Answers Parliamentary questions on the report that hundreds of Chinese recovered their false identities from municipalities

Question 1
Are you familiar with the report Hundreds of Chinese 'recovered' fake identity from municipalities? (1)

Answer 1
Yes.

Question 2
What is your information on the phenomenon of identity fraud by persons of Chinese descent in our country and what about persons of other descent?

Answer to question 2
The perception that persons from China turn to municipalities years after settling in the Netherlands to have their full personal data (not their nationality) amended in the Basic Registration of Persons (hereinafter BRP) is recognized. As reported to your Chamber by letter dated December 22, 2017,(2) the same also applies to persons from, in particular: South Sudan, Sierra Leone, Liberia, Rwanda, Uganda, Tanzania, Myanmar and Azerbaijan. Some applications are substantial changes, such as name, date of birth and place of birth. These applications are often complex due to the diversity of source documents presented.

Question 3
Do you share the opinion that both obtaining Dutch citizenship with a false identity and being able to restore a full identity at municipalities after identity fraud should not be possible and that, if unpunished, it feels like a reward for the fraudster if he or she can subsequently derive all kinds of rights from this, such as being able to retire earlier? If so, what approach are you currently using to combat such identity fraud?

Answer 3
We share the view that intentional deception should not pay off. However, it cannot be ruled out that someone, who is residing in the Netherlands under completely or partially incorrect personal data or an incorrect nationality, may naturalize or have lawful residence. Various measures have been taken in order to be able to register the correct identity data in asylum applications early in the procedure. The establishment of the BRP lanes for asylum applications helps in this regard to a great extent: data obtained during an asylum application and necessary for registration of identity, nationality and civil status are shared with civil affairs officials so that the same data are available upon registration in the BRP. Regional 'Working Groups to Combat Identity Fraud' (hereinafter referred to as WTI) have also been established, including representatives of municipalities, the Immigration and Naturalization Service (hereinafter referred to as IND), the police, and the Openbaar Ministerie (hereinafter referred to as OM). In addition, efforts are being made to improve and make more efficient the identification and registration process of asylum seekers, as an important part of the Asylum Chain Flexibilization Program of the Ministry of Justice and Security. The Ministry of the Interior and Kingdom Relations supports the approach to identity fraud by taking preventive action. The "Implementation Procedure Manual"(3) describes the conditions under which a change of personal data is possible. The "Stappenplan identiteitswijziging in de BRP"(4) of the Nederlandse Vereniging van Burgerzaken (hereinafter the NVVB) describes the steps and tools to be followed to reach a decision. Furthermore, the "Circular on Legalization and Verification of Foreign Evidence"(5) describes how to check the validity of foreign documents.

Question 4
What is the status of the commitment made on November 21, 2019 during the discussion of the budget of the Ministry of Justice and Security for the year 2020 to bring identity fraud of Chinese to the additional attention of the Immigration and Naturalization Service (IND) and to take another very close look at this?

Answer 4
The commitment to your Chamber has been honored by discussing the subject of identity fraud in the working meetings within the IND and by specifically drawing attention to identity fraud by Chinese when processing applications. The IND complies with the existing work instructions. Cases of fraud are investigated and if there is reason to do so, the permit or Dutch citizenship is withdrawn or Dutch citizenship is not granted.

Question 5
How does a "restoration" of identity relate to deeds in the Dutch civil registry, particularly if the "restorer" is married in the Netherlands or has had children in the Netherlands? In the cabinet's view, can a request for "restoration" of data in the Basisregistratie Personen (BRP) be processed at all if there are already Dutch deeds of this person (especially considering the system of source documents in the BRP law)?

