1 ASYLUM, IMMIGRATION AND INTEGRATION

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1 Contribution to FRA s annual report 2011 The Netherlands Reference period: 1 October 2010 to 28 October 2011 FRANET NFP The Netherlands Art.1, kenniscentrum discriminatie Nederland Schaatsbaan AR Rotterdam Postbus BD Rotterdam T: +31 (0) F: +31 (0) E: w.dinsbach@art1.nl info@art1.nl W: Art.1, December, 2011

2 1 ASYLUM, IMMIGRATION AND INTEGRATION 1.1 General information on asylum, immigration and integration Policy and institutional developments Asylum and immigration In the coalition agreement of 2010, the cabinet stated its twofold ambition, to select migrants that will contribute to the economy, science and culture of the Netherlands and to limit the influx of other migrants. 1 To reach this goal, the cabinet proposed the Modern Migration Policy Act (Wet Modern Migratie Beleid, MoMi), which will be discussed in the next subsection. 2 On 16 September 2011, the cabinet agreed on measures that aim to restrict and force back immigration of people with few opportunities (kansarme migranten). 3 The proposed measures include strengthening the requirements for permissions to stay, intensifying return policies and opposing illegality. These proposals have been sent to the Council of State (Raad van State) for advice. 4 The cabinet presented its measures to combat illegal residence in the Netherlands in July In addition to working on Mobile Surveillance Safety checks (Mobiel Toezicht Veiligheid- controles; MTV- controles), the action against illegal residence and criminal foreigners are listed as one of the national priorities of the police for Other measures to combat illegal residence include rejecting applications of people who previously resided in the Netherlands without documents, expanding the possibilities to declare a person to be an undesirable alien, including habitual offenders, and combating the housing or the employment of undocumented migrants. In addition, the cabinet stated that the fight against human trafficking is one of the spearheads of their policy. Furthermore, the government plans to take measures to assure that asylum seekers, whose applications failed, return to their countries of origin. 6 After receiving a return-decision these asylum seekers are bound to leave the Netherlands within 28 days. Another planned measure is that the Dutch government will retain the travel documents of asylum seekers during the process of application, with a view to possible returns. In addition, the government will check whether the governmental costs for the return can be redressed to the migrants and they will also check whether their referents can be involved in paying the costs for the trip or the travel documents. Furthermore, the government plans to approach the countries of origin more strategically, and include the return of migrants in their international relations. For example, countries that do not cooperate might be confronted with changes to developmental aid of the Dutch government. A final measure consists of supporting projects of the International Organisation for Migration Netherlands (Internationale Organisatie voor Migratie Nederland, IOM-NL) and of NGOs that work 2 1 Netherlands, The parliamentary parties VVD and CDA (2010); Netherlands, The parliamentary parties of VVD, PVV and CDA (2010). 2 Netherlands, The Act Modern Migration Policy, 7 July Netherlands, Ministry of the Interior and Kingdom Relations (2011a). 4 Netherlands, Ministry of the Interior and Kingdom Relations (2011b). 5 Netherlands, Ministry of the Interior and Kingdom Relations (2011c). 6 Netherlands, Ministry of Security and Justice (2011). 2

3 towards sustainable return of migrants. For example, projects that offer migrants help, education or support with setting up a business in their home country. The Repatriation and Departure Service (R&DS) (Dienst Terugkeer & Vertrek, DT&V) is an implementing body of the Ministry of the Interior and Kingdom Relations. It is responsible for supervising the assisted voluntary and forced repatriation of foreign nationals who are not allowed to stay in the Netherlands. 7 One of the measures of the new return policy of the Dutch government is that the R&DS will not only deal with asylum seekers, but it will also deal with the return of regular migrants whose application for study, labour or family reunification has failed. 8 The Central Agency for the Reception of Asylum Seekers (CARAS) (Centrale Opvang Asielzoekers, COA) is an implementing body of the Ministry of the Interior and Kingdom Relations. On 1 January 2009, CARAS introduced a new protocol for the provision of health care services to asylum seekers. The purpose of this protocol was to ensure that asylum seekers have equal access to primary health services, in line with the health services offered to the general population. During its supervisory visits, the Health Care Inspectorate (Inspectie voor de Gezondheidszorg, IGZ) observed a practice system which was clearly still in development. In their report published in 2011, the Inspectorate noted risks in terms of both access to and outreach of primary and other health and welfare services for asylum seekers. 9 Integration As stated in the coalition agreement of 2010, the cabinet considers qualification (a term that refers to the mastery of the Dutch language, educational qualifications and being employed) the key to success for participation and integration of migrants. 10 Therefore, the government regards it important to demand (higher) levels of language and educational qualifications in order for the migrant to access and reside in the country and for him or her to naturalise. The government holds the immigrants responsible for their integration in the Netherlands. If necessary, the government will provide individual loans that enable immigrants to integrate and study for the official exam. A new self-study pack To the Netherlands (Naar Nederland) was provided online for preparation for the Basic Civic Integration Examination Abroad. The basic principle of the governmental policy is that people who fail to pass the civic integration exam will lose their temporary regular residence permit. The government indicated it wanted to alter the existing agreements between the EU and Turkey, so it could legally oblige immigrants from Turkey to integrate. 11 Furthermore, the government stated that there will be cuts in the governmental grants to projects that stimulate integration, with the exception of the funding to the Dutch Council for Refugees (Vluchtelingenwerk). Furthermore, the government announced a proposal that would enable the possibility to annul the obtained citizenship of migrants who are convicted of a criminal offence within five years after receiving the Dutch nationality. In order to realise that, the government will apply Article 7d of the EU Convention on Nationality in a broader sense. If that is not 7 See: 8 Netherlands, Ministry of Security and Justice (2011b), Press release 1 July Netherlands, Health Care Inspectorate (Inspectie voor de Gezondheidszorg, IGZ) (2011). 10 Netherlands, The parliamentary parties VVD and CDA (2010); Netherlands, The parliamentary parties VVD, PVV and CDA (2010). 11 Netherlands, The parliamentary parties VVD and CDA (2010); Netherlands, The parliamentary parties VVD, PVV and CDA (2010). 3 3

