Under Dutch asylum law, asylum seekers awaiting an appeal after an initial rejection of their application in the accelerated "AC procedure" have no right to material reception benefits, including housing.97 Asylum seekers engaged in a second asylum determination procedure (i.e. based on new evidence or changed circumstances) are also denied reception benefits, including basic shelter or social support provisions, unless they are too ill to travel to their country of origin or have an infant under the age of one year.
The Netherlands has an obligation under article 11 of the International Covenant on Economic, Social, and Cultural Rights to recognize "the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing."98 The Committee on Economic, Social, and Cultural Rights (CESCR) has clearly asserted that no group may be denied the core content of this right:
The committee has explicitly recognized that asylum seekers as a group are entitled to basic housing assistance. The committee has expressed concern about the failure of some West European governments to stem discrimination against asylum seekers in the housing sector100 and to provide adequate living conditions for asylum seekers in reception centers.101 Moreover, in 1998, the committee concluded that asylum seekers in various stages of the recognition process are entitled to adequate housing. The committee's concluding observations on Germany expressed concern about the status of asylum seekers, "especially with regard to . . . their economic and health rights pending the final decision"102:
The direct reference to the application of General Comment No. 4 to asylum seekers indicates the committee's intention to add asylum seekers to the list of those disadvantaged groups expressly identified in the comment; those that "should be ensured some degree of priority consideration in the housing sphere."104
Other United Nations organs have also recognized asylum seekers as entitled to housing rights. The U.N. Special Rapporteur on Adequate Housing has identified asylum seekers as a group requiring special attention with respect to housing rights.105 The special rapporteur noted that housing problems "plague" European Union countries, manifesting themselves in, among other things, "the housing predicaments faced by refugees, asylum seekers, and other foreign nationals."106 The U.N. High Commissioner for Refugees (UNHCR) has concluded that asylum seekers should have access to the appropriate governmental entities "when they require assistance so that their basic support needs, including food, clothing, accommodation, and medical care are met."107
Moreover, in cases where significant numbers of individuals are deprived of basic shelter or housing, states parties may be seen as "prima facie failing to discharge [their] obligations under the Covenant."108 As a well-developed state party, the Netherlands' obligation to fulfill its commitments under the Covenant is particularly strong.109
In addition to the Netherlands' obligations under the Covenant on Economic, Social, and Cultural Rights, it is required to uphold the E.U. Council Directive laying down minimum standards for the reception of asylum seekers in Member States, formally adopted by the Council of Ministers in January 2003.110 The Directive draws from existing international and European regional law and can be seen as a reflection of member states' understanding of their minimum obligations to asylum seekers within their borders. Articles 2 and 3 of the Directive define an asylum seeker as an applicant for whom "a final decision has not yet been taken" and who is "allowed to remain on the territory as [an] asylum seeker."111
Material reception conditions of housing, food and clothing, whether in kind or in the form of financial allowances or vouchers, are to be provided asylum seekers under the Directive (article 13). Article 16 of the Directive further provides: "Member States shall ensure that material reception conditions are not withdrawn or reduced before a negative decision is taken."112 Given the directive's preliminary definitions as to what constitutes an asylum seeker-an applicant still in procedure pending a final decision-article 16 can be understood to require the provision of assistance for all persons awaiting an appeal or who have been accepted into a second asylum determination procedure.
According to the Directive, E.U. states in providing a minimum standard of reception toward asylum seekers, should take into account vulnerable persons (article 17). Vulnerable persons include accompanied and unaccompanied children, the elderly, and persons who have been subjected to torture, rape, or other forms of psychological, physical, or sexual violence. In cases where asylum seekers are victims of torture, rape, or serious violence, states have an obligation to ensure the provision of the necessary treatment for harm resulting from such acts (article 20).
