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Homelessness-Binnen University of Groningen Homelessness and the law Vonk, G.J.; Tollenaar, Albertjan IMPORTANT NOTE: You are advised to consult the publisher's version (publisher's PDF) if you wish to cite from it. Please check the document version below. Document Version Publisher's PDF, also known as Version of record Publication date: 2014 Link to publication in University of Groningen/UMCG research database Citation for published version (APA): Vonk, G. J., & Tollenaar, A. (2014). Homelessness and the law: Constitution, criminal law and human rights. Wolf Legal Publishers. Copyright Other than for strictly personal use, it is not permitted to download or to forward/distribute the text or part of it without the consent of the author(s) and/or copyright holder(s), unless the work is under an open content license (like Creative Commons). The publication may also be distributed here under the terms of Article 25fa of the Dutch Copyright Act, indicated by the “Taverne” license. More information can be found on the University of Groningen website: https://www.rug.nl/library/open-access/self-archiving-pure/taverne- amendment. Take-down policy If you believe that this document breaches copyright please contact us providing details, and we will remove access to the work immediately and investigate your claim. Downloaded from the University of Groningen/UMCG research database (Pure): http://www.rug.nl/research/portal. For technical reasons the number of authors shown on this cover page is limited to 10 maximum. Download date: 07-10-2021 Homelessness and the law Constitution, criminal law and human rights G.J. Vonk & A. Tollenaar (eds.) a Homelessness and the law Constitution, criminal law and human rights G.J. Vonk & A. Tollenaar (eds.) ISBN: 978-94-6240-094-8 Published by: aolf Legal Publishers (WLP) PO Box 313 5060 AH Oisterwijk The Netherlands E-Mail: [email protected] www.wolfpublishers.com All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, 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. © Authors / WLP 2014 Preface This book brings together a selection of the best papers written by Groningen law students who participated in various courses on homelessness and the law in the academic year of 2013 and 2014 at the Law Faculty of Groningen University in the Netherlands. They include exchange students from different countries following the course on International and Comparative Social Security Law (Vonk), Dutch students following the master course Socialezekerheidsrecht (Vonk) and Dutch students following the Research Master (Tollenaar). We are greatly indebted to all these students for their enthusiasm and hard work for a good cause! Gijsbert Vonk and Albertjan Tollenaar Groningen, 10 February 2014 Table of contents Part I Introduction 1 Chapter 1 Homelessness and the law: a general introduction Gijsbert Vonk 3 1 Introduction 3 2 Homelessness as a constitutional challenge 5 2.1 Legal issues 5 2.2 Policy challenges: local dumping 7 3 Homelessness, public order and criminal law 9 3.1 Legal issues 9 3.2 Policy challenges: the rise of the repressive welfare state 10 4 Homelessness and immigration 11 4.1 Legal issues 11 4.2 Policy challenges: from exclusion to integration 13 5 Human rights responses and access to justice 15 5.1 Legal issues 15 5.2 Policy challenges: homeless services should reflect basic human rights standards 16 6 Proposals for ameliorating the legal position of the homeless 17 6.1 Towards unlimited access to the social safety net for EU-mobile citizens 17 6.2 Towards common EU standards for the protection of vulnerable persons in extreme need 18 Part II Homelessness as a constitutional challenge 23 Chapter 2 Homelessness, constitution and governance Albertjan Tollenaar 25 1 Introduction 25 2 Ingredients for the constitutional framework 26 3 Constitutional framework for the homeless 28 3.1 Positive and negative state action 28 3.2 Negative state action 29 3.3 Positive state action 30 4 Governance of homeless issues 31 4.1 Governance of the constitutional framework in general 31 4.2 France: encampments of Roma 32 4.3 Netherlands: the case of the illegal immigrant 33 4.4 America: Opening Doors 34 4.5 Comparison: the governance of homelessness 35 5 Conclusion: fertile ground for social dumping 35 Chapter 3 The legal infrastructure to combat homelessness in the Czech Republic Katerina Benasova 37 1 Introduction 37 2 Research 38 2.1 Legislation 38 2.2 Programme for preventing and combating homelessness in the Czech Republic valid until 2020 40 2.3 Social benefits available to homeless