Leiden Law Blog

Trust in the Future: The New Dutch Government’s Plans with regard to Immigration

Posted on by Anne Aagten and Peter Rodrigues in Public Law
Trust in the Future: The New Dutch Government’s Plans with regard to Immigration

On 10 October 2017, the new Dutch coalition agreement was presented after 209 days of negotiations, entitled: Trust in the Future. Regarding its migration policy, the Rutte III coalition government is stricter than Rutte II and seems to have drawn consequences from the so-called refugee crisis in 2015. Nevertheless, despite the new policy being more stringent, we also want to mention some positive aspects of the new coalition agreement. Rutte III will increase the resettlement quota and invite 750 refugees instead of the current 500 from the UNHCR resettlement programme. Asylum seekers for whom it is likely that they will be granted a residence permit, will be offered language courses immediately. Furthermore, more attention will be given to the position of vulnerable people, more specifically children, in the asylum procedure. However, certain formulations have given rise to concern. The Kinderpardon will remain unchanged. This is a regulation which provides the opportunity for children and unaccompanied minors who have had long-term residence in the Netherlands (five years), to apply for a residence permit if they meet certain requirements. These requirements are formulated strictly and every year only no more than a dozen minors are successful in their application. Furthermore, the coalition has new plans for the application of the bed-bad-brood regulation. This regulation aims to provide basic shelter to asylum seekers whose applications have been rejected. Eight instead of five large cities will be  involved in the organization of the reception of these persons. For these failed asylum seekers, the obligation to participate in their return procedure commences two weeks after the reception commences. Our main attention is focused on the proposed stricter regulation concerning asylum seekers. We will address the reception in the region, legal aid and social assistance.

Reception in the Region

In the first place, the focus is on the reception of asylum seekers in their region of origin. Rutte III proposes to conclude agreements with safe third countries for the reception of asylum seekers outside the European Union. At the moment, it is debatable whether the EU-Turkey Agreement fulfills the requirements of the concept ‘safe third country’ as contained in Article 38 of the Asylum Procedure Directive. The UNHCR calculated in Global Trends 2016 that around 84 per cent of all people on the run are living in their own region. The question is which countries outside the EU qualify as safe third countries: Tunisia or Morocco? Looking at the Qualification Directive we have serious doubts as to whether the requirements of a safe third country will be complied with. The reason for this is that if the asylum procedure is to be outsourced to states outside the EU, the EU Member States are still bound to EU asylum law. In combination with outsourcing the asylum procedure, the Dutch government wants to further close the borders of the EU. The Refugee Convention should be taken into account. However, in ‘Trust in the Future’ the government proposes an independent study on how the Convention should be updated in order to provide a durable solution for the future.     

Legal Aid

The duration of validity of the residence permit for refugees will be reduced from five to three years with the possibility to extend its validity period with two more years. It is not clear why the new coalition thinks it is necessary to amend and intensify immigration detention to make return more effective, as the Return Directive promotes a humane return and restricts the use of detention to facilitate the return process. The government agreement further states that legal assistance will only be provided after the announced intention of the Dutch Immigration Service to reject the asylum claim. The thought behind this proposal is that in this way the work pressure of Immigration Service officers will decrease. Despite the fact that this policy aim seems to be in conformity with Article 20 Procedure Directive, we presume that it will lead to more legal procedures afterwards.     

Access to Social Assistance

The new coalition wants to lower the amount of individuals enjoying international protection that rely on social welfare. It aims to restrict access to social assistance measures such as financial assistance, housing benefits and the healthcare allowance by regulating that during the first two years of stay, new legislation can prescribe that municipalities receive these instruments of social assistance instead of the individual. In return, the municipalities provide support in kind, such as assistance in the integration process combined with a periodical allowance to cover daily living costs. Article 23 of the Refugee Convention determines that its States Parties shall accord public relief and assistance to refugees lawfully staying in their territory. Accordingly, Article 29 of the Qualification Directive accords to individuals enjoying international protection the same access to social welfare as nationals of a particular Member State. However, in the case of Alo and Osso, the Court of Justice of the European Union formulated the so-called integration exception. It ruled that in situations where the unequal treatment is a consequence of a measure with the aim to improve integration, no comparable situation exists and therefore no right to equal treatment. Nonetheless, these considerations are questionable as Article 29 Qualification Directive specifically prescribes that with regard to social assistance, according to the EU legislator, individuals enjoying international protection must receive the same treatment as nationals of a particular Member State. Hence, those individuals have the right to equal treatment with regard to social assistance, unless the exception grounds of Article 29 Qualification Directive apply.

As there is a possibility that the policy plans will be amended during the upcoming term of government, we still have to await which of the proposals will be put into practice. Nonetheless, as mentioned above, our concern is the risk that especially the policy aims will go beyond the limits of what is permitted by international human rights law or EU asylum law. 

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