4 possible, then Dutch national law will be amended so that Dutch citizenship will be conditional during the first five years. In addition, the government proposed that migrants only obtain Dutch nationality after they have renounced their original nationalities. Scholars have assessed that the government has not awarded a prominent role for the general principles of international law, when designing these measures. 12 According to them, the plans are partly unfeasible, because of their incompatibility with international conventions and directives. On 16 June 2011, the Ministry of the Interior and Kingdom Relations presented a policy document with a new perspective on integration. 13 The cabinet is of the view that the current multicultural society has caused different cultures in the Netherlands to clash, or at least to disregard each other. According to the cabinet, persistent and problematic integration issues stress the idea that the model of multicultural society has not been able to solve the dilemmas of a multiform society. The cabinet stated that people who want to settle in the Netherlands have to take the responsibility to integrate and to gain knowledge and competences in order to maintain themselves independently in Dutch society. In addition to the norm of self-maintenance and responsibility, the cabinet considers the key values of the constitutional state and the historical-cultural basis of the Netherlands part of the framework of integration. Furthermore, it stated that strengthening bonds and social cohesion can help integration. 14 A number of refugees are still living in reception centres, while they already obtained a residence permit. In order to provide a home to these refugees, the responsibility for the housing of refugees was transferred from the central government to Dutch municipalities, as was advised by the task force Providing a home (Thuisgeven). 15 Refugees will be linked to a specific municipality at an early stage. This will enable municipalities to prepare suitable housing, and to make the necessary arrangements for employment or education. The municipality offers the refugee a house on the basis of an urgency declaration. In case refugees do not accept the proposed house, they will have to search for a home by themselves. Currently, pilots are running to test these new procedures Legislative developments Asylum and immigration The General Administrative Act (GAA) (Algemene wet bestuursrecht; Awb) defines the regulations related to asylum applications and subsequent decisions of the authorities. 17 In addition, the Aliens Act 2000 (Vreemdelingenwet 2000), the Aliens Decree (Vreemdelingenbesluit 2000), and the Aliens regulation (Voorschrift vreemdelingen) stipulate 12 De Hart, B. et al. (2010). 13 Netherlands, Ministry of the Interior and Kingdom Relations (2011d). 14 Netherlands, Ministry of the Interior and Kingdom Relations (2011d). 15 See: 16 Netherlands, Ministry of the Interior and Kingdom Relations (2011e); see also 17 Netherlands, General Administrative Law Act (Algemene wet bestuursrecht; Awb), 4 June

5 the asylum procedures in the Netherlands and formulate the exceptions to the regulations defined in the GAA. 18 On 1 July 2010, a new asylum procedure was introduced. 19 Changes were made with regard to the places of reception, the periods of rest and in the length of procedures. For example, in the new asylum procedure all asylum claims are channelled through the 8-day regular asylum procedure (Algemene Asielprocedure). This procedure starts after a 'preparation and rest period of at least six days. When no decision can be made within eight days, asylum seekers are referred to the extended procedure (Verlengde Asielprocedure). It appears that half of the applications are dealt with within 8 days. 20 On the 5 July 2010, the Senate passed the Modern Migration Policy Act (MMPA) (Wet Modern Migratie Beleid, MoMi). 21 This Act deals with the applications of regular migrants. It aims to select those migrants that will contribute to the economy, science and culture of the Netherlands. The starting point of the modern migration policy is selectiveness. This entails that the policy has an inviting effect on migrants for whom there is an economic need, and a restrictive effect on others. The cabinet aims to handle applications more efficiently for highly skilled migrants (kennismigranten) and there is a new procedure Access and Stay (Toegang en Verblijf, TEV). 22 The Modern Migration Policy Act is under discussion and has not yet entered into force. The experimental stations, in which knowledge and experience are gained in working with MMPA, are continued and extended where possible. Several pilots started in 2011 to experiment with the new migration policy. 23 The introduction of the Act was postponed, because of technical problems with the corresponding new information system of the Immigration and Naturalisation Service(INS) (Immigratie- en Naturalisatie Dienst, IND). The new system is expected to be operable by As of 19th of June 2011, the Netherlands employs the European Blue Card which enables highly educated people to stay in the country. This card is meant for highly educated migrants who do not have the nationality of a Member State, the European Economic Area or Switzerland. 25 The European Blue Card provides separate grounds for residence in addition to the existing National Highly Skilled Migrant Programme. The conditions for residence in the Netherlands as an EU Blue Card holder are stricter than those for residence as a Highly Skilled Migrant. In July 2011, the government stated that it will no longer tolerate the unlawful residence of migrants in the country, with the exception of minors. 26 The government prepared a proposal to amend the Aliens Act that has been sent in September 2011 to the Council of State for advice. By making illegal residence a criminal act and fining the migrants concerned, the government wants to discourage people to opt for illegal residence in the Netherlands. The Minister of Immigration and Asylum requested the Council for the Judiciary (Raad voor de Rechtspraak) to comment on the amendment to the Aliens Act in 18 Netherlands, Aliens Act 2000 (Vreemdelingenwet 2000), Aliens Decree (Vreemdelingenbesluit 2000), Aliens regulation (Voorschrift vreemdelingen), 23 November Netherlands, Ministry of Security and Justice (2010). 20 Netherlands, Ministry of the Interior and Kingdom Relations (2011f). 21 Netherlands, The Act Modern Migration Policy, 7 July Immigration and Naturalisation Service (Immigratie- en Naturalisatie Dienst, IND) (2011). 23 Netherlands, Ministry of Security and Justice (Ministerie van Veiligheid en Justitie) (2011a) Binnenlands Bestuur (2011). 25 Immigration and Naturalisation Service (Immigratie- en Naturalisatie Dienst, IND) (2011). 26 Netherlands, Ministry of the Interior and Kingdom Relations (2011g). 5

