Making undocumented residency an offense
Until the 1990s, people without proper immigration documents could register with the population registry and get a Social Security number. This allowed them to work legally, rent a house, participate in sports and recreational activities and sometimes even, if they paid their premiums, benefit from the social safety net.
But in 1993 the Identification Act (Hirsch Ballin) came into effect, followed in 1998 by the Database Connection Act (Sorgdrager). Normal life became impossible. Slowly but surely the undocumented were pushed into a marginal existence.
But they did not leave. Quite the contrary: the number of undocumented aliens rose and rose. A key development was the introduction in 1998 of the principle of personal responsibility (Cohen), where asylum seekers who were difficult to deport were put on the streets with an order to organize their own return to their home country. Even for those who actually wanted to do return, this was often an impossible task. When you live on the streets it is difficult to make contact with the embassy or the population registry office to obtain the proper documents. The result: a growing number of illegal aliens without access to social services and with no solid roof over their heads.
The government then went looking for more draconian ways to reduce the number of illegal aliens. In this, allows had to be made for European law, which prohibits treating undocumented residency explicitly as an offense. So in 2012, the Government introduced the entry prohibition order, which effectively comes down to the same.
Undocumented residency as a misdemeanor
The entry prohibition order prohibits a person from being on Dutch and even EU soil. It was originally intended for undesirable aliens, but since a 2012 change in the Dutch Aliens Act it has applied to almost all asylum seekers who have been denied asylum.
When their asylum application is denied they are usually ordered to leave immediately or within a period of up to 28 days. If they are still found in the Netherlands after this period, an entry prohibition order is issued and they are charged with a misdemeanor. The possible fine is €130 to €1,200 or a custody term of up to six months. Undocumented residency is therefore already an offense, but in the mild form of a misdemeanor. Aiding such undocumented aliens is not an offense.
Undocumented residency as a felony
Immigration Minister Teeven now wants to take a tougher stance. A proposal is before parliament to treat undocumented presence on Dutch soil as a punishable offense, even for those who have never been issued an order to leave within a set period. Those who are fined a second time for undocumented residency or illegal entry will be issued an "enhanced entry prohibition order". Those who are found to be in violation of that order are committing a felony, carrying a maximum fine of €7,800 or a maximum prison term of six months. Aiding such undocumented aliens will become risky, since aiding and abetting the commitment of a felony is itself a punishable offense under Dutch law.
A prison term is punishment. But the prisoners we are talking about here have usually done nothing worse than to simply be in the Netherlands. The criminal justice system was not intended to punish such people. It is also questionable if the new provisions will comply with the European directive which states that detention cannot be a barrier to a refugee's return to his home country. Jailing people is, of course, very different from working to expel people. If Minister Teeven has his way, we will be faced with a completely counterproductive system which will guarantee that those people who are difficult to expel will definitely stay in this country. At a financial cost of €200 of per refugee per day to us, and at incalculable human cost to the refugee and his or her family.
The Minister's intention is probably symbolic in an attempt two pander to xenophobic voters. But when undocumented residency is criminalized, undocumented aliens will become more associated with crime. Labor Party Chairman Hans Spekman said in the glory days when his party opposed such policies: "the undocumented will only be pushed further into illegality". Less and less will they dare seek the help and protection that international treaties guarantee them. Ordinary citizens will become ever more reluctant to provide necessary care to refugees if they fear that this will make them an accessory to a crime.
A lifetime sentence
In the current situation, many undocumented aliens eventually obtain residency permits. Some of them obtain a Refugee Residency Permit at the second attempt, others have children with Dutch nationality which can allow residency, others are awarded legal residency on medical grounds.
The proposed changes to the law state that previous undocumented residency can prevent the awarding of a residency permit. This may become a giant barrier to obtaining legal residency after an undocumented stay in the Netherlands, even if the situation of the refugee changes in a way that would give them a right to legal residency. Examples include a change political situation in the home country, a marriage of the asylum seeker to a legal resident, medical issues, custody of a Dutch child or the discovery that the refugee was a victim of exploitation or human trafficking.
Those among the undocumented who are found more than once on Dutch soil and have been issued an enhanced entry prohibition order will never be able to obtain legal residency. This amounts to a lifetime sentence for something which should not even be a crime. Those who could and should be able to obtain legal residency are forced to stay on the margins of society. This will not solve any problem, rather it will make problems worse and create new problems.