Criminalising unauthorised immigrants

4 December 2011

Criminalising unauthorised immigrants

By Arjan Vliegenthart - Next week the Senate will debate the implementation of the European Union’s Returns Directive and the criminalisation of unauthorised entry and residence. This is a controversial proposal, towards which much justified criticism has been directed by local authorities as well as churches. In addition to consideration of the likely effectiveness and the humanitarian aspects, the debate will probably also focus on the question of whether the Dutch government has incorporated the EU directive into our national legislation in a proper manner, as on this matter the last word has not yet been spoken.

Arjan VliegenthartImmigration Minister Gerd Leers, who is responsible for the implementation of the Returns Directive, proposes to criminalise any failure to leave the country on the part of those refused asylum. Refugees who are told that their application to remain in the Netherlands has been turned down are, in the government’s view, liable to deportation. If despite this they stay in the country, they will be regarded as criminals. Leers cites the directive as a basis for this, as well as the official advice of the Council of State which asserts that, based on what is known as the ‘loyalty principle’, the Netherlands is obliged to introduce concrete penalties into its national legislation to punish those who transgress the directive’s requirements.

In criminalising such transgressions, however, the minister opts for an extremely broad interpretation of the directive. Where Brussels requires that exceptions must be made for victims of people smuggling and for humanitarian reasons, this type of thing goes unmentioned in the Dutch proposal. Every refugee who has been told that he or she must quit the country and who does not then do so becomes liable to criminal charges. The question of whether a refugee can in reality return to his or her country of origin plays no role. What the government will do in cases of people smuggling is equally unclear, because this is nowhere stated, and it is to be feared that its victims will also find themselves criminalised.

Thus far, the government has failed to make clear why they have chosen this course. Aren’t they going further than is required by the EU directive? This question is all the more worrisome because the two centre-right governing parties, the Christian Democrat CDA and the Liberal VVD, in their ‘tolerance agreement’ under which Geert Wilders’ anti-immigration PVV maintains them in power, did agree to criminalise unauthorised residence. The government, however, vehemently denies that these measures are being introduced as a result of agreements with the PVV, arguing repeatedly that they are required by Brussels and by the Council of State and that nothing else has any relevance. Yet that there exist alternatives and that the directive does indeed give space for such, the government does not take into consideration, and thus it creates a suspicion that other matters are in the mix. It is now for the Senate to clarify how things really sit and to pass judgement accordingly.

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