6 order to combat illegal residence. 27 The Council for the Judiciary advised that this plan must be seen in the light of the Returns Directive and corresponding jurisprudence, especially the El Didri-decree, that advise against imprisonment of people merely because of illegal residence. In April 2010 two members of Parliament put forward a motion concerning the reception of migrant children. 28 The Dutch Parliament requested the Council of State to provide an advise on 9 June 2011 concerning the reception of children with parents who are irregular migrants (migrants whose application failed or who entered the Netherlands unauthorised). 29 Their recommendation entails that in exceptional cases there should be emergency reception for these children, until they are able to leave the Netherlands with their parents. Each case has to be assessed separately, to decide whether or not the service of emergency-reception will be provided. This decision depends on various factors, including individual circumstances. On 16 September 2011, the cabinet agreed to adopt the proposal of the Minister of Immigration and Asylum to bring the national legal grounds for asylum more in line with European asylum law. If the amendments enter into force, the legal principle of a categorical policy for countries or for populations will cease to be valid. 30 Integration On August , the Dutch Administrative High Court judged that Turkish citizens and their family members cannot be legally obliged to integrate. 31 The Ministry of the Interior and Kingdom Relations informed the municipalities about the consequences of this decision. In order to obtain a residence permit, Turkish citizens do not have to pass the civic integration examination (inburgeringsexamen), however, this remains a requirement for naturalisation. 32 The Dutch government announced it will search for legal possibilities to apply the Integration Act to Turkish people residing in the Netherlands. 33 The Basic Civic Integration Examination Abroad (Examen Inburgering Buitenland) was modified. First, the required level for the Spoken Dutch test (Toets Gesproken Nederlands; TGN) was raised. Second, the Literacy and Understanding Written Texts Test (Toets Geletterdheid en Begrijpend Lezen, GBL) was added to the examination. According to the government, these higher requirements aim to improve the participation and social integration of migrants and is also related to the governmental action plan on marriage- and family migration. 34 The examination regulations have been amended accordingly. The new requirements apply from 1 April Netherlands, Council for the Judiciary (2011). 28 Netherlands, Parliamentary documents (2010), Proposed Motion of 21 April Netherlands, Council of State (Raad van State), Advise release 17 June Netherlands, Ministry of the Interior and Kingdom Relations (2011a). 31 Netherlands, Dutch Administrative High Court (2011) Netherlands, Ministry of the Interior and Kingdom Relations (2011). 33 Netherlands, Ministry of the Interior and Kingdom Relations (2011j). 34 Netherlands, Ministry of the Interior and Kingdom Relations (2010b). 35 Netherlands, Ministry of the Interior and Kingdom Relations (2010b). 6

7 1.1.3 National case law Information on the following five law cases in the Netherlands with regard to asylum, immigration and integration are presented in Annex 4: The case of a mother and two children, whose application for asylum failed, and who subsequently refused to return to Angola. The court decided that it was unlawful to leave them out on the streets. 36 The case of an Afghan family, including a girl aged 14, who failed to seek asylum and had to leave The Netherlands. The court decided that the government cannot send them back to Afghanistan, because the children are westernized and cannot be expected to adjust to the Afghan norms and values. Furthermore, it was not proven that the daughter would be protected from harm by powerful actors, such as warlords and tribal chiefs. 37 The case of Turkish citizens in the Netherlands and the requirement of civic integration (inburgeringsplicht). The court decided that this is not compatible with the agreements between the EU and Turkey. 38 The case of a homosexual female asylum seeker from Sierra Leone, who feared her life would be endangered because of her sexual orientation when she returns to Sierra Leone. The Council of State agreed with the decision of the minister to refuse asylum, because the asylum seeker can be expected to hide her sexuality. 39 The case of appeal of the Minister of Immigration and Asylum against the decision 40 to provide an asylum seeker from Angola a permanent residence permit. The minister disputed the fact that he had made an inadequate balancing of interests, in the light of article 8 of the European Convention of Human Rights (ECHR). The Council of State agreed with the minister and allowed the appeal. As a consequence, it annulled the previous decision to grant a residence permit Statistical data made available in the reference period Asylum applications Table 1.1 shows the number of asylum applications in the first half of 2011 (January - June). 36 Netherlands, Court of Appeal Hague (2011). 37 Netherlands, District Court of The Hague (2011b). 38 Netherlands, Dutch Administrative High Court (2011). 39 Netherlands, Council of State (2011) LJN BQ Netherlands, District Court The Hague, 10/3789, Decision date 4 October Netherlands, Council of State (2011). 7 7

