The Council of State expresses itself in a statement published on Monday advice critical of the so-called novella with which the Senate wants to prevent the Emergency Asylum Measures Act approved by the House of Representatives from also making it a punishable offense to help undocumented migrants.
The law was passed by the House of Representatives at the beginning of July, including a PVV amendment to make illegal stay a punishable offense. This could also make aid to people who reside illegally in the Netherlands a punishable offense, the Council of State warned in August. The CDA, which was previously in favor, withdrew its support because of the criminalization.
In order to get the law through parliament, the then outgoing Minister of Justice David van Weel (VVD) promised that all forms of assistance would be excluded from criminal liability. In the Senate, a supplement can be made to a bill in the form of a novella. In that case, such a novella must also be submitted to the House of Representatives again.
‘Careless preparation’
The Council of State emphasized on Monday that “the preparation of the proposed criminalization of illegal residence was not careful”. According to the Council of State, it would have been more careful not to link this to the Emergency Asylum Measures Act with an amendment, but to submit it as a separate bill.
This would have prevented the criminalization of assistance to undocumented migrants resulting from the PVV amendment from having to be removed from the law again with a novella.
The Council of State is also critical of the way in which the novella circumvents the criminalization of aid. The government wants to completely exclude complicity and complicity, but the Council emphasizes that the Criminal Code does not contain such a ground for exclusion.
Undocumented persons with entry ban
The Council of State also points out that illegal residence of foreigners is already punishable in some situations, “for example if someone has an entry ban or has been declared undesirable.” But the existing criminalizations of illegal stay do not provide for legal provisions to exclude the criminalization of care providers. Aid workers who know or have strong suspicions that “a foreigner they are helping has an entry ban or has been declared undesirable remain punishable,” the Council of State writes.
According to the Council of State, the novella should state more clearly how “the new criminalization and the existing criminalization” relate to each other. The bill must be amended accordingly “if necessary”. The Council of State also advises the government “to take its comments into account before submitting the amendment to the House of Representatives.”
The Ministry of Justice and Security informed the ANP news agency on Monday afternoon that Van Weel (now Minister of Asylum and Migration and Foreign Affairs) will address both criticisms of the Council of State in an explanation of the bill and will explain better how he will prevent the criminalization of assistance to undocumented migrants.
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