Leiden Law Blog

A lesson from the child amnesty

A lesson from the child amnesty

Dutch mayors and Non-Governmental Organizations (NGOs) recently started to campaign against the way in which the recent refugee amnesty for children was applied. With sharp words, the children’s ombudsman rejected how children who had been under the supervision of the local rather than the national government had been excluded. Opposition parties said State Secretary Teeven applied the rules rigidly. Much has been said already about what this means for children who have been residing in the Netherlands and now fall outside the category of those who are granted the right to stay. Less has been said about the fact that all amnesties will bring to the fore new groups that fall just outside the criteria. And the least attention went to the observation that this is (just) one example in a range of instances that point to the tensions between national and local parties when it comes to the actual outcomes of migration control.

The national government emphasises one major goal when it comes to migration control: showing that the government is in charge. Increasingly this also means that there is little attention for instances in which reality is not that straightforward. In 2001, in my PhD thesis, I pointed to the fact that with respect to restrictive migration policies, both policy levels need each other. Exclusion will always have limits. Time and again municipalities are confronted with the presence of (groups of) immigrants without the right to stay, who are not likely to return to their home countries. At that time I argued that the development of the devolution of migration policies - the intensification of migration control at the local level - should be accompanied by the recognition that local governments and local organisations should be taken seriously in case they feel they can no longer deny people rights.

This did not happen. On the contrary: the national government took far-reaching steps to diminish the discretion at the lower level and to curb local bypasses, as they were seen as undermining the strict national stance.  The government announced in 2007 (after the amnesty of 27,000 former asylum seekers), that maximum efforts would be undertaken to expel those to whom the amnesty measure did not apply. In addition, the State Secretary of Justice and the municipalities agreed to end municipal assistance – including the provision of shelter through NGOs – to rejected asylum seekers and other  irregular migrants - by the end of 2009. This did not happen either.

Since then, one incident after another points to the tension between policy levels. Debates surrounding the shelter of rejected asylum seekers, the call of the European Committee on Social Rights to offer shelter, clothes and food to rejected asylum seekers, the decision of a German judge not to send an asylum seeker back to the Netherlands because of the risk of inhumane treatment, and the child amnesty.

It would help if the national government would accept  that the expulsion policy will never be fully effective. This does not imply that the aims of migration control are not taken seriously. It only implies that despite these aims and all the efforts to meet them, situations inevitably also exist where things do not work out as planned. Local governments will always be confronted with people who are present in the country although they are not supposed to be there. It is also time that mayors and municipalities step up to have their discretion recognised, not incidentally, but more structurally. It makes no sense that in order to send out an unequivocal message, two governmental layers keep arguing openly over migration control issues. Both layers should agree on a workable division of labour instead of being engaged in a continuous under the-surface battle over sad incidents like those arising from the child amnesty. And all those sad incidents that will follow.

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