that in case of (proven) identity fraud by the holder of an asylum residence permit the withdrawal of the permit depends on whether the newly submitted information or data would have led to the refusal of the application. Often, the outcome of this assessment is that, despite the false identity, the new identity would not have led to the refusal of the application. Therefore, the residence permit remains valid. If the assessment leads to the conclusion that the residence permit is to be withdrawn, an investigation into whether the holder of an asylum residence permit can safely return to his or her home country is mandatory. Transcription errors and other mistakes with regard to the writing of names, naturally, do not fall within the category of fraud.
In order to strengthen the penalty regime for holders of an asylum residence permit in case of (proven) identity fraud, Dutch policymakers are exploring the possibilities of using a more strict interpretation of the current legal stipulations. This interpretation is centred on the assumption that, if the holder of the asylum residence permit has carried a false identity, the residence permit never actually was conferred to the person in question. In a sense, the residence permit is ‘void’, as it is based on a fictitious identity. The subsequent (retroactive) withdrawal of the residence permit would then be a mere administrative act, rather than a full decision which involves the consideration of all the aspects of the case. The assessment of whether the holder of an asylum residence permit can safely return to his or her home country (the so called ex nunc assessment) naturally remains intact. The right of the (ex) holder of a residence permit to submit a new application, also remains intact.