Getting a Grip on Migration but Mind European Law!

On September 13, the new Dutch government led by Dick Schoof outlined its programme (Regeerprogramma) for the next years. Unsurprisingly, a major point of this programme regards asylum and migration, for which the greatest ambition is to install the strictest regime ever and to include the Netherlands within the category of Member States of the European Union (EU) with the strictest admission rules. In all fairness, such an ambition is shared by several European partners, calling for a tougher EU migration policy. This topic was also featured prominently in the European Council meeting on 17 October, whose Conclusions spotlighted the objective of strengthening control of the EU’s external borders.

What stands out is not, therefore, the political ambition of the new Dutch government, but some of the measures proposed to fulfil it, such as the adoption of an Asylum Crisis Act (Asielcrisiswet), the search for externalisation arrangements and the request for an opt-out clause from the relevant EU law legislation. Accordingly, this post reviews these proposals through the lens of European Law to challenge their legal feasibility and flag the potential incompatibility with Dutch obligations stemming from EU and international law.

Fabricating a Crisis and the Normative Response

The proposed measures assume that for the last two years, the country has been experiencing a dramatic influx of asylum seekers and a consequent crisis in the reception system. In this connection, the aim is to use emergency legislation so the government can act without prior approval from the Parliament and adopt a series of exceptional measures, including the temporary suspension of asylum applications. The intervention of the Parliament will be ex post and could deny the approval of the emergency measures, a circumstance which seems realistic as the Senate (Eerste Kamer) does not assure support.

However, with a total of 39,550 applications in 2023, representing only 3% of all asylum claims submitted across the EU, data from the EU Agency for Asylum (EUAA) does not validate the assumption that the Netherlands is facing a significant influx of asylum seekers. There are ongoing capacity problems in the Central Reception Centre (Centraal Opvanglocatie, COL) of Ter Apel, where asylum seekers who enter the Netherlands by land must ordinarily apply and stay for no more than three days. However, the real situation of emergency exists with regards to the current shortage of asylum reception places. This led the Advisory Council on Migration (ACVZ) and the Council for Public Administration (ROB) to conclude already in 2022 that this situation constitutes a self-made crisis by the Dutch government.

As the government insists on the adoption of exceptional measures, an overriding legal question remains worth addressing, also in light of the recent events in Poland. Assuming the existence of a crisis, is the suspension of the right to asylum a legally viable option?

Frictions with International and European Legal Obligations

As I explained regarding health emergencies, while actual (not merely presumed) crises created by a mass influx of asylum seekers can certainly create difficulties for States as to the full application of the long-term rights enshrined in the Refugee Convention, they cannot result in a blatant suspension of the right to asylum. Scholars have pointed out that ‘the immediate imperative of admission to safety’ is to be preserved. Decisions like the one proposed by Poland will therefore constitute flagrant violations of the principle of non-refoulement. As reiterated by the UNHCR, non-refoulement ‘must be scrupulously observed’ even in situations of mass influx of migrants.

However, the Dutch government seems to propose a procedural suspension of the refugee status determination process, which does not necessarily amount to a denial of admission or registration of new asylum applications. Nonetheless, in such circumstances, tensions could arise with EU law obligations. First, according to the Reception Directive 2013/33/EU, as interpreted by the Court of Justice (C-179/11), a Member State must grant the minimum conditions laid down by the Directive as long as the applicant is in the territory awaiting a decision. Second, pursuant to the Procedures Directive, ‘Member States shall ensure that the registration shall take place no later than six working days after the application is made’ (Article 6). Additionally, asylum decisions must be taken as soon as possible and no later than six months after the lodging of the application (Article 31). In the landmark decision on M.S.S. v. Belgium and Greece, the European Court of Human Rights established that national authorities are required to avoid long delays in deciding asylum claims. Third, if the political priority for the government is to ‘deport as much as possible’ people without residence permits, it is not clear what the advantage of suspending or freezing the asylum process will be. This could only happen after a fair and effective asylum procedure that could result in a denial of protection.

Searching for Externalisation Arrangements

The long-term goal of the Dutch government is to launch an asylum reform package, once again to reduce the number of asylum seekers and make the reception system less attractive. While acknowledging the commitment to uphold EU asylum law and implement the recently adopted rules underpinning the 2024 reform of the Common European Asylum System (CEAS), applicable as of June 2026, the government is considering externalisation arrangements. As extensively discussed here, these refer to a series of practices whereby States attempt to manage migration flows and enforce immigration policies beyond their borders, often by collaborating with other countries or non-state actors.

Again, this is a priority which is shared by other Member States and the EU. Following several initiatives with Northern African countries, including Tunisia in July 2023, Mauritania in February 2024, and Egypt in March 2024, the European Commission confirmed that there is a ‘clear drive to establish deeper partnerships with key third countries that will situate cooperation on migration alongside other major interests.’ Such a drive has been also endorsed by the European Council’s summit of 17 October calling for ‘intensifying cooperation with third countries of origin and countries of transit.’

