Whereas in my first blog I wrote how an exchange of political goals between the two governmental parties had led to the proposal to criminalize illegal residence, this proposal is now off the table after a recent new round of give-and-take negotiations. While a wide range of previously-adopted policy measures to restrain illegal migration went largely unnoticed among the general public, this latest proposal received a lot of attention and was perceived by both the public and politicians as highly controversial. When the Christian Union Party threatened to withdraw its support from any future government policy if illegal stay was indeed criminalized, the Labour Party at last decided that the measure was met with too much resistance amongst their electorate. Their coalition partner, meanwhile, was willing to drop the criminalization proposal in exchange for a fiscal advantage for the middle and higher incomes. So a new deal was quickly reached that will make well-off self-proclaimed progressive elites happy: more humanity and lower taxes, a slogan any government can be proud of.
As stated previously on this blog, illegal stay is actually already punishable by criminal law. After the Netherlands ratified the EU return directive in a rather creative way, it became a criminal offence to remain in the country after an entry ban or undesirable alien declaration. That this has hardly solved the issue of illegal residence is largely due to the problematic nature of both detection and expulsion. Therefore, the now rejected proposal has interestingly enough been both criticized and defended as being largely symbolic. This criticism is only partially true though. Whereas the enforceability of the law has been rightfully questioned, the position of irregular migrants would nonetheless have seriously deteriorated if it had been put into practice. In the current situation illegal migrants receive some sort of warning first (an entry ban or undesirable alien declaration, which is also subject to judicial review), while in the case of the criminalization of illegal stay this extra threshold before a migrant becomes a criminal would have been withdrawn. In a blog published earlier this week it was noted that the EU Fundamental Rights Agency has warned that the criminalization of migration “casts a negative light on how society as a whole perceives them.” Indeed, especially on a symbolic level it gives reason to be hopeful that not all irregular migrants are perceived straight away as criminals.
Thus symbolic or not, the fact that the proposal has now been revoked is more than an empty gesture. Of course one can question the political process that led to the withdrawal of the proposal. After all, a trade-off between fundamental rights standards and a fiscal advantage for the richer Dutch might not sound like a grand ideological move. However, at a time of highly rhetorical politics, where constitutional values are susceptible to political haggling, it is a significant step not taken.