Answer 5
The basic principle of the BRP is that changes to the data in the BRP are derived from source documents. Article 2.8 of the BRP Act contains the basic principles regarding the sources of civil status data. The system distinguishes between facts that occurred in the Netherlands and facts that occurred outside the Netherlands. In both situations, deeds in the Dutch civil registry play a major role. The registration of personal data in the BRP for facts that occurred in the Netherlands is primarily based on deeds from the Dutch civil status records (art. 2.8, first paragraph of the BRP Act). Supplementation, deletion or correction of a civil status record can be ordered by the court at the request of interested parties or the public prosecutor (Art. 1:24 BW). Substantive changes to a Dutch civil status record, such as with respect to the personal data of the person concerned, can therefore only be made by court order. Because a civil status deed is a source document, the BRP can then also be amended. In the absence of civil status records, writings as referred to in Article 2.8(1)(b) can serve as a source document on the basis of which data can be included and amended in the BRP. This concerns a deed drawn up by the registrar of births, marriages and deaths, a decree, a final judicial ruling or a notarial deed. For facts that occurred outside the Netherlands, the order of priority of documents as included in Article 2.8, second paragraph, of the BRP Act applies. For this category, too, the primary basis must be the deeds of the Dutch civil registry. In the absence of such deeds, Dutch court judgments as well as deeds, writings and statements drawn up outside the Netherlands qualify as the basis for inclusion or modification of data in the BRP. When requesting an amendment of data in the BRP, the order of priority of source documents as specified in Article 2.8 of the BRP Act must always be followed.

Question 6
Can you tell us in how many cases people of Chinese descent have been asked to adjust their identity in the past 15 years and in how many cases it has been granted, in how many cases municipalities have refused it and in how many cases the Raad van State has still granted or refused it and can you break this down by municipality?

Answer 6
It is not possible to use data from the BRP to answer this question. Only the changes are kept in the BRP. The reason for an implemented change cannot be found in the BRP, so the figure on granted change of identity for this group of Chinese cannot be determined. Inquiries with the Raad van State reveal that it does not register judgments on the BRP by background of the litigant.

Question 7
Are you aware of the process used by the relevant individuals who wish to change their identity and the role of copies of documents requested from China in this process? (6)

Answer 7
Citizens can submit a formal request to the municipality for a change of data in the BRP. Source documents are required to substantiate a change. In the case you describe, the requested copies of documents play a role because citizens want to use them to effect a change in the BRP. The decisive factor here is whether the documents are designated as source documents by the municipal civil service employees. Source documents can be submitted in different ways. Sometimes the original is handed over, sometimes legalized copies are submitted. After personal data have been changed in the BRP, this change automatically enters the IND's systems. In principle, these personal data are copied. This is done to ensure that the municipal basic administration and the aliens administration are identical, so that the person concerned is not registered with different identities in two administrations. As a general rule, a change in personal data leads to a review of the right of residence by the IND.

Question 8
In what way is the authenticity of the documents submitted established? For example, can BRP employees of municipalities have the contents of documents verified and checked by a Dutch embassy abroad? If yes, is this also possible in the case of Chinese documents? If not, why not?

Answer 8
See answer to question 10.

Question 9
Also in the light of question 7, how reliable does the Cabinet consider a passport issued by a Chinese consulate in Europe which, according to case law, often suddenly appears to be in the possession of persons of Chinese descent seeking to re-establish their identity, even though the persons concerned have often resided in the Netherlands for many years?

Answer 9
The Cabinet sees no reason to consider a Chinese national passport issued by a Chinese consulate in the Netherlands or elsewhere in Europe not reliable by definition. In a municipality, the question may arise as to whether the person stated on the passport is the same person as the person registered in the BRP and residing in the municipality. However, this issue is not specifically limited to Chinese passports. If a municipality doubts the authenticity of a foreign passport, it can be checked against the information that municipalities can find about it in EdisonTD.(6) If that information is not sufficient, the Expertise Center for Identity Fraud and Documents (ECID)(8) can be involved. The outcome is that the passport is genuine or that it is a false or forged document. Information obtained by the IND from Chinese authorities in 2019 showed that Chinese nationals can apply for passports at all embassies. This is not restricted to the embassy in the country where the Chinese national has his main residence.

Question 10
Can the Ministry of Foreign Affairs support municipalities if they want to check with Chinese authorities on the basis of which such a passport was issued? If yes in what way? If no, why not?