8 Table 1.1: The number* of asylum applications in the first half of 2011 (January - June) January February March April May June Total submission** Source: INS * Numbers are rounded off in tens. ** The total submission involves all asylum applications that are considered in that month. Including recorded applications of people in detention and children born during the procedures of their parents and the recorded applications of invited refugees and including those applications that still have to be decided on during the phase of appeal. Table 1.2 presents information on the decisions made with regard to asylum applications in the first half of 2011 (January - June), provided by the Immigration and Naturalisation Service (INS). 42 Table 1.2: The decisions on asylum applications in the first half of 2011 (January - June). January February March April May June Granted asylum Not granted asylum Other conclusions** Total number of decisions Source: INS * Numbers are rounded off in tens. ** This category includes cases that were cancelled and cases that cannot be trialled (for example because of death or departure). Naturalisation applications Table 1.3 presents the number of applications of naturalisation, the number of decisions made, and the number of granted applications in the first half of 2011 (January - June), provided by the Immigration and Naturalisation Service (INS) Immigration and Naturalisation Service (Immigratie- en Naturalisatie Dienst, IND) (2011a) Immigration and Naturalisation Service (Immigratie- en Naturalisatie Dienst, IND) (2011b). 8

9 Table 1.3: The number of naturalisation applications, decisions made, and the number of grants of naturalisation applications in the first half of 2011 (January till June) January February March April May June Number of naturalisation applications Number of decisions made Number of grants of naturalisation applications Source: INS * Numbers are rounded off in tens. Table 1.4 shows the number of inflow and outflow of asylum seekers in central reception centres. Central reception centres Table 1.4: The inflow and outflow in 2009 to 2011 of asylum seekers in central reception centres* Inflow Outflow till 1st of August Source: CARAS * Central reception: all forms of reception of asylum seekers that fall under the management, supervision and responsibility of the CARAS. Table 1.5 presents the reception of unaccompanied underage asylum seekers (alleenstaande minderjarige vreemdelingen, AMVs). These figures are provided by the CARAS, the Central Agency for the Reception of Asylum Seekers The Central Agency for the Reception of Asylum Seekers (2011). 9 9

10 Table 1.5: The inflow in 2009 to 2011 of unaccompanied minor asylum seekers in central reception centres.* Inflow till 1st of August 473 Source: CARAS * Central reception: all forms of reception of asylum seekers that fall under the management, supervision and responsibility of the CARAS. Irregular migrants In 2011 the Research and Documentation Centre (Wetenschappelijk Onderzoek- en Documentatiecentrum, WODC) published a report about the number of so-called illegal immigrants in the Netherlands. The WODC estimated the population of illegal immigrants in the Netherlands in 2009 to be , with a 95% confidence interval of to Detention Table 1.6: Detention inflow statistics per sex, Sex Male 10, , , , , Female 2, , , , , Total 12, , , , , Source: Netherlands, Schijndel, C. van and Gemmert, N. van (2011), p. 15 Table 1.7: Detention inflow of unaccompanied minor asylum seekers, Source: Netherlands, Schijndel, C. van and Gemmert, N. van (2011), p. 16 In 2010, 149 families, with a total of 227 children, were put in detention. The average detention time was eight days Van der Heijden, P.G.M., et al. (2011) Netherlands, Schijndel, C. van and Gemmert, N. van (2011). 10

11 During the first 6 months of 2011, 3,220 aliens were put in detention. 50 of them were unaccompanied minor asylum seekers. 47 Return The Dutch branch of the International Organization for Migration (IOM) publishes monthly statistics of assisted voluntary returns. Between January and October 2011, 2801 people voluntarily returned to their country of origin. Statistics are broken down by country of origin; tables are too large to add to this paragraph. 48 Table 1.8: Outflow from return process per 6 months, Demonstrable return 4,680 4,520 4,820 5,540 5,720 6,080 5,370 - forced 3,730 3,140 3,530 3,740 3,900 4,140 3,370 - independent 950 1,380 1,290 1,800 1,830 1,950 2,000 Independent without supervision 6,080 4,900 6,540 5,180 5,440 5,410 4,870 Total 10,760 9,410 11,370 10,710 11,170 11,500 10,230 Source: Netherlands, Ministry of the Interior and Kingdom Relations (2011k), p. 34 Table 1.8 gives statistical data on the outflow of cases from the return process. The data concern three groups of returnees: people that have been denied access at the border, asylumseekers whose application has been turned down, and people who stayed in the Netherlands illegally Research and studies The Dutch Council for Refugees surveyed the asylum system and the new procedures, as introduced on 1 July They concluded that some aspects were improved in comparison to the period prior to 1 July However, further amendments are still needed, according to the Dutch Council for Refugees. First, for some cases the length of the general asylum procedure (Algemene asielprocedure) appeared to be too short for a thorough assessment. The Dutch Council for Refugees recommended to only make use of the quick eight days procedure in case of asylum applications that are clearly founded or unfounded. Secondly, they found that the medical advice given was too minimal to effectively judge whether the mental health of the asylum seeker allows him or her to start 47 Netherlands, Ministry of Interior and Kingdom Affairs (2011k), p See 49 Netherlands, Ministry of Interior and Kingdom Affairs (2011k), pp Netherlands, Minister of Justice (2010) Staatscourant, decision of 24 June

