Since early this year, municipalities have been forced by Minister Hirsch Ballin (Justice) to close down their emergency accommodation for asylum seekers. The measure is a consequence of the general pardon that came into effect in 2007. However, a properly functioning aliens policy is a utopian dream without emergency accommodation, states Heinrich Winter, an associate professor at the University of Groningen and a specialist in aliens law.
An Angolan single mother with three young children thrown out of the Ter Apel asylum seeker’s centre, a traumatized woman and her husband housed outside the shelter, a confused woman who camps for days on end in a bus shelter on a country road – all shocking examples that hit the front pages as regularly as clockwork. These extremes form the flip side of a tightened aliens policy. The introduction of a general pardon, granting thousands of asylum seekers with no residence permit permission to stay in the Netherlands, led the State and municipalities to make agreements to end the emergency accommodation that previously housed asylum seekers with nowhere else to go. This means that in the Netherlands, even families with children with no residence permit can no longer be accepted. The Benefit Entitlement (Residence Status) Act excludes them. This act states that children do have the right to medical care and education, but not to accommodation. In addition, the family is responsible for its own repatriation.‘Although municipalities are winding down emergency accommodation, they are continually hitting problems’, says Winter. ‘Denying a family a residence permit does not mean that that family has also actually departed.’ Examples include asylum seekers who have been denied a residence permit and then do their best to return to their country of origin but are denied permission to repatriate by that country.
In the case of the Angolan mother mentioned above, Defence for Children and other bodies started a case with the European Committee for Social Rights (ECSR). It decided that the Netherlands was acting in contravention of the European Social Charter, which states that children are entitled to protection and a roof over their heads. Hirsch Ballin ignored this decision by arguing that the Social Charter is not legally binding.The confusion has only increased since the courts have reached two contradictory decisions concerning the accommodation of families with children but without a residence permit. Here, actual practice is colliding with the theory of the legislation, explains Winter: ‘Municipalities need some space to cope with situations in the margins of the asylum law. This is why emergency accommodation is a crucial part of a functioning aliens policy.’ For example, after being turned down, people have four weeks to arrange to leave the Netherlands. However, it often takes more time to get papers in order or their homeland obstructs return. Winter explains that emergency accommodation should grease the wheels of asylum policy.Thanks to the rigidity of government policy, municipalities are struggling with humanitarian issues and effective aliens policy. Winter: ‘Municipalities are really bothered by being held responsible for infringing human rights. No mayor wants to see an asylum seeker who has exhausted all legal means meeting with an accident in his municipality because he’s living on the streets.’
Winter thinks that the rigid government policy cannot be sustained. ‘The system is cracking on all fronts. Judges are going to pick holes in the new legislation on the basis of European civil rights. The legislation is actually in violation of the European Convention on Human Rights and the Children’s Rights Convention. Although the European Social Charter may not be legally binding, the decision of the ECSR will be followed by the European Court of Human Rights. And judgements by that court are binding.’ The Netherlands is not only having its fingers rapped on an international level’, continues Winter. ‘The Central Appeals Tribunal, the highest administrative law body, also says that on the basis of the Children’s Rights Convention, exceptions to the Benefit Entitlement (Residence Status) Act should be made in certain cases.’
Winter thinks that Hirsch Ballin is unnecessarily turning the situation into an issue because it actually only involves a few hundred cases a year where emergency accommodation is needed. According to Winter, it’s the current political and social climate that is making the cabinet feel that it has to exercise a strict aliens policy. Nevertheless, he added: ‘The Minister must sort it out in a decent way. One possibility is small-scale, short-term structured emergency accommodation. What we have to do is prevent people going underground and disappearing off the radar.’ The current approach is naïve, in Winter’s opinion. ‘That could boomerang’, he says. ‘There’s always the possibility that a family with children could end up on the streets during a hard winter. Just think what the public’s reaction would be if that happened.’
Dr H.B. (Heinrich) Winter (1962) is a part-time associate professor in Administrative Law and Public Administration at the Faculty of Law of the University of Groningen and head of the Pro Facto research and advice bureau. He studied Public Administration, Public Law and Sociology in Groningen and gained his PhD in 1996 researching how legislation functions and supervision and enforcement.
More information: Dr H.B. Winter
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