A Collision Foretold

On 16 May, four Dutch parties presented a new governing agreement (Agreement). The four parties PVV (ID), VVD (RENEW), NSC, and BBB (both aspiring EPP) will form one of the most right-wing governments in Dutch history. According to their anti-migration campaign and the said Agreement, the parties vow to impose the strictest migration policy to date. The proposed migration measures under the Agreement endanger the fundamental rights of migrants and people applying for international protection. The plan also put the Netherlands on a collision course with the EU as many of the measures are contrary to the provisions in the EU Migration Pact, which was adopted last week.

An ill-conceived remedy

Over the last few years, the Netherlands has been dealing with a ‘reception crisis’ for people applying for international protection due to the lack of housing capacity at the reception centres. In 2015, a similar crisis occurred because of a sudden and unexpected number of new arrivals. However, the crisis that has been ongoing since 2021 is of the government’s own making. When the number of arrivals decreased, reception facilities were closed. This has led to the current shortage of accommodation which resulted in people sleeping outside the registration centre for days. Instead of creating more capacity, the new government will try to kill the recently adopted ‘distribution act’, which created more available spaces throughout the country. The new government’s focus will instead be on bringing the number of arrivals down by taking measures with a ‘deterring effect’. A new asylum crisis law would make it possible to halt making decisions in applicants’ cases for two years and to differentiate reception conditions, in some cases even restricting access. The made-up crisis will be used domestically to bypass democratic processes and rule by governmental decree.

It is implausible that these measures will stand the test of EU law. The EU Migration Pact forms a hardening of the continent’s migration policies and will likely lead to widescale fundamental rights violations during its implementation. However, it also holds important safeguards that are incompatible with the Dutch plans. The EU adopted the Crisis & force majeure regulation, providing for derogations from the normal rights and procedures during ‘crises’. Despite the new government’s use of the word ‘crisis’, it is unlikely that the Commission (under Article 2) will agree with this assessment. According to Article 1(4)(a), a crisis is an ‘exceptional situation of mass arrival […] that […] renders the Member State’s well-prepared asylum, reception […] system non-functional’. Not only is the amount of arrivals in the Netherlands unexceptional, but the country’s asylum and reception system is also far from well-prepared.

Under the Regulation, a situation of crisis can only exist for a maximum of 12 months (Article 5). This means that the regular standards would apply to the Netherlands. As a matter of international and EU law, requesting international protection is a fundamental right. Whereas the Dutch government intends to halt examining applications for international protection for two years, the new Asylum procedure regulation states that examinations must be made as soon as possible and within a six-month limit (Article 35(4)). It is possible to extend the examination period by another six months in the case of a disproportionate number of arrivals (Article 35(5)(a)). The Dutch plan clearly violates these standards.

The Netherlands is going south

The Netherlands will take a page from the Belgian playbook for further deterring measures. To alleviate pressure on the reception facilities, the country aims to differentiate reception conditions. In Belgium, this practice is already in place. Single men applying for protection do not receive shelter or food in Belgium. Previously, even families with young children and unaccompanied children did not receive shelter due to a saturated reception system. Administrative courts have condemned the Belgian practice thousands of times. The European Court of Human Rights (ECtHR) has ordered an equally impressive amount of interim measures instructing Belgium to provide applicants with accommodation and material assistance to meet their basic needs. Belgium did not budge. In July 2023, the ECtHR found a violation of Article 6 of the Convention over the Belgian non-compliance.

The new Reception conditions directive does offer Member States the possibility to reduce or withdraw material reception conditions. However, this is only possible for applicants who move to another EU Member State, if they leave their geographically restricted area or do not comply with the authorities (Article 23). In any case, Member States ‘shall ensure a standard of living in accordance with Union law, including the Charter, and international obligations for all applicants’ (Article 23(4)). This means that should the Netherlands copy the policy of its southern neighbour, it would still violate EU law.

Rights for the one, not the other

The new government claims to ‘strengthen the importance of the Constitution and fundamental rights, of checks and balances in [the] democratic system, and of institutions upholding the rule of law and legal principles.’ This objective seems to have been forgotten when writing the migration section of the Agreement. Under the Agreement, it would be impossible to appeal court judgments. The burden of proof would lie with the applicants, but ministerial notices holding country information, based on which decisions are made, would not be made public anymore, making it impossible to challenge them. Legal aid during the application phase would be reduced as much as possible and scaled down during subsequent applications. Launching subsequent applications would become more difficult, and the time limit for appeal would be shortened. All these measures run contrary to some of the strengthened safeguards in the Pact. The Asylum procedure regulation introduces a right to free legal counselling during the application as well as during the appeal phase (Articles 15-17). Whereas the Regulation’s provisions do not necessarily preclude the Dutch approach, the latter does make violations of the right to an effective remedy (Article 13 ECHR, Article 47 EU Charter) more likely.

Border management as a totem

One area where the new measures broadly align with the European ones is border management. The governing parties aim to intensify border checks and border controls and intend to readmit irregular migrants found during those checks to Belgium or Germany. The possibility of taking these measures is largely provided in the newly amended Schengen Borders Code. The new wording of the Regulation explicitly allows for border controls at the internal Schengen borders to ‘reduce illegal immigration’ (Article 23(a)(ii)). The new Article 23a also allows people apprehended during these checks to be transferred to a third country. This, in effect, amounts to internal summary expulsions. The CJEU ruled in ADDE and Others (C-143/22), that the summary returns from France to Italy were contrary to the Returns directive (2008/115/EC). Despite the Schengen Border Code’s normalisation of returns, the Dutch still have to consider the Returns directive’s safeguards as clarified in ADDE. This means that the person apprehended has to be issued a return decision and cannot be ‘directly returned’ as the Dutch parties wish.

Cherry-picking at other’s expense

Considering the impossibility of aligning most of the Dutch plans with EU law, it is unsurprising that the governing Agreement calls for an opt-out from EU asylum and migration policy. Besides the political implausibility of this opt-out being granted, it would not relieve the country of its obligations under international and European human rights law prohibiting the lion’s share of the migration proposals. The new governing parties know this and know that many of their plans will be shot down by judges at the national or European level. This is all part of a political game in which right-wing parties are confronted with the impossibility of their ideals and blame anyone but themselves. It is rather cynical that this blame game is played at the expense of people in search of safety who already are in an extremely vulnerable position. The Dutch Janus-faced position is best summarised by the Agreement’s assessment of the Pact: ‘The EU migration pact with tightened asylum rules and admission procedures will, once adopted, be implemented as soon as possible, including by opting for contributing financially rather than relocating asylum applicants.’ The Dutch Agreement is a form of cherry-picking based on a legal fantasy, leaving thousands of people in legal limbo or deprived of their basic needs.

Not great for a government calling its Agreement ‘Hope, courage, and pride’.