12 with the asylum procedure. Therefore, The Dutch Council for Refugees recommended to improve the quality of the medical advice. 51 The National Ombudsman (NO) (De Nationale Ombudsman, NO) researched whether the Basic Civic Integration Examination Abroad could form an obstacle for the right to family reunification. More specifically, the research focused on the INS procedures to assess whether a case can be considered an exemption from the requirement of the integration examination. The NO found that the used approach of the INS was too fragmented and it resulted in no discussion taking place about the actual situation of the person involved. This approach meant the government s interest of integration abroad outweighed the interests of family reunification under difficult circumstances. It appeared that the INS did not make use of the option to make exceptions. However, while publishing the research report, an exception was made for the first time in the case of Madame Safi who could migrate to the Netherlands without passing the Basic Civic Integration Examination Abroad. Based on the research results, the NO recommended a more coherent evaluation of all conditions of the individual to assess whether there is a need to make an exception. 52 Research of the Free University in Amsterdam (Vrije Universiteit Amsterdam) among several EU countries showed that the Netherlands regularly rejects asylum applications of LGTB people on the basis of prejudices and stereotypes. That is, when asylum seekers do not stereotypically act as genuine lesbian, gay, bisexual or transsexual, they are mistrusted by national authorities. In addition, even though it is stated in the Aliens Circular 53 that people with a homosexual preference are not required to hide this preference upon return in the country of origin, it was found that this 'discretion requirement' is still used to reject an application. The researchers are of the opinion that LGTB people originating from countries in which homosexuality is a criminal act, should in principle be awarded asylum. 54 The Centre for Migration Law (Centrum voor Migratierecht; CMR) and the Institute for the Sociology of Law (Instituut voor Rechtssociologie) of the Radboud University Nijmegen conducted research on the INS work instruction, that applies to asylum seekers with psychological problems. This instruction is important since it recognises the need to pay attention to psychological problems in the asylum procedure and the fact that these problems can influence the asylum procedure. It can be hard for traumatised asylum seekers to relate a consistent and coherent story about the reasons why they flee from their countries. 55 The survey of the Council of the Refugee (Raad voor de Vluchteling) of 2011 showed that the attitudes towards refugees in the Netherlands have worsened in recent years. However, the participants did consider refugee issues a valid concern and half of the respondents found it important that refugees receive assistance. In addition, knowledge of refugee issues among the respondents was found to be limited. It appeared that the perceptions of Dutch citizens do not match the factual situation concerning refugees Dutch Council for Refugees (2011) National Ombudsman (2011). 53 Netherlands, Aliens Circular (Vreemdelingencirculaire) 2000 C2/ Jansen, S. & Spijkerboer, T. (2011). 55 Terlouw, A. B. et al. (2011). 56 The Council of the Refugee (2011). 12

13 1.1.6 Promising good practices Information on the following five promising good practices in the Netherlands with regard to asylum, immigration and integration are presented in Annex 4: The project Language Coach (Taalcoach), in which volunteers in the Netherlands are paired with newly arrived migrants to learn Dutch and become acquainted with Dutch society. The programme for refugees who are invited by the Dutch government, in which they learn Dutch language and culture in their home country before their resettlement in the Netherlands. The Perspective Experiment (Experiment Perspectief), entailing support centres that provide adolescents with a realistic perspective on the future, in which the main trajectories are either a procedure for a residency permit for the Netherlands or assisted repatriation. The project Future in Perspective (Toekomst in Perspectief; TIP) is to stimulate asylum seekers to make good use of their waiting period in the asylum procedure by seeking information about future prospects and making plans for the future. The Mobile Medical Document (Mobiel Medisch Document) of Doctors of the World (Dokters van de Wereld), a document for irregular migrants containing information on their medication, diseases and operations; see also paragraph Key issues in public debate The planned deportations of Afghan families has drawn public attention, especially the case of the 14-year Sahar Hbrahimgel who has been residing in the Netherlands for ten years. 57 Some political parties, friends of the families, and civil society staged protests against the planned deportations, arguing that the families (especially the children) are well integrated, the children hardly know their country of origin and that the situation in Afghanistan is unsafe. In January 2011, a lower court ruled that the minister s decision to deport the Hbrahimgel family was not properly motivated. 58 The court ruled that the children were westernised and that there was no guarantee that local authorities would be able to protect Sahar. The Minister eased his stance in April 2011, mainly on the basis of new information of the Ministry of Foreign Affairs about the precarious position of westernised women in Afghanistan. Some children and their families (included the Hbrahimgel family) were subsequently allowed to stay. 59 Another case concerned the asylum seeker Mauro from Angola, who has been living in a foster family for more than 8 years. This case received a lot of political and public attention, 57 Keken, K. van (2010); Outeren, E. van (2010) ; Zanden, P. van der (2010) 58 The Netherlands, Judgement District Court s-gravenhage (Place of session - s-hertogenbosch) (2011) 59 The Netherlands, Ministry of the Interior and Kingdom Relations (Ministerie van Binnenlandse Zaken en Koninkrijksrelaties) (2011) 13 13