Answers 8 & 10
To check foreign source documents for authenticity, municipalities have access to DISCS (Documents Information System on Civil Status). This is a tool developed and managed by Bureau Documents of the IND with examples of documents and their authenticity characteristics. If a municipality still has doubts about the authenticity of the submitted document after consulting DISCS, the document can be sent to the Bureau Documents. There, documents are examined both technically (e.g. production techniques) and tactically (content) and a report is made of the findings. A report contains a degree of certainty as also used by the Netherlands Forensic Institute. The outcome depends on factors such as the technical layout, number and quality of authenticity features (how difficult they are to replicate); extent of the comparative material; previously established fraud; local regulations; fact-finding in the country of origin. The People's Republic of China is not a party to the Apostille Convention, except for the special administrative regions of Hong Kong and Macau. As a result, in accordance with the Circular on Legalization and Verification of Foreign Evidence concerning the Status of Persons, as well as the application of DNA testing, documents from that country must be legalized by the Dutch authorities. In China, legalization is still done at the Dutch representation in that country. The consular officer verifies the signature of the Chinese official of the Ministry of Foreign Affairs of China. The substantive accuracy (verification) of the source document cannot be determined by the consular officer. If an implementing agency suspects that the content of a source document is incorrect, a verification investigation can be initiated from the Netherlands. The role of the Ministry of Foreign Affairs consists solely of searching for or referring a municipality, for example, to research agencies present abroad. In China, substantive verification is virtually impossible because no reliable trusted persons are available. As a result, independent research is effectively not possible in China. The final decision on whether to accept a document lies with the municipality or other implementing agency.

Question 11
In what cases does the ministry itself contact the country of origin when identity fraud is detected and, again also considering question 7, potentially forged foreign documents?

Answer to question 11
Neither the Ministry of Foreign Affairs, the Ministry of the Interior and Kingdom Relations nor the Ministry of Justice and Security themselves contact the country of origin when identity fraud is detected. In a number of countries, it is possible for an implementing organization to commission a verification investigation into the content of documents. For example, the IND initiates verification investigations, but in principle does not itself contact foreign authorities for this purpose. Such investigations take place through fiduciaries. As indicated under the answer to question 10, this is virtually impossible in China. Bureau Documents of the IND does maintain direct contact with foreign embassies and consulates with regard to general questions about technical characteristics of a (source) document (authenticity characteristics). In doing so, no identity details are disclosed.

Question 12
Is the Cabinet prepared to exempt persons who have come here through immigration and have been in the Netherlands, sometimes for decades, and who appear to suddenly want to change their identity from the possibility of being able to apply for Dutch citizenship after 5 years on the basis of that revised identity? If not, why not?

Answer 12
The Cabinet is not prepared to exclude lawfully residing aliens from acquiring Dutch citizenship. After a change in the personal data in the BRP and if there is no reason to doubt the newly recorded personal data, there is no reason to withhold Dutch citizenship permanently. Since 2012, however, in such a situation Dutch citizenship will only be granted after the expiry of a new period of five years of admission, which has started after the change of the data in the BRP. This results in an admission granted for five years on the personal data and nationality under which naturalization will take place. If it concerns an easily explainable change of personal data in the BRP (such as, for example, the correction of a typographical error or an incorrect transcription into the European script), then no new term applies and Dutch citizenship may be granted after the expiry of the five-year period of admission originally applicable to the person concerned.

Question 13
Is the Cabinet prepared to investigate whether it is possible to retroactively revoke Dutch citizenship when identity fraud is established, regardless of the date of acquisition or granting of Dutch citizenship and regardless of the duration of residence in the Netherlands? If not, why not?

