On Democratic Deficits and Unconvincing Solutions
On 13 September 2024, ahead of the presentation of the State Budget, the new Dutch coalition presented their finalized plan to implement what it has labelled as the strictest admission regime ever in the field of asylum law. To implement its Outline Agreement, titled ‘Hope, Courage and Pride,’ the government plans to rely on an derogation provision in the Dutch Aliens Act 2000. This permits derogation from the rules laid down in the Dutch Aliens Act 2000 without the involvement of the Dutch parliament. The government plans to derogate from certain specific rules so it can reverse the burden of proof in asylum procedures and abolish both family reunification for adult children and the indefinite asylum permit. We argue that provision does not apply to the current situation and that the Dutch government therefore does not have the jurisdiction to render parts of the Dutch Aliens Act 2000 inoperative.
Emergency Law in the Netherlands
In the Netherlands, Acts of Parliament are generally made jointly by the government and the bi-cameral parliament. However, when the “external or internal security” of the Netherlands is at stake, either a limited or a general state of emergency can be declared by the government pursuant to Article 103 of the Constitution and the Coordination Act on States of Exception. As a result, certain Acts such as the War Law for the Netherlands become applicable and certain fundamental rights can be derogated from. Declaration of a state of emergency may also license a departure from the provisions of the Constitution relating to the powers of the executive bodies of the provinces, municipalities, public bodies and water authorities. If a state of emergency is declared by the Dutch government, Parliament must decide on its continuation immediately after the declaration of this state of emergency. Both parliament or the government can terminate the state of emergency.
The Dutch Aliens Act 2000 Derogation Clauses
However, the government can also make use of derogation clauses in specific legislation such as Articles 110 and 111 of the Dutch Aliens Act 2000. These allow for derogation from the Act’s requirements in extraordinary circumstances. The procedure itself is somewhat similar to the procedure on declaring a state of emergency. Article 111 can be activated by Royal Decree, on the recommendation of the Prime Minister. Parts of the Dutch Aliens Act 2000 can then be derogated from by a decree of government. After that, a proposal on the continuation of this derogation must be sent to the House of Representatives without delay. If the House of Representatives does not approve the Continuation Act, the Prime Minister must immediately revoke the emergency measures laid down in the decree of government. The same is true if the Senate does not approve the Continuation Act after they received it from the House of Representatives.
Article 111 can only be activated in case of extraordinary circumstances. Unfortunately, the Act does not define what counts as extraordinary circumstances. The explanatory note merely refers to the fact that this section was copied from the previous Aliens Act of 1965 which explicitly refers to section 15 of the ECHR in its own explanatory note. This section permits derogation from several provisions of the ECHR, but only in time of war or other public emergency threatening the life of the nation, provided that such measures are not inconsistent with its other obligations under international law and only to the extent strictly required by the exigencies of the situation.
The reference to section 15 ECHR creates a high threshold which also follows from the explanatory note to the aforementioned Coordination Act of States of Exception. These are relevant because the Act changed the wording of the Aliens Act of 1965 from ‘in case of war or other extraordinary circumstances’ to ‘if extraordinary circumstances require it.’ From this explanatory note it follows that circumstances are extraordinary if they threaten the vital interests of the state (territorial, economic, ecological or physical safety and political and social stability). Moreover, the Dutch Supreme Court clarified in its case law on the activation of the Extraordinary Powers Civil Act during the Covid pandemic, that it is not enough that these extraordinary circumstances are present. It is also a requirement that ordinary powers must be insufficient to deal with these circumstances.
Extraordinary Circumstances?
At the moment, the current circumstances in the Netherland do not meet the threshold for exceptional circumstances that threaten the vital interests of the State. The Outline Agreement highlights the high influx of asylum seekers, the overcrowded reception centers and the untimely processing of asylum applications as the main reasons for relying on the derogation clauses in the Dutch Aliens Act 2000. However, the claim that the number of incoming asylum seekers amounts to an exceptional circumstance is dubious. While the numbers are elevated at the moment, they are lower compared to a year ago and far lower than during the peak of 2015. Moreover, when comparing the number of asylum applicants per thousand of persons, the Netherlands remains below average within the EU.
The notion that overcrowded reception centers and untimely decision-making amount to exceptional circumstances is more convincing. The main application center, located in Ter Apel, cannot cope with the amount of asylum seekers. A court ruling has imposed penalty payments on the Central Organ for the Reception of Asylum Seekers (COA) every time the maximum amount of asylum seekers hosted in the reception center has been exceeded. The COA has already paid the maximum amount of 1.5 million euro’s in penalty payments and the municipality of Westerwolde, where Ter Apel is located, has asked the judge to impose a penalty of 75.000 euros for each day the maximum amount of 2000 asylum seekers is exceeded. Based on the latest numbers, it unlikely the COA can meet this requirement. Due to a lack of solidarity, most municipalities refuse to help the municipality of Westerwolde or the COA in hosting asylum seekers when the reception center in Ter Apel is full.
The timeliness of decision-making in asylum cases is also under strong pressure due to a combination of a backlog of cases and the amount of applications coming in. This backlog is created by constantly scaling up and down. In 2023 the minister of Asylum and Migration had to pay 11.3 million in penalty payments because of untimely decision-making.