14 which is reported extensively in the media. 60 On 26 June 2011, Mauro wrote a letter to the Minister of Asylum and Immigration asking for a residence permit. The debate is about the Mauro being civically integrated and whether his individual circumstances allow for an exception to let him stay, and involves the granting of a study permit. The policy document on integration that the Minister of the Interior and Kingdom Relations sent to the Dutch Parliament on 16 June , has led to mixed reactions in the media. The Minister, Mr Piet-Hein Donner, presented the action programme as a change of direction, claiming the government distanced itself from the relativism contained in the model of a multicultural society. This critical stance towards the multicultural society led to disapproval among some commentators. 62 Other commentators, however, said that although the new action plan contained some harsh policies, it did not present a break with past policies but more an on-going trend towards stricter integration policies which started about 10 years ago. 63 Several scholars and NGOs, such as the Dutch Council for Refugees (Vluchtelingenwerk), criticised these new measures of migration and asylum, as some of them are in violation of European and international conventions. 64 The government claimed that they were focussing on changing, within the EU framework, specific EU-directives, so that these directives would be more in line with their plans. 65 The plan of the government to criminalise illegal residence in the Netherlands, has led to a major outcry in Dutch society. Several municipalities, NGOs, trade unions, and scholars have taken action against this new legislation. 66 A petition against the criminalisation of illegal residence, arguing that it is a violation of human rights and that the planned measure is disproportionate, was signed by about 10,000 people Information on trends until 2011 Policy and legislative developments show that the cabinet aimed to restrict and decrease immigration to the Netherlands, especially of migrants with few future prospects (kansarme migranten). For example, measures were taken to set higher requirements for access to and residence in the Netherlands and to discourage migrants to arrive in the Netherlands without the required documents. Some of the governmental plans go against the EUdirectives and the general principles of international law. 68 As for integration and settlement in the Netherlands, the cabinet stated that immigrants themselves need to take the responsibility to integrate into Dutch society. Among other things, this was illustrated by decreased governmental funding of projects supporting E.g. Van der Kolk (2011), De zaak-mauro, het nieuwste hoofdpijndossier van Leers Volkskrant 26 October Netherlands, Ministry of the Interior and Kingdom Relations (2011). 62 Vijver, F. van de (2011) 63 Bessems, K. (2011) 64 See e.g. De Hart, B. (2010). 65 E.g. Council Long-Term Directive (Third Country Directive) 2003/109/EC, Free Movement Directive (Citizens Directive) 2004/38/EC, and the Family Reunifications Directive 2003/86//EC. 66 Hakkenes, M. (2011) 67 e.g. College van B&W van de Gemeente Amsterdam, NGO Kerk in Actie (Church in Action), UNICEF; Defence for Children International; CoMensha/La Strada Nederland; Inspraak Orgaan Turken (IOT), Raad van Kerken in Nederland. See the full list 68 E.g. Council Long-Term Directive (Third Country Directive) 2003/109/EC, Free Movement Directive (Citizens Directive) 2004/38/EC, and the Family Reunifications Directive 2003/86//EC. 14

15 integration and by the introduction of a new self-study pack for preparation for the Basic Civic Integration Examination Abroad Identification of future challenges The cabinet will encounter human rights challenges, when implementing the governmental measures to drive back immigration, to combat illegal residence and to favour the entrance of highly skilled migrants. The measures that the government has suggested are not always in line with EU-directives or with international conventions on the protection of human rights. 1.2 Specific information Administration of the European Refugee Fund in 2011 The data on the European Refugee Fund in the year 2011 are not yet published. Table 1.5 shows the official data of the Fund in Table 1.5 Data on the European Refugee Fund in the year EU contribution Total regular ERF for ,15 Not registered Percentage of 2010 regular ERF executed in 2011 National contribution EU contribution National contribution ,88 Not registered Total emergency ERF 2011 Percentage of 2010 emergency ERF executed in ,00 Not registered 0,00 Not registered Source: Ministry of the Interior and Kingdom Relations ( correspondence) Appeals against negative decisions by asylum authorities in 2011 Table 1.6 provides information on the appeals against negative decisions by the Dutch asylum authorities, for each legal provision The Netherlands, Ministry of the Interior and Kingdom Relations (2010). 15

16 Table 1.6 Appeals against negative decisions by the Dutch asylum authorities, for each legal provision. Regular Procedure Dublin II procedure Admissibility procedure (e.g. safe 3rd country) Accelerated procedure (e. g. manifestly unfounded applications) Comments Time limit for lodging an appeal 1 week for the General procedure (Algemene Asielprocedure) (Aliens Act art. 69:2) 4 weeks for the Extended procedure (Verlengde Asielprocedure) (Aliens Act art. 69:1) 1 week for the Dublin II procedure, same as the General procedure (Algemene Asielprocedure) 1 week Presuming that it deals with the General procedure (Algemene Asielprocedure) There is no accelerated procedure. See General procedure (Algemene Asielprocedure) Right to remain in the country Please fill in: - Automatic, - Upon request, - No right Upon request for the General procedure (Algemene Asielprocedure) (Aliens Act art. 82:2 and GAA art. 8:81).* For the Extended procedure (Verlengde Asielprocedure) the right to remain in the country pending the appeals decision is automatic. (Aliens Act art. 8(h)) Upon request for the Dublin II procedure, same as the General procedure (Algemene Asielprocedure) Upon request Presuming that it deals with the General procedure (Algemene Asielprocedure) Idem *The appeal in the General procedure does not have automatic suspensive effect (Aliens Act art. 82:2). Asylum seekers have to submit a request for a provisional measure (Voorlopige Voorziening) to suspend removal (GAA art. 8:81). The decision on this request is not per se positive. Hearing by national authority (YES/NO) Hearing by UNHCR (YES/NO) NO NO NO Idem NO NO NO Idem However, hearing by UNCHR is possible; this depends mainly on the lawyer representing the asylum seeker, and will in principle not be instructed by the judge. * Scholars argue that it is the responsibility of the lawyer to safeguard the legal position of the asylum seeker by arranging that the asylum seeker can remain in the country during the decision on a provisional measure (voorlopige voorziening). 16

