Guest post by Annick Pijnenburg and Conny Rijken. Annick is a PhD researcher at Tilburg University in the Netherlands. Her doctoral research project examines the responsibility of States under international law for human rights violations that occur as a result of cooperative migration control policies like the EU-Turkey deal. Conny Rijken is Professor of Human Trafficking and Globalisation at Tilburg University in the Netherlands. She studied international and European human rights law at Utrecht University and Tilburg University and wrote her PhD thesis on human trafficking. She has extended her field of research to other areas including global migration, European criminal law and inclusion and exclusion through migration. Central in her research is the focus on human rights and engagement with the position of the individual.
The new Dutch government recently presented its coalition agreement, after the longest negotiation period in Dutch history, in which migration played a key role. The eventual coalition agreement’s section on migration titled ‘humane and effective migration policy’ indicates what to expect from the new government on migration and asylum. This post discusses what such a policy looks like in the eyes of the governing parties.
The first and most extensive subsection concerns migration agreements. The EU-Turkey Statement – negotiated under the Dutch EU presidency – serves as blueprint for new migration deals, seen as the way forward to control migration flows. The bottom line is that asylum seekers are entitled to protection but are not allowed to choose in which country. Asylum seekers who flee to neighbouring countries are subjected to an asylum procedure that meets international standards in order to assess whether they are entitled to protection in the regions of origin, relocation is possible after someone qualifies for such protection. Whoever travels onwards can be returned after a short procedure on the basis of the ‘safe third country’ principle. Thus, providing ‘safe and adequate’ protection in regions of origin aims at preventing these onward movements to the EU in the first place. According to these agreements, the Netherlands and the EU are to finance reception facilities in the region in cooperation with international organisations such as UNICEF, UNHCR and the IOM. In short, the Netherlands not only wants to implement ‘EU-Turkey Statements’ with other countries but goes further by proposing external processing.
The concerns regarding the EU-Turkey Statement also apply to new deals: are such agreements in line with international and European asylum law? How can reception conditions in third countries be monitored to avoid infringements of human rights and onward refoulement? Can humanitarian crises be avoided if the regional protection areas are underfunded? Furthermore, the concept of ‘safe third country’ must be further clarified before returns are implemented. As this concept is the cornerstone of the EU-Turkey Statement, it is worrying that its meaning is still unclear.
In addition, the Dutch coalition wants to revise the 1951 Refugee Convention, which it considers outdated. Renegotiating this instrument in the current political context would probably leave asylum seekers worse rather than better off. It is also remarkable that the agreement does not mention the Global Compact for Refugees and the Global Compact on Migration currently being negotiated at the UN level.
European asylum policy
The government strives for harmonisation of European asylum law in order to avoid a ‘race to the bottom’ whereby Member States try to make themselves as unattractive as possible to asylum seekers. This is a laudable objective, which echoes the two packages proposed by the European Commission in May and July 2016 to reform the Common European Asylum System. Ironically, however, it is later stated that while the harmonisation is ongoing, the Netherlands will strive to lower several standards in Dutch law which are more favourable than the minimum required by EU law (e.g. limiting free legal assistance to the appeals procedures, see article 20 Procedures Directive). The agreement further proposes a legal emergency mechanism that can be implemented in situations of a mass influx in order to create a clear European framework for regional protection. In other words, it wants to replace the Temporary Protection Directive (which has never been triggered) by a new instrument that codifies the EU-Turkey Statement to avoid having to negotiate ad hoc agreements. Echoing the Commission’s proposals, several other measures seek to prevent ‘asylum shopping’ and secondary movements within the EU, e.g. by punishing asylum seekers who do not stay in the Member State responsible for their claim.
European external borders
The agreement further foresees more intensive cooperation with countries from which migrants depart. Migrants rescued at sea should be brought to the nearest place of safety in accordance with international law and the principle of non-refoulement, which, under the coalition agreement, can be a safe port in Africa or the Middle East. Given the widespread and well-documented abuses against migrants in Libya (e.g. by Refugees International and CNN), it is difficult to argue that returning migrants to Libya complies with non-refoulement. Disembarking migrants in other countries requires ensuring that their rights will be guaranteed there, which they aim to achieve by using both positive and negative incentives including withholding development aid. The Dutch proposal thus echoes the Commission’s Migration Partnership Framework and raises the same critical questions (e.g. is it morally and legally legitimate to use development funds for migration control?)
The agreement emphasises that the Netherlands lives up to its international commitments to provide protection to those in need, as should other countries, especially EU Member States, since it is a shared international responsibility. Yet the rest of that section proposes outsourcing responsibility for asylum seekers to regional protection areas. The Netherlands opts for binding quota at the European level and increases its share of UNHCR resettled refugees from 500 to 750, paying special attention to vulnerable minorities and refugees who can be expected to successfully integrate in the Netherlands. However, this conditional resettlement and ‘cherry picking’ undermines the stated commitment to burden-sharing at the international level.
In relation to solidarity between EU Member States, the Netherlands will provide additional support to Italy and Greece through Border Security Teams, which help with border control and screening, registering and identifying migrants. This is a welcome commitment given the pressure currently faced by Greece and Italy, although the agreement does not suggest revising the Dublin Regulation - arguably the cause of the problems faced by these two Member States. Furthermore, the Netherlands pledges to continue taking in its ‘fair share’ of asylum seekers under the 2015 relocation decisions but also wants noncompliant Member States to be sanctioned through EU subsidies. The Netherlands thus endorses the recent CJEU judgment confirming the relocation decisions and the Commission’s infringement procedures against the Czech Republic, Hungary and Poland.
Except for the emphasis on the need for all Member States to do their share, the Dutch agenda is unlikely to meet much opposition in Brussels and developments at the European level will probably reflect the Dutch coalition agreement. Yet the key question remains: will its implementation be in line with international legal standards and obligations? Recent rapprochements with Libya, Eritrea and other countries with a disputable reputation fuel these concerns. Given the limited success which migration control has had over the last decades in preventing people from migrating, the Dutch coalition might be too optimistic about being able to stop irregular migration and secondary movements while respecting the right to asylum.
How to cite this blog post (Harvard style)
Pijnenburg, A. and Rijken, C. (2017) The New Dutch Coalition Agreement on Migration: ‘Not In My Backyard’. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2017/12/new-dutch (Accessed [date]).