Current policy and practice in the Netherlands, denying reception assistance to persons appealing the AC procedure and to those making a second application based on new facts or circumstances, violates the foregoing standards and greatly heightens the risk of refoulement. The case of the Jones family is illustrative. The Jones family-mother, father, and two brothers (ages one and six)-arrived in the Netherlands from Rwanda in December 2002. They told authorities that they were victims of torture and had witnessed the killings of their families in massacres in 1994. In the fall of 2002, the perpetrators of these killings were released pending a decision on their cases as part of a program to free up prison space. They threatened the Jones family with death and were said to have carried out murders of other witnesses living in the same village. The family then fled Rwanda, making their way to the Netherlands where their application for asylum was processed in the AC procedure. Upon arrival and throughout the AC procedure, the mother showed serious signs of trauma and psychological breakdown. The family was released from the asylum-seekers' center once their application for asylum was rejected-a patently erroneous decision that was later reversed by the lower court on appeal. Their request for minimum reception conditions-basic shelter and food-had been flatly denied on the basis that applicants appealing a negative decision in the accelerated procedure do not have the right to any social assistance. Three days later, when their appeal was heard and the IND's decision reversed, the family could not be found.113
In such cases, the inadequacies of the AC procedure and judicial review detailed above are compounded by economic hardship suffered by asylum seekers pending appeal. Without lawful avenues to employment or state assistance with food and shelter, asylum seekers are hard pressed to pursue an appeal and, as in the case of the Jones family from Rwanda, may simply give up on the process. If such asylum seekers are later found illegally resident in the Netherlands, they face a serious risk of forced return.
· The government of the Netherlands should immediately make provisions for all asylum seekers who have not received a final negative decision on their applications to receive basic reception assistance, including housing, food, and access to health care. This should include asylum seekers awaiting an appeal after a negative decision in the accelerated procedure as well as asylum seekers who have been accepted for consideration in a full asylum procedure on the basis of a new (second) asylum application.
· Human Rights Watch recommends that the government devise a system for ensuring that persons who show signs of serious trauma receive necessary treatment and support while in the Netherlands, even if these persons are rejected in an accelerated asylum procedure and ultimately may not meet the criteria for refugee status.
Currently, asylum seekers rejected from the full asylum procedure lose their right to assistance twenty-eight days after they receive a negative decision on their application from the court of last instance. Jurisprudence from the Raad van State has established that an automatic termination of assistance is a natural consequence of the court's rejection of one's asylum application.114 Dutch law only provides for two exceptions to this automatic termination policy: 1) for persons who are so ill it would be inadvisable for them to travel; and 2) for persons coming from countries to which there is a current moratorium on deportations. In the first case, the applicant's physical illness must be so severe that the trip itself would be harmful to his or her health. Furthermore, applicants requesting a waiver of the termination of reception rights on this basis may only make such a request after the rejection of the asylum request has become final, meaning after the twenty-eight-day period has lapsed and expulsion is an imminent possibility. The effect of this policy is that persons so ill they cannot travel may end up being evicted from the reception center before they have a meaningful opportunity to petition the authorities for a waiver of their eviction.115
There are no other mechanisms in the law whereby a rejected asylum seeker can request protection or basic support from the government on the basis of humanitarian circumstances during his or her subsequent presence in the Netherlands. Consequently, families with children, including infants as young as four months old,116 severely traumatized persons, the elderly, people who are very ill (but not determined to be so ill that they cannot fly), and persons with physical handicaps such as blindness are automatically denied the right to all housing or basic assistance beyond the twenty-eight-day period. In many of these individual cases, the Dutch government has no direct role in arranging the repatriation or deportation of rejected asylum seekers, instead referring them to the International Organization for Migration.117
Human Rights Watch believes that the Netherlands' rigid policy for terminating rights to basic assistance is in violation of its obligation under article 11 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) to recognize the right of all persons to an adequate standard of living.
· The Dutch government should separate the asylum determination outcome from the decision to revoke basic shelter, so that rejected asylum seekers in need of humanitarian assistance have an opportunity to request such assistance at any point pending their repatriation or deportation to their country of origin.
· In addition, the range of humanitarian circumstances warranting an exception to the automatic termination of housing rights twenty-eight days after a final decision is made should be expanded to include consideration for vulnerable persons such as families with children, the elderly, and persons who are physically or mentally ill or traumatized.
97 The terms "material receptions conditions" or "reception benefits" are used throughout this report to refer to social welfare benefits afforded asylum seekers after they arrive in the Netherlands (i.e., are "received"). These are common terms of art in refugee law and policy.
98 International Covenant on Economic, Social and Cultural Rights (ICESCR), art. 11.
99 See United Nations, International Human Rights Instruments (HRI), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, HRI/GEN/1/Rev.5, 26 April 2001, p. 23, regarding General Comment No. 4 "The right to adequate housing (art. 11(1) of the Covenant)," sixth sess. (1991), para. 6.
