Statutory framework

European source of law

The duty to return - including the duty imposed on EU Member States to recover the associated costs from the carrier - follows from European legislation: Article 26 of the Convention implementing the Schengen Agreement, read in conjunction with Directive 2001/51/EC, Article 3.

National source of law

In September 2004, the Netherlands incorporated the above European legislation into national legislation. This legislation can be found in Article 5 of the Aliens Act 2000 and Article 65 of the Aliens Act 2000, Articles 6.2. and 6.3. of the Aliens Decree 2000 and also in Chapter A1/9 of the Aliens Act Implementation Guidelines 2000.

Strict liability

Recovering the costs from the carrier follows from a strict liability for the carrier. Imputable acts or omissions do not constitute a criterion here. Therefore, a sharp distinction should be drawn between the issue of recovering the costs from the carrier within the meaning of Article 3 of Directive 2001/51 and the so-called duty of care referred to in Article 4(1) of the Aliens Act. These so-called Article 4 cases do concern imputable acts and/or omissions by the carrier. That is why penalty rules apply to Article 4 cases (Article 4 of the Aliens Act read in conjunction with Article 108 of the Aliens Act).

Annex 9 to the Chicago Convention

Apart from the above sources of law, a specialised UN body for civil aviation, the ICAO (International Civil Aviation Organization), has also drawn up regulations pertaining to the return transport of foreign nationals by airline companies. These regulations can be found in Annex 9, Chapter 5, to the Convention on International Civil Aviation (Chicago Convention). Insofar as these regulations are not contrary to European legislation – and the Netherlands has not made a reservation with respect to the scope hereof – these provisions also apply to the Dutch situation. For instance, the Royal Netherlands Marechaussee also uses certificates as referred to in Annex 9 to the Chicago Convention in order to facilitate the return of inadmissible foreign nationals. Examples of these certificates are the guiding letter and the covering letter.

As prescribed in Articles 5.5, 5.6 and 5.7 of Annex 9 to the Chicago Convention, a removal order will be issued to the aircraft operator who transported a person that was found inadmissible. The removal order is accompanied by a guiding letter if this person does not have a travel document and a covering letter if he held false documents. These certificates must be accepted by the country to which the person is removed instead of the travel document seized or lost by the person. A condition is that the country has signed the Chicago Convention. The certificates are drawn up by the Royal Netherlands Marechaussee.

Elaboration in national laws and regulations

Chapter A1/9 of the Aliens Act Implementation Guidelines 2000 gives a more detailed elaboration of the duty to return under the heading ‘duty to return’ (in Dutch: terugvoerplicht). The list of rates can be found in Appendix 22 to the Aliens Regulations 2000 (List of rates). This sets out for each cost item the rates that are used in order to recover the costs. The Immigration and Naturalisation Service charges the costs of the return of a foreign national to the carrier.