WHO’S RIGHT(S)? International Monitoring of Compliance with Human Rights of Migrants in the Netherlands 2000-2008 a WHO’S RIGHT(S)? INTERNATIONAL MONITORING OF COMPLIANCE WITH HUMAN RIGHTS OF MIGRANTS IN THE NETHERLANDS 2000-2008 Dominique van Dam Centre for Migration Law Nijmegen 2009 Foreword It was internationally renowned Humanist Erasmus who lay the foundation for Human Rights in the Netherlands. It is his work, which made this country a safe haven for minorities and also an important multicultural economic force in the Golden Age. And this legacy of rationale and tolerance were the basis on which The Hague’s Peace Conferences of 1899 and 1907 were held; the events where the first steps to codify international law were taken. The prominent role of the Netherlands in the promotion of Human Rights is not overstated when we take into account the exceptional position this country has chosen to take in relation to international conventions and treaties. The Netherlands, as most know, will accept international law above its own; even before ratification. It is for this reason that the Netherlands welcomes and actively cooperates with different national and international organisations and NGO’s in the examina- tion of our laws and policies against the backdrop of Human Rights. However, while this is the case, it is prudent to consider that the results of these examinations are not always as satisfactory as we would expect. In the past years NGO’s have found that the implementation of laws and policies are at odds with one or more Human Rights. The mission of FORUM, the Dutch National Knowledge Institute for Multicul- tural Affairs, is to promote social cohesion, shared citizenship and a multi- ethnic society based on the principles of the Rule of Law, Human Rights and Equality of all citizens. For this reason we commissioned this research and re- port titled “Who’s right(s): International monitoring of compliance with human rights of migrants in the Netherlands 2000-2008”. This report demonstrates that, despite good intentions, the implementation of laws and policies may be at odds with Human Rights. And that it takes time and political will before a government acknowledges this and adjusts legislation or policies that are not in accordance with human rights. The report also con- cludes that the efforts of (inter)national organisations, NGO’s and media lack coordination. FORUM applauds the good work of these organisations and hopes that their comments and recommendations will not fall on deaf ears. We await, with great expectations, the inauguration of the new National Institute for Human Rights. Sadik Harchaoui Chairman of the Board of Directors FORUM WHO’S RIGHT(S)? International Monitoring of Compliance with Human Rights of Migrants in the Netherlands 2000-2008 Dominique van Dam FORUM is an independent knowledge institute in the field of multicultural affairs from the perspective of the democratic constitutional state, social cohesion and shared citizenship. FORUM gathers knowledge in the broad field of integration, disseminates this and converts it into methods and products that can be used by policy makers and practitioners. For further information: www.forum.nl/international ISBN: 978-90-5850-4791 Publishers: Willem-Jan en René van der Wolf Production/Lay-out: Jook van der Snel Translated by: Wilkens c.s. Translators & Interpreters Legal copy-editing by: R. Eertink, Editing Proofreading Translation Published by: aolf Legal Publishers (WLP) P.O. Box 31051 6503 CB Nijmegen The Netherlands Tel: +31 (0)24-3551904 Fax: + 31 24 355 48 27 E-Mail: [email protected] www.wolfpublishers.nl All rights reserved. No part of this publication may be reproduced, stored in a retrieval sys- tem, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission of the publisher. Whilst the authors, editors and publisher have tried to ensure the accuracy of this publication, the publisher, authors and editors cannot accept responsibility for any errors, omissions, misstatements, or mistakes and accept no responsibility for the use of the information presented in this work. © aLP 2009 Inhoud Abbreviations ix Preface xi Why this research now? xi Chapter 1. Background and structure 1.1 Assumptions 2 1.2 Aim 3 1.3 Research questions 3 1.4 Research methods 3 1.5 Structure of the book 7 Chapter 2. Overview of organisations and viewpoints 2.1 Public organisations 9 United Nations 9 Council of Europe 15 European Union 19 2.2 Private organisations 20 Chapter 3. Integration and citizenship policy in the Netherlands 3.1 Viewpoints adopted by international organisations 23 United Nations 23 Council of Europe 24 Private organisation 27 3.2 Attention from the press 28 3.3 Attention in political circles 30 3.4 The Wib on the political and public agenda 34 3.5 Effect of the criticism 35 Chapter 4. Dutch policy on discrimination, racism, xenophobia and Islamophobia 4.1 Viewpoints adopted by international organisations 39 United Nations 39 Council of Europe 42 Private organisation 43 4.2 Attention from the press 