3d assessment of follow-up: Conference of European Churches (CEC) v. the Netherlands, Complaint No. 90/2013, decision on the merits of 1 July 2014, Resolution ResChS(2015)1

3d assessment of follow-up: Conference of European Churches (CEC) v. the Netherlands, Complaint No. 90/2013, decision on the merits of 1 July 2014, Resolution ResChS(2015)1

Violation of Articles 13§4 and 31§2

Decision of the Committee on the merits of the complaint

Resolution ResChS(2015)1

The Committee found a violation of Article 13§4 on the grounds that adult migrants in an irregular situation (failed asylum seekers) without adequate resources are not guaranteed emergency assistance.

The Committee considered that, even within the framework of the current migration policy, less onerous means, namely to provide for the necessary emergency assistance while maintaining the other restrictions with regard to the position of migrants in an irregular situation, remain available to the Government with regard to the emergency treatment provided to those individuals, who have overstayed their legal entitlement to remain in the country. The Committee cannot accept the necessity of halting the provision of such basic emergency assistance as shelter, guaranteed under Article 13§4 as a subjective right, to individuals in a highly precarious situation.

The Committee also found a violation of Article 31§2. In light of the Committee’s established case law, shelter must be provided also to adult migrants in an irregular situation, even when they are requested to leave the country and even though they may not require that long-term accommodation in a more permanent housing be offered to them. The Committee referred to its findings above under Article 13§4 and reiterated that the right to shelter is closely connected to the human dignity of every person regardless of their residence status. It considered that the situation, on the basis of which a violation was found under Article 13§4, also amounted to a violation of Article 31§2.

Information provided by the Government

The Government in its report registered on 30 October 2018 refers to the information submitted in its previous reports (2015 and 2016) and provides additional information.

The report reiterates that the current system ensures that no person irregularly present in the territory is forced to live in the street.

It states that the Government, in cooperation with the municipalities, seeks to improve the effectiveness of its return policy within the current system.

The Government has taken several measures to guarantee emergency assistance to migrants in an irregular situation:

Municipal Bed-Bath-Bread shelters (BBB’s)

After the decision handed down in December 2014 by the Central Appeals Court, taken immediately after the decision of the Committee on the complaint submitted by the Conference of European Churches, various municipalities felt strengthened to offer shelter to undocumented migrants. Until 15 June 2015, 32 municipalities had offered shelter to 1.285 migrants in an irregular situation. These shelters were called Bed-Bath-Bread-shelters (BBB’s). In December 2016 in total 37 municipalities hosted 1.435 persons and 25 families in BBB facilities. These BBB’s have been financed partly by the municipalities themselves, partly by the Government of the Netherlands (by the Municipalities Fund, in Dutch: Gemeentefonds). In 2019, 27 municipalities were entitled to receive a financial contribution from this fund. The agreement between the Association of Municipalities (VNG) and the Government of the Netherlands to establish pre-Pre-Removal centres (in Dutch: Landelijke Vreemdeling Voorzieningen (LVV’s) presented in November 2018 states that ‘due to the establishment of LVV’s, the need for municipal BBB’s will gradually decrease’. Funding from the Municipalities Fund will be reduced accordingly.

Pre-Removal Centre – VBL placement

The “regular” restrictive accommodation (VBL) facilities already provide shelter to persons in an irregular situation. In the VBL facilities, they receive assistance in arranging for their departure. These facilities also provide food, medical care and other services. A condition for staying in a VBL facility is that the person concerned must make a genuine effort to arrange for his or her departure.

Under the current system, migrants who from the outset cannot be expected to leave the Netherlands within 12 weeks are not granted access to a VBL facility, even if their inability to leave is beyond their control (e.g. because of administrative obstacles in their country of origin). The authorities then lose track of migrants in this situation, even though they are willing to cooperate in arranging their departure. To overcome this problem, the Government has decided not to apply the 12-week deadline too strictly in cases where such flexibility might facilitate the migrant’s departure. However, this explicitly does not imply that no time-limit will be set. If a migrant is not (or is no longer) making arrangements to leave the Netherlands, thus removing any prospect of voluntary departure, he or she will be required to leave the facility. Good case management on the part of the Repatriation and Departure Service (DT&V) will ensure that aliens in VBL facilities continue working towards their departure. If a migrant is unable to return to his or her country of origin even after devoting considerable time and effort to this cause, he or she may be eligible for a residence permit on the grounds of the no-fault criterion.

