Leiden Law Blog

Deprivation as a punishment for non-cooperative migrants

Posted on by Lennart van Laake in Private Law
Deprivation as a punishment for non-cooperative migrants

In 2014 the European Committee of Social Rights (ECSR) decided that the Netherlands had breached their obligations under the European Social Charter by failing to provide adequate care for irregular migrants present in the Netherlands. In the view of this Committee, the European Social Charter obliges its signatory states to provide emergency social assistance to irregular migrants unconditionally in order to safeguard their human dignity.

The decision proved to be very controversial. Some emphasized the limited legal significance of this decision, others emphasized the binding force of the obligations on the European Social Charter which it is based. The resulting resolution from the Committee of Ministers, the intergovernmental organ of the Council of Europe, only fuelled the debate.

The resolution seemed to imply that the Council of Ministers disagreed with the decision of the Committee, asking the Netherlands to report on any possible developments on this issue instead of recommending compliance with the decision. This message seemed to contradict the decision of the ECSC, and therefore offered no clarity about the legal obligations of the Netherlands. The eventual solution which both parties in government agreed upon was a typical Dutch compromise: they agreed to give limited emergency social assistance to irregular migrants, but only on the condition that they would cooperate with their own expulsion.

It is clear that this compromise does not address the decision of the ECSC. Since that decision called for an unconditional right to emergency social assistance, the condition that irregular migrants should cooperate with their return is incompatible with that decision. The important question that remained to be answered was whether this incompatibility with the decision of the ECSR could have consequences for the legality of the conditionality of emergency social assistance as proposed by the Dutch government.

Under Dutch law international treaties have primacy and direct effect as long as they are ‘binding for everybody’. Settled case law from the Dutch Supreme Court shows that the ECHR fulfills this criterion, while the European Social Charter does not. Even if the decision of the ECSR would be considered to be the correct interpretation of the European Social Charter, an irregular migrant would not be able to invoke the European Social Charter directly.

The first challenge before the lower court of Amsterdam of the conditionality of emergency social assistance for irregular migrants was successful. The court argued that while the European Social Charter did not have direct effect in the Netherlands, the decisions of the ECSR should still be regarded as authoritative. It therefore argued that it should be taken into account while analyzing the content of the right to private life in Article 8 of the ECHR. Reading the decision of the ECSR and the ECHR together, the lower court decided that Article 8 prohibits attaching conditions to emergency social assistance.

On 26 November the Dutch Council of State and the Central Appeals Council, the highest administrative courts of the Netherlands, ruled on this issue. The courts held, in two coordinated judgments, that the decisions of the ECSR are not relevant to the interpretation of the ECHR. Therefore, the conditionality of emergency social assistance is no violation of the ECHR per se. Emergency social assistance to non-cooperative irregular migrants is only required when the irregular migrant is psychologically unable to oversee the consequences of his refusal to cooperate.

Legally speaking, the conclusion in last instance on the relevance of the ECSR seems convincing. The argument that conclusions of the ECSR should be regarded as indirectly guiding the meaning of the ECHR seems artificial and did not convince me. However, the exception provided for those who are mentally unable to cooperate worries me.

By creating this exception the courts appear to draw a parallel with criminal law, where an exemption from punishment exists for those lacking mental capacity. They seem to suggest that withdrawing emergency social support for failing to facilitate their return is a legitimate punishment for irregular migrants. However, would we find it acceptable that a murder suspect would not be fed until he cooperates with the police? If such measures would be implemented with regard to criminals, it would violate their right to a fair trial. While return may have far larger consequences compared to many criminal punishments, being sent back to Sudan seems worse than a short time in a Dutch prison, the procedural rights of “suspected” irregular migrants are far more limited than those of criminal suspects.

I do not believe that social assistance can never be dependent on personal behaviour or personal circumstances. Assistance to healthy irregular migrants with sufficient means can be subject to harsher criteria compared to assistance  to sickly individuals with insufficient means. Moreover, temporarily limiting assistance to fraudulent recipients could be justified. However, the suggestion by the Dutch courts that it is permissible to use social assistance as a bargaining chip against vulnerable “suspects” is deeply regrettable.

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