February 13, 2004
Mrs. drs. M.C.F. Verdonk
Minister of Alien Affairs and Integration
Ministry of Justice
P.O. Box 20301
Dear Minister Verdonk,
Human Rights Watch is writing to express deep concern regarding current Dutch proposals to deport thousands of failed asylum seekers. We understand that approximately 2,300 asylum seekers will be granted status under an amnesty program, and that approximately 26,000 failed asylum seekers will no longer be eligible for community-based social assistance and will be deported or otherwise returned within the next three years. While we have taken note of the domestic social and political debate regarding this controversial plan, we write now as a matter of urgent concern to remind the Dutch government that the current proposals must also conform with the Netherlands’ international legal obligations.
The Prohibition against Refoulement
Human Rights Watch is deeply concerned that some of the people subject to the planned deportations may be at risk of return to a country or a part of a country where their lives or freedom would be threatened. We remind the government that the prohibition against refoulement under Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) is broader than that provided under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol. Thus, it is imperative that the claims of asylum seekers are assessed in light of the Netherlands’ obligations under both instruments not to return any person to a country where they could be at risk of torture or ill-treatment. The European Court of Human Rights has ruled, as well, that returns to countries that cannot provide adequate healthcare can come within the purview of Article 3.
We understand that Afghans and Somalis are among the groups subject to the deportation proposals. It has been widely recognized that returns to these countries at present could place people at risk for their lives and safety. The indiscriminate forced deportations of Somalis, for example, without careful assessment of security conditions in their geographic region of return or their clan affiliations would be a marked and disturbing departure from international protection standards and from the practices of other Western states.
For example, in the September 2003 United States Court of Appeals decision in the case of Yusuf Ali Ali, et al. v. Ashcroft, the court upheld a lower court decision that the Immigration and Naturalization Service could not return Somalis with removal orders (deportation orders) because there was no functioning government in Somalia to receive the returnees. The Court affirmed the petitioners’ argument that due to the absence of a stable government, they would be at risk of injury or even death, and issued an injunction prohibiting U.S. authorities from effecting Somali returns. The court ruled that such returns would violate both domestic law and international treaties.
Moreover, in January 2004, the United Nations High Commissioner for Refugees (UNHCR) stated that Somalis should not be returned to areas recognized as not yet stable because of the absence of civil administration structures to guarantee security; that is, to any area to the south of the town of Galkayo. However, UNHCR also stated that, with respect to the North, including Somaliland and Puntland, “conditions are not generally favorable for the forced return of large numbers of rejected asylum seekers” and advised against “indiscriminate involuntary returns.” Moreover, UNHCR stated that, in light of the prevailing complex clan system, “the internal flight alternative is not applicable in the context of Somalia.”
Human Rights Watch understands that the Dutch authorities have already begun returns to the Puntland region of Somalia, claiming that this region is safe for all Somalis, whether or not they originate from the region or have clan affiliations in the region. We have received recent disturbing reports of serious problems for Somalis in transit to Somalia through the Persian Gulf region, and of abuses upon return, including, in one case, the detention of a Somali man upon return to Bosaso. We have encouraged Dutch nongovernmental organizations with the capacity to engage in post-return monitoring to do so, and will continue to follow closely those cases where returns have placed Somalis—and others subject to the proposed deportations—at risk of ill-treatment in violation of the Netherlands’ regional and international obligations.
Human Rights Watch is also concerned that persons who were granted temporary protection as members of a group—Afghans, for example—be given the opportunity to make individual representations to the government regarding fears of persecution or other ill-treatment upon return. In a January 2004 report to the Security Council, United Nations Secretary General, Kofi Annan, stated that Afghanistan has undergone “a deterioration in security at precisely the point where the peace process demands the opposite.” Moreover, we are concerned that the Netherlands’ reported reliance on “safe third country” designations and the “internal flight alternative” are being invoked improperly—as noted above in the case of Somali returns—as justifications for sending people back to places where their lives or freedoms could be at risk.
We urge the Dutch government to comply with the absolute prohibition against refoulement and to ensure that persons potentially at risk for ill-treatment upon return have their cases evaluated on an individual basis in full conformity with international protection standards and the government’s nonrefoulement obligations under the ECHR and Article 3 of the United Nations Convention against Torture.
Treatment of Children
The departure from international standards and practice noted above is also a serious concern with respect to the Dutch government’s treatment of children of adult asylum seekers and of unaccompanied minors. Among the thousands of people threatened with deportation under the proposals, children comprise a significant proportion. The Convention on the Rights of the Child, which the Netherlands ratified in 1995, establishes that every child is entitled to special care and protection, and that the “best interest of the child” standard must govern all actions and administrative decisions affecting children. States have a positive obligation to protect all children within their jurisdiction against abuse, neglect, and exploitation and to ensure that children enjoy an adequate standard of living for their physical, mental, spiritual, moral, and social development. It is important to note that states may not discriminate in the provision of the Convention’s rights and protections, and must take all appropriate measures to ensure that children are protected from discrimination based, among other things, on the immigration status of a child’s parents, legal guardians, or family members.
Notwithstanding these international standards, the Dutch Council of State (Raad van State) held in February 2002 that the rights embodied in the Convention on the Rights of the Child are not applicable to children whose parents have no right to remain in the Netherlands. In so holding, the Court has set a dangerous precedent, and has opened the way to lower court decisions that such children are not entitled to any secondary rights deriving from core Convention rights. Such children do not have the right in law to request state protection on the basis of the Convention, even with regard to basic care such as shelter and food. This is another alarming departure by the Netherlands from its international obligations.