Pre-VBL placement

Under the current system, migrants can only gain access to a VBL facility if they state in advance that they are willing to cooperate in arranging their departure. The Government has decided to modify this condition by introducing a preliminary phase. In practice, this means that migrants are initially given some breathing space, in which they only receive general information on return and are able to familiarise themselves with the facility. This is followed by a series of conversations aimed at encouraging them to cooperate in the return process. During these conversations, they are again informed about the prospects associated with their return. Migrants who are sincerely and demonstrably willing to return are transferred to the regular VBL facility in Ter Apel with a view to preparing for eventual departure.

New facilities for pre-VBL placement

Several municipalities have provided emergency reception facilities for migrants in an irregular situation, invoking their duty of care or their responsibility for maintaining public order. Migrants in an irregular situation who are housed in such facilities are now partially outside the state’s purview, and as a result, they are not covered by the Government’s return policy. In order to resolve this undesirable situation, pre-VBL placements will be made available in various locations. Besides Ter Apel, these facilities will be limited to the Netherlands’ five largest cities: Amsterdam, Rotterdam, The Hague, Utrecht and Eindhoven.

Under the direction of the DT&V, central government and the municipalities will jointly provide reception facilities to aliens in these five locations with a view to encouraging their willingness to return. The length of this preliminary placement is limited to a few weeks in order to safeguard the effectiveness of the Government’s return policy.

Migrants who are willing to arrange their departure can pursue this track in the regular VBL facility in Ter Apel. Long-term reception for migrants in an irregular situation in the pre-VBL phase is therefore not an option, as it serves as a preparation for the actual departure process in the regular VBL facility. Central government and the municipalities will share responsibility for the aforementioned facilities, and government funding will depend on the rate at which migrants are successfully returned to their countries of origin. Outcomes will be monitored on a monthly basis. After a year, an initial evaluation of the pre-VBL phase will be conducted to determine whether these facilities should continue operating.

Municipal referrals to the VBL

Thanks to the expanded scope for working towards (and coming to terms with) departure in a VBL setting, all municipalities will now have a practical option to refer migrants to one of these facilities as appropriate. If a municipality encounters migrants in an irregular situation, it can also notify the DT&V, which will collect and transfer the migrant to the pre-VBL facility in Ter Apel.

Investing in voluntary return

The best way to improve return outcomes is to increase the percentage of voluntary return. To support these efforts the Government will invest additional funds in activities promoting voluntary return.

The Government has earmarked €15 million from its general funds for the above-mentioned changes to the VBL facility and the introduction of a pre-VBL phase. In addition, it will invest a further €5 million from its general funds in the return process and return-related projects. The Ministry of Foreign Affairs’ migration and development budget (€4 million) will continue to be used for return-related projects and will be increased to €10 million per year.

No Fault of their own’ residence permit

Migrants in an irregular situation who cannot return can apply for a ‘No Fault of their own’ residence permit and can get access to general social security as soon as their request is accepted.

Deferral of removal for medical reasons’

Migrants can get access to the Asylum Centres (AZC’s) during the time they are waiting for a decision on a request for ‘deferral of removal for medical reasons’ (Article 64), and during the first year that this Article-64-status has been granted. – It is estimated that annually 500 times an application for ‘Deferral of removal for medical reasons’ is approved.

National case law

In addition to this, the report refers to domestic case law of two highest Netherlands’ administrative courts on shelter for persons in an irregular situation. On 26 November 2015 both the Central Appeals Court and the Administrative Jurisdiction Division handed down rulings on the reception of unlawfully residing persons.

The Administrative Jurisdiction Division’s judgment concerns the question of whether the State Secretary can oblige persons to cooperate in their departure from the Netherlands as a condition for being allowed to stay in a VBL.

The Administrative Jurisdiction Division held that neither Article 8 of the ECHR nor the case law of the European Court of Human Rights (ECtHR) gives rise to a general obligation on the State to provide reception for a foreign adult residing lawfully or unlawfully in the Netherlands. Referring to the case law of the ECtHR, the Administrative Jurisdiction Division observed that in exceptional cases the State may be compelled under Articles 3 and 8 of the ECHR to provide accommodation for foreign adults residing unlawfully in the Netherlands.

The Administrative Jurisdiction Division concurred with the State Secretary’s view that the consequences of a foreign adult’s choice to refuse to declare him/herself willing to cooperate in his/her departure – namely that the State Secretary then refuses to allow access to a VBL – is in principle his/her own responsibility if the person in question is residing unlawfully in the Netherlands and under Section 61, paragraph 1 of the Aliens Act 2000 has a duty to leave the Netherlands of his/her own accord. However, from the point of view of due care, the State Secretary has to bear in mind that exceptional circumstances may apply which mean that he may not, a priori, attach the condition of cooperation in departure to the offer of accommodation. Such exceptional circumstances are present if it transpires that the person concerned cannot be held responsible for his/her refusal to cooperate on account of his/her mental state.