Answer 13
If Dutch citizenship was obtained before April 1, 2003 and identity fraud was involved, then, based on Supreme Court case law, the person concerned did not obtain Dutch citizenship. The Netherlands Nationality Act was amended on April 1, 2003. Since then, following an intention procedure and a weighing of interests, an option or naturalization decision may be revoked for, in short, fraud, provided the decision to be revoked is not older than 12 years. The revocation is not a sanction for the fraudulent act, but aims to correct its consequence. The 12-year period was introduced for the sake of legal certainty and is derived from the statute of limitations for the crime of "forgery."(9) Also mindful of legal certainty, the Cabinet sees no reason to amend the provision or to investigate it.

Question 14
Can individuals who have provided a false identity be recovered government benefits wrongfully obtained on the basis of that identity, and does this happen in practice? If not, why not?

Answer 14
In general, in social security and benefits, anyone applying for or receiving benefits must comply with the obligation to provide information. Violation of this obligation occurs when the person entitled to benefits provides incorrect or incomplete information or conceals relevant data. This is grounds for recovery of the excess benefit received. Whether this is possible in practice depends on the specific circumstances and technical possibilities of the executor. By way of illustration, we explain here how the Social Insurance Bank (hereinafter SVB) and the Tax Administration deal with this. The SVB uses information from the BRP. When data are changed there, the SVB adopts the new data for current benefit relationships. The current benefit will then be adjusted accordingly and a sanction may be imposed. For benefit relationships that have already ended, such as child benefit after the child turns 18, these signals are not processed automatically. However, in response to specific information about an individual case, the file may still be consulted, after which recovery and sanctions may follow. The SVB must have this information at its disposal; after all, the files are destroyed after the retention period has expired. Wrongful collection of benefits paid by the Tax Administration will always lead to the intention for recovery. As soon as it is clear what the true identity of the person who has wrongfully claimed the benefits is, a recovery will be initiated. There are examples that this does indeed happen in practice. If tracing this identity depends on information from abroad, within EU countries there is the possibility of making a request for information. If the person is abroad, the foreign government will, at our request, recover the outstanding amounts as if it were its own tax claim (but without preference).

Question 15
Is the Cabinet prepared to ensure that identity fraud can no longer be time-barred - so that perpetrators of identity fraud can always be criminally prosecuted in the future? If not, why not?

Answer 15
From the point of view of rational use of investigative resources and prosecution capacity, the severity of the offence is leading in determining the limitation periods. Against this background, under Article 70 of the Criminal Code, differentiated limitation periods apply, based on the seriousness of the offence, as expressed in the penalty maximum. The more serious an offense is, the longer the statute of limitations applies. For various forms of identity fraud, including forgery (art. 225 Sr), a statute of limitations of, in principle, 12 years applies on this basis. If acts of prosecution have taken place within this period, this period may be extended, up to a maximum of 24 years (art. 72 Sr). The premise adopted by the legislature that the possibilities for prosecution through longer statutes of limitation increase the more serious criminal offenses are reasonable and justified. The Cabinet therefore sees no reason to amend the current criminal legislation.

Question 16
What kind of sanctions can currently be imposed when identity fraud or perjury (when making a false statement under oath to the BRP) is established, and in how many cases are such sanctions imposed? Are you willing to evaluate the current fight against identity fraud and examine what bottlenecks in this fight can be removed?

Answer 16
Sanctions that can be imposed for identity fraud and perjury (when testifying under oath) do not differ from sanctions for other crimes. All existing penalty modalities are possible and imposed. For identity fraud (art. 326 Sr) there is a maximum prison sentence of 4 years and for perjury (art. 207 Sr) a maximum prison sentence of 6 years. In recent years, an average of 75% of the identity fraud cases received by the Public Prosecutor's Office were submitted to the criminal courts. In 90% of these cases the criminal court finds guilty. These are identity fraud cases in general. In fact, the Public Prosecution Service does not keep specific figures regarding cases submitted to the Public Prosecution Service that relate to identity fraud in immigration cases and the restoration of identity. It is therefore not known whether and how many criminal cases on this specific type of identity fraud have entered the criminal justice chain. Moreover, if there is the use of incorrect data in an asylum procedure, there are more interventions possible than the use of criminal law alone (see answers 7, 13 and 14). Evaluating the fight against identity fraud is very difficult because it is very difficult to determine how often fraud is successfully committed. Only the detection of fraud can give indications of possible areas for improvement within the process of registering identity. The STI was established for that purpose (see also answer 3). In addition, as a result of the meeting ´Basic registrations against undermining´ in March 2020, working groups are being organized by the Rijksdienst voor Identiteitsgegevens (hereinafter the RvIG). The objective is to analyze the problem of undermining and develop measures. Identity fraud is facilitative of undermining and therefore one of the topics being examined based on case studies.

