The VVD has decided not to take it too seriously just yet. Its own State Secretary Eric van der Burg, responsible for asylum policy, says that he is ‘studying’ the verdict for the time being. Member of Parliament Ruben Brekelmans is still hopeful that things will turn out better than expected: ‘The judge has ruled in the case of one specific family. The family reunification measure will generally remain in force for the time being.’
They are responding to the verdict that will have overshadowed the package evening of many VVD leaders on Monday: the preliminary relief judge in Haarlem declared the travel restriction for family members of admitted asylum seekers illegal. A Syrian woman who has been granted an asylum permit in the Netherlands was right and allowed her family members to come to the Netherlands immediately. They don’t have to wait half a year first.
That waiting period was part of the political compromise that VVD, CDA, D66 and ChristenUnie reached at the end of August after a summer in which Dutch asylum policy completely self-destructed. In Ter Apel, people structurally slept outside, deprived of the most basic facilities, to the point that the Health and Youth Care Inspectorate eventually intervened and labeled the situation intolerable.
After days of feverish consultations within the coalition, it led to the promise of 20,000 homes for status holders in the short term. EUR 740 million was also earmarked to roll out the network of ‘flexible and smaller-scale reception’ that had been promised years ago across the country, so that the asylum system would be better prepared for influx peaks in the future and would not always lead to acute administrative panic.
Political deal
But Prime Minister Rutte’s VVD, fearing the ‘pull effect’ of such a reception system, demanded in return a measure that would noticeably reduce the arrival of new asylum seekers quickly and would take the pressure off for a while: the period within which a decision whether family reunification may take place has been extended. This also applied to the period within which a visa is actually granted to family members who are allowed to come over. The most important condition for a family reunification permit: the asylum seeker must first have found accommodation here.
In their explanation, the coalition parties immediately disagreed about the precise effect of those measures, but experts analyzed that it came down to a decision after 9 months and a visa grant after 6 months. In practice, this means months of delay.
The same experts immediately added that it was probably not legally possible. And not only the external experts, but also the European Union and Van der Burg’s own officials thought so. ‘It is possible that a judge will not agree with this reasoning’, they wrote in recommendations that were discussed in the Council of Ministers in August. ‘The legal tenability of this measure is not certain.’ Officials also pointed to the risk of ‘considerable penalties’ that the judge could impose on the immigration service IND if he were to rule that the legal decision periods are exceeded by the new policy.
The cabinet ignored the call from the opposition to first seek advice from the Council of State, the government’s most important legal adviser. The coalition parties decided to take a chance, hoping that they would be able to move forward again, not knowing that things would go wrong before the turn of the year, in court at the first opportunity.
No excuses
The ruling of the court in Haarlem concerns one woman and one family, in a specific situation: the family members, from Syria, are currently staying in Sudan on a temporary visa that expires this week. Hence the urgent nature of the judgment. And that is why the ruling in itself does not wipe the entire travel restriction off the table in one go.
But in a general sense, the verdict is straight forward: a country cannot ‘not even temporarily’ take international law on family reunification off the table. Not even, as the cabinet tried in court, if a country argues that there is too little reception capacity for the newcomers. ‘Not even if that migrant group ends up in a state of extreme material deprivation.’
In short, the lack of beds, sanitary facilities and food in Ter Apel is not a legally valid excuse to restrict asylum policy. The way is clear for every family member to challenge the delay.
The left-wing opposition parties immediately proved their right on Monday evening and will demand clarification from Van der Burg on Tuesday: what now? Will the commitment to the search for extra reception capacity stand now that the VVD part of the deal is being blown away and the fragile political balance in the coalition is being rudely disrupted again?
The government parties have been looking for a more fundamental approach to asylum policy for several weeks now. They thought they still had time for that.