In January 2004, the United Nations Committee on the Rights of the Child criticized the Dutch government for its failure to observe its international obligations, expressing concern about discrimination in the Netherlands against refugee and asylum-seeking children; the fact that the Netherlands’ definition of unaccompanied minors seeking asylum does not conform with international standards, thus possibly obstructing access to basic services; and that failed asylum-seeking children are held in detention with limited access to education. The Committee concluded that detention for such children should be used only as a last resort and that “all children awaiting expulsion receive adequate education and housing.” Moreover, UNHCR’s Executive Committee has also concluded that “in all actions concerning children…the best interests of the child shall be a primary consideration.”
Human Rights Watch has been alarmed by reports of evictions from state subsidized housing of failed asylum seekers and their families, some of which include children, and the cessation of social assistance to such families. We are also concerned that the authorities have declined to take into consideration evidence of integration into Dutch society as a factor in determining who may be permitted to remain, either under the general amnesty or for humanitarian reasons (so-called “distressing” or particularly “harrowing” cases). The “best interest of the child” standard, as noted above, places primary emphasis on what is best for a particular child given her or his circumstances. The eviction and enforced destitution of children do not meet the standard of care required by the Convention. The Netherlands cannot simply ignore its international and regional obligations to protect and care for migrant children in its territory. We urge the Dutch government to ensure that in all procedures relating to the proposed deportations, the “best interest of the child” standard is given primary consideration in cases where children are subject to such returns.
“Departure” Centers and Closed Expulsion Centers
In response to concerns from local authorities that evictions of failed asylum seekers and their families—coupled with the cessation of other social welfare benefits, including monetary support—will create a destitute class of non-nationals and may lead to public order problems, the Dutch government has proposed that failed asylum seekers subject to deportation be placed in open “departure” centers in preparation for “voluntary” return. It is our understanding that if a “voluntary” return cannot be effected within a specific timeframe, a person would be moved to a closed expulsion facility (a detention center) pending an involuntary return effected via a deportation. If a person could not be deported within the statutory time limit on immigration detention, he or she would be released from detention, without the right to claim any status in the Netherlands or access to any social benefits such as housing or monetary assistance.
Human Rights Watch urges the Dutch government to ensure that any returns made from open centers are genuinely voluntary, including by providing updated and accurate information about security and humanitarian conditions in the countries to which failed asylum seekers may elect to return. In addition, the Dutch authorities must ensure that failed asylum seekers are not subject to any undue influence or coercion in the process of deciding whether or not to depart the Netherlands voluntarily. In a November 2003 paper, Human Rights Watch expressed concern that returns encouraged and conducted by the International Organization for Migration (IOM) may not always be genuinely voluntary, and stressed the importance of ensuring that in all its operations, IOM be obliged to observe international protection and human rights standards.
Moreover, Dutch authorities should evaluate placement of families with children and unaccompanied minors in the departure centers, using the “best interest of the child standard” as a guiding principle. As noted above, the U.N. Committee on the Rights of the Child has stated that children subject to deportation must be afforded access to adequate housing and education. Human Rights Watch urges the Dutch government to refrain from placing families with children in closed expulsion centers.
Finally, in accordance with international procedural safeguards, failed asylum seekers subject to the proposed deportation scheme must have a prompt and effective opportunity to challenge the lawfulness of both their detention and deportation in a judicial proceeding or before another competent independent authority.
Logistical Obstacles to Return
Human Rights Watch is also alarmed that the Dutch government proposes to return some people in the face of logistical obstacles that could force them into the deportation process—including possible detention—despite the knowledge that persons from certain countries or groups cannot, in fact, be returned. It is our understanding that among the groups subject to the deportation proposals are some stateless people and some groups, Chechens for example, who cannot or may not be able to safely access the necessary documentation to ensure a secure return. It is our understanding that the burden is on the failed asylum seeker to prove that he or she has taken steps to access travel and identity documents, but that these attempts have failed.
With respect to stateless persons, UNHCR, among other organizations, has urged states “to avoid cases of statelessness as well as to adopt measures leading to the grant of legal status to stateless persons.” Moreover, UNHCR has also reminded states that international aviation law “requires that States, when requested to provide travel documents to facilitate the return of one of its nationals, respond within a reasonable time. . .either by issuing the travel documents or by satisfying the requesting state that the person concerned is not one of its nationals (emphasis added).” Thus, the burden with respect to accessing travel documents should rest at state level, not with an individual.
Human Rights Watch has serious concerns that persons who simply cannot be returned could be subject to the proposed deportation procedures—including withholding of social assistance, removal to an open center, and then transfer to a closed detention facility—without any realistic “view toward deportation” as required by ECHR Article 5(1)(f). The Convention authorizes the detention of non-nationals only in situations in which the deportation process is ongoing and there is an actual possibility that a deportation can be effected.
Dutch authorities have stated that the new deportation scheme is “safe and humane.” Human Rights Watch has serious concerns, however, that the proposals will put failed asylum seekers at risk, both in the Netherlands—in the form of evictions, cessation of social assistance, and detention, among other things—and potentially upon return, as noted above. No matter how the Dutch authorities characterize the proposed deportations, they give rise to serious concerns that they do not conform with the Netherlands’ international obligations. Human Rights Watch urges the government to ensure compliance with international law in all procedures related to the removal of failed asylum seekers.
Acting Executive Director
Europe and Central Asia Division
Human Rights Watch