Illegal = criminal?
Shortly before Christmas, the Dutch Council of Ministers agreed to submit a proposal to the House of Representatives to amend the Aliens Act in order to criminalise illegal residence. Have we finally found the answer to unwanted migration?
The Dutch Aliens Act will be altered in order to criminalise illegal or irregular residence. Foreign national adults who reside illegally will be guilty of a crime (misdemeanour) and can be sanctioned with a fine of up to 3,800 euros. Imprisonment can follow if the fine is not paid. Migrants who are fined more than once for this reason risk a severe entry ban lasting up to five years. The idea behind this ‘’crimmigration measure’’ is that residing illegally will be deterred and discouraged by sending a clear message to prospective migrants. In fact, this message might also be aimed at those who are worried about migration. The government is flexing its muscles.
Members of the general public are probably not aware of how many policy measures have already been taken to curb illegal migration over the past twenty years. Apart from all kinds of control, the detention of migrants is important in this respect. So far, this is a matter for administrative rather than criminal law. Apart from detaining migrants, the policy has been supplemented with an intricate system of internal controls which aim at excluding illegal migrants from public services and large parts of the labour market.
Even fewer people probably know that Criminal Law can also come into play. On the basis of the Aliens Act a person can be declared an undesirable alien. If the person comes into contact with the police again, section 197 of the Criminal Code will apply and the person can be detained and punished accordingly. In other words: if there is a reason to do so, an illegal stay can now be brought under Criminal law: if an alien knows or should know that he has been declared undesirable or has an entry ban, but is still in the Netherlands, he is guilty of an offence. It is unclear what the proposed amendment will add to this option, apart from the message.
Studies on illegal migration in the Netherlands have shown that the discouragement policy of the last two decades is not doing that badly in reaching its aims. In fact, the number of illegal immigrants present seems to be decreasing or stabilising. Yet, real problems arise when trying to expel especially those illegal immigrants who cause trouble. After a period of detention they are often let back out on the streets: ‘’sent away in Southerly direction’’ or ‘’cobbled’’ as police officers call this euphemistically. For many years, alien detention figures rose. But since they have been decreasing, we hear less about them. For some unknown reason the relevant statistics have also been altered which makes them less easy to interpret.
Yet, even data problems cannot conceal the expectation that criminalising illegal residence is not going to tackle these crucial problems. Difficulties with expelling people are largely caused by factors outside the sphere of influence of the National authorities. In that respect it is not surprising that in Belgium, the formal criminalisation of illegal residence which came into force in 1980 (with the Belgian Aliens Act of 1980) , was abandoned some years ago. As the prisons became packed, it began to dawn that using them as a means of migration policy was not the most clever thing to do. No wonder many police and local authorities are less than enthusiastic about the current plans.