Balancing on the Edge of Loyalty and Legality

A stricter asylum regulation has been one of the focal points of the current Dutch government, particularly so for Geert Wilders’s PVV (Partij voor de Vrijheid). At the end of 2024, new legislation was proposed in the shape of the “asylum crisis measures legislation” and a “two-status-system legislation” (a brief English overview can be found here). This package will consist of several legislative measures intended to be implemented in multiple steps.

Through advisory reports by the Council for the Judiciary, the highest administrative court (judiciary branch of the Council of State), and the advisory body on legislation of the Council of State, the broader public was properly introduced to the government’s plans. This latter entity has both a judicial and an advisory branch. The advisory branch is constitutionally mandated to advise on national legislation. The Council for the Judiciary gets this mandate from the Judicial Branch Act. The advisory reports were published at the beginning of 2025. They strongly urge the government not to pursue these proposals for their potential consequences on the judiciary and implementation of the new EU Asylum Pact. In this blog post, we commend the holistic assessment taken in the advisory reports. Although some of these individual measures may be legal, a holistic approach shows that it is the sum of these parts that finds itself at odds with EU law, balancing on the edge of loyalty and legality.

Individual measures of the asylum package

The roughly 25 proposed measures can be divided into four broader themes: First, a “two-status-system” will be introduced, in which a distinction is made between refugee status (those fleeing from an individual fear of persecution: article 2(d) Qualification Directive) and subsidiary protection (those fleeing war or general violence: article 2(f) of the Qualification Directive). The latter will have knock-on consequences, such as complicating family reunification. Moreover, the validity of asylum permits will decrease from five to three years. Indefinite asylum permits will disappear entirely.

Secondly, the legal procedure itself will be altered. This includes broadening the possibilities to declare convicted asylum seekers undesirable, whilst getting rid of the procedural step to declare the intention to deport an asylum seeker in advance of the formal decision. It also introduces a stricter test for new facts and circumstances and a culpability test in the case of subsequent applications for international protection. Moreover, failure on behalf of the applicant to attend the hearing will lead to an automatic refusal of a request. Lastly, it categorically excludes the possibility of family reunification when it comes to adult children and unmarried partners.

Thirdly, accommodation and detention are changed drastically. The cell capacity for any illegal immigrants or asylum seekers who have exhausted all legal remedies will be increased. Those who cannot provide any documentation will also be detained. An immediate withdrawal of the Dispersal Act (which aimed to distribute asylum seekers more equally over different city councils) will also follow. Additionally, the current duty for municipalities to provide housing for refugees will be abolished, and a prohibition on priority housing programs for refugees will be enacted.

Lastly, significantly decreasing the overall number of applications is to be achieved by activating border controls based on Article 25 of the Schengen Border Code. The purpose of these controls is to return to Belgium and Germany any asylum seekers who have already applied for international protection elsewhere in Europe. This seems to echo a broader trend that can also be observed in Germany.

In principle, some of these measures would be legal under EU law, such as the proposed plans to decrease the number of years that permits are granted for as well as the “two-status-system.” There are no strict legal impediments to this measure under EU law, as it is up to the member states themselves to decide how they want to tackle the matter of naturalization or indefinite leave to remain. In contrast, other proposed measures are in clear violation of human rights. Here, the advisory reports mention the categorical exclusion of adult children and unmarried partners from family reunification. Although we see how this measure might meet the minimum EU standard of ‘minor children and married partners’ under the EU Family-Reunification Directive, it would not meet human rights standards under the right to family life, as protected by the European Convention on Human Rights and the EU Charter of Fundamental Rights (see the ECtHR’s guide on Article 8 ECHR and the case law referenced in par. 332).

The sum of the parts

The advisory reports also state that at first sight, at least some parts of the Dutch asylum package would be allowed under European and international law. This does not come as a surprise: At the core of EU law stands the shared competence between the EU and its member states in certain areas of law (article 4(2) TEU). Member states have the autonomy to carry out EU policy as they see fit, as long as they do not contravene EU standards. Nonetheless, we argue that the proposed changes were rightfully criticized holistically when regarding the package as a whole.