Neither Inadequate Nor Unforeseen
We agree with others who have argued that the situation can be addressed with ordinary powers and that current circumstances, while perhaps exceptional, are not unforeseen. The previous government already started to deal with the overcrowded reception centers and the untimely decision-making. A new form of budgeting was introduced which allowed for more staff and more reception places. Besides that, the ‘Spreidingswet’ was introduced which requires all municipalities to host a certain number of asylum seekers per year.
Even if normal (legislative) powers were inadequate, the derogation clauses can only be activated if the exceptional circumstances are unforeseen. This requirement seeks to avoid the possibility of the government first creating a crisis and then sidelining parliament by resorting to emergency measures. The current crisis is not unforeseen. The overcrowded shelters were created by failed policies of previous governments. By constantly scaling up and down for budgetary reasons and structurally underestimating the number of asylum-seekers coming to the Netherlands, there are not enough people to decide on an asylum application in a timely manner and there are not enough reception places to accommodate fluctuations. Because of the untimely decision-making, asylum-seekers are staying longer in reception centers than anticipated, which leads to overcrowding.
Unconvincing Solutions
Not only does the current situation fail to meet the requirements of the law to justify the activation of Articles 110 and 111. Almost all of the proposed emergency measures do not seem to be aimed at reducing the asylum influx, improving the reception conditions or speeding up the decision-making procedure in asylum cases. Examples of the emergency measures are a reversal of the burden of proof in asylum procedures, the abolition of family reunification for adult children, proclaim an application unfounded if an asylum seeker did not show up at a hearing and the abolition of the indefinite asylum permit. Since the emergency legislation does not address the alleged extraordinary circumstances, it raises the question whether it is being used for a different purpose.
The government has since announced further measures, including the introduction of different asylum residence permits, the limitation of legal aid for asylum seekers and the abolition of appeal in asylum cases. These are also unlikely to speed up decision-making or improve the situation in the reception centers. Only three measures relate to the reception centers. These include limiting reception facilities for asylum seekers, lowering the standards of these reception centers and placing asylum seekers who are a risk to public order or whose application is likely to be rejected in a reception center with very limited freedom of movement. The Bar Association has already pointed out that these measures are all contrary to EU-law.
As for the decision-making process, almost all measures will lead to more work, either for decision-makers or for courts. For instance, the introduction of the different asylum permits will lead to more work for the Immigration and Naturalization Services since everyone wants a so-called ‘a-permit’. This is exactly why this system was abolished in 2000. Similarly, abolishing the indefinite permit will also increase decision-making, since a refugee has to apply for an extension of the residence permit every five, or in the plans of the government, three years.
Perhaps most striking is that the government has also announced that it will abolish the penalties for untimely decision-making. The High Council of State has already ruled in 2022 that this is contrary to EU-Law. The Immigration and Naturalization Service will also face serious budget cuts and the ‘Spreidingswet’ will be revoked. Other measures actually would reduce the flow of people in reception centers, such as a proposal to abolish a preferential position for refugees with a resident permit when applying for social housing.
A Perceived Crisis?
When presenting the finalized Outline Agreement, Prime Minister Schoof stated that the reason for activating Articles 110 and 111 was a perceived crisis. The addition of the word ‘perceived’ is key to understanding the problem here. The democratic deficit of emergency procedures can only be justified because a swift response is needed to protect the vital interests of the state. Perception cannot justify this democratic deficit while also lending itself to abuse by political parties who want to change the policies of previous governments, especially if they have promised, as in the case of the PVV, that they will ‘fix’ the problem as soon as they rise to power.
What’s Next
The pressure on the current government to refrain from activating the derogation clauses is increasing. A report from the Dutch Bar Association concluded that almost all of the proposed measures, including activating Articles 110 and 111, would violate the rule of law. On 20 September 2024, news broke that civil servants of the Ministry of Interieur and Kingdom Relations had advised against activating the articles. One of the coalition parties, NSC, a newly formed political party which presents itself as a guardian of the rule of law, human rights and democracy, also seems to be backing away from the idea. The Minister of Interior and Kingdom Relations, a member of NSC, stated that she will only support emergency measures if the Minister of Asylum and Migration, a member of the far-right party PVV, provides sufficient justification. In parliament, NSC has stated that they will only back these plans if the Advisory Division of the High Council of the State gives a positive advisory opinion.
On October 8, it became clear that the Senate, where the coalition parties lack a majority, will not support a Continuation Act. This means that even if the Prime Minister activates the derogation clauses, there is insufficient parliamentary support for the continuation and the government will be forced to withdraw the decree of government. The coalition’s liberal party (VVD) has suggested that instead of invoking article 110 and 111, a ‘rapid’ Act of Parliament could be introduced and discussed by both Houses of Parliament in just a few days. This option is supported by most opposition parties. It has the advantage of parliament having to discuss the content of these measures, which, as the report of the Bar Association showed, are either a violation of the rule of law or pose a risk thereto. As for now, it remains unclear how the majority in parliament will react to these conclusions, but it would be appropriate if they act in line with the report.