17 1.2.3 Monitoring of forced returns, and independence of monitoring bodies In the Netherlands the Repatriation and Departure Service (R&DS) (Dienst Terugkeer & Vertrek, DT&V) is responsible for supervising the assisted voluntary and forced repatriation of foreign nationals who are not allowed to stay in the Netherlands. 70 R&DS is the implementing body of the Ministry of the Interior and Kingdom Relations. The Supervisory Committee on Repatriation (SCR) (Commissie Integraal Toezicht Terugkeer CITT) is responsible for monitoring returns. 71 The SCR is an independent watch dog that monitors the quality of the whole process of return, including the procedures and working methods of the R&DS. It also advises the government on how to improve the integrated process of return. The SCR can inspect, accompany individual and collective return operations, or inspect the return process as a whole. It is an independent body. It publishes a report every year. The SCR is independent in choosing when and how often deportations are being monitored. Of interest in the respect are the deportations of vulnerable groups, but also deportations that attract public interest (as for example, deportations of groups in organised charter flights) and cases in which it is foreseeable that it may be necessary to apply means of coercion (for example in the case of the deportation of aliens with a criminal and/or violent history). A physician and a psychologist are part of the SCR team. They can be deployed to survey deportations of minors or to survey particular cases with medical aspects. Up till 1 May 2011, the network Foundation Sustainable Return (Stichting Duurzaam vertrek), and several NGOs, were engaged in the return of asylum seekers whose application failed. The NGOs want to do this work independently of SCR. 72 The financing of the Foundation ended, but the NGOs will continue their regular activities separately Alternatives to detention pending deportation Alternatives to detention do exist in The Netherlands. However, these alternatives are rarely considered before detention is ordered by law, especially at the border, detention is almost always issued. In 2010, the majority in the Parliament asked the government to search for less costly and less severe options than alien detention. 74 In 2011, the minister of Immigration and Asylum announced he would commission research into this topic. 75 However, in 2011 the section of Amnesty International in the Netherlands stated in their report that the Dutch government hardly uses alternatives to detention pending deportation, also not in cases of highly vulnerable individuals. 76 In 2011, there were two national cases on alternatives for detention. In court case LJN BP0328, the The Hague Court concluded that: ( ) a duty to report, combined with a traceable residency, thereby is an accomplishable and realistic alternative to detention for the plaintiff. In LJN BR3477, the The Hague Court argued that: Defendant has insufficiently established why in the case of See: 72 The Council of the Refugee (2011).. 73 See: 74 Netherlands, Parliamentary documents (2010), Proposed Motion of 7 December Netherlands, Minister of Immigration of Asylum (2011). 76 Amnesty International in the Netherlands (2011)

18 plaintiff a lighter means, such as reporting, could not effectively be applied in order to remove plaintiff from the Netherlands. 77 In Table 1.7 the alternatives to detention as provided for in national legislation or administrative practice are described. Table 1.7 Alternatives to detention Duty to surrender documents Residence restrictions Bail / sureties Regular reporting Designated residence & counselling Does it exist? (Y/N) Legal Source (exact provision) Y (see comment) Aliens Act 2000 art. 52 Y Y Aliens Act art. 50:1 Aliens Circular 2000 par. A6/1.1 Aliens Circular par. A6/1.1 Aliens Act art. 6:1 Aliens Act art. 57:1 Aliens Circular par. A6/ Y Aliens Act art. 54 Aliens Circular par. A6/ Y (see comment) Aliens Circular par. A6/1.1 Aliens Act art. 6 and art Number of decisions imposing alternative to detention for 2011 Exact numbers requested, but not yet provided. Idem Idem Idem Idem Electronic N Idem 77 Netherlands, Distrct Court The Hague (2011d); District Court The Hague (2011e) Comments Listed as a possible measure for restriction of liberty, but not explicitly mentioned as an alternative to detention Mostly applied in the case of UUAs: the Nidos foundation (Stichting Nidos) acts as a guardian (see par ). Measure combined with designated residence : the UUAs are placed in an open reception centre Often combined with a stay in a freedomrestricting location Designated residence: Y Counselling not mentioned as an alternative