While the Tribunal of Rome stopped the first attempt of Italy to keep migrants in Albania, under the Italy-Albania Protocol, the Netherlands seeks to secure a deal with Uganda to serve as a return hub for rejected asylum seekers who have exhausted all legal remedies. Such a plan is different from the Italy-Albania Protocol, which permits offshore asylum processing in two centres in Albania under Italy’s exclusive jurisdiction. The Dutch plan with Uganda shows more similarities with the UK-Rwanda Treaty, though the intention of the Dutch government is limited to the return of migrants who are not eligible for protection in the Netherlands.

Legal Challenges Arising from Externalisation Arrangements

Nonetheless, this plan raises concerns as regards the compatibility with European law, in particular the Return Directive. First, this instrument, for which the European Council on 17 October has invited the Commission to swiftly submit a new legislative proposal, requires that the third-country national voluntarily agrees to return to a country in which he or she could get accepted (Art. 3 (3)). Second, fundamental rights safeguards must be ensured when implementing a return decision. This includes the need to obtain adequate guarantees from a third country, in this case, Uganda, that migrants will not be exposed to the risks of torture or ill-treatment. Otherwise, the Netherlands could be held responsible for the violation of the principle of non refoulement. As very recently established by the Court of Justice (C‑156/23), this principle serves as a parameter to assess the return process. It is unclear whether the overall human rights situation in Uganda can meet the required threshold. Finally, if Uganda is unable to operate as an effective return hub for repatriating migrants to their countries of origin, it is uncertain to what extent, and under what conditions, these migrants would be allowed to stay in Uganda without facing the risk of detention as irregular migrants.

Pulling Out of the Common European Asylum System?

Another point on which the Dutch government seems to insist, as confirmed by the recent visit to Denmark by the Minister for Asylum and Migration, Marjolein Faber, is the request for a treaty revision to opt out of the CEAS. Just like the Schengen Area, the CEAS can be seen as an example of differentiated integration, an arrangement whereby some member states integrate further, while others temporarily or permanently opt out of specific policies.

Following the European Council’s meeting of Edinburgh in 1992, during the ratification process of the Treaty of Maastricht, Denmark managed to negotiate four opt-outs of new areas of integration, namely citizenship, the Economic and Monetary Union, defence policy and Justice and Home Affairs, including rules on asylum. Such opt-outs were agreed upon amongst the existing Member States after the Danish population initially rejected the Maastricht Treaty in a referendum in 1992. The opt-out regime for Denmark is regulated by Protocol No. 22 annexed to the EU Treaties and was confirmed in December 2015, after a referendum on maintaining the reservations in the opt-out concerning Justice and Home Affairs.

Questioning the Viability of an Opt-Out Protocol

The opt-out regime should be understood as a political compromise designed to prevent any single Member State from obstructing the expansion of integration in politically sensitive areas. However, the Netherlands’ request may fall short of being fully realised in practice. First, this request may be only considered in the context of a treaty revision procedure. This was one of the expected follow-ups of the Conference on the Future of Europe in 2023, clearly supported by a resolution of the European Parliament. However, such a proposal must be read in light of the current intra-EU political landscape following the outcome of the 2024 European elections and the extra-EU geopolitical context. These are two dimensions that suggest caution about major political reforms or treaty changes that could weaken rather than consolidate the role of the EU as a political actor.

Second, even if a treaty revision were activated, Article 48 TEU, which requires approval by the other 26 Member States, could block the Dutch request for an opt-out of the CEAS. As has been pointed out, a Dutch opt-out would limit the responsibility over asylum applications among fewer Member States.

Additionally, other Member States may show an appetite for an opt-out, raising the question of whether a treaty revision could serve as a pretext to reduce the Union’s competences, specifically by limiting its competence over asylum matters. This represents a radical scenario that would effectively return the EU to the pre-Maastricht era, characterised by significant disparities in the scope of protection, asylum procedures, and reception conditions for asylum seekers. Such divergences were a key factor driving the pursuit of supranational harmonisation in the area.

Finally, it is essential to stress that an opt-out could not have retroactive effect. The Netherlands will remain bound by the EU legislation on asylum, which is part of the relevant acquis. Moreover, the Netherlands will remain bound by the new rules underpinning the 2024 CEAS reform that will be applicable as of June 2026.

Concluding remarks

The Dutch government’s proposals and initiatives in the areas of asylum and migration raise significant concerns. They create tensions with EU and international law obligations, impair relations within the EU, and potentially reverse progress made in harmonising asylum policies across Member States.

They are a clear sign of a more structural crisis that puts at stake the whole system of values upon which not only the integration process but also European constitutionalism has been built. They betray the spirit of Tampere, when European political leaders stated clearly that the common policies on migration and asylum must be based on principles which are both clear to our own citizens and also offer guarantees to those who seek protection in or access to the European Union.’