100 Committee on Economic, Social, and Cultural Rights, Concluding Observations on Belgium, U.N. Doc. E/C.12/1994/7, May 31, 1994, para. 14.
101 Committee on Economic, Social, and Cultural Rights, Concluding Observations on The Netherlands, U.N. Doc. E/C.12/1/Add.25, June 16, 1998, para. 18.
102 Committee on Economic, Social, and Cultural Rights, Concluding Observations on Germany, U.N. Doc. E/C.12/1/Add.29, December 4, 1998, para. 17.
103 Ibid., para. 28.
104 Compilation of General Comments, General Comment No. 4, op. cit., page 32, para. 8(e). Other groups identified as disadvantaged include the elderly, children, the physically disabled, the terminally ill, HIV-positive individuals, persons with persistent medical problems, the mentally ill, victims of natural disasters, and people living in disaster-prone areas. Ibid.
105 Second Progress Report submitted by Mr. Rajindar Sachar, Special Rapporteur on Adequate Housing, E/CN.4/Sub.2/1994/20, June 12, 1994, para. X(B)(2).
106 Ibid., para. 36.
107 United Nations High Commissioner for Refugees, Executive Committee Conclusions, Conclusion on Reception of Asylum Seekers in the Context of Individual Asylum Systems, No. 93(LIII), October 8, 2002, para. (b)(ii).
108 Ibid., p. 20, citing General Comment No. 3, "The nature of States parties' obligations (art. 2, para. 1, of the Covenant)," Fifth sess. (1990), para. 10. The committee also notes that, "[i]f the Covenant were to be read in such a way as not to establish such a minimum core obligation, it would be largely deprived of its raison d'être." Ibid.
109 See discussion in John A. Dent, Research Paper on the Social and Economic Rights of Non-nationals in Europe, commissioned by European Council on Refugees and Exiles (ECRE). During its review of Austria, members of the Committee found an Austrian policy of denying aliens maternity benefits available to nationals to be impermissible discrimination under article 2. The exception under article 2(3) did not apply, because Austria was by no means a "developing country." See U.N. ESCOR, 2d. Sess., 4th mtg. at 8, P 45, U.N. Doc. E/C.12/1988/SR.4 (1988); U.N. ESCOR, 2d Sess., 3rd mtg. at 4-5, P 13, U.N. Doc. E/C.12/1988/SR.3 (1988).
110 See Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers, Official Journal of the European Union, L 31/18, February 6, 2003 [Council Directive on Minimum Standards of Reception].
111 Ibid., art. 2(c) and 3(1).
112 Ibid., art. 16.
113 Human Rights Watch interview with Hilda van Asperen, lawyer, Advokatenkollektief Rotterdam, Rotterdam, January 14, 2003.
114 Raad van State, decision no. JV 2002/169, July 24, 2002.
115 Human Rights Watch telephone interview with Wilma Lozowski, policy officer, Dutch Refugee Council (headquarters), February 6, 2003; Human Rights Watch interview with Stefan Kok, policy officer, Dutch Refugee Council (headquarters), February 11, 2003.
116 Email communication from Anne Louwerse, lawyer, Hamerslag & van Haren Advocaten, to Human Rights Watch, January 24, 2003, describing a recent case of hers in which the police forcibly evicted a woman and her four-month old baby from the reception center. The woman's lawyer had filed an appeal, arguing that the legislature had intended that there be an individual assessment of reasonableness prior to evicting asylum seekers (see nadere Memorie van Antwoord, EK 2000-2001, 26732, 26975, no. 5d, p. 26-27 and EK 2000-2001, 26732, 26975, no. 5b, p. 43). As discussed in this report, the Dutch government has an absolute obligation to protect children within their jurisdiction, regardless of their legal status or that of their parents. IND officials have argued that the government does not want to split up families by providing children with housing facilities when their parents are not eligible. Human Rights Watch interview with IND officials, Immigration Policy Department, Ministry of Justice, The Hague, January 24, 2003. This argument is untenable. As a party to the Convention on the Rights of the Child, the Netherlands is in fact obliged to help parents to provide children
Convention on the Rights of the Child, art. 27.
117Human Rights Watch interview with senior policy officers, Unit Admission, Immigration Policy Department, Ministry of Justice, The Hague, January 24, 2003.