44 4.3 Attention in political circles 45 4.4 Effect of the criticism 51 vii Chapter 5. Dutch asylum policy 5.1 Viewpoints adopted by international organisation 55 United Nations 55 Council of Europe 59 Private organisations 60 5.2 Attention from the press 65 5.3 Attention in political circles 66 5.4 Effect on legislation or policy 69 Chapter 6. Detention of aliens 6.1 Viewpoints adopted by international organisations 73 United Nations 73 Council of Europe 75 Private organisation 78 6.2 Attention from the press 79 6.3 Attention in political circles 80 6.4 The detention of aliens on the political and public agendas 86 6.5 Effect of the criticism on Dutch policy 91 Chapter 7. Decisions of European Courts 7.1 Decisions by the European Court of Human Rights 93 Attention from the press 97 Attention in political circles 99 Attention in national case law 104 7.2 Rulings by the European Court of Justice 106 Attention from the press 109 Attention in political circles 109 Attention in national case law 110 7.3 Effect of criticism 110 Chapter 8. Conclusion 8.1 Summary 113 8.2 Conclusions 118 8.3 Recommendations 122 References 125 Appendices 127 viii Abbreviations ABRvS Administrative Law Division of the Council of State AC procedure Registration Centre procedure ACVZ Advisory committee for Alien Affairs AD Algemeen Dagblad AI Amnesty International AMA unaccompanied minor asylum seeker AMV unaccompanied minor alien CAT Committee Against Torture and Other Cruel, Inhuman or De- grading Treatment or Punishment CDA Christian Democratic Party CEDAW Committee on the Elimination of Discrimination against Wo- men CERD Committee on the Elimination of Racial Discrimination CEV Commission for the Evaluation of the Aliens Act CGB Dutch Equal Treatment Commission CPT European Committee for the Prevention of Torture CRC Committee on the Rights of the Child D66 Democraten ‘66 DJI National Agency of Correctional Institutions DJZ Legal Affairs Department EC European Commission ECRI European Commission against Racism and Intolerance ECSR European Committee of Social Rights EEA European Economic Area EC European Community EHRM European Court of Human Rights ESH European Social Charter EU European Union EUMC European Monitoring Centre on Racism and Xenophobia ECHR European Convention for the Protection of Human Rights and Fundamental Freedoms EVVM European Convention for the Prevention of Torture and Inhu- man or Degrading Treatment or Punishment FORUM Institute for Multicultural Affairs FRA Fundamental Rights Agency HRC Human Rights Committee HRW Human Rights Watch ICCPR International Covenant on Civil and Political Rights IND Immigration and Naturalisation Service IVBPR International Covenant on Civil and Political Rights LBD National Bureau for Discrimination Cases MAPP Centre for Asylum seekers with Psychological Problems Mvv authorisation for temporary residence NAV Newsletter Asylum and Refugee law ix NGO non-governmental organisation NJCM Netherlands Legal Committee for Human Rights NRC NRC Handelsblad OC-procedure Detention Centre procedure OHCHR Office of the United Nations High Commissioner for Human Rights PAVEM Participation of Women from Ethnic Minorities PR public relations PvdA Labour Party (Partij van de Arbeid) PvdD Party for the Animals (Partij voor de Dieren) PVV Freedom Party (Partij voor de Vrijheid) RAVA Steering group Immigrant Women and Employment RSJ Council for the Application of Criminal Law and Juvenile Protec- tion RvS Council of State SP Socialist Party SRAN Netherlands Foundation for Legal Aid in Asylum Cases Stb. Bulletin of Acts and Decrees Stcrt. Netherlands Government Gazette UNHCR United Nations High Commissioner for Refugees VAJN Dutch Association of Asylum Lawyers VN United Nations VVD People’s Party for Freedom and Democracy (Volkspartij voor Vrijheid en Democratie) Wib Civic Integration Abroad Act Win Integration of Newcomers Act x Preface by Kees Groenendijk Why this research now? This book describes a study into the viewpoints of international human rights organisations since 2000 on a number of aspects relating to the treatment of migrants in the Netherlands. It also explores reactions from the press and in political circles to these often critical viewpoints. Was the criticism taken to heart? Or was it considered incorrect, irrelevant or unusable? Why are these questions particularly relevant now? Three circumstances illus- trate the urgency of this subject. Firstly, government policy regarding immi- grants has changed radically since 2002: from relatively liberal to extremely restrictive. Since the introduction of its ethnic minority policy in 1981, Dutch policy used to be a shining example in Europe of a rational government policy. It was a policy which kept track of the long term goals in a diverse and open society, enabled immigrants to actually participate and opposed stigmatisation and exclusion. Since 2002, however, government policy has been dominated by fear and the call for restrictive measures, regardless of the actual effects of these measures.