19 monitoring Other Y Idem Aliens Circular par. A6/ mentions the grounds to not or no longer apply detention and describes possible alternatives. A ground not yet mentioned is: being able to demonstrate to have a fixed residence address (Aliens Circular par. A6/ ) Deprivation of liberty for families with children in return procedures In the Aliens Circular 2000 (Vreemdelingencirculaire 2000), paragraph A6/4.3.5, the policies regarding the deprivation of liberty of families with children in return procedures are described. The Circular states that to prepare families with one or more underage children for a return, freedom-restricting measures are given preference above freedom-depriving measures. This means that, whenever possible, a family will be placed in a freedomrestricting location (vrijheidsbeperkende locatie, VBL) or family location (gezinslocatie, GL) instead of an alien detention centre. In case of a family with two parents and a danger of withdrawal of supervision or deportation, a freedom-depriving measure can be imposed on one of the parents. The rest of the family will remain in a VBL or GL. In case a family is denied access to the Netherlands, a freedom-depriving measure can be imposed on the whole family, as part of effective border control policies. In other cases, detention of the whole family is restricted to situations where involuntary return can be realised in a short term. The availability of the whole family can be regarded necessary and form a ground to impose a freedom-depriving measure on the whole family. The maximum period that a family with underage children can be placed in alien detention or in a border holding centre is in the rule two weeks (see paragraph A6/1.6, A6/2.7 and A6/5.3.5). This detention can be prolonged in case of physical resistance against deportation and in case of a new application for a residence permit. As soon as they have the necessary travel documents, they are placed in an expulsion centre (uitzetcentrum). In this closed facility they wait for an available flight. 78 The implementation of freedom-restricting and freedom-depriving measures on families with minor children has been criticised by the parliament, civil society and by experts in (legal) migration issues. The main criticism is that children should not be placed in a prisonlike environment with hardly any facilities. They argue that the Netherlands does not meet 78 See

20 international requirements according to which the detention of vulnerable minority groups is forbidden or strongly discouraged. 79 Table 1.8 provides information on families with children who were detained in Table 1.8 Alternatives to detention Families with children were detained in 2011 If YES, in closed facilities hosting only families with children If YES, In closed facilities hosting families with children and other immigrants If YES, In police detention centres Other, please explain Y Y Semi-closed facilities: family location (gezinslocatie, GL) Y Semi-closed facilities: freedom-restricting location (vrijheidsbeperkende locatie, VBL) Y Aliens detention (Vreemdelingenbewa ring) Y Expulsion centre (Uitzetcentrum) where has to be wait for an available flight when travel documents are arranged Source: website Central Government 80 ; Refugee Council ( correspondence) Border holding centre (Grenshospitium) when denied access to the Netherlands The The Hague Court (Gerechtshof Den Haag) ruled on 11 January 2011 that the government has to provide emergency shelter to families with underage children who are irregular migrants (migrants whose application failed or who entered the Netherlands), as long as their departure from the Netherlands has not yet taken place (see paragraph 1.1.2). Following this ruling, the government decided to transform three reception centres into freedom-restricting family locations. Two GLs, in Gilze and Katwijk, were opened in Families can also be placed in a VBL See e.g. Spekman, H. (2011). PvdA Plan Vrijheidsbeperkende Locatie (VBL) 'Sluit Ter Apel', September 2011; NJCM-Commentaar. De toepassing en tenuitvoerlegging van de vrijheidsontneming van vreemdelingen Knelpunten en aanbevelingen, November Refugee Council ( correspondence) 20

21 On 31 December 2010, around 125 families (395 persons) lived in a VBL. On 19 September 2011 the number of families in VBLs was 160 (465 persons). 82 Families that are designated to a GL or VBL are allowed to leave the facility. However, they have to stay within the municipality and have to report daily. The locations have very basic facilities. Children receive education at a school on the compound or at a nearby school. 83 Defence for Children has started an investigation into the living conditions for children in GL and VBL facilities, of which the results are not yet published. 84 The living conditions in application centre (aanmeldcentrum, AC) Schiphol have been investigated by the The Hague Court of Appeal. 85 Between 8 am and 10 pm, children and adults together reside in a space of 170 m2. There is a 6 m2 play area for young children with some toys and stuffed animals for children. The play area is semi-shielded by a low book shelf. There is a continuous sound of voices, television, game console and air planes. No educational activities are offered. The outside cage of 70 m2 is freely accessible. It has one children s rocking chair (wipkip). People sleep in dormitories with bunk beds that are not accessible during the day. There are special dormitories for mothers and children. People are monitored by guards and cameras. The centre has a penitentiary character. The Haarlem Court (Rechtbank Haarlem) ruled on 1 April 2011 in a case of a mother with three minor children, that imposing a freedom-depriving measure in AC Schiphol violated article 5 EVRM. 86 The plaintiff received a financial compensation. According to the Ministry of Security and Justice, the DTC (detention centre) Rotterdam has special facilities for children. 87 The The Hague Court of Appeal investigated the location on 20 September 2011 in the case of a family that had been detained for five weeks. 88 The Court concluded that although the location has some facilities for children, DTC Rotterdam clearly has penitentiary elements and is not a suitable residence for children. There is a special family department. People are guarded constantly. The 40m2 play room for babies and little children has toys, children s furniture and care products. The outside space has stone paving and grass and is secluded by high walls. There are a small slide, two small soccer goals and some bicycles for little children. There are three rooms for children between the ages of 4 and 12 where educational and creative activities are offered. Twice a day, people are locked inside their bedrooms to have a meal. 82 See 83 See 84 Amnesty International ( correspondence). 85 Netherlands, Court of Appeal The Hague (2010a). 86 Netherlands, Court of Appeal Arnhem (2011). 87 Netherlands, Schijndel, C. van and Gemmert, N. van (2011), p Netherlands, Court of Appeal The Hague (2010b)