Why the proposed Dutch ‘two-status’ asylum system is a bad idea
The one-status system in Dutch asylum law is an important achievement. Changing it to a two-status system to restrict family reunification is not only counterproductive, but a violation of children’s rights.
In Dutch politics, a certain desperation can be detected in searching for ways to reduce the number of asylum seekers coming to the country. The latest idea to limit the number of asylum seekers is to no longer allow certain people with an asylum status to be eligible for family reunification. This is possible by limiting family reunification to recognised refugees, and (temporarily) denying beneficiaries of subsidiary protection the right to family reunification. The EU Family Reunification Directive makes it possible to make this distinction because the Directive does not provide for a right to family reunification for beneficiaries of subsidiary protection. Dutch asylum law currently provides for a one-status system, implying that this new restrictive policy would require an overhaul of the Dutch asylum system. While limiting family reunification in this way is possible within the structure of the Family Reunification Directive, there are a number of serious drawbacks to this plan. It is argued below that it would be highly unwise to introduce a two-status system and that it would violate international children’s rights.
Restricting family reunification will lead to more complex asylum procedures, while the Dutch Immigration and Naturalisation Service (IND) is already overburdened. Currently, asylum seekers who are granted refugee protection or subsidiary protection receive the same asylum status. As a result, asylum seekers who are granted subsidiary protection have no interest in continuing to litigate for the ‘better’ refugee status. The moment a distinction is made between refugee protection and subsidiary protection, asylum seekers who are granted subsidiary protection are likely to appeal in order to still be recognised as refugees. This will certainly happen if beneficiaries of subsidiary protection are unlikely or less likely to be eligible for family reunification. As a result, the IND and the judiciary will face an increase in appeals against decisions. This has already happened in Germany where restricting the right to family reunification by differentiating between asylum statuses led to 10,000 cases coming before the courts, the majority of which were won by those with a refugee status. As all authorities involved in Dutch asylum policy are already overburdened, it would not be wise for the Netherlands to go down the same path.
Besides the above drawbacks, an absolute ban on family reunification for beneficiaries of subsidiary protection is not even possible. The European Court of Human Rights has repeatedly emphasised that the right to family reunification falls within the scope of the right to respect for family life. Although the Court does not find it unreasonable – if the asylum system is overburdened due to higher numbers of asylum applications – for Member States to apply a two-year waiting period, the separation of family members becomes more problematic as time goes on and the right to respect for family life then becomes increasingly important. There should also always be the possibility for beneficiaries of subsidiary protection to still qualify for family reunification based on individual circumstances. In addition to more appeal procedures under asylum law, a restriction on family reunification will lead to complex and prolonged family reunification procedures; a situation that neither the IND nor holders of a refugee status would want.
Furthermore, in cases where a family member of the refugee status holder is a minor, restricting family reunification would violate international children’s rights. The UN Convention on the Rights of the Child (CRC) provides that the interests of minor children must be the first consideration in all decisions concerning children. Family reunification of refugee status holders often involves children who have been granted protection in the Netherlands, or children who were left behind in the country of origin or a transit country. Restricting family reunification is not in the best interest of the child. Moreover, the CRC requires that applications for family reunification are dealt with in a positive, humane and expeditious manner (Art. 10 CRC). So in this case, limiting the right to family reunification is out of the question. The Netherlands is party to the CRC and must take its obligations under that Convention seriously. Introducing a two-status system for the purpose of restricting family reunification would violate international children's rights.
The most fundamental argument against the two-status system, however, is that the proposed restriction of family reunification will cause the unnecessary prolonged separation of family members. Refugees and beneficiaries of subsidiary protection both have the same need to live together with their close relatives. It would be arbitrary to make a distinction between these groups. For that reason, the European Commission encourages Member States to also grant the right to family reunification to beneficiaries of subsidiary protection. In a report by the Council of Europe, which refers to the Dutch ‘one-status system’ as a best practice, the IND says that the one-status system helps simplify the asylum procedure, reduce administrative burden, and prevent delays. The prolonged separation of family members also forms an obstacle to the integration of status holders. Policy on family reunification should be aimed at bringing families together as soon as possible.
Last year, political pressure to lower the numbers of asylum seekers led to the introduction of an extended waiting period for family reunification. After much criticism of this measure, the Administrative Jurisdiction Division of the Dutch Council of State ruled that the waiting period was unlawful. Once the highest administrative court had established an infringement of, among other things, the Aliens Act 2000 and the EU Family Reunification Directive, the state secretary adjusted his policy. The proposal to introduce a two-status system is a new attempt to lower the number of asylum migrants by restricting the right to family reunification. Proposing the restriction of family reunification, and thus the number of asylum seekers, in this way wrongly creates the image that politicians have some kind of control panel with which they can influence the number of asylum applications.
It is wrong to think that by restricting the right to family reunification, the Netherlands would become less attractive for asylum seekers. Comparable initiatives in other Member States have not led to a significant reduction in the number of asylum applications; instead they have led to more procedures. The one-status system in Dutch asylum law has been seen as an important achievement. Changing it to a two-status system – the only aim of which is to restrict family reunification – is not only counterproductive, but also a violation of children’s rights.