Context is important: In the opening paragraphs of the coalition agreement, migration was classified as a “burden” on and a “threat” to society: The burden that migration places on national resources – the housing market, the healthcare system – supposedly constitutes a threat to guaranteeing these resources for Dutch citizens. What is more, migration, and specifically asylum, is framed as a cause for crime and erosion of Dutch culture. Therefore, it should not come as a surprise that this introductory paragraph concludes in a populist manner:

“Steps are taken towards the harshest asylum regime ever. The Netherlands should become part of the Member States with the strictest rules in the entire EU. Therefore, the Government will take any and all measures to restrict asylum inflow in so far as these are in line with EU legislation and international treaties.”

This rationale culminates in the proposed measures: The Dutch government aims to tone down any rights and benefits that asylum seekers may have to the bare minimum, all while staying just within the outer parameters that EU law has set out. By deliberately balancing on the edge of a cliff of legality, the government does not navigate but exploits and stretches the member state’s autonomy.

Legality of the sum of the parts

There is a clear tension between the Dutch plans and the EU’s overarching goal to create capacity for an efficient common asylum and migration system under Articles 78 and 79 TFEU. The newly introduced EU Migration and Asylum Pact and its Asylum and Migration Management Regulation (AMMR) were created precisely with this goal in mind. By doing everything in its power to restrict the arrivals of asylum seekers, the Dutch government acts in contravention of the reform efforts since 2016. Without properly taking into account the implementation of the Pact, the Dutch asylum plans also stand in contrast with its own (highly contested) plans for implementing all instruments of the Pact by 2026. Echoing this, concerns over how the new Dutch asylum plans would affect a smooth implementation of the AMMR also constituted a key point of critique by both Councils.

By capitalizing on the lowest possible protection, the asylum package encourages exactly those secondary movements that constitute the AMMR’s raison d’être. As such, the Dutch saga situates itself effortlessly in existing literature, observing the introduction of lower and lower standards in European asylum policies in this race to the bottom with the goal of becoming the least attractive destination for asylum seekers (similarly, see Benedek 2016; Zaun 2017).

The asylum package constitutes a paradox in itself: the government has insisted that the Netherlands finds itself in a crisis, which the country cannot deal with. The package and its underlying goal of decreasing the number of applications is grounded on this premise. In contrast, the advisory reports have sounded the alarm bells by warning that these proposed measures will only increase the pressure on the asylum system. For example, the already overburdened Immigration and Naturalisation Service (IND) would potentially need to reevaluate permits on a 3-year basis, further increasing the number of requests. In this context, many authors have already argued that the overburdening of the asylum (reception) system is a problem that did not naturally ‘occur’ but was created by government policies themselves (e.g. Council for Public Administration & Advisory Council for Migration 2022; Moreno-Lax 2023).

“The harshest asylum regime ever”

This supports the core argument of this blog post: The proof of the pudding is not in the legality of the parts; it is in what the sum of these measures tries to achieve. If the Dutch government succeeds in developing “the harshest asylum regime ever”, it will create an unworkable situation for other member states that will have to pick up the subsequent secondary movements. For this reason, we argue that the asylum package violates the principle of loyal cooperation. A reliable Common European Asylum System cannot be built on an individual race to the bottom.

The Council for the Judiciary hit the nail on its head when it stated that “the Council recognises that the government has the freedom to make choices with regards to [the asylum procedure], but simultaneously wants to stress that the … alien will need to remain able to access sufficient legal protection”. The holistic approach they take lays bare the risk of assessing the legality of such asylum plans on a case-by-case basis. Indeed, a case-by-case approach may provide legitimacy to governments that are focused on decreasing refugees’ fundamental rights to the outer edge of legality. In fact, by acting in bad faith and balancing on the edge of legality, a real risk exists that this ‘edge’ will be moved further and further out in a common effort by member states. Ultimately, the balancing on the edge of legality results in a balancing on the edge of loyalty, too.

It remains to be seen where this balancing act will end. Despite the serious concerns over the preparation and content of the proposals that were expressed in the advisory reports, the Council of Ministers approved the asylum proposal last Friday, March 7. That draws all eyes to the parliament for now. We hope that the advisory reports are nevertheless taken seriously by the legislator. Should the legislation be approved by parliament, we urge the judiciary to take a holistic approach to testing the Dutch asylum package against EU and human rights law.