Rowie Stolk on legal protection and the Passport Alerts Register
The Dutch Passport Alerts Register (Register paspoortsignaleringen, RPS) lists Dutch nationals (around 8000 in 2021) whose right to a passport has been restricted. As a result, they cannot apply for, renew, or must surrender their passports. Under the Passport Act, the Tax Authority, the DUO (Education Executive Agency), and the National Coordinator for Security and Counterterrorism (NCTV), among others, can have someone added to the Register to prevent them from going abroad.
The biggest obstacle from the perspective of effective legal protection is that a passport alert in the Netherlands does not qualify as a decision within the meaning of the General Administrative Law Act because it does not have any legal effect in itself. Therefore, in the absence of a decision, no objection and appeal is possible. What is open to objection and appeal, however, is the final refusal by, for example, the mayor of a local authority not to grant someone a passport because the person is on the register. Since that decision does have legal effect, it is the subject of possible administrative legal action (and, strictly speaking, not the inclusion in the Passport Alerts Register). Therefore, the opposing party is not the alerting authority that has put this person on the list (such as DUO or NCTV), but the mayor or the minister who ultimately does not grant or does not renew the passport. All this leads to great restraint in administrative law procedure: after all, the passport-granting authority has very limited scope to assess whether someone is rightly on the list (relying largely on the opinion of the alerting authority that is not represented in the proceedings) and the administrative court reviews this with restraint.
This is in line with the background to the legislation, in which the legislature considered it undesirable that the reasons why someone was put on the register by an issuing authority should be reviewed on their content by the authority deciding on the granting of the passport. While this is understandable (after all, it is precisely the alerting authority and not the passport-granting authority that has the expertise to determine whether someone belongs on the register), in practice it makes it very difficult to almost impossible to effectively challenge a passport alert. Because of the far-reaching consequences of a passport alert, this is viewed critically from interest groups, in legal practice and academia. The alternative, civil litigation, is expensive, time-consuming, not very promising, and therefore not a realistic alternative.
One solution could be to still regard a passport alert as a decision for reasons of legal protection. However, the administrative courts have so far been unwilling to go along with this, so it seems unlikely that this will happen.