Leiden Law Blog

The SOB-measure: stimulating the deportation of foreign national prisoners

The SOB-measure: stimulating the deportation of foreign national prisoners

In recent years the Dutch government has repeatedly lowered the threshold for terminating a foreigner’s lawful residency on the basis of a criminal conviction. These changes have had a profound impact on certain foreign offenders, as chances that a criminal sentence is followed by expulsion from the country have become higher. For example, previously anyone living legally in the Netherlands for more than twenty years could not lose his lawful residency anymore. With these recent changes however, certain crimes (violent, sexual and drug offences) can now result in deportation regardless of how long somebody has been legally residing in the country. One consequence is that even offenders who came here at a young age are still eligible for deportation later in life if they never gained Dutch citizenship.

As a result, more immigrants that are caught up in the criminal justice system (Vreemdelingen in de Strafrechtsketen, or VRIS) face the threat of deportation at the end of their prison sentence. For reasons of efficiency, these immigrants are imprisoned in the all foreign national prison that was established in 2012, located near the town of Ter Apel in the northeast of the country. Here all male foreign national prisoners without residence status are incarcerated and prepared for their ensuing expulsion by case workers of the Repatriation and Departure Service (DT&V). These case workers (or ‘supervisors departure’) have their offices inside the prison and are responsible for coordinating the return of these prisoners.

The SOB-measure

Since April 2012 foreign national prisoners without a residence status are no longer eligible for provisional release, unlike Dutch prisoners who enjoy this right after serving two third of their sentence. Instead, article 40A of the ‘regulation on temporary leaving the facility’ foresees in the possibility of prematurely ending the imprisonment of foreign nationals through the so-called SOB-measure (Strafonderbreking, roughly translating as ‘punishment interruption’). An important aim of this measure is to stimulate criminal foreigners to leave the Netherlands. Therefore, SOB is only possible under the condition that the sentence is final – so no more appeals pending – and the person concerned actually leaves the Netherlands. If he is subsequently caught in the Netherlands again he will have to serve the remaining sentence. For sentences up to three years SOB is possible after serving half of the sentence, for longer sentences after two thirds.

Differences in sentence length

The SOB-measure can result in stark differences in prison sentence length for similar criminal cases. There are after all crucial differences within the population of criminally convicted migrants without a residence permit. This includes people caught for drugs smuggling at the national airport. Having no specific ties to the Netherlands, and a family in his country of origin, these prisoners will gladly agree to serve only half of their sentence in order to return home. In this way their sentence is even shorter than that of a Dutch prisoner, who gets released only after serving two thirds of the sentence.

For others, however, home is in the Netherlands. Having lived here sometimes for a long time, people might have considerable ties to the Netherlands and therefore do not want to leave and will try to frustrate the identification process. Others, still, simply cannot be returned, because it would constitute a violation of their human rights or because the authorities of the country of origin do not cooperate. In all these cases foreigners serve their full prison sentence, possibly followed by immigration detention when there is still a reasonable prospect for removal.

Crimmigration and the fairness of punishment

Fitting within the wider trend of crimmigration, the SOB-measure employs elements from criminal law in order to establish migration control-related goals. In the process of doing so, it raises important questions about the fairness and equality of punishment. I am currently conducting fieldwork in the all foreign national prison in Ter Apel, hoping to find some answers to these and numerous other questions. Through observations and interviews with foreign national prisoners, prison staff and case workers of DT&V, I aim to shed light on the implications of crimmigration processes for those working in both crime control and migration control and for unauthorized migrants in penal settings. Constituting already more than 20% of the total prison population – a number that is furthermore likely to rise due to increasing global mobility and international migration – foreign national prisoners in the Netherlands can no longer be neglected.

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