The Central Appeal Court’s judgment concerns the question of whether the municipality of Amsterdam is permitted to refuse to grant reception facilities to unlawfully residing foreigners and refer them to a VBL for accommodation. In the judgment discussed in the previous paragraph, the Administrative Jurisdiction Division ruled that unless exceptional circumstances are present, attaching conditions to the provision of accommodation is not in breach of positive obligations under the ECHR and the European Social Charter to provide shelter. Consequently, in the view of the Central Appeals Court, the municipality of Amsterdam is not obliged to provide shelter under the Social Support Act. The Court pointed out that it is up to the State Secretary to decide, in line with the assessment framework as set out in the judgment of the Administrative Jurisdiction Division, whether in an exceptional case access to a VBL should be granted without imposing the condition of cooperation in that person’s departure from the Netherlands.

On 29 June 2016 the Administrative Jurisdiction Division held that the municipality of Amsterdam is not under a legal or international obligation to provide shelter to unlawfully residing persons when the State Secretary of Security and Justice already offers accommodation in a so-called liberty restricting measure (VBL) facility.

The European Court of Human Rights’ judgment Hunde v. the Netherlands

The report also refers to a decision of the European Court of Human Rights (ECtHR) in Hunde v. the Netherlands (17931/16)6. This case concerned a complaint from a failed asylum seeker under Articles 2 and 3 of the ECHR about the denial of shelter and social assistance. The applicant further complained that the requirement to cooperate in his own deportation in order to receive social assistance as an irregular migrant amounted to treatment contrary to his human dignity.

In its decision the Court noted that the Netherlands authorities have already addressed this in practical terms. In the first place, the applicant had the possibility of applying for a “no-fault residence permit” and/or to seek admission to a centre where his liberty would be restricted. It is furthermore possible for irregular migrants to seek a deferral of removal for medical reasons and to receive free medical treatment in case of emergency. In addition, the Netherlands have most recently set up a special scheme providing basic needs for migrants in an irregular situation living in their territory in an irregular manner. It is true that that scheme was only operational as from 17 December 2014, one year after the applicant had taken shelter in the Refuge Garage. However, it is inevitable that the design and practical implementation of such a scheme by local authorities of different municipalities take time. Moreover, the scheme was brought about as a result of a series of elements at the domestic level, including the applicant’s pursuit of domestic remedies in connection with his Article 3 claim. In these circumstances the Court concluded that it cannot be said that the Netherlands authorities have fallen short of their obligations under Article 3 by having remained inactive or indifferent.

The ECtHR declared the complaint manifestly ill-founded and inadmissible.

Comments of the Protestant Church in the Netherlands

The Committee takes note of the observations of the Protestant Church in the Netherlands submitted comments on the 12th simplified report registered by the Secretariat on 16 September 2019 relating to the Committee ‘s decision on this Complaint. In its comments, while recognizing the efforts made by the authorities, it points out that migrants in an irregular situation need to fulfil the entry-criteria of the BBB’s shelters. Access to Pre-Pre-Removal Centres (LVV’s) is conditional on migrants cooperating with finding a ‘durable solution’ according to the Local Cooperation Board (LSO). To get access, to the Pre-Removal Centre Ter Apel (VBL) irregular migrants have to cooperate with return as a condition for receiving shelter. The Protestant Church in the Netherlands indicates that failed asylum seekers in particular situations do receive emergency assistance.

Assessment of the follow-up

The Committee notes that immediately after its decision, the Central Appeals Court in decisions taken in December 2014 obliged municipalities to offer night shelter, shower and food to adult migrants in an irregular situation in their region.

The Committee recalls that it previously noted that some of the proposals outlined by the Government in their previous report may improve the situation of adult migrants in an irregular situation; the decision not to apply too strictly the 12 week deadline to leave the country, the establishment of pre – VBL facilities, for example, (see Findings 2016).

As indicated in the information submitted to the Committee, the Government has implemented the envisaged measures. A variety of solutions are made available to migrants in an irregular situation such as:

– access to Municipal Bed-Bath-Bread shelters (BBB’s).

– migrants in an irregular situation who cannot return can apply for a ‘No Fault of their own’ residence permit and can get access to general social security as soon as their request is accepted.

– deferral of removal for medical reasons,

– Pre-Removal Centres are available to persons wishing to cooperate with return.

The Committee takes note of the Government’s declaration that the current system ensures that no person irregularly present in the territory is forced to live on the street.

Therefore, the Committee finds that the situation has been brought into conformity with the Charter both in respect of Article 13§4 and 31§2 and decides to bring its examination of the follow-up to the decision to an end.

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