Question 17
Do you share the view that in the case of identity there should be a certain uniformity in implementation of legislation? Is it true that legislation around identity changes, however, can be applied in different ways by municipalities? If so, what is the reason for this?

Question 18
Are you prepared to investigate - in consultation with the Association of Netherlands Municipalities (VNG) and the Dutch Association for Civil Affairs (NVVB) - whether a 'Identity Fraud Charter' for all municipal civil affairs departments in the Netherlands could help to ensure that there is a uniform policy which make clear to all municipal officials which procedures must be followed in order to verify as accurately as possible whether the applicant for a new identity has been the victim of previous identity fraud, and draw the municipality's attention to the fact that they can report this to the police and face prosecution?

Answers 17 & 18
The Cabinet shares this view; uniformity in implementation is the starting point in this regard. To this end, protocols are applied that deal with identity change. These protocols are available to all municipalities through the RvIG and NVVB. The complexity in these cases lies mainly in the diversity of source documents submitted. Each request for change of personal data must be handled individually. The protocols state that if perjury or forgery is found, a report must be made to the police.

Question 19
Is the Cabinet willing to consider tightening the BRP law to make the reinstatement of a completely different identity impossible or subject to judicial review and/or substantive assessment by the IND?

Answer 19
An amendment to the BRP law on this subject is not necessary. The basic principle is that data change requests are handled very carefully. Therefore, in accordance with the applicable instruction, the municipalities critically assess requests for changes. Furthermore, the burden of proof to change data in the BRP lies with the applicant. It follows from case law that this burden of proof is high. This careful procedure is described in the aforementioned Step-by-step plan for changing identity in the BRP. If needed, the IND or the Aliens Police, Identification and Trafficking Department (AVIM) is already called in. Ultimately, it is up to the municipalities to make a decision on changing the data in the BRP. It is not appropriate to place the decision on changing data primarily with the courts or the IND because updating the BRP is a task of the municipality. The IND does currently play a role during the municipality's review process to the extent that the review of a source document is not possible. The IND receives an automatic notification of the change. This notification leads to an IND procedure in which the right of residence is reconsidered. In case of suspicion of identity fraud or doubt of identity, an identity investigation can be requested from the AVIM.

Question 20
Are you prepared to bring additional attention to identity fraud by Chinese to the Chinese authorities and to emphasize that Chinese cooperation is of great importance to combat this fraud, and to ask them to offer this cooperation to the Netherlands as much as possible?

Response 20
Should there be evidence that it might be effective in combating the fraud referred to here to approach the Chinese government, the Cabinet is prepared to do so.

Footnotes

(1) NOS.nl, November 17, 2019, https://nos.nl/artikel/2310834-honderdenchinezen-herstelden-valse-identiteitbijgemeenten.html
(2) Parliamentary Paper 19637, 2363.
(3) https://www.rvig.nl/documenten/publicaties/2019/09/05/hup-versie-3.2a
(4) https://nvvb.nl/nl/producten/handreikingen/stappenplan/
(5) https://wetten.overheid.nl/BWBR0043011/2020-01-01
(6) The State Department's February 19, 2018, official report shows that it is relatively easy to obtain false and forged documents in China
(7) Edison Travel Documents: computerized system containing the authenticity characteristics of more than 2,500 travel and residence documents from 200 countries, developed by the National Criminal Investigation Service, in cooperation with the immigration agencies of the U.S., Canada and Australia.
(8) A partnership of the Royal Military Police and police
(9) Parliamentary paper 25 891, no. 3, p 15