What next – emergency measures or an emergency Act?
Negative advice from top officials shows that declaring an asylum crisis in the Netherlands based on emergency immigration law is unacceptable from a democratic and constitutional point of view. On Dutch news programme ‘Nieuwsuur’, Wim Voermans, Professor of Constitutional and Administrative Law, explains which obstacles will need to be overcome in deploying emergency immigration (asylum crisis) measures or the other option (an emergency Act).
Dutch Prime Minister Dick Schoof quickly got into difficulties in the debate on the deployment of emergency immigration measures, in the recent parliamentary debate referred to as ‘emergency legislation’. Heavily-redacted cabinet documents led to irritation. Professor Voermans says that according to Article 68 of the Dutch Constitution, documents concerning a decision that has not yet been taken in the cabinet should never have been disclosed. He adds: ‘Now, at the insistence of the House of Representatives, this happened sooner which is highly unusual and unprecedented.’
The released documents show that officials from the Ministry of the Interior and the Ministry of Justice and Security believe that deploying emergency immigration measures, by declaring an asylum crisis, is not possible in the current situation. If this were to happen, it would violate the rule of law, Constitution and democracy – things that cannot be reconciled with the special responsibility that the Minister of the Interior and Kingdom Relations bears as the guardian of the Constitution and democratic rule of law.
Professor Voermans agrees that it is not possible to justify declaring an asylum crisis. This could only happen if sudden ‘special circumstances’ were to occur, such as a disaster, war or epidemic. These are events that occur without warning and over which the government has no influence. As the former state secretary, Eric van der Burg already told the House of Representatives in 2022 that the current crisis does not count as an asylum crisis. The number of refugees entering the Netherlands has remained reasonably stable over the years. Compared to the number of asylum seekers received in other EU countries, the Netherlands is somewhere in the middle. The current crisis is primarily a crisis concerning reception facilities and the solution for that lies with the Dutch government. Since the current situation is not classified as an asylum crisis, there are no ‘special circumstances’ that could even begin to justify deploying emergency immigration measures. A decision to deploy these anyway would be unlawful and unenforceable, and the courts would quickly put a stop to it. Going ahead anyway would be like walking into a brick wall, Professor Voermans adds.
The only possibility, according to Professor Voermans, is to introduce a bill for an emergency Act that would be sent to the House of Representatives and the Senate using the standard legislative procedure. ‘That can happen very quickly,’ he says, although the majority in the Senate is quite different from that in the House of Representatives, which might form an obstacle.
In any case, if the emergency Act route is to be followed, European rules must also be carefully factored in. Temporarily suspending all asylum procedures, which is what the cabinet seems intent on doing, is not an option. European law opposes this, according to Professor Voermans.
More information
Watch the Nieuwsuur broadcast (in Dutch).
Professor Voermans' op-ed in NRC: Met artikel 68 Grondwet probeert NSC zijn ziel terug te kopen (in Dutch, €).
Photo: Tinjey Injury through Unsplash