The Dutch government wants to declare an asylum crisis, but what does that mean?
More people seeking asylum, overcrowded asylum accommodation and asylum procedures that take years because of a lack of capacity. The current government wants to declare an asylum crisis but what is that exactly and can they just do that?
‘Definitely not’, says Assistant Professor of Migration Law Mark Klaassen. Dutch immigration law does contain a kind of crisis provision, which you can declare in an emergency, he says. ‘But you can only use that emergency law in very extreme situations such as war. And above that emergency law is European law, which asylum seekers can appeal to and the Netherlands has no choice but to comply with. European law is above Dutch law in the hierarchy.’
Budget Day plans
And yet Asylum and Migration Minister Faber has said that around Budget Day she will come up with proposals to declare an asylum crisis, so the Netherlands will not have to admit so many people seeking asylum. Although Klaassen is curious about what path the government will take, he does not give the plan much chance of success.
‘If you look at the number of asylum applications, the Netherlands is, relatively speaking, among the average in Europe’
‘Full reception centres or stalled asylum procedures are not an asylum crisis. They are problems in asylum policy implementation. And if you look at the number of asylum applications that the Netherlands has to process, relatively speaking, we really are among the average in Europe.’ Klaassen does not expect the Netherlands to be granted an exemption by the European Union. ‘That would create a precedent and then other member states would want one too.’
Deviate from European rules
Klaassen has no clear-cut answer to the question of what an asylum crisis actually is. In the past, Baltic member states tried to declare such a crisis but were called to account by the European Union’s Court of Justice. ‘Greek islands were overwhelmed at one point by the number of refugees arriving. The Greek legal system couldn’t cope and a kind of lawlessness arose in those places. But even that was not a reason to deviate from the European rules.’
‘If you declare an asylum crisis in the Netherlands, you are on thin legal ice’
This summer, the Council and European Parliament adopted the new Crisis and Force Majeure Regulation, which provides for additional measures when there is a sudden increase in the number of asylum seekers and a member state is unable to cope. But that can only be done in the case of ‘an exceptional mass influx’ of refugees and asylum seekers. And that regulation will not take effect for another two years. ‘What is more, the Netherlands does not have an exceptional mass influx. If you declare an asylum crisis in the Netherlands, you will find yourself on thin legal ice.’
Distribution Act
One way Klaassen expects Faber’s proposal to be used is to repeal the Distribution Act. This ensures that accommodation for people with refugee status is distributed fairly across the Netherlands. ‘Repealing the Distribution Act is only going to increase asylum problems’, says Klaassen. ‘The throughput from the remaining accommodation will shrink even more.’
Huge waiting times
The government would do better to focus on the problems that it can solve, says Klaassen, such as the lack of capacity at the Immigration and Naturalisation Service (IND). ‘It now takes 48 weeks for an asylum seeker to tell their story for the first time, and then the assessment has yet to begin. The waiting time for the family reunification process to start is as long as 83 weeks. People in desperate situations can’t wait that long, so they take the dangerous route by sea.’
‘If you keep repeating that there is an asylum crisis, that becomes a truth in itself and that’s where the real danger lies’
Meanwhile, the IND has some 39,000 family reunification applications to process. ‘Politicians used that to say: “Look how many more are coming.” But it is the fault of the government itself that has allowed waiting times to increase. If you keep repeating that there is an asylum crisis, that becomes a truth in itself and that’s where the real danger lies.’
Text: Tim Senden
Photo: ANP