Leiden Law Blog

More or less aliens in prisons?

More or less aliens in prisons?

Last week the Dutch State Secretary for Security and Justice Fred Teeven (member of the conservative liberals) officially presented his plans for a more humane policy on asylum seekers and illegal immigrants. The incentive for the changes came from the liberal’s coalition partner (Labour Party), who made this more humane treatment one of its key demands in order to agree on the highly controversial proposal to criminalise illegal residence. Considering the positive response from the Labour party to the plans, the State Secretary seems to have satisfied their demands and can proceed with the criminalisation of illegal stay. This exchange of political goals has been described previously here in the blog political haggling with constitutional values.

Locking up immigrants

Demands from the Labour Party for a more humane treatment of asylum seekers were backed by several human rights organisations, as they have repeatedly criticised the Dutch practice of locking up migrants who are illegal in the Netherlands (which is an administrative violation) in a detention regime that appears to be similar to that of ordinary criminal law-based prisons . Not only would detention be applied too easily, the circumstances in the facilities would even be more sober than those in ordinary prisons. Criticism reached a peak when Russian activist and asylum seeker Aleksandr Dolmatov committed suicide in his cell in a detention facility while awaiting deportation. The official investigation into the incident revealed a string of flaws in the immigration system, including the erroneous labeling of Dolmatov as an illegal alien. In order to escape a vote of no confidence and keep the support of his coalition partner, State Secretary Teeven promised to reform the immigration system and make it more humane.

Reducing the number of aliens in detention?

An important objective of his plans is therefore reducing the number of aliens in detention facilities and improving circumstances for those that do end up there. Immigrants will therefore no longer be detained under criminal law, but under administrative law. Alternative ways of supervision, such as periodic reporting to the authorities or the payment of a deposit,  should result in a drastic decline in the number of cells that are specifically for aliens. But as promising as these changes seem for reducing the number of detained aliens, they will instantly be nullified by the criminalisation of illegal residence.

The proposed criminalisation foresees in a fine when foreigners stay in the Netherlands illegally, substituted by imprisonment if they are unable to pay this fine. Serious criticism has been received on this plan from a wide array of actors, as comments have been made about the lack of effectiveness and enforceability, the fact that it conflicts with European Union law and the potential violations of human rights standards. But apart from that, it would also be in total contrast to the spirit of the proposed changes that are aimed at reducing the number of aliens in detention facilities and a less criminalised approach to immigrants. But at least the foreseen decline in the number of cells that are specifically for aliens won’t be a problem: those found to be illegal will be seen as criminals and will therefore be sent to ordinary prisons.

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