advies - ACVZ

Summary
Evaluating expertise
The role of expert advice in the asylum procedure
The aim of this advisory report was originally to focus on the question of how the
quality of decision-making in asylum procedures can be improved through the use of
expert advice. During the ACVZ’s study, however, it became clear that the key question
is not the way in which the quality of expert advice can be improved but how the quality
of that advice can be authoritatively evaluated and guaranteed.
The minister for Immigration, Integration and Asylum Policy in the Netherlands seeks
expert advice in the interests of a careful assessment of asylum applications. This report
is concerned with the following areas of expertise in particular: language analysis,
document research, person-specific reports, country reports, medical assessments, and
age and DNA testing.
In addition to a discussion of the relevant legal framework and a description of the different
types of expert advice, this report focuses on the various problems identified
in interviews and meetings with experts. On this basis the ACVZ has drawn up seven
recommendations.
In drafting these recommendations the ACVZ took account of developments with
regard to the harmonisation of European asylum policy, and of initiatives taken in other
areas of law pertaining to the quality of expert advice.
The legal framework
The General Administrative Law Act (Algemene wet bestuursrecht; Awb) states that
when preparing an order or decision, an administrative authority must gather the
necessary information concerning the relevant facts and the interests to be weighed.
This requirement is also known as the principle of the duty of care. It follows from this
principle that the same due care criteria are applied to the expert advice as to the decision
itself, since the decision is partly based on that advice. Because the administrative
authority lacks the knowledge which the expert possesses, it is inevitable that it can
check only to a limited extent whether the advice is completely correct. Not that this
is necessary. According to settled case law of the Administrative Jurisdiction Division
(Afdeling bestuursrechtspraak) of the Council of State (Raad van State) the minister
may assume that an expert opinion is correct, as long as it provides information in an
independent, impartial and transparent manner, indicating wherever possible the sources
from which the information derives. The Awb also stipulates a number of additional
requirements governing external advice. The most important of these is the verification
requirement, which requires the authority to verify whether the investigation was performed
carefully and whether the expert is qualified to carry out the investigation.
If an expert opinion meets the due care criteria, it can only be refuted by counter-expertise.
The problems identified
From the various talks and meetings with experts, it transpired that a number of problems
are experienced in practice. These are mainly differences of perception regarding:
ac v z - juli 201 2 77 expert ise getoetst