people 41 2.4 Social services available to homeless people 42 2.5 Situation in Prague 44 3 Conclusions 46 Chapter 4 The right to housing as a constitutional imperative; the situation in Canada Elizabeth Perreault 49 1 Introduction and legal sources 49 2 Defining adequate housing and the right to housing 50 3 The right to housing in Canadian legislation 51 3.1 Canadian constitution 51 3.2 Federal laws 51 3.3 Provincial laws 52 4 Main bodies involved in the right to housing and the fight against homelessness 52 4.1 Bodies financed by the federal government 53 4.2 Bodies financed by the provincial government 53 4.3 Bodies financed by both levels of government 53 5 The right to housing in legal proceedings 54 6 Landmark cases 54 7 Homelessness and the lack of affordable housing 56 8 Conclusion 57 Part III Homelessness, public order and criminal law 59 Chapter 5 Tackling anti-social behaviour and homelessness with exclusion orders in the Netherlands, Belgium, England and Wales Michel Vols & Dewi Duran 61 1 Introduction 61 2 Exclusion orders in the Netherlands 63 2.1 Qualifying the exclusion order 64 3 Exclusion orders in Belgium 65 3.1 Qualifying the exclusion order 66 4 Exclusion orders in England and Wales 67 4.1 Qualifying the exclusion order 68 5 Evaluation of the exclusion orders 68 6 Conclusion 71 Chapter 6 Down and under: criminal law enforcement and treatment programmes in Australia Andrew Fletcher 73 1 Introduction 73 2 The history of homelessness and criminal laws in NSW 74 3 The current legal framework 76 4 The role of law enforcement 77 5 Government solutions 79 6 Conclusion 82 Chapter 7 Is begging a crime? A case from the Netherlands Koen Bandsma 85 1 Introduction 85 2 Prohibition of begging in the Netherlands 86 2.1 History of the prohibition 86 2.2 The former begging prohibition 87 2.3 Why was it abolished? 87 3 Begging in Groningen 88 3.1 History of anti-begging legislation in Groningen 88 3.2 The prohibition in Groningen 89 3.3 Why a prohibition? 90 4 Putting the prohibition into practice in Groningen 91 4.1 Enforcement of the prohibition 91 4.2 Does the prohibition work? 91 4.3 The second argument: lack of possibilities in the APVG 95 5 Conclusion 95 Chapter 8 Is the threat of homelessness a relevant factor in sentencing? Miko van der Veen 99 1 Introduction 99 2 The discretion of the courts 100 3 Principle of equality 102 4 Different sentencing objectives 102 5 Law and economics 103 6 How far should we go? 104 7 Conclusion 105 Part IV Homelessness and immigration 107 Chapter 9 Access to social assistance for EU-citizens in Germany Valentin Günther 109 1 Introduction 109 1.1 Preface 109 1.2 Methodology and structure 110 2 Entitlement to social assistance for EUR citizens 111 2.1 The social system and social law in Germany 111 2.2 General entitlement requirements for Grundsicherung für Arbeitsuchende 112 2.3 Right to free movement and right of residence for EU citizens 114 2.4 Exclusionary provisions of the SGB II and legal conflicts 118 2.5 Entitlement to Sozialhilfe for EU citizens 125 2.6 Discretionary benefits 126 2.7 Current developments 127 3 Entitlement to Kindergeld 129 4 Conclusion 129 Chapter 10 Swiss social assistance for foreign nationals Delphine Poussin 133 1 Introduction 133 2 Swiss social assistance and foreign nationals 134 2.1 History 135 2.2 ources and competent organs 136 2.3 Personal and territorial scope of application, the situation of foreign nationals 138 3 The situation of the Roma in Geneva 140 3.1 Who are the Roma and what are their reasons for migrating to other European countries 140 3.2 Roma in Geneva 141 3.3 Anti-Roma measures 142 3.4 The Roma and the social assistance in Geneva 143 4 The Geneva law prohibiting begging 144 4.1 Begging 145 4.2 The law 146 4.3 The case 146 4.4 Different opinions of associations and political parties 148 5 Conclusion 149 Chapter 11 What does the right to housing in the United Kingdom entail and can it be said to be fair and non-discriminatory Sarah Wallace 151 1 Introduction 151 1.1 Intention 151 1.2 Reason for investigating the right to housing 151 1.3 Method 152 1.4 Sources to be used 153 2 The right to housing 153 2.1 The right to housing and where it can be found 153 2.2 What housing and housing assistance can include 154 2.3 How is housing and housing assistance administrated and financed in the United Kingdom 154 3 Determining eligibility for entitlement to housing 155 3.1 United Kingdom nationals 155 3.2 Refugees 155 3.3 Indefinite leave 155 3.4 Limited leave 156 3.5 European Union (EU) and European Economic Area (EEA) nationals
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