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Rowie Stolk on NPO Radio 1 about passport alerts

In the Netherlands, anyone who loses their passport or ID card too often can be added to the Passport Alerts Register. As a result, a passport application may be denied or the passport must be surrendered. Rowie Stolk, PhD candidate at the Department of Constitutional and Administrative Law, spoke on NPO Radio 1’s programme ‘Pointer’ about legal protection in relation to passport alerts.

In order to prevent passport fraud, authorities (such as municipalities or the minister) can enter someone in the Passport Alerts Register if there are well-founded suspicions of abuse – for example, if someone loses their ID card or passport three or more times in five years or if it gets damaged under suspicious circumstances. Anyone included in this register may have to go through life without a passport for up to two years; after that, they have to be reassessed.

In practice, there is much criticism concerning legal protection and passport alerts. The biggest problem is that the passport alert cannot be deemed a decision within the meaning of the Dutch General Administrative Law Act, because it has no legal effect in itself. For example, if the minister includes someone in the register, a person’s legal status is not changed as a result. It is the passport-issuing authority (for example, the mayor) who then determines whether or not the passport is withdrawn, refused or not renewed. As a result, no objection and appeal is available against the signaling authority (often the minister) about the decision to include someone in the register. This can only be done against the decision of the issuing authority (often the mayor) that has refused the passport application. The disadvantage of this ‘indirect’ route is that the opposing party is often not the issuing authority that put this person on the list, but the mayor who ultimately does not grant or does not renew the passport. All this leads to much restraint in the administrative law procedure: after all, the passport-issuing authority has very limited leeway to assess whether someone is rightly on the list (relying largely on the opinion of the signaling authority that is not represented in the procedure) and the administrative court tests this with restraint.

This is in line with the legislative history, in which the legislature considered it undesirable that the reasons why someone is put on the register by an issuing authority should be tested on their content by the authority that decides on the granting of the passport. While this is understandable (after all, it is precisely the signaling authority and not the passport-granting authority that has the expertise to determine whether someone belongs in the register), in practice it makes it very difficult or virtually impossible to effectively challenge a passport alert (in relation to a passport refusal). Because of the far-reaching consequences of a passport alert, this is viewed critically by interest groups, legal practice and academia. The alternative, the civil lawsuit, is expensive, time-consuming, not very promising and therefore no real alternative.

One solution could be to still consider a passport alert to be a decision for reasons of legal protection. To date, however, administrative courts in the Netherlands have been unwilling to go along with this, so it seems unlikely that this will occur.

Listen to the item on Pointer (in Dutch)

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